Court File and Parties
Court File No.: CR-16-40000025-00AP Date: 2017-04-20 Ontario Superior Court of Justice
Between: Her Majesty The Queen, Respondent And: Francisco Garrido-Hernandez, Appellant
Counsel: Darren Hogan, for the Respondent Ernst Ashurov, for the Appellant
Heard: February 14, 2017
Before: R.F. Goldstein J.
Reasons for Judgement on Summary Conviction Appeal
[1] At about 2:24 am on October 11, 2014, Toronto Police officers came across the Appellant. He was in the driver’s seat of his vehicle. It was parked on Wilson Avenue. The Appellant was sleeping or passed out in the driver’s seat. The key was in the ignition and the car was turned on, although the motor was not running. A police officer attempted to wake him by knocking on the window. He didn’t answer. The officer simply opened the door. The officers observed a strong smell of alcohol and glassy, bloodshot eyes. The police arrested him for impaired care and control and made a breath demand. The Appellant refused to provide a breath sample.
[2] The Appellant was charged with having care and control of a motor vehicle while his ability to operate it was impaired. He was also charged with refusing to provide a breath sample.
[3] The Appellant told the police that he was not driving, that he was resting in his vehicle, and that he was going to call a cab. He said that both to the arresting officers and to the qualified breath technician. He also consistently said that he was not going to provide a breath sample. At trial, the Appellant testified that his plan was to call his sister and have her and his nephew come and pick him up.
[4] At trial, the defence conceded that the statements were voluntary. The defence also conceded that the Appellant was in the driver’s seat at the time the police found him in the vehicle. The trial judge, Madam Justice Bacchus, found him guilty.
[5] Mr. Ashurov, on behalf of the Appellant, raises four issues: first, whether the trial judge misdirected herself on the issue of care and control; second, whether the trial judge improperly used the Appellant’s right to silence against him; third, whether the trial judge erred in finding that the evidence of refusing to provide a breath sample was clear and unequivocal; and fourth, whether trial counsel was ineffective such that it caused a miscarriage of justice.
[6] In my view, the Appellant’s arguments simply amount to a disagreement with the verdict and either blaming trial counsel for his own informed decisions or second-guessing trial counsel’s reasonable tactical choices at trial. For the reasons that follow, the appeal is dismissed.
Analysis
(a) Did the trial judge misdirect herself on the issue of care and control?
[7] Constable Zwadskiy observed a car registered to the Appellant at 2:34 am. He had received a radio call about a man who could barely walk. He found the Appellant in the driver’s seat. His hands were on the steering wheel and he was hunched over. The key was in the ignition and the heater was on but the engine was turned off. The officer knocked on the window but the Appellant did not respond. He opened the door. The Appellant raised his head. He told the officer that he was not driving, that he was only resting, and that he was going to call a taxi. The officer asked him to step out of the car. The Appellant appeared unsteady. The officer detected a strong odour of alcohol. The Appellant’s eyes were bloodshot and glassy. The Appellant was placed under arrest.
[8] Mr. Ashurov argues that the trial judge misdirected herself with the following comment right after summarizing the facts:
The defendant admits that his ability to operate the motor vehicle was impaired by alcohol and that he was in care and control of the motor vehicle.
[9] This submission has no merit. The trial judge’s reasons must be read as a whole, and not considered in isolation. It is very clear that the trial judge simply made a single mis-statement. This is because she then said:
The central issue on the count of impaired care and control is whether the accused has rebutted the presumption that he occupied the driver’s seat for the purpose of setting the motor vehicle in motion or whether on the evidence there is a reasonable doubt regarding his intention.
[10] The trial judge then went on to analyze the issue over several pages. The trial judge demonstrated that she clearly understood that the concession was not that the Appellant had care and control (the legal issue under consideration) but rather that he was in the driver’s seat. The trial judge made a minor slip in an otherwise detailed and thorough judgment.
(b) Did the trial judge err by using the Appellant’s right to silence against him?
[11] The trial judge made an adverse finding of credibility against the Appellant. His defence was that his sister was going to pick him up. He did not mention the sister to the police. The trial judge found that this was a material omission. She found that it adversely affected his credibility.
[12] Mr. Ashurov argues that by doing this the trial judge unconstitutionally used the Appellant’s right to silence against him: R. v. Rivera, 2011 ONCA 225.
[13] I disagree. The trial judge did not make improper use of the Appellant’s statements. In Rivera, the accused was stopped at a RIDE checkpoint. Based on the odour of alcohol on the accused’s breath the officer made an approved screening device demand. Over the course of 30 minutes the accused attempted to blow into the device. She made several statements to the officer during that time. Finally the officer arrested her for refusing to provide a breath sample and provided her with her s. 10(b) rights. The trial judge convicted. In the course of her reasons, the trial judge found that the accused lied to the officer at the roadside about her alcohol consumption and other facts. She found the accused not to be credible. The summary conviction appeal judge upheld the conviction.
[14] The Court of Appeal allowed the appeal. LaForme J.A., for the Court, found that while roadside statements forming the actus reus of the offence were always admissible, that was not what had happened. It was not open to the trial judge to use the statements for credibility purposes where the statements had been given to an officer after detention but prior to arrest and the reading of rights, and without either an admission or a voluntariness voir dire. In my view, Rivera is distinguishable from what happened in this case.
[15] My colleague Fairburn J. recently analyzed the issue in R. v. Kovacevic, 2017 ONSC 193. In that case the accused drank several beers and had a car accident. He was arrested at the scene because he showed signs of impairment and an officer smelled alcohol. He was taken to a station and a breath demand was made. Although he declined to answer questions on advice of counsel, he still made some comments to the breathalyser technician. His breath readings were more than twice the legal limit.
[16] At trial, the accused put forward a “bolus drinking” defence: he testified that after the accident he drank an entire mickey of Southern Comfort that he found in his car. He said that he thought he would get into trouble from the police for having it in his car. The trial judge found that the accused would have told the police about the bolus drinking out of self-interest. He drew an adverse finding of credibility against the accused as a result, and convicted him.
[17] In her analysis, Fairburn J. noted that an accused person’s right to silence is not extinguished simply because he or she chooses to speak to a police officer with respect to some matters but not others. This principle respects the fundamental right to silence. There are, however, exceptions. If the purpose of the cross-examination is to challenge credibility on inconsistencies between trial testimony and a previous account, cross-examination may be permitted: R. v. Hill, 2015 ONCA 616. If, however, a trial judge draws an adverse inference from the exercise of the right to silence, that is improper. That crosses the line to impermissible inference. Fairburn J. summarized the principle at para. 43-44:
While gaps in an earlier version of events may be used to test the credibility of an accused on a later and more complete version of events, this is not what happened in this case. The appellant did not provide the police with an earlier version of events. Indeed, he asserted his silence. While he made a few comments in the breath room, they fell far short of providing an account of what happened, an account against which his later account could be measured.
In the context of rejecting the appellant's evidence, the trial judge simply concluded that someone in the appellant's position would have divulged the post-driving drinking to the police. By doing so, he erred in using the appellant's silence as a means by which to assess his credibility. This constitutes a prohibited use of the constitutional right to silence.
Fairburn J. allowed the appeal and ordered a new trial.
[18] In Hill, supra, the accused was charged with first degree murder. He strangled his pregnant girlfriend. He gave several statements to the police describing his behaviour and eventually confessed to strangling her. The admissibility of those statements was not contested. Crown counsel vigorously cross-examined the accused on the differences between his earlier statements and his testimony at trial. On appeal, the accused argued that Crown counsel’s cross-examination improperly crossed the line from an attack on credibility to an invitation to use the right to silence in order to draw an adverse inference. Doherty J.A. rejected that argument. He stated at para. 46-47:
The propriety of cross-examination on a prior statement made by an accused to the police turns on the purpose of the cross-examination. If the cross-examination is designed to challenge the credibility of an accused's testimony based on inconsistencies between that testimony and a previous version of events provided by the accused, the cross-examination is appropriate. If, however, the cross-examination invites the trier of fact to draw an adverse inference from the accused's silence when questioned by the police, the cross-examination is inappropriate. Sometimes, both purposes may be in play. A trial judge can refuse or limit cross-examination on the prior statement when there is a legitimate concern that the cross-examination may trespass improperly on the accused's right to silence. The trial judge may also give a limiting instruction cautioning against misuse of the right to silence if the cross-examination merits that instruction.
This cross-examination presented no risk that the jury would draw an adverse inference from the appellant's silence when questioned by Detective Bickerton. The Crown did not suggest he remained silent about anything. The cross-examination forcefully suggested that the appellant's trial version of the relevant events was significantly different from his initial version given to Detective Bickerton in two important respects.
[19] In my respectful view, the trial judge used the Appellant’s contradictions to draw an adverse finding of credibility in the permissible way described in Hill. She did not cross the line as described in Rivera and Kovacevic. The Appellant repeatedly tried to explain to the police what occurred and give them an explanation about his plan for getting himself home. The defence conceded that the statements were voluntary and admissible. He gave a completely different explanation about his plan for getting himself home at trial. As Doherty J.A. noted at para. 45 of Hill:
Omissions can be integral to the existence of material inconsistencies between two versions of events. An account of an event which leaves out important details may be viewed as inconsistent with a subsequent account that includes those details.
[20] The Appellant’s plan for getting home was the linchpin of his defence at trial. The plan was elaborate and detailed. The Appellant’s sister testified. She gave evidence that was intended to corroborate the Appellant’s evidence. The Appellant insisted to the police that he had a plan to get home that involved a taxi. It was entirely different from the plan he testified to at trial.
[21] The trial judge found the Appellant’s evidence incredible. She also found his sister’s evidence completely incredible. It was incredible in light of the Appellant’s failure to mention not this elaborate plan but a totally different plan to the police. The trial judge made this finding:
… it is incredible that the defendant would not think to mention his sister, given that if he had in fact called her she would have already left her home and been on the way to the scene…
[22] This finding was open to the trial judge on the evidence before her. It was a reasonable finding and did not cross the line.
(c) Did the trial judge err in finding that the evidence of refusing to provide a breath sample was clear and unequivocal?
[23] Mr. Ashurov argues that the refusal was not clear and unequivocal because the breath technician told the Appellant that whether or not he provided the sample was up to him. This, he argues, amounted to giving the Appellant a choice – and was the reason for the refusal. Mr. Ashurov argues that the Appellant would have understood that he was not required to provide a breath sample.
[24] This submission has no merit. It is clear that the Appellant consistently refused to provide a sample of his breath. He told the investigating officer that he would not provide a breath sample long before he got to the station. That was well before he met the breath technician. The trial judge found that he had refused to provide a sample 11 times. That was also a finding that was open to her on the evidence. The breath technician was simply advising him of his choice – provide a breath sample or be charged for refusing. There was no possibility that the Appellant would have understood that a breath sample was not required.
(d) Was defence counsel ineffective such that it caused a miscarriage of justice?
[25] Mr. Ashurov argues that there was a miscarriage of justice because of several failures by Mr. Menzies, his trial counsel. He points to what he says are six failures that show trial counsel fell below the standard of reasonably competent representation:
- He failed to present a phone bill showing that the Appellant had, in fact, called his sister the night that he was arrested;
- He failed to call the Appellant’s nephew, and to seek an adjournment for that purpose;
- He failed to cross-examine the breath technician to challenge the supposedly unequivocal nature of the demand;
- He failed to review the breath room video with the Appellant;
- He failed to bring a s. 10(b) Charter application to challenge the adequacy of the advice given by duty counsel to the Appellant and argue that he was denied his right to counsel of choice;
- He failed to bring a stay application based on “overholding”.
There is no merit to any of these arguments.
[26] In R. v. Joanisse, 1995 ONCA 3507, [1995] O.J. No. 2883, 102 C.C.C. (3d) 35 (C.A.) Doherty J.A. set out the framework for evaluating claims of ineffective assistance of counsel. A claim can only succeed on appeal where the appellant can 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.
[27] The first two stages really encompass the following analysis: the Appellant must establish the acts or omissions on a balance of probabilities and then show that they could not have been the result of professional judgment. The acts or omissions must be so unreasonable that trial counsel’s performance falls below standards of professional competence: R. v. Joanisse, supra, at paras. 63-65.
[28] The third stage requires the Appellant to show that there has been a miscarriage of justice. The Appellant must show that there is a reasonable probability that the verdict would have been different but for the ineffective assistance. The threshold is high.
[29] Effective assistance enhances the fairness of the trial process and is part of a system that seeks to do justice. Where incompetent representation has resulted in a miscarriage of justice, a court must quash the verdict and at least order a new trial. That said, claims of ineffective assistance must be evaluated with caution. A claim of ineffective assistance is not a “forensic autopsy” of defence counsel’s performance. It would be a rare case where there was no aspect of the conduct of a defence that was subject to criticism. Reasonable, competent defence counsel may well disagree on strategy and tactics. Mere disagreement with tactical decisions does not constitute incompetence on the part of defence counsel. Thus, an appeal court must proceed with caution.
[30] In my view the Appellant cannot establish the first two stages. None of the supposed failures, individually or cumulatively, establishes ineffective assistance by trial counsel:
[31] The phone bill: Trial counsel could not say that the Appellant had not given the cell phone bill to him, but did not recall receiving it. He did not recall seeing it in his file. In my view it is highly unlikely that the Appellant provided the bill to trial counsel. The Appellant is not credible on this point. Neither the Appellant nor his sister mentioned the cell phone bill during their evidence. In cross-examination on the Appellant’s affidavit, Crown counsel pointed out that the times for the phone calls that the Appellant gave in evidence did not match the times on the bill. That meant, he suggested, that the Appellant had not referred to the bill prior to testifying to refresh his memory. He suggested that the Appellant did not obtain the bill until after the trial. The Appellant denied it. Given all the circumstances, I think it is a reasonable inference that the Appellant never provided the bill to trial counsel. In any event, the totality of the evidence shows that the phone bill would have made little difference. Even if the phone bill had been available it likely would not have changed the trial judge’s view of the credibility of the defence witnesses.
[32] The nephew: The Appellant’s nephew was not available on the day set for trial. Trial counsel asked the Appellant whether he should obtain an adjournment. The transcript indicates that trial counsel asked for a brief recess to obtain instructions. The Appellant made an informed decision to forgo the extra costs associated with an adjournment.
[33] Cross-examination of the breath technician: The videos and the evidence established beyond any question that the Appellant consistently refused to provide a breath sample. As I have already found, there was no realistic possibility that the Appellant could have been misled about his legal options. Trial counsel’s decision not to cross-examine on this point was a reasonable one.
[34] Individuals who are uninformed with the realities of the trial process often claim that trial counsel’s decision not to cross-examine on a particular point shows some kind of lack of determination or skill. That, of course, is not the case. Trial counsel quite obviously concluded that it would be pointless and possibly even counter-productive to cross-examine an experienced police officer on a point that was effectively established by a video. The possibility that cross-examination on this point could not have altered the trial judge’s conclusion was slim. Trial counsel, who is experienced, likely (and accurately) concluded that all he would have accomplished was to undermine his own credibility with the Court, which would have done nothing to assist the Appellant.
[35] Reviewing the video: The nature of the Appellant’s claim on this point is unclear, but it seems to be a complaint that trial counsel did not properly review the booking video with him. He complains that instead of meeting at trial counsel’s office, they had several meetings in a parking lot. There is no merit to this claim either. The video, as trial counsel pointed out, spoke for itself. Furthermore, trial counsel had two offices. It was not his practice to meet with clients in a vehicle, but that was done at the Appellant’s request to accommodate the Appellant’s work schedule and responsibilities.
[36] The s. 10(b) application: I agree with Crown counsel that the Appellant’s claim has been evolving. The Appellant only raised this after the filing of the notice of appeal and his affidavit and during the cross-examination of trial counsel. I also agree with the Crown that this evolving claim is of concern. It undermines the credibility of the claim. Trial counsel explained that he made a decision not to pursue this issue after reviewing the videos and determining that an application under s. 10(b) of the Charter would not succeed. That was because the Appellant indicated that he understood his rights, was not requesting to speak to a lawyer at that point, and was clearly refusing to provide a sample. Furthermore, trial counsel concluded that duty counsel was very unlikely to have told the Appellant not to provide a sample. That was a reasonable conclusion. It was reasonable not only on its face, but also reasonable given the Appellant’s consistent refusal to provide a sample even before he spoke to duty counsel.
[37] The “overholding”: Mr. Ashurov also argues that trial counsel failed to make an argument that the Appellant’s s. 9 rights had been breached. That is because he was released from the station some 6 ½ hours after the refusal to provide a breath sample. Trial counsel should have investigated this possible breach of rights. He points to other cases where trial judges have found a s. 9 breach based on an over-holding. He notes that in R. v. Cheema, 2016 ONCJ 61 Schreck J. of the Ontario Court of Justice found a s. 9 breach based on “overholding”.
[38] In Cheema, the offender was held in custody for about four hours and twenty minutes after the completion of the investigation. The officer-in-charge of the station could not articulate a basis for keeping the Mr. Cheema in custody. Schreck J. found that this “overholding” amounted to a s. 9 breach. He did not find that the breach merited a stay of proceedings. Instead, he imposed a lower sentence: R. v. Cheema, 2016 ONCJ 193.
[39] Schreck J. was certainly correct to refuse to enter a stay of proceedings. The breath evidence was not obtained in a manner that violated anyone’s rights. There was no connection between the Charter breach and the obtaining of the evidence: R. v. Iseler (2004), 2004 ONCA 34583, 190 C.C.C. (3d) 11, [2004] O.J. No. 4332 (C.A.).
[40] I cannot accept the argument that trial counsel’s failure to pursue this issue was incompetent. Simply pointing to the time on the Promise to Appear does not establish a breach of the Charter. There is no evidence from the Appellant at all on this point. It is his burden to establish that there was a Charter violation. It was also his burden to show that trial counsel negligently failed to bring out. In Cheema there was evidence regarding the actions of the officer-in-charge of the station. The Appellant made no effort to file any evidence regarding what happened at the station. An officer-in-charge of a station should not release a drunk person if it is unsafe to do so. In the absence of any such evidence to the contrary, it is reasonable to assume that is likely what happened.
[41] Even if the Appellant were able to establish a s. 9 violation, it almost certainly would not have resulted in a stay of proceedings: Iseler, supra; R. v. Kavanagh, 2017 ONSC 637; R. v. Coyle, 2013 ONSC 6925.
[42] In R. v. Pino, 2016 ONCA 389, a case relied on by the Appellant, the Court of Appeal excluded evidence that was not “obtained in a manner” that breached the Charter, although there was a Charter breach. The breach, involving a “high-risk” takedown at gunpoint and police officers lying to the court, was obviously highly egregious and in no way similar to the alleged breach in this case.
[43] In my respectful view, there is no merit to the “overholding” issue in this case. Had the issue been pursued, it is highly unlikely that the result would have been a stay of proceedings or the exclusion of evidence. The Appellant already received the minimum sentence.
[44] There was no miscarriage of justice: In my respectful view, even if there had been ineffective assistance by trial counsel, it would not result in a new trial. That is because there was no miscarriage of justice. The Appellant was clearly drunk and clearly had care and control of the vehicle. His story was clearly incredible. His refusal to provide a breath sample was clear, unequivocal, and repeated several times both on and off camera. There was ample evidentiary support for the conviction.
[45] Conclusion on ineffective assistance of counsel: I conclude with these observations: The main problem for the Appellant was not that his trial counsel was ineffective. The main problem for the Appellant was that the Crown’s case was overwhelming and his credibility (and the credibility of the other defence witness) was suspect. The suspect nature of his credibility is borne out by some of his claims on this appeal, as I have mentioned. Trial counsel’s strategy at trial was reasonable – given the evidence available to the Crown it may well have been the only plausible strategy. That strategy depended on the Appellant’s own credibility. He had none. That was what caused the strategy to fail. Blaming his trial lawyer does not change that.
Disposition
[46] The Appeal is dismissed.