COURT FILE NO.: SCA(P) 927/18
DATE: 2020 01 29
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
C. Sibian, Crown Counsel
Respondent
- and -
DWAINE BECKFORD
Self-represented
Appellant
HEARD: January 17, 2020
REASONS FOR JUDGMENT
[On appeal from the judgment of Bruce Duncan J.
Dated March 7, 2018]
F. Dawson J.
[1] Mr. Beckford appeals from his conviction for impaired driving, which was registered against him by Justice Bruce Duncan of the Ontario Court of Justice on March 7, 2018 following a three-day trial. Justice Duncan found the appellant not guilty of a related charge of having care and control of a motor vehicle with excess alcohol in his blood. The appellant represented himself on his appeal. He had counsel at his trial.
[2] The evidence at trial consisted of the testimony of two security guards who worked at a university pub, a Peel Regional Police Officer who was the qualified breath technician who administered breath tests, and the appellant. There was also an agreed statement of facts (ASF).
[3] At the conclusion of oral argument, I dismissed the appeal with reasons to follow. These are my reasons.
Factual Background
[4] The trial judge found that the appellant was kicked out of a pub on a university campus. He was unhappy about that and returned to the pub on a number of occasions over the following few hours and was turned away. On one of those occasions he was seen to drive away in a Mercedes SUV. This was shortly before 2:00 a.m. It was that driving which led to the conviction. The ASF filed at trial indicated that the bar security staff observed that the accused smelled of alcohol, was unsteady on his feet and had slurred speech when he was originally removed from the bar shortly before he drove off in the Mercedes. The original event was reported to the campus police at approximately 2:00 a.m.
[5] On the appellant’s last attendance at the pub, security guards were concerned that the appellant would again drive while impaired. They held the appellant and called the police at 3:18 a.m. The ASF stated that the appellant exhibited signs of impairment at that time. The police arrived and arrested the appellant. Subsequent breath tests at 4:56 a.m. and 5:20 a.m. produced truncated readings of 130 milligrams of alcohol in 100 millilitres of blood.
[6] The appellant testified at trial that he had a minimal amount of alcohol (two beers) to drink before he last drove, that he did not drive after 2:00 a.m. and that he consumed a substantial amount of alcohol before returning to the pub on foot at about 3:15 a.m. He maintained that he was not in care or control of a motor vehicle after 2:00 a.m. because he had no intention to drive after consuming the additional alcohol.
[7] The trial judge dismissed the over 80 charge before convicting the appellant of impaired driving. He accepted the evidence of the security guards who expressed the opinion that the appellant was impaired at the time he got into the Mercedes SUV and drove away. He relied on their descriptions of the appellant as having an aggressive demeanour, being incoherent, exhibiting a smell of alcohol on his breath, slurred speech, glossy eyes and instability.
[8] The trial judge rejected the appellant’s evidence about having many drinks after last driving his vehicle. He did so because he found it to be a highly unusual way to drink and because the claim was inconsistent with the position the appellant took in the breath room, where he said there was no way he was going to blow over. Having rejected the appellant’s evidence of post-driving drinking, the trial judge found that the appellant’s obvious impairment on the breath room video supported the evidence of the security guards. He found the appellant guilty.
[9] It is difficult to distil realistic grounds of appeal from the self-represented appellant’s written material. However, in both his written material and oral submissions the appellant is really asking me to retry the case. That said, I will explain why I do not accept the appellant’s submissions.
[10] The appellant commenced his oral submissions by stating that he was not provided with his rights to counsel or cautioned prior to the point where he made statements during the first 18 minutes he was in the breath room. He submits that in those circumstances the trial judge should not have permitted those statements to be introduced.
[11] I observe that the ASF provides, in paras. 19-20, that when custody of the appellant was transferred from the campus police to the Peel Regional Police the appellant was re-arrested at 3:32 a.m. At 3:33 a.m. he was read his rights to counsel and at 3:38 a.m. he was formally cautioned. I also observe that trial counsel did apply to exclude evidence pursuant to an alleged s.10(b) violation, but on an entirely different basis. That application was dismissed by the trial judge at the end of the Crown’s case. Given the ASF, this submission fails.
[12] The appellant next submitted that the trial judge was obviously biased against him. The appellant stated during his submissions that the trial judge’s body language conveyed that to him. He said that on occasion the trial judge rolled his eyes. I point out that no fresh evidence application was made and no evidence was advanced to support such accusations. The appellant understood that this was a consideration because he said that all he could point to in the record to support this submission was the admission of his statements in the breath room “in violation of due process”. The appellant stated that this made him feel that the trial judge was biased.
[13] I reject this argument. There is nothing in the record which can support a reasonable apprehension of bias on the part of the trial judge. I accept the respondent’s submissions that a review of the record shows that the trial judge ensured that the appellant had a fair trial. In connection with the over 80 charge, the trial judge rejected a Crown argument that the appellant was in care and control of a motor vehicle at 2:56 a.m. Had he ruled otherwise he could have relied on the presumption of identity and convicted the appellant of the over 80 charge. However, he found the appellant not guilty.
[14] The trial judge also excluded some of the statements made in the breath room between the two breath tests. He did that on the basis that he was not satisfied of their voluntariness beyond a reasonable doubt. If anything, he was taking a generous approach in doing so.
[15] It is also apparent that the conviction for impaired driving is reasonable and supported by the evidence. There was evidence of impairment from the security staff and in the ASF which was proximate in time to the appellant being seen driving a motor vehicle. There was also an evidential basis to support the rejection of the appellant’s testimony. There was breath room video of obvious impairment. No palpable and overriding error has been demonstrated. No meaningful misapprehension of evidence has been demonstrated. I am satisfied there is no basis for this submission by the appellant.
[16] The appellant also alleges that his trial counsel pressured and bullied him and provided him with ineffective assistance of counsel. Due to that allegation the appeal was made subject to case management. Both the appellant and his trial counsel testified before me well in advance of the argument of the appeal.
[17] Some further background is required to understand the ineffective assistance of counsel allegation. Trial counsel filed an affidavit upon which he was cross-examined. I am satisfied that affidavit correctly sets out the chronology of events. There are other parts of the affidavit which are challenged by the appellant and with respect to which there are conflicts between the viva voce evidence of the appellant and his trial counsel. I will resolve those conflicts later.
[18] In July 2016 the appellant contacted trial counsel’s office because a conflict had arisen with his prior counsel. Trial counsel met with the appellant on August 8, 2016. The appellant’s anticipated defence was that he drank and became intoxicated after he drove.
[19] On December 6, 2016 the assigned Crown offered the appellant a plea to careless driving pursuant to the Highway Traffic Act, R.S.O. 1990 c. H. 8, for a $1000 fine and probation for 12 months. The appellant was unwilling to accept that offer. The case was set for trial to take place on August 14-16, 2017. On August 7, 2017 the appellant confirmed that he wanted to procced to trial. The Crown’s offer was still open to him.
[20] On August 14, 2017 the trial commenced before Madam Justice S. Martins for three days but was not completed. Further dates were set for November 8 and 9, 2017. However, before that date the parties were requested to appear before Justice Martins. The trial judge had discovered that she was previously involved in one of the appellant’s matters as an Assistant Crown Attorney. The defence requested a mistrial, which was granted. A new trial was scheduled for March 5-7, 2018.
[21] The careless driving resolution was still open to the appellant but again he rejected it.
[22] I am satisfied that the appellant advised his trial counsel that he wanted counsel to object to the jurisdiction of the court. I pause to note that on each occasion when the accused has appeared before me, he has made some unusual statements about who he is and in what capacity he was appearing before the court in. It sounded like “sovereign citizen” rhetoric found on the internet. On his first appearance before me he started to submit that this court had no jurisdiction over him but pulled back on that when I pointed out that he was the one seeking relief on appeal.
[23] Trial counsel advised the appellant that he would not advance the jurisdictional submission which the appellant was insisting on and would apply to be removed from the record.
[24] When the case came before Justice Duncan, trial counsel applied to be removed from the record based on a breakdown in the solicitor-client relationship. However, when Justice Duncan asked the appellant whether he wanted trial counsel removed, the appellant advised that he did not. Justice Duncan requested that the appellant and trial counsel speak and see if they could resolve their differences. During those discussions the appellant agreed not to advance the jurisdictional argument and it was agreed that trial counsel would continue to represent him.
[25] I now move into a more contentious area. The appellant testified that trial counsel wanted him to accept the plea agreement and did not want to run a trial. The appellant submits that in their various out-of-court discussions trial counsel became abusive about this. The appellant claimed in his testimony that trial counsel was constantly swearing at him and yelling at him.
[26] After lunch on the first day of trial the ASF was filed as an exhibit. Trial counsel testified that earlier in the day he and the appellant met to discuss the proposed ASF. Trial counsel said that both he and the appellant wanted some changes to the ASF, which was drafted by Crown counsel. Crown counsel agreed to those changes. Trial counsel had the appellant provide written instructions acknowledging that he understood the significance of an ASF and confirming his agreement with the final draft.
[27] The appellant testified that even after some changes were made to the ASF he did not want to agree to it. He now says, as I understand his submissions, that he did not agree to some of the provisions that support a conclusion that he was driving or that he had been cautioned and given his rights to counsel. The appellant testified that trial counsel was yelling and swearing at him and said that he would not go back into court if the appellant did not sign the written instructions about the ASF.
[28] Trial counsel denies that he applied pressure regarding the ASF. He said that the appellant did not raise any concerns about other aspects of the ASF. At the first trial before Martins J. issues were being raised under ss.8 and 9 of the Charter regarding the lawfulness of the appellant’s arrest. Trial counsel said that, based on the evidence heard at the first trial, the appellant agreed that those issues would not be raised again. Trial counsel said that a s. 10(b) Charter issue and voluntariness were to be raised, but not on the basis that the appellant had not been provided with his rights to counsel or a caution.
[29] Having carefully observed both the appellant and trial counsel testify, I find I much prefer the evidence of trial counsel to that of the appellant. There are serval reasons for this. First, it is very difficult to see the appellant being bullied or pressured into signing anything he did not want to sign. He is a forceful individual with apparently strong views, which he is not reluctant to share. Although he said that trial counsel had pressured him before, over the plea agreement in relation to careless driving, he had no difficulty making his views known about that. That resolution was still open to him at the trial before Duncan J. and he declined it again. Trial counsel then did a more than competent job of conducting the trial.
[30] The appellant made no mention of any objection to the ASF when it was tendered in evidence. I do not put a great deal of weight on this, but it is a factor. I also observe that the appellant told Justice Duncan that he wanted trial counsel to proceed. Trial counsel was not forced on him.
[31] A review of the entire trial record shows beyond question that trial counsel was well prepared and put on a good defence, despite holding the view that it may have been wise for the appellant to take the plea agreement. He proceeded as the appellant wished. I observe that the trial judge referred to trial counsel’s “able argument” in relation to the s.10(b) Charter application. Even the appellant agrees that he has no complaint with the quality of trial counsel’s performance during the actual trial.
[32] The fact that counsel so conducted himself, and the careful way he obtained written instructions, demonstrates competence and professionalism inconsistent with the appellant’s allegations. I observe that trial counsel also obtained written instructions that the appellant wished to turn down the plea agreement. He also had other lawyers in his office, including a senior counsel, speak to the appellant. These circumstances do not fit well with the appellant’s allegation that counsel railroaded him into accepting a prejudicial ASF.
[33] Trial counsel testified in a consistent and straightforward manner. I accept his evidence that while he spoke directly and frankly with the appellant he did not refuse to go back into the courtroom unless the appellant accepted the ASF.
[34] I do not accept the appellant’s evidence. His statements on the record and his approach to the appeal do not inspire confidence in my ability to rely on his evidence. He failed to appear on a day I ordered him to appear so he could be served with Crown Counsel’s responding material. When he came to argue the appeal he did not bring most of the material with him. In short, he has not taken a careful and conscientious approach to these proceedings.
[35] To succeed on an ineffective assistance of counsel argument the appellant “must establish on a balance of probabilities that trial counsel’s conduct fell below the standard of reasonable professional assistance and that the ineffective representation resulted in a miscarriage of justice”: R v. Cubillan, 2018 ONCA 811, at para. 9. Ineffective assistance of counsel gives rise to a miscarriage of justice when it “undermine[s] the appearance of the fairness of the trial or the reliability of the verdict”: R v. Archer 2005 36444 (ON CA), [2005] O.J. No. 4348 (C.A), at para. 120.
[36] Having rejected the appellant’s evidence where it conflicts with trial counsel’s evidence, the ineffective assistance of counsel argument cannot succeed.
[37] Based on my factual findings, there was no ineffective assistance of counsel, no prejudice to the appellant, no miscarriage of justice and no appearance of an unfair trial.
[38] The appeal is dismissed.
F. Dawson J.
Released: January 29, 2020
COURT FILE NO.: SCA(P) 927/18
DATE: 2020 01 29
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
DWAINE BECKFORD
Appellant
REASONS FOR JUDGMENT
F. Dawson J.
Released: January 29, 2020