Court File and Parties

CITATION: R. v. Krosinski, 2015 ONSC 7526

DATE: 2015-12-02

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: HER MAJESTY THE QUEEN Respondent

• and –

ANNA KROSINSKI Appellant

BEFORE: TROTTER J.

COUNSEL: Peter Thorning for Ms. Krosinski (Appellant) Darren Hogan for the Crown (Respondent)

HEARD: November 19, 2015

ENDORSEMENT

[summary conviction appeal]

[1] On December 19, 2009, Ms. Krosinski was charged with driving while “over 80” (Criminal Code, s. 253(1)(b)). After a trial before the Honourable Mr. Justice Bruce Young of the Ontario Court of Justice, Ms. Krosinski was found guilty. She received a $1,200 fine.

[2] This was a straightforward “over 80” case. The evidence against Ms. Krosinski was very cogent. In preparation for trial, defence counsel (not Mr. Thorning) obtained disclosure and retained a toxicologist. He reviewed some of the relevant case law and considered advancing certain defences. In the end, he advised Ms. Krosinski that she did not have a viable defence and that all he could do was ensure that the Crown proved its case beyond a reasonable doubt. That is what he did. As the very experienced trial judge said in his Reasons for Judgment:

Well, in the Court’s opinion the two officers who gave evidence crossed every “T” and dotted every “I” and I don’t see any mistakes or errors on their part and I don’t see where in any way the accused’s rights were not properly processed or this matter was not properly processed....

[3] On appeal, Ms. Krosinski takes no issue with how the trial judge conducted the trial. Instead, she alleges that her trial counsel was ineffective.

[4] In the written materials filed on her behalf, Ms. Krosinski made numerous complaints about trial counsel, but the focus was on his failure to request the maintenance and calibration records of the approved instrument used to determine her blood/alcohol concentration. At the hearing of the appeal, and after obtaining these records, Mr. Thorning concedes that there was no “reasonable possibility” that the verdict would have been different had trial counsel obtained them.

[5] In terms of the other complaints about trial counsel, Mr. Thorning acknowledges that he is unable demonstrate that they affected the verdict. However, he argues that a miscarriage of justice was occasioned by a lack of adjudicative fairness caused by trial counsel’s failings.

[6] In R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), the court considered the meaning of a miscarriage of justice in this context. As Doherty J.A. said at p. 62:

… This inquiry examines the nature and seriousness of counsel's errors both from the perspective of the reliability of the 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 of the right to a fair trial and a miscarriage of justice.

[7] Similarly, in R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 (S.C.C.), the Supreme Court of Canada mandated a broad approach. As Major J. said at p. 298:

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 verdict may have been compromised. [emphasis added]

See also R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at p. 97 and R. v. Szostak (2012), 289 C.C.C. (3d) 249 (Ont. C.A.), at pp. 269-270.

[8] There was no adjudicative unfairness in this case. Looking at the overall conduct of trial counsel – including his pre-trial preparation and the representation of his client in court – I am not able to conclude that he failed to provide “reasonable professional assistance” (G.D.B., p. 298). He retained an expert, considered potential defences and opted to make the Crown “prove it.” In the circumstances of this case, it was a reasonable course of action that was executed in a satisfactory manner. It is true that, in some of his exchanges with the trial judge, trial counsel made some unorthodox representations. However, these related to discrete matters that had no bearing on the outcome. And while I acknowledge that other defence counsel may have performed at a much higher level, this is not the test for determining ineffectiveness.

[9] The appeal is dismissed.

TROTTER J.

Date: December 2, 2015