ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1310/11
DATE: 20130409
B E T W E E N:
HER MAJESTY THE QUEEN
Jacob Sone, for the Respondent/Crown
Respondent
- and -
ROLAND LOVAS
On his own behalf
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable J. Kerrigan Brownridge,
dated July 18, 2011]
DURNO, J.
[1] A police officer testified that as he was about to pull out of a motel parking lot onto a residential street he saw the appellant driving on the wrong side of the road talking on his cell phone. The appellant turned into the parking lot but had to brake to avoid hitting the stationary, fully-marked supervisory police vehicle. He drove on the wrong side of the cruiser to avoid the officer and over a curb as he progressed into the parking lot entrance. When the officer waived for the appellant to stop, he accelerated away in the parking lot that was extremely busy with pedestrians and vehicles.
[2] The appellant accelerated to over 40 to 50 kilometers per hour in the parking lot, swerving to get around people and vehicles. As the officer was pursuing the appellant with his emergency lights and siren on, the appellant barely decelerated before making a right turn at a blind corner into a smaller driveway at the end of the parking lot. When the officer caught up with the appellant, he had parked across two parking spots at the front door of the hotel, got out of the car and was walking quickly to the front door when the officer arrested him.
[3] The appellant testified and denied he drove on the wrong side of the road although he admitted having his cell phone in his hand briefly because someone had called him. All he did was pick it up and tell the caller to call him later. When he went to turn into the lot, the officer’s car had both lanes blocked so he stopped for about ten seconds before the police car moved to let him in. He drove in behind the officer’s car after he had moved and without going over the curb. No cars were moving and there were no pedestrians in the parking lot. The appellant said he drove at a safe speed and slowed down before making the turn at the end of the parking lot. When he was stopped by the officer, it was not until he was searched and they found what appeared to be Oxycotin in his possession[^1] that he was charged. The dangerous driving charge was a “back up” charge to the possession of a controlled substance charge.
[4] The trial judge believed the officer’s evidence and disbelieved the appellant’s. Mr. Lovas appeals against the conviction on three bases: first, he alleges his trial counsel provided ineffective assistance; second, he submits, in effect, that the verdict was unreasonable because the trial judge’s credibility findings were flawed and third, the “fresh evidence” he seeks to introduce should result in an acquittal or a new trial. He contends he was wrongly convicted. As a result of the brevity of the Reasons for Judgment, it is also appropriate to examine the Reasons.
[5] For the following reasons the appeal is dismissed.
The Fresh Evidence
[6] The appellant seeks to rely on Google Maps photographs that were obtained after his conviction depicting the scene. He submits that the photographs introduced at trial do not show a tree on the boulevard north of the driveway. Indeed, he goes further suggesting the prosecution deliberately cropped the photograph introduced to remove the tree. The appellant argues that when it is known that there was a tree beside the driveway, it is apparent the appellant could not have entered the driveway in the manner the officer said he did because he would have had to drive through the tree to do so.
[7] The Crown does not oppose me looking at the photographs but argues they do not qualify as fresh evidence because there is no explanation why they were not produced at trial.
[8] The principles to be applied in assessing the admissibility of fresh evidence were established by the Supreme Court of Canada in R. v. Palmer (1980), 50 C.C.C. (3d) 194:
the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial although this principle is not applied as strictly in criminal cases,
the evidence must be relevant and bear upon a decisive issue in the trial,
the evidence must be reasonably capable of belief, and
it must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[9] In order to succeed on this ground all four criteria must be met.
[10] Having reviewed the photographs and those filed at trial, the application fails on the fourth element. I am not persuaded the photographs could reasonably be expected to have affected the result. The photographs that were filed show the scene and in particular, the driveway but do not show the tree. The fresh evidence is different photographs of the scene and shows the tree from several angles. While the fresh evidence shows the tree to the north of the driveway, in the absence of some indication exactly where the officer’s vehicle was coming out of the parking lot, it is impossible to say that the appellant could not have gone behind the officer as he was leaving the parking lot or that the tree prohibited him from doing so.
[11] The fresh evidence shows the tree is close to the curb but not right against it. It appears to be possible to drive with only the left side tires over the curb and not hit the tree. This is evident in photograph 10 of the appellant’s volume of submissions and fresh evidence. The photographs show and the evidence confirmed that the entrance is narrow and the road gets larger going into the lot. At the road it was just over two car lengths wide. The officer testified he was not right at the edge of the curb on the right side, that at least the appellant’s left tires were over the curb and that he did not go over the curb until he was beyond the start of the entrance. The fresh evidence does not show that the officer’s evidence was false.
[12] I note as well that the appellant never mentioned the tree and the impossibility of going over the curb when he testified. However, there was no reference to him going over the curb in the officer’s notes so it could not have been addressed in trial preparation.
[13] I am not persuaded Her Honour failed to appreciate what the scene looked like or that had she seen the proposed exhibits it could reasonably have been expected to have affected the verdict.
The Ineffective Assistance of Counsel - Ground of Appeal
[14] The appellant submits that his trial counsel provided ineffective assistance because he:
did not consult him about the officer’s testimony so he was “unprepared to dispute them;”
did not obtain a video recording from the hotel’s video system as had been discussed and would have been crucial evidence;
did not request a view be taken of the scene by the trial judge;
did not cross-examine the officer to reveal the glaring omissions and contradictions in the officer’s evidence;
did not point out that the officer never checked on the appellant for impairment as “would have been due process if he in fact observed” the erratic driving;
failed to direct the court’s attention to the officer’s “inability to consistently answer the question how [the appellant] specifically took the sharp turn around the blind corner of the building.” At one point he said the appellant swung out to turn and at another he said he did not;
should have pointed out that the blind corner could not have been successfully negotiated at the speed suggested by the officer;
did not adequately point out the inconsistencies in the Crown’s evidence, including that only one officer said the lights and siren were on; and
was not prepared to conduct the trial because he had not met with the appellant for a sufficient period of time and the appellant had not had an opportunity to review the disclosure until after the trial.
[15] The Crown submits the appellant has not met the applicable test to establish he received ineffective assistance and that at least some of his factual allegations are not borne out by the evidence.
The Test for Ineffective Assistance of Counsel
[16] The Supreme Court of Canada examined claims of ineffective assistance in R. v. B.(G.D.), 2000 SCC 22, 2000 1 S.C.R. 520 finding:
26 The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O'Connor J. The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel's acts or omissions constituted incompetence and second, that a miscarriage of justice resulted.
27 Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.
28 Miscarriages of justice may take many forms in this context. In some instances, counsel's performance may have resulted in procedural unfairness. In others, the reliability of the trial's result may have been compromised.
29 In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The latter is left to the profession's self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697).
The Evidence in relation to Ineffective Assistance of Counsel
[17] The appellant testified that he had two interviews with his trial counsel at counsel’s office. There was to be a third meeting but it never occurred. The appellant made no notes of any of the interviews. He recalls that he asked questions. The appellant acknowledged that his counsel had the disclosure before their first meeting that lasted roughly one half hour. Counsel asked him to tell him what happened, basically asking for his version of the events. The appellant says counsel never showed him the disclosure nor did he tell him what was in it. Mr. Lovas conceded he never asked to be given the disclosure or inquired what was in it.
[18] The appellant testified trial counsel told him he did not know what the investigating officer would say. They would have to see what he came up with. At the second meeting counsel cross-examined the appellant “to make sure [he] told him the truth.”
[19] The appellant also testified that the investigating officer was drinking on the date of the incident.
[20] Trial counsel testified the appellant attended most of his court dates including eleven appearances in #101 court and two Crown pre-trials. They had two meetings at counsel’s office before trial, on March 13, 2011 starting at 6:30 p.m. and on May 29 starting at 4:00 p.m. The trial was on July 18, 2011. There were a couple of other occasions when the appellant would attend at his office without an appointment as he knew counsel worked on Sundays.
[21] Counsel’s practice was to get disclosure, meet with the client to review it and obtain the client’s version of the events. Here, from the outset the appellant said the case was going to be a trial and would not resolve. Counsel went through the officers’ notes with the appellant. They discussed trying to get the motel’s surveillance video but when counsel inquired, he was told they did not have video surveillance from the outside of the building. This was after counsel had served a subpoena on the motel.
[22] Counsel admitted that they had discussed having the trial judge take a view of the scene. He also said that it was possible he told the appellant after their second meeting that they would meet again before the trial and that they never did.
Analysis
[23] I am not persuaded the appellant has established he received ineffective representation. The presumption of reasonable professional assistance has not been displaced on this record. No doubt the appellant is disappointed at the result of the trial. No doubt another counsel might have approached the case differently. No doubt another counsel might have cross-examined the officer differently. However, those are not the criteria for this ground of appeal.
[24] I found the appellant’s evidence unpersuasive on the issue of trial counsel getting his instructions and regarding his own lack of knowledge about the content of disclosure. I accept trial counsel’s evidence that he reviewed the disclosure, reviewed it with the appellant and obtained the appellant’s version of the events. The appellant appears to have had a contested bail hearing, but testified he had no recollections of the allegations being outlined for the justice of the peace. His recollection of his meetings with counsel was vague. His assertion that trial counsel said they would have to see what the investigating officer came up with may very well have been said, but that is equally consistent with seeing how the officer responded to being challenged on the portions of his evidence that could be viewed as problematic such as the appellant obtaining the speed he says he did in the parking lot. In these circumstances, I am not persuaded he did not know of the allegations or the contents of the disclosure. No doubt the driving over the curb evidence was news to him. It was also news to trial counsel since the officer did not have it in his notes.
[25] Counsel’s cross-examination of the officer encompassed 28 pages of transcript. He put to the officer the appellant’s account of what transpired. It is difficult to see how defence counsel could have put the elements of the appellant’s evidence to the officer had he not met with the appellant for a sufficient time to understand the defence being advanced in the context of the Crown’s allegations. He cross-examined the officer on the fact that his notes made no reference to the appellant driving over the curb. In closing submissions, he raised the improbability of the officer’s evidence being accurate in relation to speed, the turn, distances and the allegation the appellant went over the curb.
[26] Contrary to the appellant’s assertions, the officer testified that he lost sight of the appellant after he took the blind turn and before that the officer guessed he took it wide. The appellant’s speed would have pushed him wide. When pressed, the officer said he should “rephrase” his evidence to the appellant did not swing out. While this evidence had the potential to impact on his credibility and/or reliability the trial judge was not required to find it did so.
[27] The appellant’s assertion that the investigating officer had been drinking on the date of the incident has no factual foundation in the evidence or from the appellant’s assertions.
[28] To the extent the appellant thought other officers should have been called because they would have supported some inconsistencies in the key officer’s evidence, I disagree that failure reflects ineffective assistance. While they might have helped on some points, to call other officers to reinforce other key aspects of the allegations would not have been a prudent course for defence counsel to follow.
[29] Defence counsel raised the prospects of taking a view with the trial judge at the end of the Crown’s evidence. The Crown questioned the need for a view, noting that further photographs might accomplish the objective. Defence counsel said he was calling the appellant and that perhaps Her Honour should hear from him first and then the Court should decide. Her Honour said, “Maybe he can explain. I think that would be the best route to go. Let’s hear from Mr. Lovas.” The issue was never addressed again.
[30] While the photographs the appellant sought to enter as fresh evidence show more details of the driveway and parking lots areas, I am not persuaded counsel’s failure to revisit taking a view after the appellant’s evidence reflects ineffective assistance. As noted earlier, contrary to the appellant’s assertions, the fresh evidence does not establish that the appellant could not have driven over the curb as he entered the driveway with his left tires going over the curb after the driveway narrowed. Taking a view would have resulted in the same conclusion. After reviewing the photographs, I am unable to conclude that a view would have made any difference in the outcome of the trial.
[31] As regards the disclosure, while I am not persuaded the appellant had or saw a copy of the disclosure, I am persuaded he was well aware of the allegations.
[32] On this record, I am not persuaded trial counsel’s performance was deficient.
The Unreasonable Verdict - Ground of Appeal
[33] The effect of the appellant’s submissions is that there were such significant inconsistencies, contradictions and impossibilities in the Crown’s evidence that the verdict was unreasonable. The Crown says the verdict was open to the trial judge to reach. I agree.
[34] In dealing with an unreasonable verdict ground of appeal, the appellate court does not retry the case and determine what verdict he or she would have reached. Rather, the test is as outlined by Doherty J.A. in R. v. Willock, (2006), 2006 20679 (ON CA), 210 C.C.C. (3d) 60 as follows:
[22] Section 686(1)(a)(i) of the Criminal Code mandates appellate review of the sufficiency of the evidence said to justify the conviction. The review is a limited one. An appellate court must determine whether a properly instructed trier of fact, acting judicially, that is reasonably, could have convicted the accused on the totality of the evidence. In performing this task, the appellate court must view the entirety of the evidence through “the lens of judicial experience”: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at para. 40 (S.C.C.).
[23] In exercising its power to review the reasonableness of the verdict, the appellate court cannot simply substitute its view as to the appropriate verdict. Nor is it sufficient for the appellate court to have a “lurking doubt” or some other vague discomfort as to the correctness of the verdict. As Arbour J. said in Biniaris at para. 42, in describing the function of appellate review for reasonableness:
To the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal experience and insight. It also requires that the reviewing court articulate as explicitly and precisely as possible the grounds for its intervention. I wish to stress the importance of explicitness in the articulation of the reasons that support a finding that a verdict is unreasonable or cannot be supported by the evidence [emphasis added].
[24] Where the verdict is reached by a judge alone, the reasons of the trial judge can provide valuable insight into the reasonableness of the verdict. However, errors in the reasons are not a pre-condition to a finding that a verdict is unreasonable, and errors do not compel a finding that the verdict is unreasonable: R. v. Biniaris, supra, at para. 37.
[35] Applying those criteria, I am not persuaded the verdict was unreasonable. There was evidence the trial judge could accept and find the appellant guilty. While that result was not inevitable, it was clearly open to Her Honour to find the Crown had established the elements of the offence.
The Reasons for Judgment
[36] The Reasons encompass 47 lines of transcript and appear to have been delivered immediately after counsels’ submissions. The questions is whether they explain why the appellant was convicted and permit appellate review.
[37] In R. v. R.E.M. (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.) the criteria to be employed on appeals alleging deficient reasons was described as follows:
48 The sufficiency of reasons on findings of credibility - the issue in this case - merits specific comment. The Court tackled this issue in Gagnon, setting aside an appellate decision that had ruled that the trial judge's reasons on credibility were deficient. Bastarache and Abella JJ., at para. 20, observed that "[a]ssessing credibility is not a science". They went on to state that it may be difficult for a trial judge "to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events", and warned against appellate courts ignoring the trial judge's unique position to see and hear the witnesses and instead substituting their own assessment of credibility for the trial judge's.
49 While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.
50 What constitutes sufficient reasons on issues of credibility may be deduced from Dinardo, where Charron J. held that findings on credibility must be made with regard to the other evidence in the case (para. 23). This may require at least some reference to the contradictory evidence. However, as Dinardo makes clear, what is required is that the reasons show that the judge has seized the substance of the issue. "In a case that turns on credibility ... the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt" (para. 23). Charron J. went on to dispel the suggestion that the trial judge is required to enter into a detailed account of the conflicting evidence: Dinardo, at para. 30.
51 The degree of detail required in explaining findings on credibility may also, as discussed above, vary with the evidentiary record and the dynamic of the trial. The factors supporting or detracting from credibility may be clear from the record. In such cases, the trial judge's reasons will not be found deficient simply because the trial judge failed to recite these factors.
[38] This was a short trial. The investigating officer, a second officer and the appellant testified. The evidence encompassed 75 pages of transcript. The Reasons were delivered upon the completion of counsels’ submissions in which they outlined the evidence, the law and the issues to be addressed. The issues were straightforward. On the officers’ evidence the driving was clearly dangerous. On the appellant’s, it was not. Her Honour had just heard counsels’ submission and references to R. v. W.(D.), (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), the applicable test in this case.
[39] While I agree with the Crown’s submission that the Reasons are “minimal,” I am persuaded in these circumstances that they were adequate. Her Honour found the investigating officer’s evidence was clear and given in a straightforward and professional manner. She addressed areas of conflict between the officer and the appellant and found the officer to be credible. She found the appellant was not a credible witness.
[40] While there is no reference to the criminal standard of proof, neither is there anything from which I can infer a different standard was applied. The trial judge is presumed to know the law. I agree with the Crown that the one reference to “definitely prefer” the officer’s evidence about there being a tour bus at the hotel and that he was “more credible” in regards to there being people in the parking lot should not be interpreted as referring to the ultimate burden of proof on the charge of dangerous driving. Rather, the comments relate to one aspect of the evidence – the vehicles and pedestrians in the parking lot. In the absence of comments or inferences that the wrong burden of proof was applied, to whether the Crown had established guilt beyond a reasonable doubt, it is reasonable to infer that the trial judge seized the important evidence and understood the basic principles of criminal law at issue in the trial.
[41] I note as well the comments of Rosenberg J.A. in R. v. Chau 2012 ONCA 501 at para. 8 that it would be a rare case where an appellate court finds the verdict was reasonable yet the reasons did not allow for appellate review.
Conclusion
[42] The appeal is dismissed.
DURNO, J.
Released: April 09, 2013
COURT FILE NO.: 1310/11
DATE: 20130409
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ROLAND LOVAS
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable J. Kerrigan Brownridge,
dated July 18, 2011]
DURNO, J.
Released: April 09, 2013
[^1]: It was later determined the appellant was lawfully in possession of the Oxycotin.