CITATION: R. v. Fawcett, 2012 ONSC 7523
Court File No.: CR-11-15-AP
Date: 20120905
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOSIAH FAWCETT
(Appellant)
and
HER MAJESTY THE QUEEN
(Respondent)
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE R. D. CORNELL,
on September 5, 2012, at PARRY SOUND, ONTARIO
APPEARANCES
C. Hepburn Counsel for the Crown
I. Collins Counsel for Josiah Fawcett
WEDNESDAY, SEPTEMBER 5, 2012
U P O N R E S U M I N G:
R E A S O N S F O R J U D G M E N T
CORNELL, J. (Orally):
This is an appeal by Josiah Fawcett from a conviction against him in connection with what I will refer to as an over 80 charge. Although various grounds of appeal are set out in the original notice and supplementary notice of appeal which were filed, the argument was done exclusively on the basis that the grounds of the appeal are ineffective or incompetent representation by counsel.
For the reasons which follow the appeal is dismissed.
The facts of this case are as follows:
On July 25 th of 2010, the appellant was stopped by police and a roadside screening was administered. As a result of a fail result, he was taken for a breathalyzer test with readings of 110 and 100. As a result of this, he was charged with over 80 and breach of recognizance in view of the fact that his terms of release on other charges included a provision that he not consume alcohol.
The appellant retained David Doney to represent him
as trial counsel. The evidence indicates that the appellant met with trial counsel either in his office or by way of telephone consultation on five occasions: These were August 3 rd , 2010, which involved a 45 minute telephone call; three office visits, which occurred on September 30 th , November 10 th , 2010, and March 31 st , 2011, as well as discussions which took place while on route from the Guelph area to Parry Sound on April 4 th , 2011, when the trial took place.
During the discussion which took place on November 10 th between trial counsel and the appellant, trial counsel suggested that the appellant consider pleading guilty to the over 80 charge in which case the breach of recognizance would be withdrawn in return for a $600.00 contribution to a suitable charity. In addition, a fine in an amount of $1,000.00 would be imposed and the accused would be permitted to be involved in the interlock program following the three month licence suspension.
The submission of counsel was that the appellant felt that he was not guilty of the impaired charge and that he wanted a trial. Trial counsel accepted these instructions and proceeded to set a trial date. In the meantime, he advised his client by letter that further consultations in January and following would be required in order to prepare for the trial. The appellant did not keep those two appointments.
The issues raised in this appeal are serious. Allegations of ineffective or incompetent representation impact to a significant degree on the counsel who is affected by these allegations. Apart from that, allegations of ineffective representation can have a chilling effect on the legal profession. It is for this reason that the test involved in cases of this nature is quite onerous; trial counsel are presumed to be competent. See R. v. Archer , at paragraph 119. The onus is on the appellant to establish that trial counsel’s failure to meet competency standards brings into question the reliability of the verdict and the adjudicative process leading to the verdict. See R. v. Joanisse (1995), 1995 3507 (ON CA) , 102 C.C.C. (3d) 35 (Ont. C.A.). At paragraph 74, Doherty J.A. states the following:
“Counsel’s failure to meet competence standards does not automatically lead to a reversal of a conviction. The ultimate purpose of the appellate inquiry is not to grade counsel’s performance, but to determine whether a miscarriage of justice occurred. The third and final component of this court’s approach to allegations of incompetent representation at trial presumes a finding of incompetence and looks to the effect of that incompetence on the fairness of the trial proceedings. The inquiry examines the nature and seriousness of counsel’s errors both from the perspective of the reliability of a verdict and the adjudicative fairness of the process leading to the verdict. If counsel’s incompetence rendered the verdict unreliable or the process unfair, then the appellant has demonstrated that he received ineffective assistance resulting in a denial or the right to a fair trial and a miscarriage of justice.”
In a very able argument, counsel for the appellant outlined some six grounds wherein it was suggested that trial counsel failed to meet the requisite standard. The first ground suggested that due to the fact that the appellant held a strong belief in his innocence, he had a desire to have a trial, and more than that, a desire to testify. This was the submission that was advanced by appellate counsel.
The difficulty I have with this argument lies in the fact that there were other considerations involved in terms of whether or not the appellant would testify at the trial. Trial counsel had a very serious concern about the breach of recognizance charge. During a lengthy and vigorous cross-examination of trial counsel, he recounted on numerous occasions that it was his experience in the jurisdiction in which he practiced and his expectation in this jurisdiction that a breach of recognizance would be treated seriously and result in a period of incarceration. In view of the fact that the appellant did not have a criminal record and had never spent any time in jail, trial counsel was of the opinion that this was a serious consideration. He went on to say that he did not think that his client would do well in a jail environment.
As a result, written instructions were received from the appellant confirming that he was not going to testify at his trial.
I have case managed this file for a considerable period of time and had a great deal of interaction with the appellant. He is intelligent, articulate and strong minded. I have no doubt that if he was of a mind to testify he would have refused to sign those instructions and insisted that his trial counsel call him as a witness. I therefore find that there is no basis to this ground of appeal.
The second ground of appeal which was examined at length during the course of cross-examination of trial counsel involved the suggestion that trial counsel had made no notes. Appellant’s counsel made frequent references to this, but the record does not bear this out. It is true that there was not an exhaustive record of the discussions which were held during the course of the interviews, but the fact of the matter is that notes of a sort were taken by trial counsel. These consist of brief notes of 17 words on the disclosure statement as to the amount that the appellant told trial counsel that he had to drink on the night in question, which consisted of six Caesars. The thrust of appellant counsel’s argument was that trial counsel failed to discuss with the appellant the facts and circumstances of the charge and that the evidence of that lay in the fact that few notes were prepared. This issue was answered by trial counsel by saying that given his experience of conducting over two hundred trials in over 80 trials, he considers these cases to be somewhat routine. He knows what questions to ask and he knows to look for those areas which might afford a defence. During the course of cross-examination, the following exchange took place beginning at question 1.1.1:
Q. So on the meeting on September 30 th you had the disclosure in your office with Mr. Fawcett?
A. Yes.
Q. And I might try to ask this in another way. Did you get his account of what happened step by step that evening?
A. Yes.
Q. And you got that in the meeting of September 30 th ?
A. That’s what you just asked me.
Q. Yes?
A. Then my response would be yes, in the sense that he told me what happened and I am alert to the issues.
Q. For example, did you ask him what took place during the taking of the breathalyzer?
A. We reviewed the breathalyzer and nothing unusual, as I understood it, took place during the taking of the breathalyzer.
Q. Did you ask him about what happened during the taking of the breathalyzer?
A. Yes.
Q. Did you make any notes about that?
A. I did not, but I make notes for exceptions not for the routine. I’m looking for exceptions because it’s out of the exceptions that the defences come.
Beyond this, trial counsel explained the lack of detailed notes by saying that he reviewed the disclosure statements in great detail and highlighted those areas which were of legal significance. He further explained that he provided regular correspondence to the appellant with respect to the process and procedure involved in charges of this nature. He said that as a result of the five meetings and consultations as well as the length of time the he had spent with the appellant, he had a command of the facts and had virtually memorized the disclosure statement.
Given this background and the experience of this counsel, I find that the failure to take more detailed notes did not adversely affect the appellant’s defence.
The third ground advanced consisted of the fact that trial counsel is to be criticized for failing to bring a severance application to have separate trials for the over 80 and the breach of recognizance charge.
As an experienced lawyer, trial counsel had reason to be concerned about moving to sever the charges. During his careful review of these charges it had come to his attention that the police or the Crown attorney’s office had failed to include a certificate or other documentation that would be required in order to establish the breach of recognizance charge. As this was a routine matter, it was clear to him that this was an oversight that would be picked up very quickly if the file were to receive any sort of consideration whatsoever. In view of his concern that the breach of recognizance charge might result in the appellant receiving a jail sentence, he indicated that this matter had to receive serious consideration. He explained, during the course of cross-examination, the reasons why he felt that a severance application was not appropriate. At question 37 of the cross-examination, he states:
Q. Was it your plan to set one date for trial for both offences?
A. Yes, sir. The events arise out of the same transaction. The case law is not helpful with respect to the severing of counts. They are not inconsistent offences. At no time was the defence, “I wasn’t drinking.” There are no inconsistent defences. There’s significant cause to be associated with bringing applications for severance, particularly in my view where they’re unsuccessful. His mother had input into that at a level that they were not interested in generating unnecessary cost and, in my view, an application for severance, and I have seen many of them and recently had to read the case law on another matter, are generally not successful in a judge alone trial where the defences are not inconsistent and where the events arise out of the same – when I say same transaction I don’t mean deley (sic), but out of the same array of events. So, yes, it was considered by me and it was not seen to be an appropriate expenditure of my client’s funds. And to pursue that course of conduct, in my respectful opinion, based on my many years of experience and knowledge of the case law, would have been professionally irresponsible.
It is apparent from that answer the trial counsel gave very serious consideration to the issue of severance and had legitimate reasons for not pursuing that application.
The fourth reason for suggesting that trial counsel provided ineffective representation was due to the fact that a copy of the disclosure statement was not provided to the appellant. A disclosure statement was received by trial counsel, reviewed by him, and as previously mentioned, the areas of legal concern were highlighted by him. Trial counsel indicates in his cross-examination that although no copy of the disclosure statement was provided to the appellant, it was reviewed in considerable detail. At question 186, the transcript indicates:
Q. The question was, did you show the Crown disclosure to Mr. Fawcett?
A. Well, I physically had it so, yes, I did in a sense that I physically had it on my person, had it on my desk.
Q. And did you give it to him to look at?
A. I don’t remember that so I – I would think not, but I – I went with my normal practice and the practice I followed with him was to get – start at the first page and go through to the last page. And start at the first page and go through to the last page every time I see him, so I have it in front of me and I ask him questions. That’s how trials are conducted and that’s how I try to conduct the interviews in my office so that people get ready.
There is a further exchange during the course of cross-examination where trial counsel indicates that it was his understanding that as a result of the disclaimer which is contained on the Crown disclosure statement, he was not in a position to provide a copy of it to the appellant. Although that disclaimer provides that the disclosure is privileged and confidential and not to be distributed, this prohibition does not extend to accused persons. In this respect, trial counsel was in error. However, the fact of the matter is by reviewing the disclosure statement with the appellant from the first page through to the last page, the entire contents of the disclosure statement were effectively provided to the appellant and accordingly there is no basis to suggest that any prejudice was suffered. There is also nothing in the material before me to suggest that until these appeal proceedings any formal request was made by the appellant for a copy of that disclosure statement.
The fifth ground suggested for the appeal is that trial counsel failed to cross-examine. During the course of submissions it was suggested that no examination of the arresting officer was conducted despite the fact that he was in the room where the breathalyzer test was being administered. A review of the trial transcript indicates that it is fifty-nine pages long. Trial counsel’s cross-examination consists of pages 31 through 59, virtually half of the trial itself. A review of that cross-examination indicates that the usual type of questions were asked in an over 80 case where there is no substantive defence and where the approach that has been taken is simply to see if the Crown can prove its case beyond a reasonable doubt. During the course of his cross-examination this question was put to trial counsel and he indicated on no less than four occasions that there was no affirmative defence available. This answer is provided in response to question 117, which was previously mentioned where he states that he’s looking for exceptions and in this case, he did not find any. At question 144, he states:
“And that was his view of the event and that’s what we went through and they – and none of those issues to me, at that time, struck me as generating any particular defence having had a significant amount to do with over 80’s.”
At page 92, line 12, he states:
Q. What was your strategy for defending the over 80 charges at trial?
A. Given what I viewed as a paucity of defences, but given my client’s instructions to have a trial, my – my strategy could best be described as the old “prove it” strategy.
And finally at page 101, line 2, he states:
Q. You didn’t make notes on November 10 th ?
A. I – I did get his full account, that’s – I did get it. I did get his full account. I did make some notes. I haven’t missed anything here. There’s not notes where I grasped issues. There’s nothing that arose that would give rise to a defence that I would not have recorded, period. I – it’s not my first case. It’s not my first 100 th case. I didn’t – I wasn’t confused while these conversations were going on.
Finally, a new ground of appeal was raised today when I permitted the filing of the alcohol influence report. Appellate counsel drew the court’s attention to some notations following the second test, which indicated an asterisk followed by the words “ambient fail”. The tape of the test, if I may refer to it as such, shows that prior to the administration of the second test there were some seven error blank tests which gave blank results. Following the second test, which indicated a reading of 100, the error blank test indicated with an asterisk “ambient fail”. This was conducted at 4:06:25 a.m. The second notation is that an error blank test indicating a reading of zero, zero, zero, was obtained on 4:06:57.
There is absolutely no evidence before me today, or in the material which was filed, to provide any explanation as to the meaning, significance, or consequence of that particular notation. In view of the fact that the onus lies on the appellant to have the information before the appeal court and to establish the grounds for a legal argument, I find that I cannot give any effect to the suggestion which was advanced by appellant counsel that the notation “ambient fail” has significance.
As I mentioned earlier, the purpose of appeals of this nature is not to – and if I might adopt the words contained in the Crown brief, scrutinize trial counsel’s actions “through the powerful lens of hindsight and on a standard of forensic autopsy”. The truth is that even in the most routine case, the approach to be taken is seldom black and white.
I recall being in law school during the first term during a particularly difficult contracts case where, at one point, I said to the professor, “Why do we spend so much time debating and arguing back and forth about the answer? You have many years of experience. Why don’t you just tell us?” I will never forget his answer because it’s proven to be absolutely true. There is seldom a legal case which can be viewed in black and white terms. Lawyers are forever dealing in shades of grey. Law is not a science. It is the practice of art. It is the application of academic training, mentorship and experience which results in the final application of judgment.
There is nothing in this case which suggests that trial counsel failed to exercise good judgment let alone approach the standard of ineffective or incompetent counsel. To the contrary, we have an experienced lawyer who has done over two hundred over 80 cases. He met with or consulted with the client on five occasions at considerable length. He sent follow up letters as to the process and procedure. He obtained written instructions and he followed those instructions. He conducted a thorough cross-examination during the course of the trial, and he obtained an acquittal on the breach of recognizance charge which in all likelihood would have resulted in jail time had a conviction been entered. This is not a case where a lawyer meets with the client on the day of trial and proceeds fully unprepared. It is not a case where the client’s instructions are not followed. It is not a case involving a lawyer taking on a case in an area where that lawyer has no experience.
The overwhelming impression I have of trial counsel, after reviewing the material which has been filed and the very lengthy cross-examination which was conducted, is that trial counsel is a hard working, experienced, knowledgeable and conscientious lawyer. The results bear this out.
When I look at the legal test set out in R. v. Joanisse (1995), 1995 3507 (ON CA) , 102 C.C.C. (3d) 35 (Ont. C.A.), I find nothing to suggest that trial counsel committed any error beyond failing to provide the appellant with a copy of the disclosure statement. However, for the reasons I outlined, I find that the appellant suffered no prejudice as a result of this. Having found that there was no significant error committed by trial counsel, I need not consider the issue of a denial of the right to a fair trial or a possible miscarriage of justice.
In reaching this conclusion I am mindful of certain issues which developed during the course of the appeal. I am mindful of the fact that despite clear warnings to the contrary, the appellant chose to miss two appointments with his trial counsel. I am mindful of the fact that trial counsel did not terminate the retainer at that point in time but proceeded to continue with the case and to do a final consultation during the lengthy drive from Guelph to Parry Sound.
I am mindful of the fact that the appellant in the material filed in connection with the appeal has made four serious allegations which would have conceivably raised affirmative defences. In this material he suggests that he consumed alcohol within 15 minutes of being stopped by the police. He indicates that he only had two Caesar drinks and a small quantity of rum. He indicates that the machine malfunctioned and that five tests were required, and lastly, that a different reading of 90 was obtained.
Trial counsel denies that any of this information was ever provided to him. The affidavit material does not say, and I believe this to be important, that this information was ever provided to trial counsel.
Given the knowledge and experience of trial counsel and the overwhelming sense of his professional approach to charges of this nature I cannot help but conclude that if such information had been provided to him, there is no doubt in my mind that in keeping with his standard practice he would have referred the matter to a toxicologist to see if an affirmative defence could be advanced. When asked about this during the course of his cross-examination, trial counsel immediately cited an example that had recently occurred where despite the recent amendments to the Criminal Code , he immediately sent the information off by fax to a toxicologist to see if there was any basis to raise a defence.
I can think of no reason why trial counsel would not have done so in this case if that information had been provided to him, and accordingly, the only conclusion that I can come to is that trial counsel never received that information.
In conclusion, for the reasons which have been given, there is no evidence to support the suggestion that trial counsel was ineffective or incompetent, and accordingly, the appeal is dismissed.
Any stay which has been previously imposed in connection the sentence is hereby lifted and the balance of the sentence will be applied.
C O U R T A D J O U R N E D