CITATION: R. v.Vassell, 2016 ONSC 1973
COURT FILE NO.: 14-40000053-00AP
DATE: 20160322
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DUANE VASSELL
Megan Petrie, for the Crown
Duane Vassell, on his own behalf
HEARD: January 29, 2016
r.f. goldstein j.
[1] Mr. Vassell and the complainant, Ms. Ajiyor, had an altercation in Yorkwoods Mall on April 27 2012. They had had a relationship. The relationship had ended. Mr. Vassell was charged with one count of assault. He retained Irina Revutsky as his defence counsel. She was very experienced in dealing with these cases.
[2] On the day of trial, Mr. Vassell pleaded guilty. The trial judge, Madam Justice Bacchus of the Ontario Court of Justice, conducted a plea inquiry and agreed to hear the plea. She acceded to a joint submission and imposed a suspended sentence and probation.
[3] Mr. Vassell appeals. He now says that his plea was not voluntary and that he received ineffective assistance from counsel.
[4] On January 29 2016 I heard an appeal from Justice Bacchus’s conviction and sentence. I dismissed the appeal with reasons to follow. These are my reasons.
FACTS
[5] Mr. Vassell and Ms. Ajiyor dated for about 3-4 months in 2011. After they broke up, Mr. Vassell tried to date Ms. Ajiyor again. She was not interested. On April 25 2012 Mr. Vasell approached Ms. Ajiyor at the Yorkgate Mall in Toronto. They had a conversation and sat on a bench in the mall. They had an argument over Ms. Ajiyor’s telephone. The argument became physical and Mr. Vassell assaulted her. He then fled the scene. A warrant was issued for his arrest. The police apprehended him shortly afterwards. Some of the altercation was caught on the store’s video surveillance system. The videos were part of the fresh evidence on the appeal.
[6] Mr. Vassell retained Irina Revutsky, an experienced criminal lawyer, to represent him. The trial was set for March 5, 2014, at the Ontario Court of Justice at 1000 Finch Avenue in Toronto. Ms. Revutsky attended with Mr. Vassel. The Crown was ready to proceed with its witnesses. After discussions between counsel, a plea was entered and a joint position submitted to the trial judge for her consideration.
[7] Prior to the arraignment, the following exchange occurred:
MS. REVUTSKY: Thank you very much, Your Honour, for your indulgence. I have spoken at length to my client and my instructions are that he wishes to resolve this matter by way of a guilty plea. I’ve had a plea inquiry with Mr. Vassell. He’s aware that by pleading guilty he gives up his right to a trial. He is further aware that the Crown Attorney, Ms. Schwartz, will not have to call witnesses and this allegation will not have to be proven beyond a reasonable doubt. There is going to be a joint submission for Your Honour’s consideration. However, I’ve advised Mr. Vassell that notwithstanding that, Your Honour has the ability to either impose a greater sentence or a lesser sentence, whatever Your Honour deems appropriate. He’s also – we’ll discussed that he’s pleading voluntarily. So I believe I’ve covered all the bases but…
THE COURT: Yes.
MS. REVUTSKY: … Thank you.
THE COURT: I just want to, Mr. Vassell, is that all correct? You are pleading of your own free will?
MR. VASSELL: Yes.
THE COURT: Yes, all right. And I just want to make it clear that if for some reason we commence a resolution of the matter and for whatever reason it does not go forward, the trial would continue before me. You understand that?
MR. VASSELL: No, it’s quite…
THE COURT: So, I would, if for some reason we started hearing the guilty plea and something happens…
MR. VASSELL: Mm-hmm.
THE COURT: … that the guilty plea cannot proceed, then if there is a trial, the matter continues before me.
MR. VASSELL: Okay.
THE COURT: Do you understand that?
MR. VASSELL: Now, yeah I understand what you’re saying.
THE COURT: All right. I’m content, then, given Ms. Revutsky’s review of the plea inquiry and Mr. Vassell’s confirmation on the record that he’s pleading of his own free will and he understands what that means, that Mr. Vassell then may be arraigned on the offences charged.
[8] The clerk then arraigned Mr. Vassell on the charge of assault. When asked for his plea, Mr. Vassell said “I plead guilty.” Crown counsel then read in the facts. Mr. Vassell was prepared to accept some facts but not others. The Crown was content and the Court was satisfied that the facts admitted to were sufficient to make a finding of guilt. Mr. Vassell’s criminal record was admitted. The criminal record consisted of a youth conviction for assault, and a conviction for drug trafficking in 2004. He received a conditional sentence for that conviction, which he subsequently breached.
[9] In fact, it subsequently transpired that the record filed at Mr. Vassell’s trial was incomplete. He also had convictions in 2010 for possession of cocaine and trafficking in cocaine (for which he received another conditional sentence).
[10] Crown and defence counsel jointly submitted that Mr. Vassell should receive a suspended sentence and probation. When counsel were finished their submissions Justice Bacchus asked Mr Vassell if he had anything to say:
MR. VASSELL: Yes, by the way, I would like to ask them – I would like you to ask them where does her friend work in the mall and do they have proof of it because her friend does not work in the mall first of all. And second of all, her friend wasn’t even there.
THE COURT: This is your opportunity, Mr. Vassell, to tell this court, how you feel about the offence you pled guilty to. This is not your opportunity to question or have a trial. So, normally when people stand up to address the court, it’s to express their remorse for what occurred. You’re not required to say anything to me if you don’t wish to but if you wish to this is your time to talk about how you feel about what you did.
MS. REVUTSKY: Could I have the court’s indulgence for one moment.
THE COURT: Yes.
MS. REVUTSKY: My client has nothing else to add.
[11] The trial judge then imposed a suspended sentence and probation, in accordance with the joint submission.
THE INEFFECTIVE ASSISTANCE CLAIM
[12] Mr. Vassell originally filed a Notice of Appeal. He set out the following grounds:
Me and the lawyer, agreed to plead not guilty. And then she changed to plea of guilty after she came back into the courtroom from having a discussion with the police officer and the Crown. She changed the plea to guilty on her own without my instructions to do so. When me and me [sic] witness was waiting in the courtroom.
[13] Mr. Vassell filed a typewritten document claiming that the Ms. Ajiyor had abused and assaulted him. He wrote that they had an altercation in the mall because he was looking through her phone. She attacked him.
[14] In his affidavit Mr. Vassell swore that he pleaded guilty “against his will”. He said that Ms. Revutsky had
pressured me to plead guilty. I was not guilty. She startd pressuring me at the last minute. She also acted very aggressively towards me. Before the day of the trial, we had always agreed that I would plead not guilty.
I told her that I had other evidence including video evidence that I did not commit the crime. She ignored me and never presented the evidence.
[15] In his cross-examination on his affidavit, Mr. Vassell admitted to four earlier convictions. He said, however, that his previous lawyer had “forced” him to plead guilty three times. He agreed that he “snatched” Ms. Ajiyor’s phone away from her. He also stated:
Q: Okay. And you knew that Ms. Revutsky had talked to the Crown before you pled guilty, right?
A: That’s correct.
Q: And you knew that both ladies were there and they were prepared to testify, right?
A: Correct.
Q: And you knew that if they testified and they said what they told police, there was a good chance you would be convicted, right?
A: Correct.
Q: And you knew that if you were convicted after a trial, that the Crown said that they were going to be asking for you to go to jail, right?
A: Correct.
Q: And you absolutely do not want to go to jail, right?
A: No.
Q: At all, right?
A: No.
Q: And so Ms. Revutsky told you that the Crown had indicated that if Mr. Vassell has a trial and he is convicted, that the Crown is going to be asking for jail time, right?
A: Right, correct.
Q: Okay. And so you knew that there was a chance you were going to be convicted if you had a trial, right?
A: Correct.
[16] Mr. Vassell then suggested that he would not be convicted because the witness’s stories did not add up. Crown counsel then asked:
Q. But I’m talking about what the conversation you had with Iryna Revutsky.
A: Right.
Q: And is it fair to say you that she felt that there was a good risk that you were going to be convicted at this trial, right?
A: Well, that was what she was saying, but I didn’t really feel like intimidated when she said that…
[17] Mr. Vassell then claimed that Ms. Revutsky got scared, which was why she pressured him into pleading guilty.
[18] Ms. Revutsky, who is an experienced criminal lawyer, denied the allegation that she pressured Mr. Vassell into pleading guilty. He had told her that Ms. Ajiyor had abused him and taken advantage of him, but he also admitted to the essential elements of the offence of assault. She advised him that his claim of self-defence was questionable given the witness statements and the mall video.
[19] On the day of trial Ms. Revutsky confirmed that Crown counsel would only seek a suspended sentence and probation if Mr. Vassell pleaded guilty. When Mr. Vassell asked what he should do, Ms. Revutsky said that it was up to him. She explained that if he was to plead guilty, it must be of his own free will. She also explained that there was a good chance that the judge would go along with the joint submission if there was a guilty plea, but that she could not guarantee that he would not go to jail after a trial. She told him several times that he did not have to plead guilty.
ANALYSIS
[20] An appellant claiming that his or her counsel was ineffective must demonstrate three things:
• The facts on which the claim of incompetence is based;
• That the representation provided by trial counsel was incompetent; and,
• That the incompetent representation resulted in a miscarriage of justice.
[21] See: R. v. Joanisse, 1995 CanLII 3507 (ON CA), [1995] O.J. No. 2883, 102 C.C.C. (3d) 35 (C.A.) at paras. 63 and 65.
(a) Has Mr. Vassell proven the facts on which the claim of incompetence is based?
[22] In my view, Mr. Vassell has not proven on a balance of probabilities that Ms. Revutsky pressured him into pleading guilty or engaged in any other kind of unprofessional behavior. During the cross-examination on his affidavit he backtracked significantly from his original statements in his Notice of Appeal and his affidavit.
[23] Mr. Vassell seems to be proceeding from the misguided assumption that he is the victim. He claimed in his cross-examination, and in his oral submissions on the summary conviction appeal, that Ms. Ajiyor was the guilty party. He said that there were videos that would demonstrate that she had abused him in public and on a TTC bus. That seems to be the genesis of his assertion that there has been a miscarriage of justice.
[24] Mr. Vassell has repeated that claim but he has brought forth no such evidence. He claims that there is evidence of an assault by Ms. Ajiyor on him on a TTC bus. Maybe so, but that would have nothing to do with whether or not he was guilty of the offence charged. Ms. Revutsky obviously knew that even if true it could provide no defence. Mr. Vassell also claims that there was exculpatory evidence on his cell phone. He has done nothing to bring that evidence forth. I can only conclude that it does not exist or it is not exculpatory. His claim that Ms. Revutsky failed to bring out these exculpatory videos must fail because there is no indication that this evidence existed.
[25] Based on Mr. Vassell’s cross-examination, as well as on his repeated failure to bring forward evidence that he claims is exculpatory, I find that he has real credibility difficulties. Where his evidence differs from Ms. Revutsky’s evidence I prefer Ms. Revutksy’s. I therefore find that he has not proven the facts on which the claim of incompetence is based.
(b) Was the counsel ineffective?
[26] I also see no basis for finding that Ms. Revutsky’s representation of Mr. Vassell was incompetent. There is a strong presumption that counsel’s representation of his or her client falls “within the wide range of reasonable professional assistance": R. v. G.D.B. 2000 SCC 22, [2000] 1 S.C.R. 520, 143 C.C.C. (3d) 289 at para. 27.
[27] It is clear that Mr. Vassell pleaded guilty because he accepted Ms. Revutsky’s advice that there was a good chance he would be convicted and that he could avoid jail by pleading guilty. Based on the record before me, that seems to me to have been an entirely reasonable assessment and well “within the wide range of reasonable professional assistance".
[28] There is no basis to find that Ms. Revutsky was ineffective. Ms. Revutsky’s advice to Mr. Vassell was advice was based on a reasonable analysis of the evidence. Ms. Revutsky told him that she did not think his claim of self-defence would succeed. As I noted, Mr Vassell’s credibility in this appeal is suspect. Ms. Revutsky’s evaluation of Mr. Vassell’s credibility, based on her years of experience, is entitled to deference. Although it is not my function to second-guess Ms. Revutsky’s tactical decisions and advice (as long as they are not incompetent), I have obviously seen her file as part of the fresh evidence application. Her conclusions about the evidence against her client was certainly one that most competent, experienced criminal lawyers could have (and probably would have) drawn.
[29] Furthermore, given the evidence and Mr. Vassell’s criminal record, a suspended sentence and probation for this offence after a guilty plea was a good result for him. Again, most competent, experienced criminal lawyers would likely have come to that conclusion as well. Ms. Revutsky’s advice in that regard was also well within the bounds of reasonable professional competence.
(c) Did the incompetent representation result in a miscarriage of justice?
[30] In R. v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No. 4348, 202 C.C.C. (3d) 60 (C.A.) at paras. 119-120 Doherty J.A. described the elements of a miscarriage of justice:
A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: G.D.B., supra, at pp. 298-99; Joanisse, supra, at pp. 62-64. The allegations of ineffective representation on this appeal do not go to the fairness of the trial process, but to the reliability of the result.
[31] The evidence is clear that Mr. Vassell is factually guilty of the offence. He admitted as much to Ms. Revutsky. The mall security tape, while not entirely clear, does not exonerate him, especially as it shows him running away from Ms. Ajiyor after she was on the ground. Although he feels that he was victimized by Ms. Ajiyor, that has nothing to do with whether or not he was guilty of assaulting her at the time and place set out in the information.
[32] During his cross-examination on his affidavit Mr. Vassell both denied and admitted the elements of the offence. He claimed he was not guilty but also admitted snatching Ms. Ajiyor’s phone from her and (in effect) tussling with her over it. The admission of a physical altercation alone is enough to found a conviction.
[33] At the end of the day, this is a simple case of buyer’s remorse by Mr. Vassell. Buyer’s remorse is not a basis for setting aside a guilty plea.
DISPOSITION
[34] As noted at the hearing, the summary conviction appeal is dismissed.
R.F. Goldstein J.
Released: March 22, 2016
CITATION: R. v.Vassell, 2016 ONSC 1973
COURT FILE NO.: 14-40000053-00AP
DATE: 20160322
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DUANE VASSELL
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
R.F. Goldstein J.