Court File and Parties
Court File No.: CR-16-00000042-00AP Date: 20170410 Superior Court of Justice Summary Conviction Appeal Toronto Region
Between: Her Majesty the Queen – and – Xueming Yang Appellant
Counsel: Darren Hogan, for the Respondent Lydia Riva, for the Appellant
Heard: March 15, 2017
Reasons for Decision
WRIGHT J.
Introduction
[1] On March 31, 2014 the appellant was convicted, after trial in the Ontario Court of Justice, of ‘over 80’ pursuant to section 253(1)(b) of the Criminal Code.
[2] The appellant appeals his conviction on the basis that the trial counsel’s omission to interview a key defence witness and to file a Charter application, amounts to ineffective assistance of counsel and a new trial is required.
Overview
[3] The facts, for the most part, are simple and straightforward.
[4] On October 26, 2012, Police Constable Noble (the “officer”) was enforcing traffic signal compliance at the intersection of Kennedy Road and Sheppard Avenue East in the City of Toronto. This was noted to be a problematic intersection and the officer was tasked with monitoring it for 60 minutes during his shift.
[5] At approximately 3:12 a.m., the appellant was stopped by the officer for failing to stop for a red light when making a right hand turn at the intersection. The appellant was the driver and his friend was in the front passenger seat. Upon speaking with the appellant, the officer noted several indicia of impairment including red eyes and the smell of alcohol emanating from his breath. The officer formed a suspicion that the appellant had alcohol in his body and made a demand for a roadside screening test. The appellant performed the test and registered a fail. As a result, the officer believed that the appellant had over 80 mg of alcohol per 100ml of blood, arrested the appellant, read him his rights to counsel and made a breath demand. The appellant provided two samples of his breath registering 118 and 110 mg of alcohol in 100ml of blood.
[6] Approximately two weeks prior to trial, after discharging original counsel, the appellant retained trial counsel. The appellant attended his office, provided him with disclosure and reviewed the case. There is no agreement between them as to the content of that discussion. The appellant and trial counsel next met the day of trial, 30 minutes prior to the start of court.
[7] The appellant’s trial was conducted on March 31, 2014 and was completed in less than one day. No Charter applications were filed by the defence. The Crown relied upon the evidence of three police officers. After much back and forth and discussion both on and off the court record, the appellant chose not to testify. He was found guilty of the over 80 count and at his request the facts were applied to his additional charge under the Highway Traffic Act, R.S.O. 1990, cH.8, for failing to stop at a red light. He was found guilty of that offence as well.
The Fresh Evidence
[8] The respondent consents to the fresh evidence application and its admission on this appeal.
[9] The fresh evidence consists of the following:
(1) affidavit of the appellant, May 3, 2016; (2) affidavit of Ting Lui (passenger), January 13, 2017; (3) cross examination transcript of trial counsel (including attached exhibits), November 28, 2016; and (4) cross examination transcript of the appellant, October 17, 2016.
Position of the Appellant
[10] In a nutshell, the appellant’s position is that he did stop at the red light and that he communicated this to trial counsel. The appellant submits that trial counsel, upon receiving this information, should have pursued an application pursuant to section 9 of the Charter and that his failure to do so, under the circumstances, amounted to incompetence that resulted in a miscarriage of justice.
[11] The appellant also submits that he was provided with ineffective representation of counsel in respect of the following:
- counsel had no plan or defence strategy;
- counsel failed to review all the disclosure, specially the in car camera video;
- counsel’s preparation for the trial was inadequate;
- counsel failed to investigate and interview the passenger in the vehicle, Ting Lui;
- counsel failed to provide the appellant with proper advice regarding the Charter issue; and
- counsel failed to provide the appellant with proper advice in relation to testifying.
The Applicable Legal Principles
[12] In R. v. Joanisse, [1995] O.J. No. 2883 (C.A.) at paras. 64 and 65, Doherty J.A. comments on the value of effective assistance of counsel at trial:
The importance of effective assistance of counsel at trial is obvious. We place our trust in the adversarial process to determine the truth of criminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by “partisan advocacy on both sides of the case”: U.S. v. Cronic, 104 S. Ct. 2039 (1984), per Stevens J. at p. 2045. Effective representation by counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professional trained in the skills needed during the combat of trial. The skilled advocate can test the case advanced by the prosecution, as well as marshal and advance the case on behalf of the defence. We further rely on a variety of procedural safeguards to maintain the requisite level of adjudicative fairness in that adversarial process. Effective assistance by counsel also enhances the adjudicative fairness of the process in that it provides to an accused a champion who has the same skills as the prosecutor and who can use those skills to ensure that the accused receives the full benefit of the panoply of procedural protections available to an accused.
Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice. This court is under a statutory obligation to quash convictions which are the product of a miscarriage of justice: Criminal Code s. 686(1)(a)(iii). The accused who is the victim of a miscarriage of justice is entitled to at least a new trial.
[13] In that same judgment at para. 66, Doherty J.A. warns that the approach to be taken by appeal courts on claims of ineffective assistance must be a cautious one:
This court, following the lead of the Supreme Court of the United States, has taken a cautious approach to claims based on the alleged incompetence of trial counsel: R v. McKellar (1994), 19 O.R. (3d) 796 at p. 799 (Ont. C.A.). 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.
[14] In recognizing the pitfalls of hindsight, Doherty J.A. instructs that assessments into competency must always be informed by a presumption in favour of competence.
[15] There are three things that must be shown by the appellant seeking to quash a conviction on the basis of ineffective assistance of counsel.
R v. Archer, 2005 Carswell Ont. 4964 (C.A.) at paras. 119-120.
[16] First, when a claim is based on contested facts, the appellant must establish the material facts on a balance of probabilities.
[17] Second, the appellant must demonstrate that counsel’s acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. This assessment is made having regard to the circumstances that existed when the impugned acts or omissions occurred.
[18] Third, the appellant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel’s ineffective representation undermined the appearance of fairness of the trial or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates there is a reasonable possibility that the verdict could have been different.
[19] The onus rests squarely on the appellant to satisfy the court of the above components.
[20] When an allegation of incompetence is made on appeal, the first step, in most cases, will be to analyze the effect of counsel’s alleged incompetence on the fairness of the trial. If the court is satisfied that there has been no prejudicial impact and therefore no miscarriage of justice, then it is unnecessary to assess the conduct of counsel.
R. v. B. (G.D.), 2000 SCC 22, [2000] S.C.J. No. 22. R. v. Archer, at para.121 R. v. Walsh, [2006] O.J. No. 955 at para. 51. R v. Archer, at para. 121
Evidence
[21] The starting point is a review of the evidence as it relates to the reliability of the verdict.
Ting Lui
[22] There is no dispute that Ting Lui was in the front passenger seat of the appellant’s vehicle when Mr. Yang was pulled over by the police on October 26, 2012.
[23] Ting Lui’s evidence is that Mr. Yang stopped before making the right hand turn. This evidence comes before me in the form of an affidavit affirmed on January 13, 2017, which is five paragraphs in length. The affidavit is brief, lacking in detail and without the benefit of cross examination, is of limited assistance to this Court on appeal. I am mindful that the affidavit was completed more than four years after the incident and this may account for the lack of details. Regardless, given this is the first word from Mr. Lui in more than four years on this issue, it is a case of too little too late.
[24] The appellant argues that trial counsel failed in their obligation to contact and interview Mr. Lui. In his affidavit and in cross examination, trial counsel explained that he gave the appellant his contact information and instructed him to pass it on to Mr. Lui. The appellant indicated that he would bring Mr. Lui to trial. There is no evidence that the appellant took issue with or misunderstood the agreed approach. Under the circumstances, I find the approach does not present as unreasonable.
The Appellant – Xueming Yang
[25] The appellant made no complaint about the assistance he received from trial counsel before, during or immediately after the trial. I am mindful that the appellant testifies that he asked trial counsel about the possibility of an appeal immediately after trial. There is no evidence that this inquiry was based on his dissatisfaction with counsel’s performance. Moreover, I do not think it unusual that a person freshly convicted for the first time would ask generically about the possibility of an appeal.
[26] On August 21, 2015, 17 months after conviction, the appellant’s application for permanent residency was refused. On May 10, 2016, more than two years after conviction, the appellant filed a notice to extend the time period so he might file an appeal.
[27] In cross examination, the appellant reluctantly agreed that his immigration issues played a role in his decision to pursue this appeal. He repeatedly alluded to other reasons but failed to articulate what they were.
[28] I find that the appellant’s sole motivation for pursuing the appeal was the realization that his immigration status was in serious jeopardy. It is the only logical inference on the evidentiary record before me and it impinges on his overall credibility.
[29] The appellant was cross examined on his decision not to testify at trial. The appellant’s position is that there was no discussion with trial counsel prior to trial about testifying and that he did not understand what it meant to testify when he made the decision not to. It was only when pressed in cross examination that the appellant resiled from this position and conceded that he did understand what it meant to testify.
[30] This is just one example of the evasiveness demonstrated by the appellant in cross examination and further impinges on his overall credibility.
[31] The appellant maintains that he stopped at the red light before making his right hand turn. In direct contradiction to that position, he agrees that at the conclusion of the criminal trial he entered a plea of guilty to a charge of failing to stop for a red light pursuant to the Highway Traffic Act.
Trial Counsel
[32] Trial counsel gave evidence that he met with and was retained by the appellant approximately 2 weeks before trial. He explained that he had experience both prosecuting and defending these types of cases, and Charter applications like this one are common. He maintained that he did discuss the possibility and probability of a Charter application with the appellant. He told the appellant that the chances of success were weak even factoring in the potential evidence from the passenger Ting Lui. He says he communicated to the appellant that there would be an additional cost if he wanted to pursue the Charter application and left it up to the appellant to decide if he wanted to go ahead. The appellant declined.
[33] Trial counsel stated that he offered to meet with Ting Lui and provided the appellant with his contact information to pass on. The appellant declined and offered instead to bring him to trial.
[34] The appellant submits that the court should carefully scrutinize the credibility and reliability of the trial counsel’s evidence. The appellant advances two areas of concern in that regard:
(1) The inability of trial counsel to recall if the $2,000.00 retainer went into the trust account at the time it was received; (2) Trial counsel gave inconsistent responses when questioned about whether or not he discussed with Crown Counsel the potential immigration consequences for the appellant in the event of conviction.
[35] Given the passage of time between receiving the retainer and discoveries, I am not troubled by trial counsel’s inability to recall if it was put into a trust account.
[36] I have considered the responses of trial counsel in relation to the issue of immigration. I am not troubled by it. Initially trial counsel stated that during plea negotiations he did not discuss potential immigration consequences with Crown Counsel. He quickly revised that answer and stated that he could not recall if he spoke to the Crown about this issue. He stated that his lack of recall is due to the passage of time. His explanation makes sense and in my view does not impinge on his credibility.
Miscarriage of Justice
Analysis
[37] As previously stated, the first consideration when an allegation of lawyer incompetence is made on appeal is whether the alleged incompetence resulted in a miscarriage of justice.
[38] The question, as it relates to this case, can be framed as follows:
If trial counsel had brought a section 9 Charter application, alleging that the appellant had been arbitrarily detained, is there a reasonable possibility that he would have been acquitted?
[39] I find that there has been no miscarriage of justice in this case and here is why.
[40] The case for the Crown at trial was overwhelmingly strong. The officer, in my view, was thoroughly cross examined on his observations in relation to stopping the appellant’s vehicle. His evidence was flawless.
[41] The appellant argues that the officer’s cross examination fell short of what would have been expected if a section 9 application were on the table. I disagree. In my view, the cross examination would not have differed, certainly not in any material way.
[42] The thrust of the appellant’s claim is that had trial counsel filed a Charter application, adequately prepared and ensured that the evidence of Ting Lui was present, the appellant’s charges would have been dismissed as a result of a successful application.
[43] That conclusion is not supported by the facts of this case or the law. Proving that the appellant came to a stop at the red light is not conclusive in establishing that he was arbitrarily detained and therefore entitled to a Charter remedy.
[44] Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned”. In R. v. Grant, 2009 SCC 32, [2001] 2 S.C.R. 353, the Supreme Court of Canada held at para. 54 that “[a] lawful detention is not arbitrary within the meaning of s. 9…unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9.”
[45] Consequently, in order to determine whether a detention is arbitrary, it is necessary to determine whether it was authorized by law.
[46] Section 216(1) of the Highway Traffic Act provides that “[a] police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.”
[47] In R. v. Clarke, 2005 CarswellOnt. 1806 (C.A.), the Ontario Court of Appeal considered this provision. In that case, the accused was convicted of driving over 80. He was pulled over after failing to signal when making a left turn. The accused argued that it was only an offence to fail to signal a turn where “the operation of any other vehicle may be affected by the movement”. Since no vehicle was so affected, the results of his failed breathalyzer should be excluded as his section 9 rights were breached.
[48] The Court of Appeal rejected the accused’s argument. It found as a fact that there was another car affected by the movement. However, it further stated that even if no other car was affected by the movement, it is only necessary “to prove the existence of reasonable grounds, not the actual commission of the offence” (R. v. Clarke, at para. 26). Consequently, a detention of a motorist will not be arbitrary so long as there are “reasonable grounds” for believing that an infraction was committed.
[49] On the facts of this case, assuming that the officer had a mistaken, but nonetheless reasonable belief that the accused had violated a section of the Highway Traffic Act, and that mistake related to a fact rather than law, then it cannot be said that the accused was arbitrarily detained.
[50] Even were the appellant to have marshalled evidence that created a reasonable doubt or even established definitively that he had stopped at the red light, this would not be determinative of the issue. To succeed, the appellant would have to establish, on a balance of probabilities, that the officer did not stop him because he reasonably believed he had failed to stop at the red light. There is nothing in the evidence at trial and nothing suggested by the appellant on this appeal which could establish this. As such, there is no reasonable possibility that the appellant’s proposed Charter application could have been successful and therefore, I find no miscarriage of justice in his conviction.
[51] Accordingly, I need not consider the other allegations of incompetence as raised in the defence.
[52] Appeal dismissed.
Wright J. Released: April 10, 2017