Court File and Parties

Court File No.: CR-20-70000026-00AP Date: 2023-02-15 Ontario Superior Court of Justice

Between: His Majesty The King – and – Amadin Asemota

Counsel: Matt Shumka, for the Crown Amadin Asemota, Self-Rep.

Heard: February 7 & 8, 2023

R.F. Goldstein J.

[1] During the afternoon of June 12, 2019 Amadin Asemoda was involved in an altercation at Moss Park in the area of Shuter Street and Sherbourne Street in downtown Toronto. Mr. Asemota smashed a bottle over the victim’s head. A City of Toronto employee saw the altercation and called 911. The police arrived. They arrested Mr. Asemota. He was charged with assault causing bodily harm and assault with a weapon. He was also charged with breach of recognizance, as he was on bail at the time. At trial his trial before Justice Bovard in the Ontario Court of Justice he claimed that he was, in fact, the victim. He made a number of other, unsupportable claims. The trial judge did not believe his evidence and found it did not raise a reasonable doubt. He found Mr. Asemota guilty on March 10, 2020. He sentenced Mr. Asemota to 5 months and 28 days, a DNA order, and a s. 110 order.

[2] Mr. Asemota now appeals to this court. He says that his trial counsel, Alina Gugila, was ineffective. He says the police stole his diamond chain when they arrested him. His trial counsel failed to pursue that line of inquiry. Among his other complaints he also says she failed to properly prepare for trial, did not give him proper advice about the immigration consequences of a conviction, breached the Rule in Browne v. Dunn, and did not find witnesses who could testify for him. He also claims that he did not sign an acknowledgment of written instructions – either his signature was forged or he was not in his right mind. He says he should receive a new trial.

[3] I find that Mr. Asemota has failed to establish most of the facts upon which his claim of ineffective assistance of counsel is based. He has certainly failed to establish the most important assertions. I find that he also cannot establish that his trial counsel’s conduct amounted to incompetence. Under those circumstances, there is no merit to the allegation that his trial counsel’s incompetence resulted in a miscarriage of justice. There was evidence upon which the trial judge could convict. In reaching these conclusions, I am mindful that Mr. Asemota is self-represented and does not have legal training. For the reasons that follow, the appeal is dismissed.

Facts

[4] On June 12, 2019, John Alves, a City of Toronto Employee, observed an altercation between Mr. Asemota and another man in Moss Park. The altercation escalated. Mr. Alves observed Mr. Asemota hit the other man over the head with a liquor bottle. He called 911. Constable Hodges arrived on a bicycle. He saw Mr. Asemota swinging a piece of wood at the victim. The victim was trying to defend himself with a belt. The victim was injured and bleeding. Blood was running down his neck. Constable Hodges ordered the men to get on the ground and arrested Mr. Asemota. Sergeant Gallagher then arrived. He observed pieces of broken glass on the ground as well as a piece of wood. There were two women present. One appeared to be Mr. Asemota’s girlfriend. The other appeared to be assisting the victim.

[5] At trial, Mr. Asemota testified that he had been drinking with his girlfriend. He and his girlfriend were walking near the bleachers at Moss Park when the victim called out and asked him if he wanted to buy some fentanyl. The victim then said he liked Mr. Asemota’s chain. He then tried to rob Mr. Asemota of it. He also attacked Mr. Asemota with a pocketknife. Another man – possibly Mr. Alves, the City of Toronto employee – produced a gun and offered to shoot Mr. Asemota if he didn’t give up the chain. The two women started fighting as well. The victim then shattered the liquor bottle and tried to attack Mr. Asemota with it. Mr. Asemota used the wood to defend himself. When the police arrived, they arrested Mr. Asemota at gunpoint. The police robbed him of his chain while he was sitting in the back of the police car. Constable Hodgson and Mr. Alves were biased against him. He believed that the victim had slashed his own head with a piece of glass in order to make himself look like more of a victim. There was, in essence, a conspiracy to rob him of his chain.

[6] The trial judge did not believe Mr. Asemota and found that his evidence did not leave him with a reasonable doubt. The trial judge found that there were several violations of the Rule in Browne v. Dunn. It was never put to Constable Hodgson that he was biased against Mr. Asemota from previous interactions. It was never put to the City of Toronto employee, Mr. Alves, that he had a gun. It was never put to Constable Hodgson that he witnessed the victim throw a bottle at Mr. Asemota. It was never put to either officer that they arrested Mr. Asemota at gunpoint.

[7] The trial judge found Mr. Asemota’s testimony was internally inconsistent, at times incoherent, and bizarre. He did not accept that there was some kind of conspiracy among the police, the hospital staff, and others. He also did not accept the unreasonable notion that the victim had slashed himself. He found Mr. Asemota’s evidence not to be worthy of belief.

[8] The trial judge was persuaded beyond a reasonable doubt of Mr. Asemota’s guilt by the remainder of the evidence. After hearing sentencing submissions, including submissions that a lengthy sentence could affect Mr. Asemota’s immigration status, he sentenced Mr. Asemota to 5 months and 28 days in custody.

Analysis

[9] An accused person is entitled to effective representation at trial. Where ineffective representation has resulted in a miscarriage of justice, the conviction must be quashed and a new trial may be ordered: R. v. Joanisse, 102 C.C.C. (3d) 35; R. v. G.B.D., 2000 SCC 22, [2000] 1 S.C.R. 520.

[10] A person seeking to overturn a conviction on the basis of ineffective assistance of counsel must demonstrate three things:

• First, the person must establish the material facts on which the claim is based. The facts must be established on a balance of probabilities;
• Second, the person must establish that counsel’s performance amounted to incompetence;
• And third, the person must establish that counsel’s incompetence resulted in a miscarriage of justice.

[11] See: R. v. Archer, [2005] OJ No 4348, [2005] CarswellOnt 4964, 202 CCC (3d) 60 (Ont.C.A.) at pars. 119-120.

[12] There are, therefore, three issues to be determined on this appeal:

(a) Has Mr. Asemota established the facts on which his claim of ineffective assistance is based? (b) Did trial counsel’s conduct amount to incompetence? (c) Did trial counsel’s incompetence result in a miscarriage of justice?

[13] I turn to the issues.

(a) Has Mr. Asemota established the facts on which his claim of ineffective assistance is based?

[14] Mr. Asemota argues that, in effect, I should make the following factual findings as set out in his affidavit:

• Mr. Asemota never reviewed his disclosure with trial counsel. His counsel never showed him the booking video;
• The police robbed him of his diamond chain and this was captured on the in-car camera video. Trial counsel did not obtain the in-car camera video, and failed to follow up on this clear Charter violation;
• Trial counsel did not make inquiries about his immigration status;
• Trial counsel failed to prepare for trial and breached the Rule in Browne v. Dunn, causing the trial judge to find Mr. Asemota’s evidence not to be credible;
• Trial counsel made no effort to locate witnesses who would have corroborated his version of events;
• Trial counsel did not take his case very seriously because he is a Black man.

[15] In his oral submissions during the hearing, Mr. Asemota added to his complaints about trial counsel’s performance:

• He did not sign the written instructions he provided to trial counsel on August 6, 2019. His signature was either forged or he was not in his right mind when he signed those instructions. He had been attacked by other inmates and was still recovering. She either knew that or should have known it. Trial counsel took advantage of that to get him to sign, if he did sign.
• Mr. Asemota was strip-searched at the police station. This amounted to a violation of his Charter rights. Trial counsel did not pursue this alleged Charter violation.

[16] The facts upon which the claim of incompetence is based must be established on a balance of probabilities: R. v. Archer at para. 120. Fresh evidence may be submitted to establish those facts: R. v. Palmer, [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193. Mr. Asemota submitted an affidavit that was not contested by the Crown as fresh evidence.

[17] I find that Mr. Asemota has established some non-controversial facts but that he has not established the key facts on which his claim turns. There are documents contradicting his version of events, including written instructions that he very obviously signed. I did not find him to be credible. I do not believe his evidence.

[18] A trier of fact can believe some, none, or all of the evidence of a witness. I believe very little of Mr. Asemota’s evidence. As I will explain, Mr. Asemota said several things in his affidavit and before me as well as at trial that are demonstrably untrue. They are demonstrably untrue based on the documentary record. That colours his evidence. As well, I observed Mr. Asemota testify. He is a very intelligent man, although I suspect he has some mental health challenges – as he himself stated. He did, however, alter his evidence on certain points to make it fit other evidence as it was revealed. An example is his evidence about a second chain, as I will explain.

[19] In contrast, I found the evidence of trial counsel to be credible and I accept her evidence. Her evidence is generally corroborated by documents on certain key matters. Where Mr. Asemota’s evidence differs from trial counsel’s evidence, I prefer trial counsel’s evidence.

[20] I will deal with each of these factual issues in turn.

[21] Mr. Asemota’s assertion that he never reviewed his disclosure with trial counsel and that trial counsel never showed him the booking video: Mr. Asemota swore in his affidavit that he never saw any disclosure. He did not ever see the in-car camera video. He did not view the booking video until only a few days prior to the summary conviction appeal hearing. He testified that the police, the victim, and others were in a conspiracy to steal his valuable diamond chain. In cross-examination he agreed that the booking video shows the officers dealing with his chain. They took his chain and put it in a property bag. Mr. Asemota claimed in cross examination that there was a second, valuable diamond chain. He had never previously mentioned two chains.

[22] In her affidavit, trial counsel stated that she met with Mr. Asemota five or six times prior to trial. Mr. Asemota was fixated on the theory that the police had stolen his chain. Trial counsel testified in the summary conviction appeal hearing before me that she had showed Mr. Asemota the booking video in the cells at the College Park courthouse. She testified that she had reviewed the disclosure with Mr. Asemota. Her dockets indicate that she spent several hours preparing for trial, including an in-person client meeting with Mr. Asemota. Trial counsel testified she also spoke to him on the phone and in person because she was dealing with Mr Asemota’s other criminal charges,

[23] Trial counsel stated in her affidavit that she met with Mr. Asemota in the cells in College Park on February 10, 2020 and on other occasions between August 2019 and the trial date. She explained in her affidavit that she typically does not docket for those meetings, because Legal Aid does not pay for that time. She did docket the August 6, 2019, meeting. She obtained written instructions at the August 6, 2019 meeting. Those instructions were signed by Mr. Asemota and are in the file.

[24] I do not find Mr. Asemota’s evidence credible, and I prefer the evidence of trial counsel on this point. I find that Mr. Asemota realized that his evidence about the chain was contradicted by the booking video, which clearly shows the police putting a chain in a property bag. He had never mentioned a second chain prior to this hearing, although he had raised the issue of a “chain” (singular, not plural) with his trial counsel and in his affidavit. His mention of a second chain was a fabrication designed to deal with the evidence on the booking video. Although it does lend some credence to the notion that trial counsel had not showed him the booking video, I am inclined to believe that she did so. Mr. Asemota either simply forgot about it or is untruthful. That is because she recalled important details, such as having to hold up her laptop to show it to him through the plexiglass in the cells.

[25] Mr. Asemota’s assertion that the police robbed him of his diamond chain, that it was captured on the in-car camera video, that trial counsel did not obtain the in-car camera video, and that trial counsel failed to follow up on this clear Charter violation: This assertion is bound up with the claim that trial counsel did not review disclosure with him and that he did not see the booking video. Counsel indicated that there was no in-car video. The disk that contains the booking video was apparently mis-labeled as the in-car camera video. Trial counsel testified that she reviewed the booking video and did not believe it revealed a Charter violation. I find that Mr. Asemota has failed to prove this factual assertion.

[26] Mr. Asemota’s assertion that trial counsel did not make inquiries about his immigration status: This assertion is obviously false. Mr. Asemota’s written trial instructions contain the following passage:

I also understand that a conviction may impact my immigration status. My lawyer has advised that I speak to an immigration lawyer but I have chosen not to do so at this time.

[27] During sentencing proceedings before the trial judge trial counsel argued that Mr. Asemota should receive a sentence of less than six months, as a longer sentence would have serious immigration consequences. She successfully persuaded the trial judge to impose a sentence of less than six months. It is obvious that trial counsel was aware of the immigration consequences of a conviction. She clearly gave Mr. Asemota advice to speak to immigration counsel.

[28] Mr. Asemota’s assertion that trial counsel failed to prepare for trial and breached the Rule in Browne v. Dunn: Mr. Asemota indicated in the following in his affidavit:

• He told trial counsel that there had been another fight between the woman he was with and another woman. Trial counsel did not cross-examine Mr. Alves, the City of Toronto employee, on the point.
• He told trial counsel that one of the arresting officers, Constable Hodson, may have been biased against him due to previous interactions. He also told trial counsel that when Constable Hodson arrived the complainant threw glass at him. Trial counsel did not cross-examine Constable Hodson on either point.
• He also told trial counsel that there was another man present during the fight who had a gun. Trial counsel did not ask any questions of any witnesses about a gun.

[29] In her examination in chief at the summary conviction appeal hearing, trial counsel testified that she had made several attempts prior to trial to get Mr. Asemota to explain his account of events. She could not get him to do so. Mr. Asemota was largely fixated on the theory that the police had stolen his chain. He also asserted that the complainant and his girlfriend would not show up to the trial and the charges would be dropped. During the August 6, 2019, meeting, the meeting at which she obtained written instructions, Mr. Asemota did not mention that someone else present had a firearm; that Constable Hodson had a previous history of interacting with Mr. Asemota; or that two women had had an altercation. At that meeting she also explained his procedural options and conveyed the Crown’s sentencing position of one year probation if he pleaded guilty.

[30] In her affidavit, trial counsel indicated that during the trial she met with Mr. Asemota in the cells prior to the final Crown witness testifying. The purpose of that meeting was to determine whether Mr. Asemota wished to testify. At that point, Mr. Asemota provided new information. He told trial counsel two women were present at the scene, one with the complainant and one with Mr. Asemota. The two women also got into a physical altercation. That was also when Mr. Asemota told her that he thought Constable Hodson, the arresting officer, was biased against him. Trial counsel did not think these details were significant enough to warrant asking permission to re-open the cross-examination of the earlier Crown witnesses.

[31] Trial counsel testified that prior to his testimony, Mr. Asemota informed trial counsel about the complainant throwing a piece of glass at him. She likely would have cross-examined the arresting officer or the City of Toronto employee about this glass-throwing if Mr. Asemota had told her about it earlier. She did not think that this new detail warranted seeking to re-open the cross-examination. According to trial counsel, when Mr. Asemota testified before the trial judge, he mentioned the other person with a gun and the gunpoint arrest for the first time.

[32] I prefer trial counsel’s evidence on these factual questions. In contrast, I find Mr. Asemota’s evidence not to be credible.

[33] Mr. Asemota’s assertion that trial counsel made no effort to locate witnesses who would have corroborated his version of events: Mr. Asemota states that he gave trial counsel the names two people who could corroborate his version of events. In his testimony he gave their street names as “African Jay” and “Solomon”. That was the first time he mentioned their names. Mr. Asemota also named a friend “Perry Naiku”.

[34] Trial counsel acknowledged that Mr. Asemota did tell her about the two people who could allegedly have corroborated his version of events. She did not recall the name “Perry Naiku”.

[35] Mr. Asemota’s assertion that he did not sign the written instructions he provided to trial counsel on August 6, 2019; and that his signature was either forged or he was not in his right mind when he signed those instructions: In his testimony Mr. Asemota raised this issue for the first time. He denied that the signature on his instructions to trial counsel was his. He stated that it had been forged. Mr. Asemota also testified that when he met with trial counsel that day he was recovering from an attack by other inmates. He stated that on July 15, 2019 he had been attacked. He still had stitches and broken bones in his face. He had spent time in the infirmary. He was not fully recovered. The signature might have been his, but he was out of his right mind if he did sign the instructions. In cross-examination he testified that trial counsel took advantage of him and made him sign it. He then stated that he disputed that it was his signature.

[36] In cross-examination, Mr. Asemota identified his signature on his Notice Of Appeal. He agreed that he signed the Notice of Appeal. Crown counsel then asked him to compare the signature on the Notice of Appeal with the August 6, 2019 trial instructions. Mr. Asemota waffled. He said it was not his signature. He also said if he was out of his right mind and signed it then it was the same thing as a forgery. He insisted trial counsel took advantage of him.

[37] I should pause here and state that Mr. Asemota agreed with Crown counsel’s suggestion that the police, the witnesses, and his trial counsel were involved in a conspiracy to rob him of his diamond chain.

[38] In her testimony trial counsel stated that she was present when Mr. Asemota signed the instructions. He was not in the infirmary. If he had been in the infirmary, the correctional officers at the Toronto South Detention Centre would have told her. She did not notice any stitches, or any broken bones. Mr. Asemota seemed to be able to take advice and give instructions, notwithstanding his fixation on the chain issue and his general unhelpfulness in preparing for trial.

[39] Section 8 of the Canada Evidence Act states:

Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses, and such writings, and the evidence of witnesses respecting those writings, may be submitted to the court and jury as proof of the genuineness or otherwise of the writing in dispute.

[40] A trier of fact may compare disputed handwriting with known handwriting and draw inferences. The trier of fact may make the handwriting comparison even without the assistance of an expert witness: R. v. Abdi, 1997 CarswellOnt 2618, [1997] O.J. No. 2651, 116 C.C.C. (3d) 385, 34 O.R. (3d) 499 (C.A.) at paras. 22-23.

[41] As a trier of fact, I can compare the signatures on the Notice of Appeal and the written instructions. I find that the same person signed both. That person was obviously Mr. Asemota. I accept trial counsel’s evidence that she was present when Mr. Asemota signed the instructions. I reject Mr. Asemota’s evidence that he was “out of his right mind”. I accept trial counsel’s evidence that he could not have been in the infirmary, and that he was able to take advice and give instructions. It was obvious that Mr. Asemota simply tried to disavow the written instructions because they are at odds the story he is now telling, in much the same way that he invented a second chain.

[42] Mr. Asemota’s strip search at the police station amounted to a violation of his Charter rights and trial counsel failed to pursue this violation: There is no doubt that Mr. Asemota was strip searched at the police station and that trial counsel did not bring a Charter motion.

[43] Mr. Asemota’s assertion that trial counsel did not take his case very seriously because he is a Black man: Mr. Asemota made this assertion in his affidavit. This is a very serious assertion, but I found no evidence whatsoever to substantiate it. A review of the transcript shows that trial counsel was prepared to cross-examine the witnesses and make submissions. I reject this assertion.

(b) Did trial counsel’s conduct amount to incompetence?

[44] In my view, Mr. Asemota has established the following facts:

• He told trial counsel about a previous encounter with Constable Hodson. He also told trial counsel about the altercation between the two women. He only told her about these assertions, however, during the Crown’s case, before the final Crown witness testified and after Constable Hodgson had testified.
• Mr. Asemota told trial counsel about the complainant allegedly throwing glass at him. He only told trial counsel, however, just prior to his testimony.
• Mr. Asemota told trial counsel prior to trial about the two witnesses he said would corroborate his version of events.
• Mr. Asemota was strip-searched at the police station. Trial counsel did not bring a Charter motion.

[45] Although his submissions were somewhat incoherent, and accounting for the fact that Mr. Asemota is not a lawyer, Mr. Asemota argues that trial counsel’s failures amounted to incompetence. I do not agree.

[46] There is “a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R. v. G.B.D. at para. 27. Two comments from Doherty J.A. describe the standard on which incompetence is measured. In R. v. Archer at para. 119 he stated:

Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction.

[47] In R. v. White (1997), 114 C.C.C. (3d) 225, Doherty J.A. stated at 247:

An appellate court’s review of trial counsel’s performance should be deferential. … deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer’s performance was deficient because they would have conducted the defence differently.

[48] In her affidavit, and at the hearing before me, trial counsel explained her decisions in the following way:

• Whether the two women were in a fight had no relevance to Mr. Asemota’s defence, and so she decided not to cross-examine on it. In any event, Mr. Asemota only revealed this issue just prior to the evidence of the final Crown witness.
• There was no good faith basis to raise the issue of Constable Hodgson’s alleged bias. Moreover, it had nothing to do with Mr. Asemota’s defence to the charge that he had struck the victim with a bottle. It was also only revealed after Constable Hodgson testified. Trial counsel did not think it was worth recalling the officer.
• On the Browne v. Dunn issues, many of these things were never revealed after the witnesses had testified or when Mr. Asemota testified.
• Mr. Asemota did not reveal the detail about the victim throwing glass at him until the Crown’s case was closed. Trial counsel did not think it was significant enough to seek to re-open the cross-examination.
• Trial counsel testified that she watched the booking video in light of possible Charter violations. That is an important job of defence counsel. She did not think that there was a basis to argue that there had been a Charter violation.

[49] Without going into significant detail on each of these points, I start by noting that Mr. Asemota put his trial counsel in a very difficult position. He did not tell her about several things that he subsequently testified about. That deprived her of the opportunity to cross-examine the Crown witnesses unless she brought an application to re-open. She could not in good faith have argued that new information had come to light – it had not, Mr. Asemota simply hadn’t told her about it. She could not properly answer the trial judge’s questions about the Browne v. Dunn violations without violating solicitor-client privilege. The Browne v. Dunn violations were of Mr. Asemota’s making, not trial counsel’s. She cannot be faulted for the subsequent adverse findings of credibility made by the trial judge.

[50] The other decisions made by trial counsel were pre-eminently those that court should defer to. I find that they were all within the range of reasonable decisions that can be made by counsel. Another defence counsel may, for example, have decided to argue that the strip search amounted to a Charter violation or to have sought to re-open cross-examination. But neither of those decisions can be said to have been wrong or unreasonable. This would have been a simple but difficult trial for any criminal defence lawyer, given Mr. Asemota’s personality and challenges. This aspect of the appeal must fail.

(c) Did trial counsel’s incompetence result in a miscarriage of justice?

[51] Given that trial counsel was not incompetent, it is not necessary to address this issue in detail. I simply note that Mr. Asemota has not suggested that the trial judge erred in law or misapprehended the evidence. The case against Mr. Asemota was strong, based on medical evidence and the evidence of an independent witness. His own evidence was not worthy of belief. The conviction was safe. There is no basis upon which to find that there was a miscarriage of justice.

Disposition

[52] The appeal is dismissed.

R.F. Goldstein J.

Released: February 15, 2023

Court File No.: CR-20-70000026-00AP Date: 2023-02-15 Ontario Superior Court of Justice

Between: His Majesty The King – and – Amadin Asemota

Reasons for Judgment on Summary Conviction Appeal R.F. Goldstein J.