SUPERIOR COURT OF JUSTICE – ONTARIO

Summary Conviction Appeals – Toronto Region

COURT FILE NO.: 134/13
DATE: 20151124

RE: HER MAJESTY THE QUEEN v. PRABAHARAN NAMASIVAYAM

BEFORE: NORDHEIMER J.

COUNSEL:
D. Hogan, for the Crown/respondent
L. Ben-Eliezer, for the applicant/appellant

HEARD: November 20, 2015

E N D O R S E M E N T

[1] Mr. Namasivayam appeals from the decision of Downes J. of the Ontario Court of Justice dated October 3, 2013 in which the trial judge found the appellant guilty of the offence of failing to provide a breath sample. While there is some dispute on the facts as to the exact number, it appears that the appellant failed to provide a proper breath sample notwithstanding something in the order of fourteen or sixteen attempts. The sole ground of appeal is the alleged ineffective assistance of trial counsel.

[2] Both the appellant and his trial counsel have filed affidavits on this appeal and both of them have been cross-examined on those affidavits. In essence the appellant’s complaint regarding his trial counsel is that trial counsel abandoned a s. 11(b) application against his wishes and that his trial counsel failed to call expert medical witnesses in support of his defence. The appellant’s defence to the charge was that he was unable to provide a breath sample because of medical issues, that is, extreme anxiety arising from his interaction with the police that left him breathless, among other things.

[3] In terms of the first issue, the appellant acknowledges that he ultimately gave instructions to his trial counsel to abandon the s. 11(b) application. He says that he did so, however, only after receiving assurances from his trial counsel that the medical experts would be called in his defence, something that did not ultimately happen. I note that this decision came after trial counsel had argued one aspect of the s. 11(b) application and received what he considered to be a negative ruling from the trial judge.

[4] In my view, the appellant cannot raise any legitimate complaint regarding the conduct of his counsel in abandoning the s. 11(b) application when the appellant himself acknowledges that he gave his counsel instructions to abandon it. Even assuming that those instructions were conditional on how the balance of the trial was to be conducted, it does not change the fact that the appellant consciously decided to abandon that application.

[5] In terms of the failure to call the medical experts, trial counsel did serve notice on the Crown of his intention to call two medical experts. However, after interviewing one of the experts, trial counsel says that he and the appellant agreed that it would not advance the appellant’s defence to call that expert. This particular expert was the appellant’s family doctor and it appears that he had views about drinking and driving that would not have been helpful to the appellant. While the appellant still complains about the failure to call this medical expert, not only was the appellant in court when his trial counsel advised the court that this physician would not be called, there is nothing in the record on this appeal that shows any subsequent complaint by the appellant about this decision. I would also note, in passing, that it is not readily apparent that this physician would have been capable of being qualified as an expert, in any event.

[6] In terms of the second medical expert, that expert had been present for the first few days of the trial but suddenly became unavailable on the day that he was supposed to give evidence. Trial counsel asked for and received an adjournment from the trial judge so that the expert could be called on another day. The appellant complains that the date for the continuation of the trial was set without taking into account the expert’s availability. However, the record shows that the expert went with counsel to the trial co-ordinator’s office to obtain the new date and Crown counsel subsequently advised the trial judge that the new date had been selected to accommodate the expert witness. As events unfolded, though, this expert became unavailable for an indefinite period of time. Upon becoming aware of that situation, trial counsel says that he discussed the situation with the appellant and the appellant instructed him to complete the trial without calling an expert. The appellant disputes that assertion.

[7] The threshold for successfully arguing a claim of ineffective assistance of counsel is a relatively high one. The reason for this is set out in R. v. Joanisse, 1995 3507 (ON CA), [1995] O.J. No. 2883 (C.A.) where Doherty J.A. said, at para. 66:

Such claims can be easily made. It would be a rare case where, after conviction, some aspect of defence counsel’s performance could not be subjected to legitimate criticism. Convictions would be rendered all too ephemeral if they could be set aside upon the discovery of some deficiency in counsel's defence of an accused. Appeals are not intended to be forensic autopsies of counsel’s performance at trial.

[8] The test for establishing ineffective assistance of counsel is discussed in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520 where Major J. said, at para. 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.

[9] The court in G.D.B. found that there is both a performance component and a prejudice component to the consideration of a claim of ineffective assistance of counsel. The court added, at para. 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 [citation omitted].

[10] Counsel for the appellant latches onto the word “usually” in the above statement from G.D.B. to advance an argument that there is a residual category of cases where, although the accused did not suffer any prejudice from the ineffectiveness of his/her counsel, that ineffectiveness so offends the appearance of a fair proceeding that the court will be obliged to intervene.

[11] I acknowledge that the use of the word “usually” does appear to give rise to such an opportunity. However, it is difficult to conceive of a factual scenario where the ineffectiveness of counsel would be so egregious as to give rise to a concern that the accused person did not have the appearance of receiving a fair trial but would, at the same time, lead to a conclusion that the accused person did not suffer any prejudice. The former conclusion would appear to be necessarily inconsistent with the latter. That said, I suppose there might be a case where trial counsel was ineffective, but where the Crown’s case was so overwhelming, that one might be able to say that the lack of an effectively presented defence was of no consequence to the result for the accused person, but that would seem to be a fundamentally problematic analysis.

[12] In any event, that is not this case. Counsel for the appellant admits that he cannot find any fault with the manner in which the trial was conducted by trial counsel in terms of the evidence that was presented. The only issues germane to the trial are the abandoned s. 11(b) application, that I have already addressed, and the failure to call one or more medical experts. On that latter point, it is apparent that trial counsel had been prepared to call expert evidence, but that events overtook those intentions.

[13] I am cognizant of the fact that there are some issues with respect to the way in which trial counsel handled this matter. In particular, I would point to the fact that trial counsel did not obtain written instructions from the accused confirming the decision to proceed to complete the trial without a medical expert. The same problem arises from the fact that trial counsel did not obtain written instructions confirming the abandonment of the s. 11(b) application. Had he done so, the issues raised here would largely have disappeared.[^1] But that does not change the fact that trial counsel says that the appellant agreed with both of those decisions. The appellant admits some measure of agreement to the s. 11(b) decision but disputes his agreement with the decision about the expert. The dispute between counsel and client over these issues leads directly to the problem identified by Doherty J.A. in Joanisse, at para. 68:

There are also practical difficulties involved in an appellate court’s attempt to assess the quality of the service provided by a trial counsel. In many situations, and this case provides an excellent example, the facts underlying the claim of incompetence are contested. The appellate forum is ill-suited to resolving these factual disputes.

[14] I am left in precisely that difficult position in terms of trying to resolve those factual disputes on the record that is before me. I do note two salient facts, however, that tend to undermine the appellant’s current assertions. One is that the appellant made no complaint, at the time that the case was being completed, that the medical expert had not been called. While not all accused persons may be prepared to voice such a complaint in a courtroom before the presiding judge, I know from frequent experience that other accused persons do not hesitate to voice complaints when they are motivated to do so. The other is that the appellant initially consulted trial counsel about the prospect of an appeal of the conviction and of retaining trial counsel to pursue such an appeal. That fact seems inconsistent with the appellant’s current complaints that his counsel acted without his consent, and contrary to his wishes, in the conduct of his trial.

[15] In any event, I cannot find anything in the record of this case that would take it outside of the normal rule, set out in G.D.B., that where “it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow”. On that issue, the appellant cannot point to anything respecting the experts’ evidence that would have likely changed the ultimate result. Particularly challenging for the appellant is the fact that the trial judge expressly disbelieved his evidence regarding the alleged effects of being stopped by the police. The experts’ reports would have to be based on an acceptance of the appellant’s version of the events. The experts’ opinions could only be of assistance, in deciding the central issue, if the facts underlying the opinions were accepted by the court. When those facts were rejected by the trial judge, the experts’ opinions could not then, by themselves, have led to a different result.

[16] As was said in G.D.B., it is not the court’s role to grade counsel’s professional conduct outside of the courtroom. If the appellant is unhappy with the manner in which his trial counsel conducted his trial, then his remedy lies with the Law Society of Upper Canada and its complaint procedures.

[17] The appeal is dismissed. The stay of driving prohibition is lifted.

NORDHEIMER J.

DATE: November 24, 2015

[^1]: I note that one of my colleagues has recently made the same observation regarding the advisability of counsel getting written instructions on important decisions: R. v. Shofman, [2015] O.J. No. 5803 (S.C.J.) at para. 48.