Nature of Proceedings

[1] Kweku Kuffuor is appealing his May 12, 2021 convictions in the Ontario Court of Justice for impaired driving and driving with a blood alcohol content over the legal limit contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, as those sections were at the time of Mr. Kuffuor’s arrest.

[2] This ruling relates to Mr. Kuffuor’s application for new and fresh evidence to be considered on this appeal to support his allegation in his Notice of Appeal that the counsel who represented him at trial [“trial Defence counsel”] was incompetent and ineffective resulting in his not receiving a fair trial. This ruling also relates to the Crown’s application for the summary conviction appeal, as it relates to the allegation of incompetent or ineffective counsel, to be dismissed summarily.

[3] In considering both applications, I have reviewed the trial transcripts and exhibits, the testimony of Mr. Kuffuor on October 26, 2021, the documentary evidence provided from the file of trial Defence counsel, and the fresh evidence Mr. Kuffuor sought to have admitted relating to this aspect of his summary conviction appeal.

Evidence at Trial

[4] For the purpose of these rulings, but also for the purpose of the ultimate decision on Mr. Kuffuor’s appeal, I will summarize the evidence at trial and the issues raised during the trial. The Crown’s evidence consisted of various exhibits and the oral testimony of four officers: Officers De Souza Lima, Cohen, Bean, and Dumont.

[5] The overview of the case is that, in the early hours of September 14, 2018, a car registered in the name of Kweku Kuffuor went off the west-bound lanes of Carling Avenue in the vicinity of Carling and Kirkwood Avenues where Carling Avenue turns north under the Queensway. The police responded to three 911 calls reporting the accident, the first one received at 1:46 a.m. When they attended the scene, a damaged vehicle was on the grassy median. There was no one in the vehicle and no one, aside from first responders, on the scene. Shortly thereafter, Mr. Kuffuor arrived at the scene of the accident on foot.

[6] At the commencement of trial, the trial Crown counsel [“trial Crown”] summarized the issues and the understanding of both counsel. The issues identified were: (1) whether Mr. Kuffuor had been driving the vehicle when it went off the road; (2) the timing of the accident; (3) whether Officer De Souza Lima had reasonable and probable grounds to arrest Mr. Kuffuor for impaired driving; (4) whether Mr. Kuffuor’s right to counsel was respected; and (5) whether breath samples were taken as soon as practicable following arrest. Both counsel consented to Mr. Kuffuor’s 911 call being played and to the toxicology report being tendered in evidence. Trial Defence counsel agreed that, if the court accepted that the motor vehicle accident happened outside the enumerated period in the toxicology report, the range set out in the toxicology report would apply even to a period prior to the 1:30 a.m. time that was in the report. Counsel agreed that the statement that Mr. Kuffuor gave to Officer De Souza Lima at the scene was voluntary.

[7] Officer De Souza Lima was the arresting officer. He was the first officer on the scene at 1:52 a.m. He observed tire tracks running from Carling Avenue to the vehicle’s resting place on the grass. He observed extensive damage to the driver’s side of the vehicle and to the front bumper. He noted that the hood of the vehicle was still warm to the touch. There were no keys in the ignition, but he acknowledged under cross-examination that the vehicle could have been a push-start vehicle. There was a wooden pole just in front of the vehicle, but it did not appear to have been knocked down by the vehicle.

[8] Officer De Souza Lima was approached by a woman who had observed the vehicle on the grass and who had called 911; but she had not heard or observed the accident.

[9] Meanwhile, Officer Cohen had arrived at the scene at 2:01 a.m. She observed that the vehicle’s two front tires had blown and that the driver’s side airbag had deployed. She received information about the name and address of the registered owner of the vehicle and immediately headed to that address by heading west on Carling Avenue. She observed a male crossing Carling Avenue from the vicinity of Hampton Park Plaza and heading toward the accident scene. She advised her colleagues of this over the police radio. Shortly thereafter Officer Cohen heard over the radio that this individual was the owner of the vehicle. Officer Cohen immediately returned to the scene. Officer Cohen did not observe any indicia of impairment on the part of Mr. Kuffuor when he was crossing the road or interacting with Officer De Souza Lima at the scene. Officer Cohen proceeded to complete the accident report and, while doing so, noted that there were bottles of prescription medication, namely amphetamines and oxycodone, visible on the console in the front of the vehicle.

[10] Officer De Souza Lima described Mr. Kuffuor as walking very, very slowly, as stumbling, and as not raising his feet. He appeared to be out of balance in the sense of not walking in a straight line. Mr. Kuffuor was on the phone to 911. He came within a metre of Officer De Souza Lima. The officer asked him to stop talking on the phone. According to the officer, Mr. Kuffuor would not stop talking so the officer took the cell phone out of Mr. Kuffuor’s hand. Mr. Kuffuor subsequently alleged that Officer De Souza Lima had used excessive force in taking the cell phone from his hand, and this was the subject of an official complaint. No other officers at the scene reported the use of force and, since Mr. Kuffuor did not testify, this allegation was not before the trial judge.

[11] Officer De Souza Lima proceeded to ask Mr. Kuffuor questions. According to Officer De Souza Lima, although Mr. Kuffuor at first said that he was not the driver of the car – he was just the owner – at another point he said that he was driving the car. He then corrected himself and said that he was not driving the car. Mr. Kuffuor said that he was driving home from Casino Lac-Leamy in Quebec with another male person who was driving the vehicle. They got into a verbal and then a physical altercation at which point the vehicle left the road and ended up on the grassy area of the embankment. Mr. Kuffuor would not provide any name or description of the other person in the vehicle. According to Officer De Souza Lima, when Mr. Kuffuor was asked if he was inside the vehicle during the collision, Mr. Kuffuor answered that he had been driving the vehicle but, at other points, he said he had not been driving the vehicle. Mr. Kuffuor said that he was now coming from home. In short, Mr. Kuffuor seemed very confused to Officer De Souza Lima. The officer acknowledged under cross-examination that what he had written in his notes and Investigative Action Report captured the gist of his interactions with Mr. Kuffuor but was not a verbatim accounting and the order in which Mr. Kuffuor stated things might have been different.

[12] Officer De Souza Lima described Mr. Kuffuor as initially being cooperative in answering his questions but as then becoming angry and more upset, saying that he just wanted to go home because he was exhausted. Officer De Souza Lima detected a strong odour of alcohol on Mr. Kuffuor’s breath. Mr. Kuffuor was not aggressive or posturing, but his mood changed rapidly and vacillated between being cooperative and angry. Officer De Souza Lima observed Mr. Kuffuor to have glassy eyes and to be slurring his speech a bit, but the officer was able to understand what he was saying.

[13] It was on the basis of all of these observations on the part of Officer De Souza Lima and on the basis of the absence of any reliable information that someone else had been driving the vehicle that the officer arrested Mr. Kuffuor at 2:04 a.m. for impaired driving. Officer De Souza Lima and another officer searched Mr. Kuffuor and then put him in the police cruiser. Officer De Souza Lima read Mr. Kuffuor his right to counsel at 2:08 a.m. and the primary caution at 2:09 a.m. The officer had to repeat the caution because he saw that Mr. Kuffuor was dozing off. The officer then read the secondary caution. Mr. Kuffuor confirmed that he understood all that had been read to him.

[14] At 2:12 a.m. Officer De Souza Lima read a breath demand to Mr. Kuffuor, advising that he would be taken to the police station for breath samples to be taken. The officer asked Mr. Kuffuor a number of questions about his health, any possible injuries, and whether he wanted immediate medical attention, which Mr. Kuffuor declined. At this point, Officer De Souza Lima went through Mr. Kuffuor’s wallet which had been seized during the search, looking for confirmation of his identity. In doing so, he located two receipts: one from Andaz Bar dated September 13, 2018 at 7:30 p.m. and one from Casino Lac-Leamy with about six alcoholic beverages on it dated September 14, 2008 at 00:39 a.m.

[15] At 2:22 a.m. Officer De Souza Lima headed to 474 Elgin Street with Mr. Kuffuor, arriving at 2:29 a.m. During the ride to the station, Mr. Kuffuor’s demeanour was very labile. He went from apologizing to being angry to crying and then being verbally abusive. At one point he offered the officer money to just take him home. There was a delay in Officer De Souza Lima’s cruiser being given permission to enter cell block. Once in the station, Mr. Kuffuor was paraded before the duty sergeant who took note that Mr. Kuffuor took pain medication for his back. Mr. Kuffuor was searched by the special constables, and then given the opportunity to call counsel. Mr. Kuffuor was provided a list of anglophone and francophone lawyers, but he would not choose one from the list. At this point, he was crying and upset and kept repeating that he had never been in trouble, did not know any lawyers, and did not know what to do. After a few minutes, and on the recommendation of another officer, Officer De Souza Lima put Mr. Kuffuor in a booth and arranged for duty counsel to call him. At 3:06 a.m., Mr. Kuffuor was in contact with duty counsel.

[16] While Mr. Kuffuor was speaking to duty counsel, Officer De Souza Lima provided information to the breathalyser technician, Officer Bean. At 3:25 a.m., Officer Bean took custody of Mr. Kuffuor and obtained two suitable breath samples. While this was occurring, Officer De Souza Lima was stationed outside the door and could hear Mr. Kuffuor yelling and swearing at Officer Bean. Officer De Souza Lima again took custody of Mr. Kuffuor at 4:00 a.m.

[17] While taking the breath samples, Officer Bean, a breathalyser technician, detected the odour of alcohol coming from Mr. Kuffuor’s breath. Mr. Kuffuor’s dexterity was not very good, and he initially had trouble inserting the mouthpiece into the tube. Mr. Kuffuor was swaying while seated and was using the wall to keep himself up with his head. Mr. Kuffuor was talking “a mile a minute” and had difficulty putting full sentences together; he would flip from topic to topic.

[18] At the conclusion of the Crown’s case, trial Defence counsel advised that no defence evidence would be tendered and that she would not be pursuing the argument that breath samples were not taken as soon as practicable. Her submissions were focused on three areas: (1) the absence of reasonable and probable grounds for arrest; (2) an infringement on Mr. Kuffuor’s right to counsel; and (3) the absence of proof beyond a reasonable doubt that Mr. Kuffuor was the driver of the vehicle.

Law re Appeals Alleging Incompetent Trial Counsel

[19] As outlined in R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 48 (relying on the analysis of Watt J.A. in R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91), a three-part test is used to determine incompetent or ineffective assistance of counsel appeals, with the appellant bearing the onus of proof on a balance of probabilities with respect to each part. The Appellant must establish:

The facts on which the claim is grounded;
The incompetence of the representation provided by trial counsel; and
A miscarriage of justice as a result of the incompetent representation by trial counsel.

[20] In regard to the factual component, allegations of incompetent or ineffective representation must be assessed in light of the strong presumption of competence in favour of counsel. A cautious approach should be adopted by the court when dealing with allegations against trial lawyers made by convicted individuals not wishing to face the sentences imposed (Fiorilli, at para. 51, and the authorities cited there).

[21] In regard to the performance component, the appellant must demonstrate that counsel’s acts or omissions amount to incompetence, with incompetence measured against a reasonableness standard. The Appellant must show that the acts or omissions of counsel could not have been the result of reasonable professional judgment. In that regard, there is a broad spectrum of professional judgment that might be considered reasonable. Whether trial counsel acted reasonably must be assessed at the time decisions were taken and not in hindsight after a conviction has been entered (Fiorilli, at paras. 52-53, and the authorities cited there).

[22] In regard to the prejudice component, the appellant must show the ineffective representation resulted in a miscarriage of justice, either by rendering the trial unfair or the verdict unreliable (Fiorilli, at para. 54, and the authorities cited there).

[23] The trial fairness branch of the prejudice component is concerned with the adjudicative fairness of the process used to arrive at the verdict. Some decisions made during the course of the trial, such as the decision whether the accused will testify, are so fundamental to procedural fairness that counsel’s failure to permit the appellant to make the decision or counsel’s failure to provide effective advice regarding the decision, can raise questions of procedural fairness. The focus is whether counsel’s performance at trial undermined the appearance of trial fairness (Fiorilli, at paras. 55-57, and the authorities cited there).

[24] The unreliable verdict branch of the prejudice component is concerned with the confidence that can be placed in the validity or reliability of the result of the trial. The argument is that because of counsel’s incompetence, the defence was not properly put, or the Crown’s case was not properly challenged. The focus is on the impact trial counsel’s incompetence had on the reliability of the result. The Appellant must show that, had counsel performed in a competent fashion, there is a reasonable probability that the result would have been different (Fiorilli, at paras. 58-59, and the authorities cited there).

Alleged Facts regarding Incompetency or Ineffectiveness of Trial Defence Counsel

[25] The following is a summary of the allegations of incompetency raised by Mr. Kuffuor against trial Defence counsel and my determination of whether Mr. Kuffuor has proven on a balance of probabilities the facts underlying his allegations.

[26] Mr. Kuffuor alleged that trial Defence counsel submitted his pardoned criminal record into evidence and that he was prejudiced as a result. However, at the sentencing hearing, trial Defence counsel clearly advised the court that her client had no criminal record. When cross-examined for the purpose of this appeal, Mr. Kuffuor did not clarify how he alleges trial Defence counsel acted incompetently regarding his criminal record, though he did state that the fact the trial judge was aware of it led to a miscarriage of justice.

[27] Although Mr. Kuffuor initially alleged that trial Defence counsel had been incompetent by not letting him testify at trial, during his cross-examination for the purpose of this appeal, Mr. Kuffuor acknowledged that he and trial Defence counsel had discussed the reasons why she believed it was best that he not testify and, in the end, he had agreed with her recommendation. The emails from trial Defence counsel to Mr. Kuffuor on October 7, 9 and 27, 2020 confirm that extensive conversations occurred regarding this issue. Mr. Kuffuor also acknowledged under cross-examination that the only criticism he would make of trial Defence counsel in regard to his not testifying was that he had not been privy to the Crown disclosure and did not fully appreciate what evidence the Crown would be tendering prior to his deciding not to testify. This, however, is contradicted by other evidence.

[28] Mr. Kuffuor alleged that he did not have the opportunity to fully review the disclosure provided by the Crown before deciding not to testify and that, if he had reviewed that disclosure, he would not have agreed not to testify at trial, as his counsel had recommended. However, under cross-examination for the purpose of this appeal, Mr. Kuffuor acknowledged that he had reviewed the first package of disclosure prior to trial and had, in fact, made written comments in the document.

[29] In regard to the 911 call Mr. Kuffuor made to the police, which was not included in the original disclosure package, Mr. Kuffuor denied having listened to it or having been advised by trial Defence counsel of its contents. That is contradicted by the written communications between counsel and Mr. Kuffuor. On August 31, 2020, trial Defence counsel advised Mr. Kuffuor of the contents of his 911 call and provided her opinion that it would not be helpful to Mr. Kuffuor because his story changed multiple times in the span of a few minutes regarding who was driving/how many people were in the vehicle, etc. On September 1, 2020, trial Defence counsel offered to play the 911 call to Mr. Kuffuor if he called her. The evidence is that Mr. Kuffuor did listen to his 911 call, as reflected in the email from trial Defence counsel to Mr. Kuffuor on October 9, 2020.

[30] Finally, although Mr. Kuffuor claimed that he had not seen a bar tab from Casino Lac-Leamy that was put into evidence at trial, this allegation is not credible. The evidence tendered at trial was that Officer De Souza Lima seized this bar tab from Mr. Kuffuor’s wallet following his arrest and therefore Mr. Kuffuor was aware of its existence and what it stated. As well, there is evidence that Mr. Kuffuor commented to trial Defence counsel about the bar tab.

[31] Mr. Kuffuor alleged that he was not kept properly informed about the nature of the defence that trial Defence counsel would be pursuing. However, the evidence is that trial Defence counsel had many communications with Mr. Kuffuor from the time she was retained in which she explained how she would conduct the defence. Further, in an email to Mr. Kuffuor on October 28, 2020, trial Defence counsel clearly set out the nature of the defence she would launch. At the commencement of the trial she acknowledged which matters were in dispute and what the focus of the defence would be. The cross-examination of witnesses by trial Defence counsel on the first day of trial made the focus of her defence arguments clear. Finally, Mr. Kuffuor advised trial Defence counsel on October 28, 2020 that she had done a great job on the first day of trial.

[32] Mr. Kuffuor alleged that trial Defence counsel dropped the “as soon as practicable” argument without speaking to him. However, as confirmed in an email to Mr. Kuffuor on October 28, 2020, trial Defence counsel specifically warned Mr. Kuffuor in advance of trial that it was a weak argument and one she might abandon, depending on the evidence adduced at trial. Once trial Defence counsel heard the evidence at trial, she determined, as was completely appropriate, that there was no merit to the argument and that no judge would find the delay that occurred unreasonable. That decision taken by trial Defence counsel was within her authority to make and in no way could be seen as supporting a finding of incompetency. She advised Mr. Kuffuor of her decision in this regard and her reasons for it in emails on October 30, 2020.

[33] Mr. Kuffuor alleged that trial Defence counsel failed to seek a stay of proceedings based on the use of excessive force by Officer De Souza Lima when he took Mr. Kuffuor’s cell phone out of his hands at the scene. However, there was no evidence before the trial judge that Officer De Souza Lima used excessive force – there was only evidence that he had taken the cell phone when Mr. Kuffuor refused to stop speaking on it and answer the officer’s questions. It was not incompetent for trial Defence counsel not to seek a stay of proceedings when no grounds existed for seeking this relief. The fact that Mr. Kuffuor subsequently filed a complaint about Officer De Souza Lima’s conduct in taking his cell phone was not relevant evidence at trial.

[34] Mr. Kuffuor alleged that trial Defence counsel failed to change trial strategy midway through the trial by calling defence evidence. On October 7, 2020, trial Defence counsel had written to Mr. Kuffuor asking if he wanted other witnesses called to testify on his behalf. She warned him that she needed to speak to them and prepare them to testify if they were to be called. Subsequently, Mr. Kuffuor provided her with the name of one witness, whom she interviewed and determined to be unreliable and unhelpful. The evidence is that on the morning of the second day of trial, February 19, 2021, when the Defence was to be put to its election, Mr. Kuffuor urged trial Defence counsel to call this witness and another witness. In a text exchange that morning, trial Defence counsel stated:

You cannot change the strategy of the case mid trial. That is ludicrous. I have interviewed one witness who was completely unhelpful. You did not even give me a second witness to speak to. I have conducted the trial based on your instructions that we would challenge the Crown’s case and not call unhelpful unreliable evidence. I’m not engaging in these discussions. Decisions have been made based on your instructions. There are rules of evidence that apply. Please let me do my job or fire me.

[35] Mr. Kuffuor did not fire trial Defence counsel and acknowledged in a subsequent text on April 6, 2021, before the resumption of trial on that date, that his witnesses were not needed.

[36] Mr. Kuffuor alleged that trial Defence counsel was incompetent by not putting forward other theories about how the accident may have occurred and why the airbags may have deployed; however, there was no reliable evidence available to trial Defence counsel to justify her raising these alternate theories. Quite appropriately, trial Defence counsel submitted that the trial judge could not rely on any inferences arising from the deployment of airbags when no expert evidence regarding the airbags was tendered at trial. Evidence that there was a pole lying in front of the vehicle when it was found or that someone had seen someone on the near-by bridge early the morning of the accident is not sufficient evidence on which trial Defence counsel could advance alternate theories. All such evidence would have done is invite speculation on the part of the judge, and fact finders are not allowed to speculate in arriving at their decisions. Thus, trial Defence counsel quite appropriately did not try to tender this type of evidence. Mr. Kuffuor’s assertions in this regard are inadequate to raise any question of incompetency of counsel.

[37] Mr. Kuffuor alleged that trial Defence counsel was incompetent in not challenging the toxicologist’s report in which Mr. Kuffuor’s weight had been understated. However, the toxicologist states in his report that his opinion is not dependent on factors such as gender or weight; in other words, proving that Mr. Kuffuor weighed more than he was assumed to weigh in the report would not have altered the opinion provided in the report.

[38] In summary, Mr. Kuffuor has not established on a balance of probabilities the underlying facts on which he seeks to rely in advancing an appeal based on trial counsel’s incompetency. This alone ends his appeal based on the incompetency or ineffectiveness of counsel.

Alleged Incompetence of Trial Defence Counsel

[39] Although it is unnecessary for the purpose of disposing of this ground of appeal advanced by Mr. Kuffuor, after having read the written communications between trial Defence counsel and the trial transcripts, I feel compelled to observe that in no way could trial Defence counsel be considered incompetent or ineffective in representing Mr. Kuffuor. On the contrary: (1) she worked hard at getting full disclosure from the Crown and ensured that Mr. Kuffuor knew exactly what was in that disclosure; (2) she provided clear and reasonable advice to Mr. Kuffuor from the commencement of her retainer as to her assessment of his case and her plan for his defence; (3) she fairly considered countless texts and emails from Mr. Kuffuor as he proposed different tactics and approaches to his case and patiently and appropriately responded to each one of them in a timely fashion; (4) she repeatedly provided clear advice to Mr. Kuffuor as to how best to mount a defence and explained the reasons for her recommendations; (5) her recommendations were reasonable and appropriate, considering the available evidence or lack of evidence; (6) she repeatedly sought confirmation of Mr. Kuffuor’s instructions; (7) she was well-prepared and organized and showed excellent advocacy skills as she cross-examined witnesses and made submissions on Mr. Kuffuor’s behalf; and (8) she displayed a very good understanding of her professional obligations to Mr. Kuffuor and to the court. I note that trial Defence counsel was successful in showing that Mr. Kuffuor’s right to counsel had not been respected. She was also successful in having Mr. Kuffuor’s sentence on conviction being the minimal sentence that could be imposed.

Disposition

[40] Mr. Kuffuor’s application to tender fresh evidence in support of his allegation of incompetency and ineffectiveness against the trial Defence counsel is allowed. However, to the extent that Mr. Kuffuor’s appeal of his summary convictions is based on the alleged incompetency or ineffectiveness of trial Defence counsel, his appeal is dismissed.

Aitken, J.

Released: January 18, 2022

COURT FILE NO.: 18-12797-AP

DATE: 20220118

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent/Applicant

– and –

KWEKU KUFFUOR

Applicant/Respondent

REASONS FOR JUDGMENT

Aitken J.

Released: January 18, 2022

R. v. Kuffuor, 2022 ONSC 395

Case Summary

Nature of Proceedings

Evidence at Trial

Law re Appeals Alleging Incompetent Trial Counsel

Alleged Facts regarding Incompetency or Ineffectiveness of Trial Defence Counsel

Alleged Incompetence of Trial Defence Counsel

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 1