Court File and Parties

CITATION: R. v. Dosanjh, 2017 ONSC 6994

COURT FILE NO.: CR-16-10000002-00AP

DATE: 20171123

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Kamaljit Dosanjh

BEFORE: Justice S. Nakatsuru

COUNSEL: M. Mandel, Counsel for the Respondent, Her Majesty the Queen M. Caroline Counsel for the Appellant, Dosanjh

HEARD: November 14, 2017

ENDORSEMENT

[1] The appellant Mr. Dosanjh raises one argument. He is appealing Justice H. Borenstein’s conviction for the offence of operate a motor vehicle with a blood alcohol concentration over the legal limit. He submits that he did not obtain effective assistance of counsel at his trial. Mr. Dosanjh and his trial counsel both swore affidavits. Both were cross-examined on them. This fresh evidence was admitted on this appeal.

[2] The issue on this appeal is a narrow one. It is a factual one. In this case, Mr. Dosanjh claims that he told his trial counsel that he told the police officer who stopped him that he had three drinks and he had just finished his last drink. His defence lawyer denies that Mr. Dosanjh ever told him this.

[3] This is important because at trial a Charter issue was raised. The defence argued that there were no reasonable grounds to arrest Mr. Dosanjh because the “fail” result from the ASD was not reliable. This was because the arresting officer did not determine when Mr. Dosanjh had his last drink. Thus the issue of residual mouth alcohol was a live issue before Justice Borenstein. However, Mr. Dosanjh never testified at his trial. The officer was never questioned about the statement Mr. Dosanjh now says he told the officer. A statement that he says he had told his trial lawyer about. Justice Borenstein ruled that there was no evidence of when the arresting officer was told Mr. Dosanjh had those drinks. He ruled there was no evidence the officer knew Mr. Dosanjh had consumed alcohol within the previous 15 minutes of the ASD test. Justice Borenstein dismissed the Charter application and convicted the appellant.

[4] After carefully considering the record on this appeal, I find that Mr. Dosanjh has not satisfied me that he told his trial counsel that he had advised the police officer that he had recently finished his last drink. I come to this conclusion for the following reasons.

[5] First of all, I acknowledge it is difficult to make credibility findings when I only have the affidavits and transcripts of the cross-examination.

[6] That said, with regards to trial counsel, I have no reason to disbelieve him. I accept his evidence when he said he was not told by Mr. Dosanjh of this critical piece of information. Counsel was called to the bar in 2003 and had articled and then juniored/juried for a well-known criminal lawyer who specializes in drinking and driving cases. Trial counsel himself is a criminal lawyer where eighty percent of his practice is drinking and driving cases. He knows about the importance of the issue of residual mouth alcohol.

[7] While I appreciate that the passage of time and the fact that data was lost in a computer crash at his office has affected his recollection, I accept trial counsel’s testimony that he was not told by Mr. Dosanjh that the latter had finished his last drink just before being stopped by the police and he had said as much to the police officer. Trial counsel was very certain he was not told. As trial counsel testified, had he been told this, his cross-examination of the police officer would have been different and focused on this information. Further, I accept trial counsel’s testimony that Mr. Dosanjh did not testify at trial because based on the information trial counsel had and did not have, there was no reason to. When I look at the background of trial counsel, the importance of this type of information Mr. Dosanjh now claims he told his lawyer has to a potential Charter application, and how the issue arose and was litigated, I find it most implausible that trial counsel would have been told this by Mr. Dosanjh.

[8] The frailties in trial counsel’s evidence as alleged by the appellant, do not affect my view of the weight I can put in his testimony. The fact that there is a Charter notice of application that referred to an affidavit of Mr. Dosanjh is explained by trial counsel as a mistake made by a new staff member who drafted it. This notice was never served and filed. In this case, the Charter issue arose after the first day of trial when the officer testified. The defence was permitted to raise the issue by the court. When the matter returned for argument on another day, trial counsel had inadvertently failed to file the notice. I accept trial counsel’s evidence that no affidavit was ever prepared and the reference to it was just a mistake. Furthermore, an inconsistency in the cross-examination of trial counsel about what he knew from Crown disclosure was an error due to inaccurate recollection. Trial counsel admitted he made the error. This did not affect his credibility. Overall, while some reliability concerns are justified, the one aspect of trial counsel’s testimony that I find reliable and credible is trial counsel’s evidence about what he was and was not told by Mr. Dosanjh about this critical conversation he had roadside with the police officer.

[9] On the other hand, I have significant concerns about Mr. Dosanjh’s evidence presented on this appeal. There were two significant inconsistencies in his cross-examination that were not adequately explained. Mr. Dosanjh was not consistent about what he told the police officer about his last drink. This was important and something he would remember accurately. In the cross-examination when it was put to him he had told the officer “I just finished my last drink prior to leaving,” Mr. Dosanjh corrected the Crown saying the exact quote was “I just finished my last drink.” This was inconsistent with what he said in his affidavit where he had said it was prior to leaving. He initially denied his affidavit was correct. Then when pressed further he said he may or may not have said that and was not entirely sure. Mr. Dosanjh testified he had made notes within a day or two of his arrest for his own benefit. In those notes he said that he told the officer he had “just finished” his last drink. Further, in his affidavit, Mr. Dosanjh never avers that he told trial counsel about this conversation. He avers that he told trial counsel only that he finished his drinking at 11:35 p.m. In his handwritten notes, he does not note that he told trial counsel that he told the officer he had just finished drinking. However, Mr. Dosanjh testified that he did. Standing alone, these inconsistencies may not be determinative. I just point out the obvious; the inconsistencies are about a fundamental part of the case.

[10] The other major inconsistency was even more problematic. In his cross-examination, Mr. Dosanjh testified that trial counsel at a brief meeting at a hotel had him sign an affidavit. Mr. Dosanjh testified that he did not get a copy of that affidavit. In Mr. Dosanjh’s affidavit, he avers that trial counsel never prepared, filed or had Mr. Dosanjh sign an affidavit. In the context of the Charter application and the appellant alleging how his side of the story was never put to the officer in cross or to the court, this inconsistency is significant. But equally was Mr. Dosanjh’s responses as he was cross-examined on this. Even on a paper transcript, I can find that he was evasive, inconsistent, and not credible. His lack of recollection of what the affidavit said, one that he swore the truth to, is implausible. I find that this cross-examination significantly undermined the weight of his evidence.

[11] Even the circumstances of the handwritten notes and its contents do not assist Mr. Dosanjh. I appreciate he testified that they were only made for his benefit. However, those notes were not produced until the day of his cross-examination. His own counsel on the appeal had not seen them. Mr. Dosanjh never showed them to his trial counsel at any time. He never advised his trial lawyer that he had made notes shortly after the events. I find this hard to believe. Crown counsel pointed out one notation that reads the police officer “did not ask me when I had my last drink.” This notation, she argues, raises a question about the reliability of these notes. Given that Mr. Dosanjh was not knowledgeable about such criminal investigations into drinking and driving offences, the fact that he would note down not just what was said between him and the police officer, but what was not said by the officer pertinent to residual mouth alcohol, the relevance of which that Mr. Dosanjh could only have become aware of much later on, raises a concern about the legitimacy of these notations. I agree there is some merit to the Crown’s argument.

[12] Finally, there is the fact that Mr. Dosanjh was present throughout his trial and he never raised this issue with counsel. After the officer’s evidence, the case was adjourned for continuation of the constitutional argument. I find it difficult to believe that during that officer’s testimony and for the time afterward, Mr. Dosanjh would not have raised it with his trial counsel that something very different occurred in his interaction with the officer. That Mr. Dosanjh would just remain quiet relying upon a mistaken belief that his lawyer had taken care of everything is puzzling.

[13] In conclusion, looking at Mr. Dosanjh’s testimony on the issue in question, I am unable to accept his testimony that he told his trial counsel about what he now claims he told the officer regarding when he had his last drink. In addition to the issues I had with his evidence, I am also of the view that trial counsel’s testimony on this point is more compelling. In these circumstances, the key factual issue that the appellant founds his ground of appeal on regarding ineffective assistance of counsel has not been made out.

[14] The appeal as to conviction is therefore dismissed.

Nakatsuru J.

Date: November 23, 2017