ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 49/13
DATE: 20151109
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MICHAEL SHOFMAN
Robert Wright,
for the Crown, respondent
Samuel Walker,
for the accused, appellant
HEARD: September 21, 2015
K.L. Campbell J.:
REASONS FOR JUDGMENT
[Summary Conviction Appeal]
A. Overview
[1] The appellant, Michael Shofman, was tried by the Honourable Madam Justice C. Brewer of the Ontario Court of Justice on charges of impaired driving and operating a motor vehicle with a blood-alcohol concentration greater than 80 mgs. of alcohol in 100 mls. of blood. These offences were allegedly committed by the appellant in Toronto on March 7, 2010.
[2] At the conclusion of the trial, Brewer J. delivered reasons for judgment finding the appellant guilty of both offences. During his closing submissions, defence counsel effectively conceded that the appellant should be found guilty of the “over 80” offence, as the Intoxilyzer results of the appellant’s breath samples revealed that he had an unlawful blood-alcohol concentration. The trial judge agreed with this concession. Further, Brewer J. concluded that, based on all of the evidence, she was satisfied beyond a reasonable doubt that the appellant had been operating a motor vehicle while his ability to do so was impaired by alcohol.
[3] In the result, the trial judge convicted the appellant of the “over 80” offence, while entering a conditional stay regarding the impaired driving offence. The trial judge sentenced the appellant to a fine of $1,500.00 and prohibited him from the operation of any motor vehicle for a period of one year.
[4] The appellant now appeals against his conviction. The appellant does not challenge any of the conclusions reached by the trial judge, but contends that he was denied the effective assistance of counsel at trial. The appellant argues that, based upon the fresh evidence gathered subsequent to the trial proceedings in this case, it is apparent that he was not permitted to decide whether to testify. Rather, that important decision was made by his trial counsel (not Mr. Walker). The appellant argues that this resulted in a miscarriage of justice which requires that a new trial be ordered. I agree.
B. The Factual Background – Based on the Evidence At Trial
[5] The appellant was involved in a single car motor vehicle accident at approximately 7:30 a.m. on March 7, 2010 in the general area of Bayview Avenue and York Mills Road in Toronto. The appellant had earlier met a female acquaintance, Natashia Genis, at the home of some mutual friends, and he had offered to give her a ride home.
[6] The appellant was driving westbound on York Mills Road. The accident took place as the appellant was turning right to head northbound on Bayview Avenue. As he made this right turn, the front passenger tire of his vehicle struck the curb on the northeast corner of the intersection. This dented the front wheel on the passenger side of the car, and caused the appellant to lose control of the vehicle. The appellant’s vehicle veered to the left and struck the concrete island/median separating the northbound and southbound traffic on Bayview Avenue. The appellant’s vehicle mounted this island/median and ultimately came to rest facing northbound in the eastern most lane of southbound traffic on Bayview Avenue. When the accident happened, one of the vehicle axles fell off the car onto the road.
[7] When Cst. Anthony Tomei of the Toronto Police Service (TPS) arrived on the scene, just before 8:00 a.m., the appellant’s vehicle was still facing northward in the left turn lane of the southbound traffic on Bayview Avenue. The appellant’s vehicle was damaged, with scraping and denting to all four wheel rims. There was also recent damage to the concrete median on Bayview Avenue nearby, consistent with a vehicle having crossed over the median. The appellant was seated in the driver’s seat, while Ms. Genis was seated in the front passenger seat. The engine of the appellant’s vehicle was running, but the transmission of the vehicle was in neutral.
[8] When he spoke to the appellant, Cst. Tomei smelled the odour of alcohol on the appellant’s breath and noticed that his eyes were glassy. When the appellant got out of the vehicle, the officer noticed that his movements were slower than normal, he was swaying from side to side, and he was unsteady on his feet. The appellant was chewing gum, apparently to try to mask the odur of alcohol on his breath. Having formed the necessary reasonable grounds to believe that the appellant had been operating his vehicle while his ability to do so was impaired by alcohol, Cst. Tomei placed the appellant under arrest for impaired driving. When the officer had the appellant spit out his chewing gum, the officer noticed that it was accompanied by two copper pennies. Cst. Tomei thought that this was a further attempt to mask the smell of alcohol on the appellant’s breath. Cst. Tomei then advised the appellant of his right to counsel and made a demand that he provide samples of his breath suitable for analysis in an approved instrument.
[9] When they arrived at the 32 Division police station, the appellant was permitted to consult privately with his own retained counsel. The appellant then went into the breath room where the qualified breath technician, Cst. Jason Hodkin of the TPS, took his breath samples by means of an approved instrument. While so doing, Cst. Hodkin noticed that the appellant’s eyes were red, bloodshot and glassy, his speech was slurred, his face was red, and he was delayed and unclear in answering questions. When the appellant provided his breath samples, the Intoxilyzer 5000C revealed that the appellant had a blood-alcohol concentration of 198 mgs. and 191 mgs. of alcohol per 100 mls. of blood at 9:43 a.m. and 10:03 a.m., respectively.
[10] Ms. Teri Martin, a forensic toxicologist with the Centre of Forensic Sciences, testified that, in her opinion, in order to produce those Intoxilyzer results, the appellant’s blood-alcohol concentration between 7:00 and 7:30 a.m. (the approximate time of the appellant’s driving), would have been between 190 and 245 mgs. of alcohol in 100 mls. of blood. One of the operating assumptions for this opinion was that the appellant had not ingested a large quantity of alcohol in the 15-minute time period just before driving and did not consume any alcohol after the motor vehicle accident. Ms. Martin testified that with a blood-alcohol concentration of 190 mgs. of alcohol in 100 mls. of blood, an individual’s ability to operate a motor vehicle would be impaired by alcohol. Ms. Martin also opined that, in order to produce an Intoxilyzer reading of 190 mgs. of alcohol in 100 mls. of blood, and yet have a lawful blood alcohol concentration below 80 mgs. of alcohol in 100 mls. of blood, between 7:00 and 7:30 a.m., the appellant would have had to consume between 5.25 and 6.5 standard sized alcoholic beverages just prior to the accident, or in the time period between the accident and the breath tests.
C. The Sole Ground of Appeal
[11] The appellant was convicted on March 14, 2013. The very next day, the appellant personally filed a notice of appeal against this conviction. In his grounds for appeal, the appellant alleged that he “wanted to testify and give evidence in his own defence at trial, and was not given that opportunity.” The appellant asserted that his evidence “would have been crucial to this case.” The appellant alleged that the decision as to whether to testify or not “was his to make” and he “would have testified at trial but for his trial counsel making the decision that he would not testify.” The appellant asserted that “the trial was over before [he] had time to realize this” and this caused a “miscarriage of justice warranting a new trial.”
[12] This is the only ground of appeal advanced on behalf of the appellant on this appeal. The appellant contends that he was denied the effective assistance of counsel at trial by virtue of the fact that his trial counsel decided that the appellant would not testify at trial, depriving the appellant of the right to make that critical decision for himself. Further, as he would have testified at trial if he had been given the opportunity, the appellant argues that his trial resulted in a procedural miscarriage of justice requiring that there be a new trial.
D. The Applicable Legal Principles
1. The Effective Assistance of Counsel –The Governing Legal Standard
[13] In order to show that an accused has been denied the effective assistance of counsel, such that his or her conviction is properly viewed as a miscarriage of justice, the accused must establish: (1) the factual basis that underpins the claim; (2) that that the acts or omissions of trial counsel constituted professional incompetence; and (3) that a miscarriage of justice resulted from that incompetence. Accordingly, ineffective assistance claims have both a “performance” component and a “prejudice” component. The legal burden cast on the accused is not easily discharged.
[14] With respect to the “performance” prong of this standard, the law is clear that the analysis of the professional performance of trial counsel is measured on an objective reasonableness standard, and begins with a strong presumption that the performance of trial counsel fell within the broad range of reasonable professional assistance. The onus is cast upon the accused to prove that the impugned acts or omissions of trial counsel were not the result of reasonable professional judgment. In this assessment of the competence of trial counsel, the visionary 20:20 wisdom of hindsight has no place. Indeed, this reasonableness standard is one that is highly deferential to the tactics and strategies of trial counsel. It is not sufficient for the accused to demonstrate imperfect judgment. Instead, the accused is obliged to demonstrate that when measured against the governing objective standard, the impugned acts or omissions of trial counsel were so unreasonable that they fell below existing professional standards.
[15] As to the “prejudice” prong of this legal test, it is important to recognize that miscarriages may take many forms, and the incompetence of trial counsel may result in procedural unfairness, or may compromise the reliability of the verdict. Where it is apparent that the accused has suffered no prejudice, it will usually be undesirable to consider the performance component of the analysis.
[16] There are many authorities that outline and discuss the application of these general principles regarding ineffective assistance claims. See Strickland v. Washington, 104 S.Ct. 2052 (1984), at pp. 2064-2068; R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont.C.A.), at pp. 59-64, leave denied, [1996] S.C.C.A. No. 347; R. v. White (1997), 1997 2426 (ON CA), 114 C.C.C. (3d) 225 (Ont.C.A.), at pp. 246-247, leave denied, [1997] S.C.C.A. No. 248; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 24-29; R. v. Seepersad (2005), 2005 16072 (ON CA); R. v. B.(M.), 2009 ONCA 524; R. v. D.M.G., 2011 ONCA 343; R. v. Ross, 2012 NSCA 56; R. v. W.E.B., 2012 ONCA 776, affirmed, 2014 SCC 2; R. v. Aulakh, 2012 BCCA 340; R. v. Benham, 2013 BCCA 276; R. v. Loi and Liang, 2013 ONSC 1202; R. v. Eroma, 2013 ONCA 194; R. v. Nwagwu, 2015 ONCA 526; R. v. Shiwprashad, 2015 ONCA 577; R. v. L.O., 2015 ONCA 394.
G. Conclusion
[51] In the result, the appeal must be allowed. The appellant’s conviction for the “over 80” offence (as well as the stay of proceedings entered in relation to the impaired driving offence) is set aside. A new trial is ordered on both charges.
[52] An order shall issue accordingly.
Kenneth L. Campbell J.
Released: November 9, 2015
COURT FILE NO.: 49/13
DATE: 20151109
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
MICHAEL SHOFMAN
REASONS FOR JUDGMENT
K.L. Campbell J.
Released: November 9, 2015