COURT FILE: CRIMNJ 2113/12
DATE: 2015 12 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. J. Leising, for the Respondent
- and -
PETER IFEJUNA UKWUABA
S. von Achten, for the Applicant
HEARD: December 10 and 11, 2015
REASONS FOR JUDGMENT
ON MISTRIAL APPLICATION
HILL J.
INTRODUCTION
[1] On May 11, 2015, Peter Ukwuaba was found guilty after trial of importing heroin into Canada, conspiracy to import heroin, and possession of heroin for the purpose of trafficking (2015 ONSC 2953).
[2] Prior to sentencing, Mr. Ukwuaba applied for an order for a mistrial largely based on a submission that trial counsel for the defence had provided ineffective assistance to the Applicant likely resulting in a miscarriage of justice.
[3] On December 11, 2015, the court dismissed the application for a mistrial in these terms:
On the whole of the record of proceedings before this court, I am satisfied that the mistrial application must be dismissed despite Ms. von Achten’s articulate presentation. Put differently, it has not been established that there has been a miscarriage of justice requiring an exercise of discretion to grant a mistrial. Further reasons will follow.
CHRONOLOGY
[4] After release of the court’s reasons for judgment at trial, a presentence report was ordered and a sentencing hearing was scheduled for June 22, 2015.
[5] On June 5, 2015, defence counsel at trial, Ms. D. McCabe-Lokos, applied to be removed as the Applicant’s counsel of record on the basis of the termination of her services by the Applicant. The Applicant personally confirmed on the record that he had discharged Ms. McCabe-Lokos and retained Ms. von Achten as his new counsel. Before the court was a letter from Ms. von Achten, dated June 5, 2015, indicating that she was fully retained and in the process of securing file material from former trial counsel. The Applicant was remanded to June 9 with the scheduled sentencing date to remain.
[6] On June 9, Ms. von Achten appeared with the Applicant and confirmed that she was retained to advise him respecting a possible mistrial application. Counsel indicated that the Applicant had wanted to testify at his trial. Counsel sought an adjournment of the sentencing to provide formal notice to the Applicant’s trial solicitor(s), to secure additional documentation, and if so advised, to file materials with the court in particular a Notice of Applicant and affidavit from the Applicant. The case was adjourned to June 15. The June 22 sentencing date was ordered to remain.
[7] On June 15, Ms. von Achten provided this information to the court:
The position that I, on behalf of Mr. Ukwuaba have taken is as follows. We are in receipt of all material, relevant material, from the former counsel and I thank them on the record for their cooperation. I have written to them to advise them that I, on behalf of Mr. Ukwuaba, intend to bring a mistrial application based on the following: one, that while Mr. Ukwuaba signed a handwritten document stating that counsel had advised him not to testify, and that he agreed with counsel and he signed the said document, that document did not include appropriate protective clauses such as… that this document is signed voluntarily, without threat, coercion or duress.
My argument will be, essentially, that along the lines of a plea inquiry, as Your Honour is more than well aware as to why the plea inquiry came into force and effect and therefore – because – as – as counsel I can see that this – that the issue of testifying or not testifying could become a vehicle for accused persons – and I’m not talking about Mr. Ukwuaba but this is the general legal thrust of supporting our application for mistrial – that there should be a proper written plea inquiry – not plea inquiry, inquiry with respect to whether or not an accused person should testify, and then the presiding justice make the plea inquiry on the record. It’s an area that needs to be examined and potentially even codified further down the road, but there needs to be a judicial determination of this fact.
[8] Ms. von Achten advised the court that the Applicant’s affidavit was in preparation and when completed would be filed with the court and forwarded to prior trial counsel. The June 22 sentencing date was vacated and the case adjourned to July 9 to be spoken to. The court ordered the Applicant’s material to be filed on or before June 25, 2015.
[9] By a letter dated June 26, Ms. von Achten explained a short delay and alerted the court that the Applicant’s materials would be filed on June 29.
[10] On July 9, with the Applicant’s materials remaining unfiled, the case was remanded to August 12 to be spoken to. The court endorsed the indictment as follows:
On the return date of August 12, 2015, if the defence is not in possession of the trial transcripts, it is expected that documentation will be before the Court respecting the transcript order including the date of expected completion. Further, because there is no affidavit material yet filed which would justify setting a hearing date for the mistrial application, this issue will also be spoken to on the return date.
[11] On August 12, Ms. von Achten filed a draft unsworn affidavit of the Applicant in support of a mistrial application. The court adjourned the matter to September 21, 2015 in these terms:
Applicant’s mistrial application record to be served & filed on or before August 28/15. Respondent’s Record in response to be served & filed on or before Sept. 21/15. Accused remanded to appear before Hill J. on Sept. 21/15 9:30 a.m. for case to be spoken to re scheduling a hearing date for evidence on the mistrial application.
[12] By correspondence dated August 13, Ms. von Achten provided a draft unsworn affidavit of the Applicant and a Notice of Application dated August 12, 2015 (mistrial Exhibit #6). This Notice included text relating to proposed amendment of the Criminal Code and further stated:
Vacuum in the Criminal Code: “To Testify or Not to Testify” –Proper Enquiry to be Made
a. By analogy with sections 606(1)(1.1) and (1.2) it is the position of the Applicant that the Criminal Code of Canada should be amended to include an enquiry as to whether or not the accused:
i. Has been advised that it is his/her decision, alone, as to whether or not to testify;
ii. Understands the nature and consequences of giving or not giving testimony in their own defence;
iii. Has voluntarily, without threat, coercion or duress, made his/her own decision as to whether or not to testify in his/her own defence.
iv. An enquiry in the voluntariness of the decision as to whether or not to testify should be made of the accused by the trial judge.
[13] The Notice of Application further stated:
- On May 27, 2015 the Applicant terminated the services of Mr. Zaduk and Ms. McCabe-Lokos. The reason for the termination of the services of the retained counsel and the trial counsel was that they, or one of them:
a. had failed to allow the Applicant to testify, notwithstanding his expressed intention and determination to testify in his own defence;
b. had coerced, threat[en]ed and/or placed the Applicant under duress for the purpose of compelling him not to testify in his own defence;
c. had coerced, threat[en]ed and/or placed the Applicant under duress for the purpose of compelling him to sign the document stating that he accepted the advice of trial counsel, Ms. McCabe, that he not testify at his trial;
d. that the handwritten document signed by the Applicant confirming that he had accepted the advice of trial counsel that he not testify and agreed with the said advise was not voluntary.
- Trial counsel conducted the entirety of the trial with a gross misunderstanding of the ways by which Crown could prove the offences with which the Applicant was charged if he did not testify in his defence. Additionally, she had little or no understanding or reasonable understanding of the rules of evidence and case law with respect to:
a. Circumstantial evidence.
b. How “Knowledge” can be proved by the Crown/possible inferences which could be drawn by the trial judge from the evidence presented at trial.
c. Proof of unlawful possession of an illicit substance or contraband.
d. The type of conduct or the type of conduct on the part of the accused necessary to found liability as an importer.
e. How conspiracy can be proven.
f. That the statement of the Applicant was not “voluntary.”
The failure of Ms. McCabe-Lokos to understand or properly understand the above mentioned resulted in the failure to call or present evidence or challenge the admissibility of evidence which could challenge or undermine the Crown’s case. In particular, Ms. McCabe refused to permit the Applicant to testify when his evidence at trial, subjected to cross-examination, was the only way in which the Crown’s case could possibly be undermined and a reasonable doubt raised.
By reason of the aforementioned, the Applicant was severely compromised in his right to make full answer and defence.
[14] By the time of the September 21 appearance, a sworn affidavit of the Applicant had been filed as were affidavits from three lawyers: Ms. McCabe-Lokos, Mr. Peter Zaduk and Mr. Chris Kostopoulos.
[15] On September 21, the court scheduled December 10 and 11 for cross-examinations on the filed affidavits and completion of the mistrial application hearing.
(continued verbatim)
Application dismissed.
Hill J.
DATE: December 23, 2015
COURT FILE: CRIMNJ 2113/12
DATE: 2015 12 23
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: R. v. PETER IFEJUNA UKWUABA
COUNSEL: J. Leising, for the Respondent
S. von Achten, for the Applicant
HEARD: December 10 and 11, 2015
REASONS FOR JUDGMENT
ON MISTRIAL APPLICATION
Hill J.
DATE: December 23, 2015