COURT FILE NO.: CR-20-30000005-00AP DATE: 20211220

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SANCHAYAN RAJASINGAM

Counsel: Helen Song, for the Crown Uma Kancharla, for the Appellant

HEARD: May 28, 2021

r. f. goldstein j.

[1] During the early morning hours of June 10, 2016, two Toronto Police officers were following the Appellant’s truck into a plaza at 1221 Markham Road in Scarborough. The police received information that the truck’s licence plate had expired. The police lost sight of the truck for 10-15 seconds but then found it parked near Double Double Pizza in the plaza. The driver’s seat was empty but there was a female in the passenger seat. The police then went to the Double Double Pizza. They eventually arrested the Appellant for public intoxication. Once they obtained more evidence that he was the driver, they arrested him for impaired driving as well. The police obtained breath samples at 4:07 a.m. and 4:34 a.m. The Appellant had readings of 143 and 153 (143 mg of alcohol per 100 ml of blood, and 153 mg of alcohol per 100 ml of blood). The trial judge, Justice Bloomenfeld, convicted the Appellant of impaired driving.

[2] Appellate counsel (not trial counsel) argues that the Appellant should have a new trial due to the incompetence of counsel. She did not raise the issue of a miscarriage of justice in her written materials, and only at the very end of her oral submissions.

[3] The appeal must be dismissed. I agree with counsel that defence counsel was ineffective in one respect, but that ineffectiveness had no impact on the outcome of the trial. Moreover, the Crown’s case was overwhelming. There was no miscarriage of justice. The appeal is dismissed.

BACKGROUND:

[4] Constable McKinnon and Constable Russell observed the Appellant’s truck at around 2:00 a.m. on June 10, 2016. They began following the truck. They wanted to investigate the truck’s licence plates. They followed the truck as it turned into a plaza at 1221 Markham Road. They lost sight of the truck for 10-15 seconds but found it parked overlapping two spots – “sloppily”, as the trial judge put it. The truck was parked near a Double Double Pizza. There was nobody in the driver’s seat. The police found a female in the passenger seat. There was an open Heineken beer bottle in the driver’s side cup holder. The female indicated that the driver, the Appellant, was in the Double Double Pizza. The store owner testified that the Appellant asked for alcohol. The owner refused to serve him. The time was past 2:00 a.m.,which was the latest his licence permitted. The Appellant also asked the owner if there was a back door that he could use. The police asked the Appellant to come out. He did not. They went inside the Double Double Pizza. the Appellant appeared to be intoxicated: he was aggressive with the police, smelled of alcohol, threatened to sleep in the restaurant, had bloodshot eyes, and refused to provide identification. The officers arrested him for being intoxicated in a public place. The police seized a Heineken beer cap when they conducted a pat-down search incident to arrest. When they transported him to the police car he swayed as he walked.

[5] The police received information confirming that the Appellant had been driving the pickup truck – an officer had viewed a surveillance video confirming that the Appellant exited the driver’s seat. The police then arrested him for impaired driving. the Appellant continued to say things that made no sense. As the trial judge put it, he engaged in “erratic, voluble, and often nonsensical ranting during the course of the investigation.” The police then transported the Appellant to the police station. On the way, the arresting officer realized that he had not made a proper breath demand. He then pulled over and made the demand. At the station, the Appellant blew 153 and 143, as noted, above.

[6] The trial judge succinctly summarized the trial proceedings:

The trial on these charges lasted for five days. The Crown’s case was somewhat lengthy with several police witnesses, a civilian witness, and photographic and video evidence. The defence called no evidence. At the end of the evidence, the contested issues were distilled by counsel as follows: the Appellant, through his counsel, Mr. David, brought a Charter application alleging that his section 8 and section 9 rights were breached because 1) the police did not have reasonable and probable grounds to believe that the Appellant was the person who had been operating the motor vehicle, and 2) that upon determining that they had reasonable grounds to make an approved instrument demand, the police failed to make that demand as soon as practicable as required by section 254(3) of the Criminal Code. the Appellant sought to exclude the breathalyzer test results as well as any evidence flowing from what he contended was an unlawful arrest pursuant to section 24(2) of the Charter.

[7] Unfortunately, the trial judge was required to take a medical leave but she returned in March 2019.

[8] While the trial judge was on medical leave, but prior to her return, defence counsel filed an application for a stay of proceeding under s. 11(b) of the Charter. Defence counsel failed to file any transcripts or supporting documentation. The Crown responded that the application should be dismissed summarily. Defence counsel then filed an application for an adjournment because he did not yet have the transcripts; more importantly, defence counsel conceded that he did not file the transcripts because he did not know that transcripts were required.

[9] The application was set for March 8, 2019. That was also the day set for the verdict. Defence counsel still argued that he should be granted the opportunity to argue the s. 11(b) Charter application because the Appellant faced serious consequences – a mandatory minimum jail sentence. Of course, it is simply incorrect that there is a mandatory minimum jail sentence for impaired driving or “over 80”.

[10] Crown counsel indicated that she was considering asking for a mistrial and a removal of defence counsel from the record based on the entirety of the proceedings but decided that the interests of justice required that the trial simply be resolved expeditiously at that point. Upon inquiry from the trial judge, trial counsel confirmed that he was only conceding his negligence with regard to the 11(b) application. The trial judge then agreed that the Appellant could pursue the s. 11(b) application but read out her reasons for decision. She did not, however, enter a verdict on the information at that point. Her Honour dismissed the s. 11(b) application on October 2, 2019 after the filing of transcripts and the making of submissions.

[11] The trial judge dealt with the evidence in her reasons in March 2019. She was satisfied beyond a reasonable doubt that the Appellant was guilty of impaired driving. She rejected the defence argument that the Crown had failed to prove identity. The trial judge very thoroughly reviewed the evidence. As she put it, there was “ample evidence grounding an inescapable inference that the Appellant was the driver of the truck and the man arrested in the Double Double Pizza… In my view the evidence cumulatively and overwhelmingly established the inferences that the Appellant was aware that the police were following him and didn’t want to be apprehended.” the Appellant’s counsel does not challenge that finding on appeal.

[12] The trial judge was also satisfied that the Appellant was not intoxicated due to alcohol consumption in the Double Double Pizza after he had been driving. She said it was nonsensical to suppose that even if the Appellant had drank one or two beers in Double Double Pizza immediately after driving that could have caused the extreme intoxication observed by the witnesses and captured by the in-car camera. The trial judge did not, of course, mention that the Appellant did not testify to the effect that he had done so. The only evidence on the point was the evidence of the owner of Double Double Pizza, who testified that he did not serve any alcohol to the Appellant. No trier of fact could possibly have had a reasonable doubt based on a finding that the Appellant had consumed alcohol after driving – there was simply a suggestion to the owner of Double Double Pizza, and he denied it. In other words, there was no evidence. The trial judge found a “wealth of evidence” that the Appellant was heavily intoxicated when he drove his truck.

[13] The trial judge then dealt with the Charter motion. She first considered whether the police had reasonable and probable grounds to arrest the Appellant. She noted that Constable McKinnon, the arresting officer, had no reason to believe that the Appellant had consumed anything other than water in Double Double Pizza. Constable McKinnon also received information from Constable Sawyer that the Appellant had been driving the truck. Constable Sawyer watched the surveillance video and confirmed that the Appellant had driven the truck into the parking lot, exited the driver’s door, and walked into Double Double Pizza. Like the trial judge, I reviewed the surveillance video. There is no doubt that the Appellant was the person on the video. As to whether the breath demand had occurred “as soon as practicable”, the trial judge found that there was a 13-minute delay between the formation of reasonable grounds and the demand for a breath sample. She did find that the Crown failed to prove that the demand was made as soon as practicable. That failure resulted in a breach of s. 8 of the Charter: R. v. Vanderbruggen (2006), 2006 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont.C.A.); R. v. Squires (2002), 2002 44982 (ON CA), 166 C.C.C. (3d) 65 (Ont.C.A.).

[14] After finding a Charter breach the trial judge applied the framework in R. v. Grant, 2009 SCC 32, to determine whether the evidence should be excluded. Ultimately, she determined that the breath samples should be admitted. She found that the Appellant should be convicted not only of impaired driving but also of “over 80”. She sentenced the Appellant on December 18, 2019.

[15] In March 2020 the Assistant Deputy Attorney General, Criminal Law Division, wrote to the Law Society of Ontario reporting on trial counsel’s conduct. She pointed to concerns about trial counsel in three trials, including this one. She wrote:

Mr. David’s conduct throughout these cases calls into question his competency, integrity and advocacy. I am concerned about the overall impact Mr. David’s conduct has on the clients he represents.

[16] The Law Society opened an investigation. Counsel for the Law Society requested documents and answers from trial counsel. Trial counsel refused to provide them, arguing that the Law Society investigation was undertaken in bad faith. The Law Society found that trial counsel engaged in professional misconduct by failing to respond.

ANALYSIS:

[17] The Appellant points to a series of alleged failures on the part of trial counsel in both the factum and in her oral arguments. These include:

• Much disclosure material was missing from trial counsel’s file;
• Trial counsel failed to inform the Appellant that he could testify on the Charter application; it was unclear whether he informed the Appellant that he could testify on the blended voir dire;
• Trial counsel did not have some of the disclosure, including surveillance videos and in-car camera videos, but nonetheless made concessions at a judicial pretrial about their reliability. He later failed to resile from the concession;
• Trial counsel failed to file a proper affidavit or otherwise perfect the s. 11(b) affidavit.

[18] Many of the arguments made by appellate counsel were not substantive criticisms but editorial comments about trial counsel’s performance. Much of the material was directed towards exactly what a reviewing court is not supposed to do – conduct a minute forensic examination of every aspect of trial counsel’s performance: R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont.C.A.) at para. 68. Most of appellate counsel’s written and oral submissions were directed at inconsistencies or problems in the police evidence that trial counsel allegedly inadequately explored or failed to explore. Some of the editorial comments in the factum include:

• “…McKinnon was taken through some times on the Scout Car video by the trial crown, who improperly also asked MacKinnon to comment on what other officers were doing…”
• “The cross examination of Trial Counsel of the Witnesses was all over the place... There appeared to be no strategy.”
• “The trial was a complete disaster, and the Appellant was unaware of the lack of preparation or awareness of disclosuure” [sic]

[19] Appellate counsel seems to be of the view that it is the responsibility of defence counsel to explore every possible inconsistency and every possible hole in the Crown’s case. That may well be the approach taken by some counsel, but many other counsel – and many judges – would consider it ineffective and a failure to focus on the real issues. As Frederick The Great said of war, “he who defends everything defends nothing.” The same can be said of litigation. In any event, that was not the approach taken by trial counsel. He stated in cross-examination on his affidavit:

Q. Did you ever tell the Appellant, you know what? I’m going to be focusing only on these points, I’m not going to be opening my mind to everything?

A. Yeah, I think I did talk to him about that. I can’t remember exactly what I did say, because he said -- I think Rajasingam was just very much into let’s hit him on everything we can. And I think I said something like, no, we want to focus on these stronger points. We don’t want to have a trial where we just take a shotgun approach and pursue every little thing even when it's not important because it will make our case look a lot weaker, whereas you have these very strong points and we should really bring this to the forefront, kind of keep the judge focused on that.

[20] There must have been some merit to trial counsel’s approach: the trial judge did indeed find that the police had breached s. 8 of the Charter by reason of the failure to comply with the “as soon as practicable” requirement in s. 253 of the Criminal Code. Certainly, that was part of trial counsel’s Charter argument, and it succeeded. Trial counsel only failed to persuade the trial judge that the evidence should have been excluded under s. 24(2) of the Charter. Appellate counsel did not argue that trial counsel’s s. 24(2) argument fell below the standard of reasonable professional assistance in the circumstances.

[21] Finally, appellate counsel argued:

The judge at the trial gave extremely brief reasons for dismissing both the Charter Applications, and it is hard to fathom how she reached her decision on both fronts. the Appellant had to have some understanding of the issues, and how she resolved them but was denied that opportunity.

[22] That criticism was gratuitous, given that the trial judge’s reasons have not been challenged on appeal – other than a brief pro forma allegation of error of law in the Notice of Appeal. Appellate counsel made no submissions on appeal arguing that the trial judge had erred. The criticism is also wrong: the trial judge’s ruling on the s. 8/9 Charter motion ran to 27 pages of transcript. The trial judge’s reasons were thorough, and appellate counsel has failed to point to any specific error of law or material misapprehension of evidence. It is true that on the s. 11(b) application the trial judge provided brief reasons, but appellate counsel has not pointed to any specific error of law or material misapprehension of the evidence on the s. 11(b) Charter application either.

[23] A claim for ineffective assistance of counsel must establish three things:

• First, the facts material to the claim of ineffective assistance on the balance of probabilities;
• Second, that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and
• Third, the ineffective representation resulted in a miscarriage of justice.

[24] See: R. v. Archer, (2005) 293 O.A.C. 56, at paras. 119-21; R. v. Zheng, 2014 ONCA 345 at para. 22; R. v. Trought, 2021 ONCA 379 at para. 42.

[25] There is a strong presumption that counsel’s conduct fell within the range of reasonable professional assistance: R. v. Webb, 2012 ONCA 776 at para. 3.

[26] In my view, the only claims to be taken seriously are that trial counsel failed to properly perfect the s. 11(b) application; and that he failed to inform the Appellant that he could testify on the Charter application or the blended voir dire.

(a) Has the Appellant established the material facts on a balance of probabilities?

[27] It is very clear that trial counsel initially failed regarding the s. 11(b) application. He conceded that he had been negligent by failing to file transcripts – he even admitted that he did not know he needed to file transcripts. There is no question that the Appellant as established this material fact.

[28] The Appellant stated in his affidavit that trial counsel did not inform him that he could prepare an affidavit on a s. 11(b) application in order to establish prejudice. I agree that the Appellant has established this material fact as well.

[29] I turn now to the question of whether trial counsel informed the Appellant that he could testify on the Charter application or blended voir dire. In his affidavit, the Appellant stated:

We did not discuss that an accused person has a right to decide whether or not to testify. I was simply told that I need not testify.

[30] In his affidavit trial counsel stated:

Paragraph 5 of the Appellant’s affidavit is partially true, I did briefly go over the Charter issues I was going to file but I didn’t go over the particulars in detail. I don’t remember the Appellant saying he was arbitrarily detained, but he did say something similar. I think he stated that he was sitting in a bar, not the truck so he should not have been detained.

As for the final sentence of paragraph 6, I did not specifically tell the Appellant that he had a right to testify using those words, but I do recall telling him that he could testify. I remember telling him that he could testify and it was his choice and I would advise him towards the end of the trial if I thought it was a good idea for him to testify, depending on how the trial went. I certainly not tell him that he did not need to testify and leave it at that.

[31] Trial counsel took the view that the Appellant was not arbitrarily detained and that there was no point in making that argument. He was undoubtedly correct about that.

[32] Appellate counsel argues that trial counsel admitted that he was negligent about telling the Appellant about testifying. Appellate counsel relies on the following passage in her cross-examination:

Q. Were you aware at the time that you did the Charter application that the Appellant had arrived to testify and/or make an affidavit on the Charter application?

A. Yes. Yes, I was.

Q. I’m going to suggest you never mentioned that to the Appellant. He wasn’t aware of that.

A. It’s possible, yes.

Q. And certainly if that’s possible, you did not get instructions from him that he does not want to testify on the Charter, fair?

A. That's fair . . .

[33] With respect, I do not think that trial counsel admitted that he did not properly inform the Appellant of his right to testify. I’m not sure what “the Appellant had arrived to testify and/or make an affidavit on the Charter application” means. The question implies that the Appellant was simply ready to testify or swear an affidavit.

[34] As well, the full excerpt (which did not appear in the factum) must be examined:

Q. Now, you have a Charter application, and we went over yesterday why you thought what was the correct Charter, and you proceeded on that basis. Were you aware at that time that the Appellant had arrived to make an affidavit supporting the Charter application?

A. What’s that?

Q. Were you aware at the time that you did the Charter application that the Appellant had arrived to testify and/or make an affidavit on the Charter application?

A. Yes. Yes, I was.

Q. I’m going to suggest you never mentioned that to the Appellant. He wasn’t aware of that.

A. It’s possible, yes.

Q. And certainly if that’s possible, you did not get instructions from him that he does not want to testify on the Charter, fair?

A. That’s fair . . .

[emphasis added]

[35] The question did not suggest – and the answer did not admit – that the Appellant was unaware that he could testify. The failing, if there was one, was that trial counsel did not get written instructions, something that is always preferrable: R. v. Trought, at paras. 76-77; R. v. W.E.B., 2012 ONCA 776.

[36] In any event, the Appellant contradicted himself both in his affidavit and during his cross-examination on his affidavit. He first indicated in his affidavit that he understood that he had a right to testify at his own trial. Later, he insisted that he had never discussed it with trial counsel at any point in the trial before Justice Bloomenfeld. That contradiction impacts on his credibility.

[37] I note that the Appellant had retained trial counsel for an earlier trial and had made no allegation of ineffective representation. The two trials were close in time. During the cross-examination on the Appellant’s affidavit Crown counsel tried to ask him whether he and trial counsel had discussed testifying during that first trial. Appellate counsel objected on the grounds that such questions delved into solicitor-client privilege and that privilege had not been waived for the first trial. That was undoubtedly correct, but it foreclosed the possibility that Crown counsel could have explored just what the Appellant knew and when he knew it. He must have learned somewhere that he had the right to testify, even if he didn’t discuss it during the trial before Justice Bloomenfeld – which, in any event, I do not accept as I prefer trial counsel’s evidence on that point. Appellate counsel obviously made a tactical decision to prevent Crown counsel from asking that question, but it was a tactic that has brought about the opposite of what was intended: I draw the inference that the Appellant was well aware of his rights because trial counsel discussed them either during the other trial, during the trial before Justice Bloomenfeld, or both. I conclude that he has not established the material facts with regard to the decision to testify.

(b) Was trial counsel ineffective?

[38] If I am wrong that the Appellant has not established the material fact that he received no advice regarding testimony, that would fall below the standards of reasonable professional representation: R. v. Trought at paras. 46-54, 69.

[39] I turn to the s. 11(b) application. There is no question that trial counsel’s failure to file the transcripts fell below the standards of reasonable professional assistance in the circumstances. The necessity of filing transcripts on a s. 11(b) application has been apparent since the Supreme Court of Canada’s decision in R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199. I find it astonishing that trial counsel would not have known that. It would go without saying that a court requires a record, in the form of transcripts, to decide a s. 11(b) application – except that courts have said it. See, for example, R. v. Sharma, 1992 90 (SCC), [1992] 1 S.C.R. 814 at para. 18; R. v. Lahiry, 2011 ONSC 6780 at para. 7 where Code J. discusses the critical role played by transcripts. That aspect of trial counsel’s conduct obviously fell below the standards of a reasonable competent defence lawyer.

[40] On the issue of the affidavit on the s. 11(b) application, I find that trial counsel’s performance did not fall below the standard. the Appellant was charged on June 10, 2016. The Supreme Court of Canada released its landmark judgment in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 on July 8, 2016, only about a month later. Although a transitional exceptional circumstances analysis would have been necessary, it seems clear to me that on any s. 11(b) application the analysis in Jordan would have prevailed. Under Jordan, prejudice is simply not an element of the analysis: Jordan at para. 54. Trial counsel recognized this fact as he stated in his affidavit that “the 11(b) application did not raise the issue of prejudice.” See also: R. v. MacLeod, 2020 ONCA 596 at para. 11.

(c) Did the ineffective misrepresentation result in a miscarriage of justice?

[41] It is not enough that trial counsel made a mistake or was ineffective in some aspect of his defence; the Appellant must establish that the ineffective assistance led to a miscarriage of justice. The miscarriage of justice may result in procedural unfairness, or the result of the trial may have been compromised: R. v. G.D.B., 2002 SCC 22 at para. 28.

[42] When trial counsel admitted that he had negligently failed to file transcripts, Crown counsel indicated that she was considering asking for a mistrial and a removal of defence counsel from the record based on the entirety of the proceedings. She decided, however, that the interests of justice required that the trial simply be resolved expeditiously at that point. She made the following remarkable comment:

I query whether he should even be - whether he should be removed from the record from this point given (a) his lack of knowledge as to legal procedure, and (b) as to some of the information that he put in his response and permitted to be filed by way of affidavit evidence with respect to his various applications. For instance, the reference to a mandatory minimum jail sentence, I would suggest, invites this court to consider a mistrial application. And, certainly, any court that - if this matter were to go to another level of court for review, certainly I can only imagine what that court would think given that no defence was called in the trial proper, and yet here we have the defence filing information that a mandatory minimal jail sentence would be required should he be convicted.

[43] That comment – as well as the Law Society investigation – obviously lends credibility to the Appellant’s complaints about trial counsel’s poor performance. In Trought, the defence lawyer unfortunately was very critical of his former client. Trotter J.A. called the defence lawyer’s comments “unfortunate”. In his cross-examination in this case, Mr. David made equally unfortunate comments, except about the trial judge and the Crown:

Q: So what was the concession you thought that the judge had in her notes? What precise concessions?

A: To be honest I didn’t think she was being honest. I think it was kind of a – they wanted the videos in, and they kind of – they just, you know, they got it in.

Q: So we’re talking about the Crown and the judge when you say that, yeah?

A: Yeah.

[44] These comments were equally unfortunate. They also lend credibility to the point about poor performance.

[45] That said, an appeal court must apply the framework set out in Joanisse, W.E.B., Archer, and the other cases. It is not enough to point to some failing by trial counsel – even many failings, or a poor overall performance – and then obtain a new trial. The principle of finality demands that there be more – namely, that the failing led to a miscarriage of justice such that a new trial is required.

[46] Although her written and oral submissions did not address the point, appellate counsel appeared to argue that trial counsel’s ineffectiveness resulted in a compromised verdict rather than procedural unfairness. For that claim to succeed, the Appellant must demonstrate that there is a reasonable possibility that but for the incompetence, the verdict could have been different: R. v. Stark, 2017 ONCA 148 at para. 15. I find that the Appellant has failed to do so.

[47] Regarding the s. 11(b) application, ultimately, the trial judge was persuaded that she should permit it to go ahead notwithstanding the initial negligence of trial counsel. The transcripts were filed, submissions were made, and the trial judge made a ruling. Appellate counsel did not make any argument in her factum or in her oral submissions that trial counsel’s performance resulted in a miscarriage of justice in relation to the actual argument on the s. 11(b) application itself. If the trial judge had dismissed the 11(b) application without giving trial counsel a chance to perfect the application, appellate counsel would obviously have a stronger argument. But that is not what happened. Trial counsel persuaded the trial judge to adjourn the argument to give him a chance to perfect the application.

[48] I now return to the issue of trial counsel’s allegedly negligent failure to give advice to the Appellant that he could testify on the Charter motion. Even if I am wrong that the Appellant has failed to prove that trial counsel properly informed the Appellant of his right to testify it would have made no difference. This line of argument is entirely misconceived: trial counsel succeeded in convincing the trial judge that the Appellant’s Charter rights were, in fact, violated. Trial counsel merely failed to persuade the trial judge to exclude the evidence under s. 24(2) – and the Appellant has levelled no criticism of that aspect of his handling of the Charter application.

[49] The Charter argument was two-fold: first, that the police did not have reasonable and probable grounds to arrest the Appellant thus breaching s. 9 of the Charter; and second, that the police did not comply with the “as soon as practicable” requirement in s. 253 of the Criminal Code, thus breaching s. 8 of the Charter.

[50] There was virtually no prospect that trial counsel could have persuaded a judge that the police did not have reasonable grounds to arrest the Appellant for impaired driving. He was obviously drunk. There was an open bottle of beer in his truck. The police found the matching bottle cap to the beer during their pat-down search on the arrest for public intoxication. An officer viewed the surveillance video and identified the Appellant as the driver. Even if that officer were disbelieved – and there was, appellate counsel’s submissions to the contrary, no reason to disbelieve him – the officers had only lost sight of the truck for 10-15 seconds in the parking lot and found that the only person in the truck was in the passenger seat. No amount of brilliant cross-examination on inconsistencies in the police notes or the video times was going to change that. No amount of brilliant cross-examination was going to change the fact that on the video the truck drove into the lot, the Appellant clearly exited the driver’s side, and clearly went into the Double Double Pizza.

[51] Appellate counsel argues that trial counsel failed to suggest that the Appellant testify on the Charter application. Trial counsel admitted that he didn’t make that suggestion:

Q. The Crown made, and I can take you to the page, she made some suggestion that it’s your Charter application and the Appellant is not testifying, and she's entitled to do that in the case law. Did you then think, you know what, maybe I should have my client testify on the Charter?

A. No.

Q. It was never suggested to the Appellant, fair?

A. That's correct.

[52] Trial counsel was undoubtedly correct not to make that suggestion. It is difficult to know what the Appellant could have said on a Charter application that could possibly have made any difference. Certainly, the Appellant has not filed any evidence setting out what he would have or could have said. If he had testified that he had not been driving, that would have been clearly and obviously contradicted by the video; if he testified that he had not been drunk, that would have been clearly and obviously contradicted by the breath results as well as the what the trial judge described as “erratic, voluble, and often nonsensical ranting during the course of the investigation”; and if he testified that had had been drinking in the Double Double Pizza rather than before or during driving, that would have been clearly and obviously contradicted by the owner. Even if he had testified and been believed on the last point, it would clearly not have detracted from the grounds for arrest.

[53] Further, I have read the Appellant’s cross-examination on his affidavit. During the cross-examination he was hostile and dismissive of Crown counsel’s questions. He was critical of the competence of the trial judge, the police, and the Crown. He accused the judge and the Crown of lying. He was prone to long, irrelevant, and incomprehensible answers. I doubt that he would have performed well under cross-examination in court.

[54] There is no fresh evidence that has been filed by the Appellant suggesting what he could have testified to. There is not even a suggestion in appellate counsel’s factum as to what he could have said. There is no other hint of any other fresh evidence that would have made a difference.

[55] This trial is distinguishable from the result in R. v. Trought. In that case, trial counsel’s ineffectiveness resulted in the accused testifying on the basis of inadequate legal advice. That inadequate legal advice resulted in an unfair trial: See paras. 69-70, 74. I see no similar procedural unfairness in this case.

[56] As noted, appellate counsel has not pointed to any fault or failure in the argument on the s. 24(2) aspect of the Charter motion. There was a wealth of evidence pointing to the Appellant’s guilt. There was no miscarriage of justice in relation to the Charter motion or any other aspect of the trial.

CONCLUSION:

[57] The appeal is dismissed.

R. F. GOLDSTEIN J.

Released: December 20, 2021

COURT FILE NO.: CR-20-30000005-00AP DATE: 20211220

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

SANCHAYAN RAJASINGAM

REASONS FOR JUDGMENT

R. F. GOLDSTEIN J.

Released: December 20, 2021