R. v. Marino, 2014 ONSC 2641

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: CR13-008-AP

DATE: 20140429

B E T W E E N:

HER MAJESTY THE QUEEN

Mr. M. Martin, for the Crown

Respondent

• and -

ANTHONY MARINO

Self-Represented

Appellant

HEARD: December 12, 2013

REASONS FOR JUDGMENT

[On appeal from the judgment of Morneau J.

dated January 8, 2013]

Thompson J.

1The Appellant, Anthony Marino, was convicted by Madam Justice J. Morneau on January 8, 2013, of 2 counts of assaulting his mother and 1 count of threatening her with physical violence. Justice Morneau imposed a sentence of 18 months’ probation. Originally, Mr. Marino appealed both his conviction and his sentence, but abandoned the sentence appeal.

CROWN ALLEGATIONS:

Background:

2Mr. Marino lived with his mother, Marianne Marino, in her house. For a number of years (since 2007), Mr. Marino had dedicated himself to caring for his 72 year old mother. She was diagnosed in 2008 as suffering from Alzheimer’s Disease, a diagnosis Mr. Marino did not agree with. Mr. Marino was assisted in his care for his mother by Personal Support Workers who were employees of Paramed.

CROWN ALLEGATIONS CONCERNING DEC. 21, 2011 INCIDENT:

3On December 21, 2011, Melissa Phillips was a Personal Support Worker employed by Paramed. Unaccompanied, she attended the Marino residence to care for Ms. Marino. When she arrived, Ms. Phillips observed the following:

• Ms. Marino was seated in the kitchen with a bloody nose and a bloody tissue in her hand. She was very agitated, sweating with her hair soaked and showed Ms. Phillips the tissue;

• Mr. Marino was on the floor picking up his mother’s meds which were scattered on the floor. He was very agitated and very angry;

• The Appellant was swearing and stated “See what you fucking do. No wonder none of these girls want to fucking come back and see you”.

• The Appellant began screaming, swearing and threatening his mother including calling her “stupid” and telling her to “sit the fuck down”. This frightened Ms. Phillips.

• When Ms. Marino went to get up from the chair, Mr. Marino placed his hands on both her shoulders and shoved her back down into the chair in an “aggressive” fashion while yelling “sit the fuck down”.

• Although she had attended 4 or 5 times prior to this date, Ms. Phillips never returned to the house again. She notified her supervisors of this occurrence.

CROWN ALLEGATIONS CONCERNING FEBRUARY 11, 2012 INCIDENT:

4Leanne Thompson was a Personal Support Worker employed with Paramed. Her duties include taking care of people with dementia. On February 11, 2012, she paid her first visit to the Marino Home in the company of Ms. Linda Michaud, another Personal Support Worker with Paramed. Ms. Thompson made the following observations:

• She attended at the residence.

• Linda Michaud was doing dishes in the kitchen with the water running and Ms. Thompson was seated at the kitchen table. In the living room, the Appellant was on the couch watching TV and his mother was seated in a chair;

• Ms. Marino repeatedly got up from the chair and the Appellant would tell her to sit down. She would comply.

• Ms. Thompson got up and stood on the other side of the counter and had a clear view of the living room. She could clearly see Mr. Marino and his mother.

• Ms. Marino got up again and started to come out of the room towards the PSWs. Mr. Marino grabbed her by the upper arms, and backed her up so that her back was up against a chair. He pushed her down into the chair. He was holding her upper arms as he was pushing her down.

• Mr. Marino then told his mother in a raised voice, “Sit the fuck down before I smack the shit out of you”. His mother didn’t get up again.

• Ms. Thompson and Ms. Michaud left the Marino Home. Immediately upon arriving at her home, Ms. Thompson sent a text off to her supervisor regarding the behaviour of Mr. Marino. She then typed up notes regarding her observations.

TRIAL TESTIMONY:

5The Crown called two witnesses: Melissa Phillips and Leanne Thompson. The Crown, undoubtedly believing that it had presented sufficient credible evidence to obtain a conviction, did not call Linda Michaud as a witness. It is for the Crown to determine what witnesses it will rely upon provided that it has disclosed known possible evidence of witnesses that may assist the defence in meeting the Crown’s allegations. In this matter the Crown made that disclosure.

6A review of the transcripts of the trial reveals that the testimony of Melissa Phillips and Leanne Thompson was essentially the same as that previously set out in my recitation of the Crown allegations. Cross-examination of both these witnesses did not result in the trial judge finding that either witness as not credible or reliable. In fact, the trial judge found, after considering all their testimony, that both witnesses were credible and reliable. Having reviewed all the recorded testimony of both witnesses, I cannot quarrel with Justice Morneau’s assessment.

7The defence called one witness – Mr. Marino.

ANTHONY MARINO’S EVIDENCE:

The Dec. 21, 2011 incident:

8Mr. Marino testified that he:

• Didn’t remember his mother having a bloody nose or a Kleenex in her hand;

• Denied that she dropped the pills and that he called her “fucking stupid”;

• Denied swearing, being angry or pushing her back down into a chair;

• Claimed he dropped the pills and was engaged in picking them up when Ms. Phillips arrived;

• Gave his mother her medication and a glass of orange juice;

• Spoke to Ms. Phillips, got a jacket, locked his bedroom and went outside;

• Denied any yelling, screaming, swearing or pushing into a chair in regards to his mother.

The Feb. 11, 2012 Incident:

9Mr. Marino testified:

• He was watching TV with his mother while the PSWs were doing the dishes. He could have seen them if he looked but he wasn’t paying attention to them;

• The PSWs engaged in conversation with him;

• His mother tried to get up a couple of times to go into the kitchen but he told her to sit down and she complied;

• He got up 3 times to get water;

• He never got up to deal with his mother;

• He never pushed her into a chair or touched her;

• He never threatened to slap the shit out of her.

CROSS-EXAMINATION OF MR. MARINO:

10During cross examination regarding his ability to recall the bloody nose in December 2011, Mr. Marino testified that he could recall “pretty much every day about my mother” since 2007 because he had a “phenomenal memory” and a “perfect” memory. He stated there was no bloody nose on December 21, but on another day after he bathed her.

GROUNDS FOR APPEAL:

11Mr. Marino propounded three grounds for the Appeal:

(i) that Justice Morneau misapprehended the evidence;

(ii) that Justice Morneau erred in her assessment of the credibility and reliability of the three witnesses who testified before her; and

(iii) that Ms. Jill Gamble, Mr. Marino’s counsel, provided ineffective assistance to him in his defence of the criminal charges he faced and consequently this resulted in a miscarriage of justice.

12Mr. Marino concentrated the majority of his argument on the third ground of his appeal, namely that his counsel provided ineffective assistance to him.

FIRST TWO GROUNDS OF APPEAL:

13I find that there is no foundation for the first two grounds of appeal and find that there is no merit to these grounds. A review of Justice Morneau’s Reasons for Judgment clearly shows that she had a clear grasp of the issues. She identified that she had diametrically opposing testimony concerning each of the two incidents. She concisely and accurately related that she must address the credibility and reliability of the three witnesses who had testified. I find no fault with her analysis. She properly instructed herself as to the law to be applied. She obviously carefully, although succinctly, examined the possible bias of the witnesses and possible exaggeration to support their testimony. An Appellant court should show deference, to a degree, to the trial judge who is hearing and observing the witnesses appearing before them. Absent any clear misapprehension of the evidence or a clear misinterpretation of a witness’ testimony, the Appellant court should not over-rule a finding of credibility. Reviewing Justice Morneau’s reported comprehension of the evidence and her analysis of that testimony, not only do I not find that there is a palpable error on her part, but that I agree with her findings. There is no merit to the first two grounds of the Appeal.

THIRD GROUND OF APPEAL – Ineffective assistance by counsel for the Appellant:

14I wish to premise my decision concerning this third, and to Mr. Marino the most important, ground for the appeal with the following observation. Mr. Marino, who can be excitable at times, was patiently assisted by Mr. Justice Conlan, who actively helped Mr. Marino to focus the presentation of his position, the cross-examination of Ms. Jill Gamble, and indeed his own testimony in support of this third ground of appeal.

15It became apparent to me in the course of Mr. Marino’s representations to the court in this matter that he feels he has been aggrieved by various agencies and individuals in matters focusing on his care of his late mother. He was very much concerned with commencing civil remedies against those who he believed had aggrieved him and his mother. This was further complicated by internal discord between Mr. Marino and his brother. At times he appeared to be unable to differentiate between civil and criminal matters and unable to appreciate that what was perhaps relevant in a civil sense would be irrelevant in the determination of criminal charges.

16The Ontario Court of Appeal in the decision of R. v. Eroma 2013 ONCA 194, [2013] O.J. No. 1411 established the governing test to establish a claim of ineffective assistance. The Court of Appeal stated:

4 There is no dispute regarding the governing test to establish a claim of ineffective assistance. As explained by this court in R. v. B. (M.), 2009 ONCA 524, at paras. 8-9 and R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at para. 69, leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347, at para. 57, to succeed on this ground of appeal, the appellant must demonstrate:

(1) the facts that underpin the claim of ineffective assistance, on a balance of probabilities;

(2) the incompetence of trial counsel’s representation, and

(3) that a miscarriage of justice resulted from the incompetent representation at trial.

17With the assistance of Justice Conlan, Mr. Marino was able to set out seven instances where he said that his counsel, Ms. Jill Gamble, had provided him with ineffectual assistance.

18The seven instances identified by Mr. Marino are:

(i) that on May 14, 2012, Mr. Marino showed Ms. Gamble 7 photographs of the interior of his mother’s home. He felt that these might turn out to be important in his defence of the charges brought against him. He felt they might be important in ascertaining whether a person could make the observations they had said they saw. Mr. Marino did not leave those photographs with Ms. Gamble because he wanted to show them to his counsel for some civil litigation he was considering. Mr. Marino’s complaint is that Ms. Gamble did not use these photographs in the course of his defence of the criminal charges against him;

(ii) that Ms. Gamble did not call Linda Michaud to testify as a defence witness;

(iii) that Ms. Gamble failed to obtain and utilize the notes made by CCAC in his defence;

(iv) that Ms. Gamble failed to call Laura Beletta as a defence witness;

(v) that Ms. Gamble failed to prepare herself for trial and more particularly that Ms. Gamble failed to prepare Mr. Marino for his testimony at his trial;

(vi) that Ms. Gamble conducted ineffectual cross-examination of the two Crown witnesses;

(vii) that Ms. Gamble, having observed Mr. Marino’s cross-examination, failed to adequately re-examine Mr. Marino after he testified that he had a perfect memory.

19The difficulty encountered in the conduct of this appeal highlights the incredible challenges faced by the front-line accommodators – judges – when one or more of the litigants are self-represented.

20Twenty years ago, the term “self-represented” would probably not be a term known to the legal community, the general public, or perhaps even to the Oxford Dictionary. Today, it is a commonly known description.

21In the jurisdiction in which I have presided since 1996, this descriptor of one or more of the opposing litigants who are appearing before the Superior Court requesting an adjudication of the dispute between them has increased astronomically.

22In the criminal law sector, the increase has not been as dramatic, but is still significant. In my jurisdiction in civil matters, most notably the area of family law, self-represented litigants are involved in over 75% of the matters appearing before the courts. In the area of criminal law, the numbers are much less, but no less significant, in their impact upon the ability of the Court to deliver justice in a timely and fair manner.

23In this case, Justice Conlan, in presiding over the evidentiary basis to be put before the appellant court on the issue of ineffectual representation by Ms. Gamble of Mr. Marino in his trial in Ontario Court, most patiently (over several days), tried to explain to Mr. Marino that he had to properly present his side of the issue.

24A judge presented with the situation of one of the litigants being represented by a trained professional and the other representing themselves is faced with a task almost impossible to carry out. Strict compliance with the rules of the court will undoubtedly result in the self-represented feeling that their concerns have not been fairly heard. On the other hand, when the court starts to bend the rules to accommodate the self-represented’s lack of knowledge of the rules, then the represented opponent feels that they have been penalized because they retained counsel whose knowledge of the rules restricts them.

25In this case, Justice Conlan carefully tip-toed down the line. He was aided in this venture by an experienced Crown counsel who most fairly attempted to accommodate Mr. Marino’s inexperience with the legal aspects of this matter.

26Judges must, by the very term of their appointment, always appear to be, and in fact be, impartial. In simple terms, each person is presumed to come before the court equalized in their status.

27I cannot emphasize enough that throughout the course of the hearing of Mr. Marino’s appeal, the playing field was far from level. He enjoyed a decided advantage. Mr. Marino’s inexperience and lack of understanding of even the most basic concepts of what was required from him to establish his claim, was repeatedly and most patiently assisted not only by Justice Conlan but by Mr. Martin, acting for the Crown.

28While deferential to the Court’s gentle nudgings, Mr. Marino fairly bristled at the Crown’s attempt to assist him. He believed that anything proffered by Mr. Martin was visited by nefarious intents. This latter belief escalated to attacks on Mr. Martin’s personal ethics and thereafter, on one occasion, to a threat of bodily harm.

Mr. Marino’s seven concerns relating to his perception that Ms. Jill Gamble had not properly represented his interests:

(i) the 7 photos

(a) Subsequent to his arrest, Mr. Marino took 7 photos of the interior of his mother’s home, specifically views of the kitchen/dining area and the living room. These were taken for several reasons, one of which was to show the close proximity of the Crown witness, Ms. Phillips (who testified) and Ms. Michaud (who was not called to testify). In Mr. Marino’s words, these were pictures of the “crime scene” just like in the O.J. Simpson case he watched on T.V.

(b) Mr. Marino stated in his testimony:

“THE COURT: Let me ask you a question. Did you give any of these photos to Ms. Gamble before your trial?

ANTHONY MARINO: These photos were shown to Ms. Gamble our May 22nd meeting and then….

THE COURT: Then those photos were shown to her before the trial.

ANTHONY MARINO: In their entirety these seven pages and what it was I showed them to her but I did not leave them with her because I also have civil matter that’s not for today, it’s for another day, legal matter, Mrs. Gamble, page/line for another day, so what I did I took these photos in preparation of the next meeting with a civil lawyer and then I saw Mr. Chaddah.”

(c) I have reviewed the 7 photos. They are as advertised. They clearly show the interior area of the home where the offences were said to have occurred.

(di) I am not certain what Mr. Marino’s concerns were with Ms. Gamble not using these photos in either cross-examination or in his examination in chief. His only complaint seems to be that they were not used but left open the issue of how the introduction into evidence would have advanced his position.

(e) I see no issue relating to Ms. Gamble’s representation of Mr. Marino that arises from her not introducing these photos.

(ii) Failure to call Linda Michaud as a defence witness:

(a) Mr. Marino, like many lay persons, does not completely understand that one cannot put a witness on the stand to testify only as to one thing. They fail to comprehend that once in the witness stand, the opposing party can cross-examine that witness and possible elicit testimony that is extremely damaging to their position. Lay persons do not understand that if their witness is testifying presumably for them, but in cross-examination reveals something extremely detrimental to them, it is very difficult, if not impossible, to discredit one’s own witness.

(b) Ms. Gamble made no mistake in not calling Ms. Michaud to testify. Any positive evidence that could have been elicited from Ms. Michaud, negligible as it was, would probably only have, in cross-examination, strengthened the Crown’s case. Experienced trial counsel do not take that risk unless they are desperate.

(iii) Failure to utilize all of the CCAC notes:

(a) This ground advanced by Mr. Marino only emphasizes Mr. Marino’s difficulty in differentiating between his civil grievance against various organizations and individuals and the conduct of his defence to the criminal charges. Ms. Gamble believed that she had all the CCAC notes when Mr. Marino gave her a binder of CCAC notes. She may have been wrong in that assumption.

(b) However, a review of the notes that Ms. Gamble did have, although providing some insight as to the relationship between Mr. Marino and the various service agencies, had no relevance to the criminal charges he faced. No individuals from CCAC witnessed the events in question, nor were called as witnesses. These notes could not have been utilized by Ms. Gamble in any meaningful manner in her defence of Mr. Marino.

(c) There is no evidence before the court that the additional CCAC notes would have made any consequential difference to the end result of Mr. Marino’s criminal trial.

(iv) Failure to call Laura Beletta as a witness:

(a) Apparently on Dec. 21, 2011, Laura Beletta of the Alzheimer’s Society had occasion to attend at the Marino residence. She did not enter the residence, nor did she witness any of the events which occasioned the criminal charges against Mr. Marino.

(b) Mr. Marino felt it was important to call Ms. Beletta to testify that in fact she attended at the Marino residence on Dec. 21, 2011, although she did not enter the residence because in Ms. Phillips’ statement to the police she denied having met or seen Ms. Beletta that day. He felt that somehow this fact would prove that Ms. Phillips was being less than truthful when she testified about later events that occurred between Mr. Marino and his mother inside the residence.

(c) This event (whether it happened or not) is so peripheral to the issues that it could have had no impact whatsoever upon the ultimate decision of Justice Morneau.

(d) Ms. Gamble, in not calling Ms. Beletta, made no error in judgment whatsoever.

(v) That Ms. Gamble failed to prepare herself for trial and failed to prepare Mr. Marino for his testimony:

(a) This ground of complaint is completely without merit. The evidence is overwhelming that Ms. Gamble was acutely aware of the issues and was very much attuned to Mr. Marino’s divided attention to civil rather than criminal issues. She attempted to have him focus on the matter at hand and clearly instructed him to testify truthfully, without trying to gild the lily. In the end, her attempts proved to be ill-fated.

(vi) Ms. Gamble conducted ineffectual cross-examination of the two principal Crown witnesses:

(a) Not all lawyers are blessed with the occasional result of turning a sow’s ear into a silk purse. Faced with straightforward and trustworthy evidence of witnesses, few cross-examiners of those witnesses are successful in making them look otherwise. Ms. Gamble cannot be faulted for not achieving the improbable.

(vii) That Ms. Gamble was unable to soften or blunt Mr. Marino’s testimony that he had a perfect memory:

(a) Miracles only occasionally happen for defence counsel after watching their client shoot themselves in the foot during their cross-examination. No miracle occurred on this occasion. No fault can be attributed to Ms. Gamble because she isn’t the Pope.

CONCLUSION ON THE ISSUE OF INCOMPETENT COUNSEL:

29Ms. Gamble, faced with a client carrying a lot of excessive baggage with a pre-ordained mission, attempted to focus Mr. Marino’s attention on the matters for which she had been retained – that is the defence of the criminal charges he was facing. She was not retained to represent him concerning his other myriad of complaints.

30My review of Ms. Gamble’s conduct of the defence of Mr. Marino concerning the criminal charges he faced leads me to the conclusion that not only was she not ineffectual as counsel but he was the recipient of the efforts of competent and compassionate counsel.

ULTIMATE CONCLUSION OF THE APPEAL

31Having reviewed all of the material before me, I have concluded that Mr. Marino’s appeal from his conviction by Madam Justice Morneau must be dismissed.

32Having reached this conclusion, I must say this to Mr. Marino. Do not let this decision blight your future. By all accounts you tended to the care of your mother. Although I understand that you did not agree with the diagnosis of dementia, the evidence is clear that your mother, unfortunately, in her declining years offered considerable challenges to all persons who were attempting to assist her, including you. Those challenges were significant. The professionals involved were severely tested.

33I sincerely hope that these momentary losses of control do not forever mar your memory of your years of service to your mother. These momentary losses of control should not blemish, to any significant degree, your selfless devotion to your mother. Both you and she should be at peace today.

Thompson J.