Court File and Parties
COURT FILE NO.: CR-19-40000064-00AP DATE: 20201214 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Helen Song, for the Crown
HER MAJESTY THE QUEEN
– and –
QUANG QUOC TIEU Appellant
Walter Fox and Sayeh Hassan, for the Accused
HEARD: December 4, 2020
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
(Ineffective Legal Assistance)
ALLEN J.
BRIEF BACKGROUND
[1] Quang Quoc Tieu, the Appellant, was found guilty on two counts of causing unnecessary suffering and abandoning an animal in distress under sections 445.1(1)(a) and 446(1)(b) of the Criminal Code. On July 11, 2017, the Appellant deposited a live puppy into a garbage bin near the entrance of a public mall after he had placed it in several tied shopping bags.
[2] The Appellant was convicted on January 29, 2019 by Justice Chaffe of the Ontario Court of Justice after a five-day trial and he was sentenced on August 7, 2019. The Trial Judge found in written Reasons that the Appellant disposed of the puppy knowing it was alive.
[3] The Appellant was originally sentenced on the sections 445.1(1)(a) and 446(1)(b) convictions to six months’ imprisonment and three years’ probation to run concurrently, a prohibition from owning any animals for 20 years on the s. 447.1(1)(a) convictions and to a fine of $30,000.00 for his conviction under s. 11.2 of the Provincial Offences Act. After an application to re-open sentence was granted, his sentence was reduced from six months to five months’ imprisonment with the ancillary orders remaining the same.
[4] The Appellant’s appeal is based on a claim of ineffective legal assistance by his Defence Counsel which the Appellant alleges led to a miscarriage of justice. This Summary Judgment Appeal was scheduled as an appeal of his conviction. The Appellant did not appeal his sentence. On November 23, 2020, the Appellant applied for an extension of time to appeal his sentence.
[5] I will first deal with the Application for an extension of time and then the Appeal of the conviction.
APPLICATION TO EXTEND TIME
[6] Factors to consider in determining whether an extension of time should be granted are whether the applicant demonstrated due diligence in pursuing the appeal and whether the interests of justice are served by granting an extension. The applicant must demonstrate their intention to make a bona fide appeal during the life of the right to an appeal: [R. v. Gatfield, [2016] O.J. No. 149, at paras. 2 and 11, (Ont. C.A.)].
[7] Diligence is assessed through consideration of the following factors:
(a) whether the Applicant formed a bona fide intention to appeal within the appeal period;
(b) a proper explanation for the delay has been offered;
(c) the length of the delay;
(d) whether granting or denying the extension of time will unduly prejudice one or the other of the parties;
(e) the merits of the application for leave to appeal;
(f) whether the Applicant has taken the benefit of the judgment: R. v. Brooks, [2020] O.J. No. 4055, at para. 5, (Ont. C.A.);
(g) The test for the exercise of discretion to grant an extension of time to file a notice of appeal is set out in R. v. Menear, 2002 CanLII 7570 (ON CA), [2002] O.J. No. 244, 162 C.C.C. (3d) 233 (Ont. C.A):
i) whether the applicant has shown a bona fide intention to appeal within the appeal period;
ii) whether the applicant has accounted for or explained the delay; and
iii) whether there is merit to the proposed appeal.
[8] I agree with the Respondent that the Appellant fails on all three criteria.
[9] The appeal period is 30 days. The sentencing decision was made on August 7, 2019 meaning the 30 days fell on September 7th. There was another opportunity on June 22, 2020 to consider bringing the appeal at an appearance to adjourn the first trial date. There is no evidence of a bona fide intention to bring an appeal during the existence of the 30-day appeal period or thereafter. The Applicant missed an opportunity six months before the Application was brought.
[10] The Appellant uses the COVID-19 pandemic and its impact on the community and custodial facilities in Ontario as the reason for the delay. The Appellant submits that he would not have brought an appeal of the sentence were it not for the recent spike in COVID-19 cases in Ontario this fall. The argument is that the surge puts congregant settings like detention facilities at greater risk for outbreaks.
[11] There are problems with that explanation for the delay.
[12] The same argument would have applied to the first surge in cases after the pandemic was declared in March 2020 and to the increase in cases in the following months. But the Appellant did not bring an appeal at that time. He did not bring the Application on June 22nd which was during a spike in cases. A second fall surge was predicted. Also problematic is that the data the Appellant relies on are records of the incidence of the virus in Ontario at large. The Appellant provided no evidence on the current situation in Ontario’s custodial facilities.
[13] Further to this, the Appellant provided no evidence of any underlying conditions that would render him particularly vulnerable to the virus if committed to custody. Courts consider this factor in deciding a sentence. I take judicial notice that correctional service data from the Ontario Ministry of the Solicitor General from March 2020 to the present reveals few cases of the virus and no evidence of a current rise in cases. Overall, there have been few cases in Ontario’s custodial facilities. That situation is therefore not reflective of the status of the virus in the community at large.
[14] The Appellant has not provided a reasonable explanation for the delay in bringing the Appeal.
[15] The factors considered on the reasonableness of delay also go to the merits of the Application; that is, the Appellant’s inability both to provide evidence of the present conditions in the custodial facilities and to establish there is an actual risk of increased infection.
[16] A further consideration raised by the Respondent is that, with a five-month custodial sentence, increased lockdowns and other restrictions due to the pandemic will not have the prolonged detrimental effect on the Appellant that a lengthier sentence would have as the Appellant will only serve about 90 days or two-thirds of his sentence.
[17] There is also the issue of finality. The offences in this case arose over three years ago. An extension of time would result in a bifurcation of the appeal and push finality further into the future. This raises prejudice for the parties and the efficient administration of the criminal justice system.
[18] The Appellant has failed to satisfy all three criteria. I dismiss the Application.
TRIAL EVIDENCE AND DECISION
[19] The following is a summary of the findings of fact at Trial.
[20] On July 11, 2017, Joshua Miller, a customer planning to shop at the Lawrence Square Mall in Toronto, was passing a garbage disposal bin at the mall and heard a squeaking and whimpering sound coming from the bin. Mr. Miller found a live puppy tied up in five plastic garbage bags in the garbage bin. He found the dog in poor condition and rushed it to the nearest veterinarian.
[21] The veterinarian, Dr. Geston, found the dog suffered from low blood and severe dehydration. The doctor testified that the symptoms of dogs in that condition are hypoglycemia gradually heightening from weakness and lethargy to vomiting, collapse, shaking, seizures and finally to coma and death. After treatment, the dog recovered in 15 minutes and was seeking food.
[22] Gary Daluz, a mall security officer, testified about securing video footage of Mr. Tieu disposing of a bag in the garbage. Hana Cova, Mr. Tieu’s neighbour on 17 Cayuga Ave. and Jerry Higgins, the Animal Control official, established the Appellant as the person who disposed of the puppy in the garbage bin. Mr. Tieu eventually conceded his identity as the person dumping the dog that day.
[23] Mr. Tieu owned two properties in Toronto where he kept dogs. Officers Acquilina and Bamji and Jerry Higgins testified on the Provincial Offences Act charges. They attended 17 Cayuga Ave. and observed a shed with several dogs in wire cages in very hot conditions with water dispensers suited for rodents. There were over 20 small-breed dogs covered in sawdust and feces in states of distress.
[24] Hana Cova talked about horrible odours, a constant whimpering of dogs coming from Mr. Tieu’s property and about seeing rats and horse flies. She said she never saw Mr. Tieu remove the dogs from the shed but she occasionally observed him enter the shed at night wearing a respiratory mask. Suspecting animal cruelty, Ms. Cova eventually called animal control.
[25] Kim Smithers testified as a supervisor of enforcement at Animal Services. She ordered the breach of the garage door at 61 Dane Ave., the other property owned by Mr. Tieu. She found 14 feces-covered dogs in wire cages with inadequate food and water where the temperature was 41 degrees Celsius. Dr. Attard, an Animal Services veterinarian, testified that once cleaned up all the dogs seized from Mr. Tieu’s property were in good health.
[26] Mr. Tieu testified he took good care of his dogs ensuring adequate food, water and vaccinations. He testified that he had taken the discarded puppy for vaccination to his veterinarian, Dr. Aarabi. His evidence was that the doctor found the puppy weak, needing special care and finger feeding.
[27] Mr. Tieu testified that on July 11th, the day in question, he found the puppy to be lifeless in the morning. He was adamant that the puppy was dead. Later in the day, he put the puppy into five garbage bags to dispose of it. Mr. Tieu took the dead puppy to the mall because he said he was planning to shop there. He said his garbage was full and he thought a smell could be avoided by taking the puppy to the mall garbage.
[28] On cross-examination, Mr. Tieu testified he took all dogs out every day and felt that 28 degrees Celsius was a comfortable temperature for them. He admitted not showing his buyers where he kept his dogs. He insisted he only wore a mask when he went to see the dogs because of allergies. Mr. Tieu indicated that he could sell a dog for $2,000.00. He complained he felt persecuted by Animal Services, specifically Mr. Higgins.
[29] Dr. Aarabi was called as a defence veterinarian. He testified he believed Mr. Tieu was a dog breeder. He testified that Mr. Tieu followed his directions and that Mr. Tieu took his dogs for vaccinations. Dr. Aarabi indicated he had seen the puppy in question three days before Mr. Tieu discarded it in the garbage and found it to be in good health. He also testified that smaller breed dogs had to be watched over after vaccinations because of their vulnerability to vaccinations and should be finger fed if they refused to eat.
[30] On cross-examination, Dr. Aarabi testified that, while it was possible for a puppy that might appear to be dead to revive due to some release of sugar in the liver, this was unlikely without a medical intervention like that provided by Dr. Geston.
[31] The Crown showed Dr. Aarabi, for the first time, pictures of how Mr. Tieu housed his puppies. He observed that wire cages were inappropriate for dogs and the water bottles used were suited to rodents. He further testified that 27.9 to 31 degrees Celsius was not a comfortable temperature for puppies. Dr. Aarabi testified that had he known Mr. Tieu’s puppies were being kept in the conditions shown in the pictures, he would have reported Mr. Tieu to Animal Control.
[32] Central to the Trial Judge’s determination is his finding Mr. Tieu not to be a credible witness. He found Mr. Tieu’s testimony internally inconsistent and his responses combative, evasive and in large part unresponsive.
[33] Of significance is that the Trial Judge found Mr. Tieu’s evidence that the puppy was extremely weak when he took it to Dr. Aarabi to be directly contradictory to Dr. Aarabi’s evidence. Dr. Aarabi stated that the puppy was healthy when he examined it a few days before it was disposed of at the mall.
[34] Further, the Trial Judge found that Mr. Tieu’s evidence that he loved his dogs was inconsistent with his growing number of dogs and the condition in which he kept them. The Trial Judge observed that the pictures provided by Mr. Tieu to show that he took the dogs into the yard showed only a few dogs or a singular dog in the yard, not several dogs at once.
[35] In conclusion, the Trial Court found Mr. Tieu’s evidence did not raise a reasonable doubt that he knew the puppy was alive. The Court rather found that the puppy appeared ill when Mr. Tieu put it into the garbage bags and took it to dispose of it in a place not associated with himself.
[36] In August 2020 over several days, a pre-appeal discovery proceeding was conducted during which Defence Counsel and the Appellant were examined in-chief and cross-examined on affidavits. Transcripts of the Trial and the discovery were available before this Court.
INEFFECTIVE LEGAL ASSISTANCE
Legal Principles
[37] The Appellant must satisfy three criteria to succeed on a claim of ineffective assistance of counsel which are as follows:
(a) where the facts underlying the claim are contested, they must be proven on a balance of probabilities;
(b) that counsel was incompetent, judged on a reasonableness standard with a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance; and
(c) that counsel’s incompetence caused a miscarriage of justice.
[R. v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No. 4348, at para. 120-121, (Ont. C.A.); R. v. Zheng 2014 ONCA 345, at para. 22, (Ont. C.A.)].
[38] Effective legal representation in an adversarial legal system makes the results more reliable and increases the adjudicative fairness of the process. The Ontario Court of Appeal observes:
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.
[R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35, at p. 57, (Ont. C.A.)]
[39] A recent Ontario Court of Appeal case recounts the three criteria and sets forth a useful framework for applying the criteria to the facts of a case. R. v. K.K.M. expands somewhat on the earlier cases:
An appellant who advances an ineffective assistance of counsel claim must show three things. First, the appellant must establish the facts material to the claim of ineffective assistance on the balance of probabilities. Second, the appellant must demonstrate trial counsel’s representation was ineffective. Trial counsel’s representation of an accused is ineffective only if it falls below what is reasonably expected of trial counsel in all the circumstances. Third, the appellant must show the ineffective representation resulted in a miscarriage of justice, either by rendering the trial unfair or the verdict unreliable: see R. v. Archer, 2005 CanLII 36444, at paras. 119, 202 C.C.C. (3d) 60 (Ont. C.A.); R. v. Qiu, 2010 ONCA 736, at paras. 6-8; R. v. D.G.M., 2018 MBCA 88, at para. 7; R. v. Stark, 2017 ONCA 148, at paras. 12-14; R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225, at 247 (Ont. C.A.), leave to appeal to SCC refused, [1997] S.C.C.A. No. 248.
[R. v. K.K.M., 2020 ONCA 736, 2020 ONCA 0736, at para. 55, (Ont. C.A.)]
[40] Once the material facts on which the complaint of incompetence is based are established and it is shown that the counsel’s performance fell below the reasonableness standard, at the final step, the appellant must establish prejudice by showing that the incompetent representation resulted in a miscarriage of justice.
The miscarriage of justice can be established in one of two ways. The first is to show that incompetent representation undermines the reliability of the verdict. The second is to show that the incompetent representation undermined the appearance of the fairness of the trial proceeding.
[R. v. Stark, 2017 ONCA 148, at paras. 12, 13 and 14, (Ont. C.A.)]
The Claims Underlying the Appeal
[41] If the appellant cannot establish on a balance of probabilities the material facts of the particular claims advanced, the ineffective assistance claim must fail at this stage: [R. v. K.K.M., at para. 56].
[42] The first step then is to look at whether the Appellant has established the material facts of the claims at issue. The Appellant raises allegations with respect to various areas of Defence Counsel’s conduct:
(a) compromising solicitor/client relationship by being intimidating and condescending;
(b) failing to review the disclosure with the Appellant;
(c) failing to prepare the Appellant for his testimony;
(d) failing to prepare Dr. Aarabi for his testimony;
(e) lacking civility in the conduct of the trial.
(f) improperly advising Mr. Tieu to contest his identity as the person disposing of the dog;
(g) breaking a promise that the case would not go to trial; and
(h) failing to understand s. 429 and not explaining the concept of negligence in this case;
[43] If the Appellant is unsuccessful in establishing the material facts related to any of the allegations, his claim of ineffective legal assistance must fail on that allegation.
Compromising Solicitor/Client Relationship, Intimidation and Condescension
Is There Proof of Material Facts?
[44] The Appellant swore in his affidavit and testified at the discovery that Defence Counsel was condescending toward him and controlled their communications by being authoritative, speaking over him and being dismissive. He claims he felt intimidated and threatened by Defence Counsel and that this compromised the solicitor/client relationship.
[45] The Appellant surreptitiously audio recorded meetings between himself and his lawyer. He was challenged by Crown counsel at the discovery that the audio recordings do not show that Defence Counsel is dominating him. They actually reveal some heated discussions between the two of them where the Appellant is holding his own and able to advance his views. Crown counsel pointed out that the Appellant took his young child and his wife to some meetings with Defence Counsel and suggested the Appellant would not have risked his family in a dangerous and threatening situation.
[46] I do not find persuasive the Appellant’s responses given after the recording was played at the discovery, that he feared Defence Counsel. He provided no reasonable explanation for why he would bring his wife and child into such an environment.
[47] Adding to his diminished credibility, the Appellant claimed not to know the meaning of the word “condescending” despite using that term in his affidavit. When cross-examined about this, he responded that he used to know the meaning, but he forgot it.
[48] I do not find the Appellant a credible witness on this allegation. He did not establish material facts to satisfy me on a balance of probabilities in relation to his claim that Defence Counsel compromised the solicitor/client relationship. I need not decide the performance component.
Failure to Review Disclosure with the Appellant
Is There Proof of Material Facts?
[49] The Appellant contends that Defence Counsel would email disclosure to him but rarely discussed it with him. He asserted, for instance, that despite having received his neighbour Hana Cova’s statement from Defence Counsel, Defence Counsel did not review it with him. He also contends Defence Counsel did not review Josh Miller’s or Dr. Gesten’s evidence with him before trial.
[50] The Appellant also claims he was unaware there were written and video witness statements because Defence Counsel told him nothing about disclosure. He said he got the impression that he and his lawyer would go into trial without access to witness statements. The Appellant also alleges that the extent of trial preparation was Defence Counsel asking him and his wife to take notes during the Trial and to raise questions or comments with him on breaks.
[51] The documentary evidence Defence Counsel presented for the discovery belies the Appellant’s contention that Defence Counsel did not review the disclosure with him. The Appellant claims that Defence Counsel made no reference to office notes and did not produce any such evidence. The Respondent points out that the inaccuracy of that allegation is borne out by the transcripts of Defence Counsel’s discovery evidence. The Appellant’s Appeal Counsel was furnished with typed trial preparation notes, dockets and handwritten notes from Defence Counsel and he questioned Defence Counsel extensively on those notes and dockets at the discovery.
[52] In his testimony, Defence Counsel relied on the documents he filed and the surreptitious recording the Appellant made. I find Defence Counsel’s evidence was reliable because he was able to substantiate his testimony with material evidence.
[53] Adding to the Appellant’s failing credibility is his further contention that he did not know the meaning of the term “disclosure”. He makes that claim in the face of emails with Defence Counsel where he uses that word and agrees to meet him to review disclosure.
[54] The Appellant was unable to establish on a balance of probabilities that Defence Counsel neglected to review the disclosure with him. There are insufficient material facts to find ineffective legal representation on that basis. It is not necessary to determine the performance component.
Failure to Prepare the Appellant for his Testimony
Is There Proof of Material Facts?
[55] The Appellant claims he provided Defence Counsel with a description of the events that took place on July 11th, the day of the alleged offence. His evidence was that he thought the dog was dead on the morning of July 11th. He therefore decided to put it in garbage bags and, at about 3:40 p.m. that day, disposed of it in the garbage bin at the mall. The dog was found alive by Josh Miller about six minutes later.
[56] The Appellant alleges that Defence Counsel did not prepare him to give a proper timeline of what happened that morning and did not tell him that the main consideration was negligence. He testified that, had he understood that, he would have told Defence Counsel that at 5:30 a.m. he separated the puppy from the rest of the litter for four hours because it was not well.
[57] The Appellant further contends that Defence Counsel made him memorize a script of a version of what happened with the puppy that was different from what the Appellant had told him had occurred. He claimed, while on the witness stand at Trial, that Defence Counsel confused him by not asking him questions according to the script.
[58] I accept the Respondent’s submission that Defence Counsel cannot be blamed for the fact that the Appellant’s version of events makes no sense or is inherently difficult to believe in some critical areas. Defence Counsel is not responsible for changing the Appellant’s testimony to be more credible or believable. Altering the Appellant’s version of events is not part of preparing a defence: [R. v. M.M., [2018] O.J. No. 6587, at para. 5, (Ont. C.A.)].
[59] I also agree with the Respondent that the omitted detail of the Appellant setting aside the sick puppy from the litter on the morning of the incident does little if anything to favour the Appellant since that fact actually shows negligence which does not excuse him from liability. The further reality is that the Appellant did not correct Defence Counsel and explain that the version on record was inaccurate.
[60] According to the Appellant’s evidence, he settled with memorizing the false version, he says, thinking that his lawyer knew best. On questioning about this, the Appellant testified he was just “too tired and stressed” to testify about the evidence he says should have been placed before the Trial Court. Further, the Appellant could reference nothing Defence Counsel did to impede him from telling his whole story.
[61] I agree with the Respondent that the allegation that Defence Counsel forced him to memorize a false story and he felt compelled to tell it because he was stressed and too tired, defies common sense and reason.
[62] Defence Counsel gave further evidence at the discovery about trial preparation. In his testimony, he spoke about the trial preparation questions and answers he employed with the Appellant. Defence Counsel indicated he typed out his questions for the Appellant in advance. He then asked him these questions and contemporaneously typed in the Appellant’s answers. Defence Counsel testified he attempted to capture the Appellant’s evidence as best he could. He contends he did not create a new version of events. The Appellant requested and was provided with a copy of the typewritten questions and answers. Defence Counsel testified he gave no special instructions about the Appellant’s account.
[63] The Appellant was shown the typewritten questions and answers document at the discovery and he acknowledged that Defence Counsel prepared it and gave him a copy in preparation for his testimony. However, the Appellant claims Defence Counsel typed these answers on a later date and required him to memorize them. Again, despite the Appellant’s complaint about the inaccuracy of the written version of his evidence, he claims he memorized it anyways and at Trial gave this false version simply to follow Defence Counsel’s instructions. Again, the Appellant’s evidence on trial preparation defies reason and common sense.
[64] I find the Appellant has not proven on a balance of probabilities that Defence Counsel failed to properly prepare him for trial. He presented no material facts on which to succeed in a claim of ineffective legal assistance on that basis. I will not decide the performance component.
Failure to Prepare Dr. Aarabi for His Testimony
Is There Proof of Material Facts?
[65] The Appellant alleges that because Dr. Aarabi, a critical defence witness, provided adverse evidence, Defence Counsel failed to adequately prepare the doctor for trial.
[66] The Appellant claims he only knew of a singular phone call between Defence Counsel and Dr. Aarabi followed up by what the Appellant calls a brief letter. According to the Appellant, there is no reference to the actual charges and no reference to or details about the dogs’ housing conditions.
[67] The Appellant also draws this Court’s attention to the fact that on cross-examination Defence Counsel refused to disclose the number of criminal trials he had done and the number of expert witnesses he had engaged. But the Appellant is most concerned about Defence Counsel’s concession at the discovery that he did not provide Dr. Aarabi with Crown disclosure including the pictures of how the dogs were housed. The Appellant points to Dr. Aarabi’s response under cross-examination when shown pictures of the conditions of cages where the dogs were kept.
[68] Dr. Aarabi testified the conditions could cause contagious disease among the puppies and that housing them in stacked cages would cause the puppies distress. He further testified that had he been aware of the living conditions of the dogs he would have reported the Appellant to authorities.
[69] Also contrary to the Appellant’s evidence, Dr. Aarabi testified that when he examined the puppy days before it was disposed of, he saw no problem with that puppy. This contrasts with the Appellant’s evidence that when Dr. Aarabi examined the puppy that day he observed it to be extremely weak and in need of special attention.
[70] The Appellant submits that had Defence Counsel alerted Dr. Aarabi to the dogs’ living conditions, he reasonably would not have called Dr. Aarabi as a witness. And even if there was a decision to call the doctor, Defence Counsel ought to have consulted with the Appellant about the risk of proceeding with a weak defence. If Defence Counsel had acted competently in that regard, the Appellant submits, he may have entered a plea of guilty to both the OSPCA and criminal charges. The Trial Judge found Dr. Aarabi’s evidence devastating to the ultimate outcome of the case.
[71] The Respondent points out that Defence Counsel exchanged emails and met with Dr. Aarabi on many occasions long before Trial. On cross-examination, the Appellant was faced with emails Defence Counsel proffered to show he had contacted Dr. Aarabi and met with him on several occasions to prepare him well before his testimony. When confronted with that evidence, the Appellant admitted he was in error.
[72] The Respondent’s view is that Dr. Aarabi was the treating veterinarian for the Appellant’s dogs. The Respondent highlighted that the doctor gave positive evidence about his observations of the Appellant’s care of his dogs. He described the Appellant as a responsible breeder who took care to vaccinate his dogs and follow his directions.
[73] The Respondent submits that the cross-examination of Dr. Aarabi would not have changed with any further preparation. It is the Respondent’s further submission that Dr. Aarabi was critical to the defence. He was the only witness who could testify positively about the dogs’ health and how the Appellant cared for them.
[74] I considered the parties’ positions. There is no doubt Defence Counsel did not prepare Dr. Aarabi for trial in specific relation to the dogs’ living conditions. Defence Counsel does not suggest that during his many communications with Dr. Aarabi he showed him the pictures. Dr. Aarabi’s reaction to the pictures confirms this to be the case.
[75] If Defence Counsel had prepared Dr. Aarabi with that evidence, the doctor’s response to it would have been known in advance. It would then have been incumbent on Defence Counsel to have informed the Appellant of this allowing the Appellant to make an informed decision whether to call Dr. Aarabi’s evidence or not. The Appellant would be required to decide whether or not to forego the evidence of the only medical witness that could otherwise vouch positively for his care of the dogs. However, whether the Appellant would have pleaded guilty or not with this knowledge is not a reasonable certainty given the various statements he made in various areas of his testimony.
[76] I find overall that I am satisfied on a balance of probabilities that the requisite factual basis has been established for the claim that Defence Counsel did not provide adequate legal advice as a result of failing to prepare Dr. Aarabi with the pictures the Crown posed to him at Trial. This impeded the Appellant’s opportunity to know in advance the weakness in Dr. Aarabi’s evidence and thwarted his chance to decide how to proceed at Trial.
[77] After material facts of a claim are found, the next step is to consider the performance component of ineffective legal assistance of counsel: [R. v. K.K.M., at paras. 61 and 62].
Was the Standard of Reasonableness Satisfied?
[78] The Ontario Court of Appeal in R. v. K.K.M. addresses the boundaries of the standard of reasonableness:
Counsel’s conduct is measured against the standard of reasonable professional judgment: R. v. D.G.M., at para. 7, and by reference to the circumstances as they existed when the decision was made. Hindsight has no role to play. Advice and representation that were reasonable when provided cannot be made unreasonable by virtue of an adverse verdict: R. v. Archer, at para. 119; R. v. Fraser, 2011 NSCA 70, at paras. 53, 80. As stated by Major J., in R. v. G.G.B., 2000 SCC 22, at para. 27:
The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.
[79] The area of evidence in question is Defence Counsel’s failure to properly prepare Dr. Aarabi with Crown disclosure and Defence Counsel’s consequent inability to inform the Appellant of the risk of Dr. Aarabi’s evidence. The issue is whether this fell outside the standard of reasonableness.
[80] An analysis of the significance of a particular piece of evidence to the effectiveness of a lawyer’s legal advice cannot be assessed through the lens of hindsight. Thus, the determination of the effect of failing to prepare Dr. Aarabi and advise the Appellant about the risk must:
… be measured objectively through the eyes of a reasonable person placed in counsel’s circumstances and bearing in mind that the reasonableness standard describes a range of conduct. The importance of that evidence cannot be judged from the post-verdict vantage point of a convicted accused. It is hardly surprising an accused who took counsel’s advice but now finds himself convicted and facing a jail sentence, has come to see the missing piece of information as crucial to proper representation.
[81] The Court of Appeal court goes on at paragraph 66 to point out that in applying the reasonableness standard, it should be recognized that different lawyers can reasonably offer different advice in the same circumstances. Different lawyers can adopt different approaches when advising clients.
For the purposes of determining an ineffective assistance of counsel claim, the question for this court is not what should trial counsel have said or done, but rather was what trial counsel said or did reasonable in the circumstances?
[82] I must look at such factors as Dr. Aarabi’s professional relationship with the Appellant and his dogs, the role Dr. Aarabi was called on to fulfil as a witness, the value of his evidence to the defence and the impact of the failure to prepare the witness and advise the Appellant.
[83] Dr. Aarabi testified as a veterinarian witness for the Appellant. The Appellant routinely took many of his dogs to the doctor to be examined, vaccinated and treated. Mistakenly, I think, the Appellant has referred to Dr. Aarabi as fulfilling the role of an expert witness. I do not believe this to be the case. From a criminal procedural perspective, the rules that govern the calling of expert witnesses were not followed. The Crown was not served with an expert opinion report.
[84] Dr. Aarabi testified as a defence treating veterinarian. He is more accurately described as a fact witness, as a medical professional with personal knowledge of events pertaining to the treatment of the Appellant’s dogs and who could testify as to what he personally did or witnessed in that capacity.
[85] At trial, Dr. Aarabi spoke about his first-hand observations of the Appellant, his dogs, and particularly, the puppy in question. He offered a positive account of his experiences with the Appellant. That changed when the doctor was faced on cross-examination with the pictures of the dogs’ living conditions. There is no evidence that Dr. Aarabi had any personal experiences or first-hand observations of the dogs’ living conditions. Clearly, Defence Counsel did not call him to testify as to facts related to those circumstances.
[86] I find assessing this from the perspective of reasonable professional judgment, that it is understandable why Defence Counsel did not show the pictures of the dogs’ living conditions in preparing Dr. Aarabi for Trial. He was calling the doctor to testify about his knowledge of the Appellant’s practices in taking his dogs for examinations and vaccinations and about the health of the dogs he treated. That was the limit of the doctor’s experiences with the Appellant.
[87] Defence Counsel had several pre-trial communications and in-person meetings with the doctor, well in advance, to prepare him for trial. Defence Counsel was therefore not remiss in that regard. He would have learned from those interactions that Dr. Aarabi would be a supportive witness.
[88] I remind myself that the reasonableness standard describes a range of conduct and that there is a strong presumption that Defence Counsel’s conduct fell within the standard of reasonable professional assistance.
[89] Looking at Defence Counsel’s preparation of Dr. Aarabi’s from the perspective of what he was asked to testify about, I do not find it was unreasonable for Defence Counsel not to review with the doctor the pictures of the dogs’ living conditions. It is only in retrospect that it might be concluded that Defence Counsel might have shown the pictures to Dr. Aarabi and learned of his evidence before trial.
[90] However, the question is not what Defence Counsel should have said or done, but rather whether what Defence Counsel said or did was reasonable in the circumstances.
[91] Under the circumstances, I find Defence Counsel’s decision to call Dr. Aarabi, given the purpose for his evidence, did not fall outside the standard of a reasonable professional judgment.
[92] I have concluded that Defence Counsel’s representation met the reasonableness standard and was therefore not ineffective. I need not proceed to the third step. There is no basis to conclude Defence Counsel’s legal representation led to a miscarriage of justice: [R. v. K.K.M., at para. 90].
Failure to Demonstrate Civility and Competence at Trial
Is There Proof of Material Facts?
[93] The Appellant argues that Defence Counsel did not demonstrate professionalism or civility in his conduct and style of communication through the course of the Trial and showed a lack of understanding of criminal law. The Appellant’s view is that this lack of knowledge, professionalism and civility was apparent when he was cross-examined at the discovery by the Appellant’s Appeal Counsel.
[94] The Appellant cited areas of the Trial record where Defence Counsel was admonished by the Trial Judge for not immediately complying with his directions and rulings. The Appellant also referred to what he called shortcomings in his cross-examination of Crown witnesses, for example, eliciting hearsay and speculative evidence from witnesses and displaying a misunderstanding of the rule in Browne v. Dunn.
[95] The Respondent takes the position, and I agree, that while the Appellant points out deficiencies in Defence Counsel’s conduct and style of communication, the Appellant did not succeed in connecting those concerns to procedural fairness or the ultimate outcome of the Trial. Furthermore, a reading of the Trial Reasons shows the Appellant’s conduct was not a consideration that played any role in the Trial Judge’s reasoning.
[96] The Appellant was unable to establish on a balance of probabilities the material facts to show that Defence Counsel’s conduct at Trial amounted to ineffective legal representation. I need not go on to the performance component.
Improper Advice to the Appellant to Contest his Identity as the Person Disposing of the Dog
Is There Proof of Material Facts?
[97] The Appellant claims that Defence Counsel improperly advised him to contest his identity in a video that plainly displays him disposing of what he thought was a dead puppy in the garbage bin. This, the Appellant alleges, undermined his credibility during the Trial and hampered the possibility of an admission of his identity as a mitigating factor on sentence.
[98] The Appellant contends that after watching the surveillance video in Defence Counsel’s office he identified himself as the person throwing the bag in the garbage and told Defence Counsel that the bag contained the puppy. The Appellant claims he wanted to have the fact that it was him on the video admitted early in the process. He submits that Defence Counsel advised him not to admit identity and threatened the Appellant he would receive a four or six-month prison sentence if he were to do so and he was not advised of the advantages of mitigation on sentence.
[99] The contention is that the Appellant was delayed in admitting his identity until after Defence Counsel vigorously cross-examined Crown witness Joshua Miller. He had earlier admitted it was him in the video but not that he was disposing of a dog. The late admission, the Appellant argues, contributed to a finding of guilt by the Trial Judge and led the Crown to bring a Leaney Application. The Crown called witnesses Hana Cova, the Appellant’s neighbour and Jerry Higgins, the Animal Control official, to prove the identity of the Appellant as the person who disposed of the puppy in the garbage bin.
[100] The Appellant asserts Defence Counsel knew or ought to have known that Hana Cova’s and Jerry Higgins’ evidence would be detrimental to the Appellant’s case. But, according to the Appellant, he chose to put the defence case in the position of requiring the Crown to call those witnesses instead of admitting identity early on. Six days into the defence case, the Appellant admitted to disposing of the puppy. The Appellant complains that because of the late admission the Trial Judge found the admission of identity to be unpersuasive as a mitigating factor.
[101] In response to the Appellant’s claim that the identity admission led to the Crown calling Hana Cova and Jerry Higgins, the Respondent explains that it became necessary for the Crown to call the evidence of those two witnesses for another reason, that is, in relation to the Provincial Offences charges. There was evidence elicited from them about the conditions of the dogs and the fact that the Appellant was never seen taking his dogs out.
[102] As well, in response to the Appellant’s allegation that the late admission of identity led the Trial Judge to make findings of guilt, it is clear from a read of the Trial Reasons that this is not the case.
[103] It is also the case, as the Respondent argues, that while the Trial Judge did not recognize the admission of identity as a persuasive mitigation factor on sentence, the Appellant’s new counsel, now his Appeal Counsel, succeeded in achieving a re-opening of the sentence to make further submissions. I agree with the Respondent that any adverse effect on sentence due to this late admission was remedied by the reduction in sentence. In the end, there is no prejudice to the Appellant.
[104] I add here the observation that different lawyers adopt different trial strategies on admissions and the timing of admissions on such matters as the identity of their client given that it is the Crown’s burden to prove the elements of an offence. Defence Counsel made a strategic decision to wait to admit identity until he thought it was the appropriate time after the Crown witnesses had testified. Defence lawyers must be able to make reasonable tactical decisions at points in the trial process without fear of their professional competence and reputations being assailed by the wisdom of the Monday morning quarterback.
[105] For this and the other reasons cited, I do not find this can be regarded as an example of ineffective legal assistance. I find the Appellant did not establish on a balance of probabilities the material facts to support the claim of ineffective legal representation on the allegation about the timing of the identity admission. The claim fails at this stage.
Defence Counsel Breaking Promise that the Case Would Not Go to Trial
Is There Proof of Material Facts?
[106] The Appellant contends Defence Counsel promised the matter would not go to trial. He alleges insufficient investigation by Defence Counsel into the factual and legal aspects of the defence such as that he was not advised of the weakness of his case. The consequence of this, in the Appellant’s view, is that he could not make an informed decision on whether to enter a plea of guilty or proceed to trial.
[107] The Appellant further claims Defence Counsel did not confer with him on such matters as culpability and trial strategy. He cites as an example that had he known about his negligence he would have had a better understanding of his culpability. The Trial Judge would also have had a more accurate picture of his culpability. With this knowledge, he would have entered a plea of guilty and, had he pleaded guilty, the Appellant submits, he would have had the benefit of mitigation on sentence.
[108] The Respondent points out, and it is the case, that the Appellant’s position throughout Trial and sentencing was that the dog was dead when he disposed of it. In support of their position, the Respondent cites aspects of the surreptitious recordings the Appellant made of some of his meetings with Defence Counsel which are contrary to the Appellant’s claim.
[109] The Appellant is heard to comment that if the case does not get resolved it will go to trial. The Appellant then confirms the terms of legal fees for proceeding to trial. The Appellant then told Defence Counsel that he wanted the charges dropped and the return of his dogs. Although not recorded, the Appellant claims that subsequently, Defence Counsel told him he was going to get the charges dropped “100 per cent”.
[110] The Respondent submits that in view of the strength of the Crown’s case, that is, with the admission of identity, Dr. Aarabia’s evidence, the evidence of other Crown witnesses and the contents of the surreptitious recordings, there was no likelihood that the Crown would withdraw the charges.
[111] I agree with the Respondent that it is simply not credible that the Appellant believed this matter would not go to trial. It makes no common sense that Defence Counsel under these circumstances would promise that 100 per cent the charges would be dropped. And it is not at all clear that the Appellant would plead guilty.
[112] I find the Appellant failed to prove on a balance of probabilities the material facts of ineffective representation based on an alleged promise by Defence Counsel not to go to trial. The Appellant’s claim does not proceed to the performance stage.
Lack of Understanding Section 429 - Failure to Explain the Concept of Negligence
Is There Proof of Material Facts?
[113] The Appellant claims Defence Counsel did not understand the law applicable to subsections 445.1(1)(a) and 445.1(3) of the Criminal Code and the implications of s. 429 on those provisions.
[114] Section 429 provides that being reckless as to whether an event occurs or not, that is a person’s duty to do, shall be deemed to be willful conduct. The Appellant claims Defence Counsel revealed that he did not understand the implications of s. 429 at Trial. The Appellant’s submission is that negligence was a live issue at Trial when one looks at the period before the Appellant disposed of what he says he believed was a dead dog.
[115] It is the Appellant’s submission that Defence Counsel advanced the theory that the Appellant did not have the requisite mens rea because he did not know the dog was alive. However, according to the Appellant, it was open to the Trial Court to find guilt based on his negligence.
[116] The Appellant submits for that reason Defence Counsel was obligated to review the provision with him as a defence theory and advise him on its implications on his case. What follows in the Appellant’s submission is that, if he were advised of the possibility of a negligence defence, he would have been availed of the opportunity to make an informed decision as to whether to plead guilty.
[117] The Appellant’s argument, that he would have pleaded guilty had he been apprised of the strength of the Crown’s case and the possibility of a negligence defence, is not useful to him. The suggestion is that procedural unfairness resulting in a miscarriage of justice tainted the Trial. But the reality is that a guilty plea by the Appellant would garner the same result as the finding of guilt arrived at by the Trial Judge. So, there is no prejudice to the Appellant.
[118] The Respondent submits, and I agree, that the Appellant’s knowledge of negligence as a factor in his defence would not have changed his evidence or rendered him less culpable. He did not allude to any further witnesses or evidence he would have relied on except his “new” oral evidence that the dog was weak, but still alive, when he separated it from the litter for a few hours, during which time he thought the dog had died, prompting him to dispose of it.
[119] Leaving aside for the moment that it was not in evidence at Trial that the Appellant set the puppy aside, the Appellant did nothing to try to save the puppy during those few hours before disposing of it. He did not call his veterinarian, a breeder, take the dog to a clinic or do anything. On this new story, the Appellant would have been held negligent given he did nothing when he had a duty to act.
[120] I find the Appellant failed to prove on a balance of probabilities the material facts to support his claim that the failure of Defence Counsel to advise him of a negligence defence amounted to ineffective legal representation.
DISPOSITION
[121] I decline to grant the Application for an extension of time to appeal the sentence.
[122] I deny Quang Quoc Tieu’s claims of ineffective legal assistance on each allegation he raised. I would dismiss the appeal.
B.A. Allen J.
Released: December 14, 2020