COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gorburn, 2017 ONCA 807

DATE: 20171023

DOCKET: C58226

van Rensburg, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gergy Gorburn

Appellant

Gergy Gorburn, acting in person

Avene Derwa, for the respondent

Heard: October 3, 2017

On appeal from the convictions entered by Justice Glenn
    Hainey of the Superior Court of Justice on July 8, 2013, and from the sentence
    imposed on August 30, 2013.

REASONS FOR DECISION

[1]

The appellant was convicted of numerous firearm and drug related
    offences. He received a global sentence of four and a half years custody,
    before 28 months credit for pre-sentence custody. He appeals from both
    conviction and sentence.

[2]

The appellant maintains that he was provided with ineffective assistance
    of counsel at trial and that this resulted in a miscarriage of justice. He
    swore an affidavit in support of this claim. His primary complaint rests on
    what he argues was counsels failure to seek the exclusion of evidence seized
    by the police during what he says was an unlawful detention and search.

[3]

The police received information that someone known as T.K. was selling
    drugs at a specified apartment building. The police were told where T.K.
    typically parked and that he was possibly armed with a gun. The police also
    learned that T.K. was part of a criminal gang associated with the apartment
    complex. The police were shown video footage that was said to capture the
    person who was believed to be selling the drugs.

[4]

The police then set up surveillance on the buildings parking area. They
    recognized the appellant from the video when he pulled into the parking lot.
    The appellant was ordered out of his vehicle and detained, after which he was
    subjected to a pat down search. After feeling something hard, the searching
    officer looked inside of the appellants pocket and located crack cocaine. The
    appellant was arrested and his vehicle was searched incident to arrest. Police
    located a loaded firearm, ammunition, drugs, and drug paraphernalia.

[5]

Trial counsel provided an affidavit responding to the claim of
    ineffective assistance. He explained that he was able to clearly identify his
    client from the video stills provided in disclosure, which were taken from the
    video seen by the police in advance of the appellants arrest. Trial counsel
    formed the view that the police were in a position to lawfully arrest his
    client and were justified in searching him because of the information they
    received that he may be armed. In trial counsels view, whether the appellant
    was arrested just before or after the search was immaterial on these facts. In
    any event, trial counsel formed the view that even if there was a
Charter
breach, the evidence would have been admitted under s. 24(2). In these
    circumstances, he saw no merit in advancing a
Charter
claim.

[6]

It is Crown counsels position that there was no
Charter
breach
    and, if there was, the evidence would not have been excluded under s. 24(2). Crown
    counsel acknowledges that there were insufficient grounds to arrest the
    appellant when he was first approached by the police. We agree. However, Crown
    counsel maintains that the appellant was properly detained for investigation
    and that a safety search was justified. Crown counsel argues that that once the
    police found the crack cocaine in the appellants pocket, they had grounds to
    arrest and search him incident to the arrest.

[7]

This ground of appeal is rooted in an ineffective assistance of counsel
    claim. There is a strong presumption that counsels conduct falls within a wide
    range of reasonable professional assistance: see
R. v. G.D.B.
, 2000
    SCC 22, [2000] 1 S.C.R. 520, at para. 27; and
R. v. Joanisse
(1995),
    85 O.A.C. 186 (C.A.), at para. 72. The questions on appeal are whether
    counsels conduct fell below the standard of reasonable professional assistance
    and, if so, whether the ineffective representation resulted in a miscarriage of
    justice: see
Joanisse
, at paras. 69-71; and
R. v. Stark
, 2017
    ONCA 148, 35 C.R. (7th) 455, at paras. 12-14. A miscarriage of justice can
    arise where the ineffective representation undermines the appearance of
    fairness or the reliability of the verdict: see
R. v. Archer
(2005),
    203 O.A.C. 56, at para. 120; and
Stark
, at para. 14. As noted in
Archer
,

at para. 120, [a] verdict is rendered unreliable where the appellant
    demonstrates that had counsel performed in a competent fashion, there is a
    reasonable possibility that the verdict could have been different.

[8]

It is unnecessary to consider whether trial counsels assessment as to
    whether the appellant was arrestable at the time of the pat down search fell
    below the standard of reasonable professional assistance because there was no
    miscarriage of justice in this case. Neither fairness, nor the reliability of
    the verdict were compromised by the alleged incompetence: see
Archer
, at
    para.

121.

[9]

Nothing turns on the fact that trial counsel held the view that the
    police were in a position to lawfully arrest the appellant at the time he was
    originally searched. Based on the disclosure available to trial counsel at the
    time, the police had ample grounds to detain the appellant for investigation.
    Given that the police had been informed that the suspect may be part of a
    criminal gang and carrying a firearm, the pat down search for safety reasons
    was justified. Based on all of the circumstances, it appears that the police
    may well have been justified in searching the appellants pocket once something
    hard was located.

[10]

While further exploration of the facts on a
Charter

voir
    dire
may have supported or undermined the grounds for looking in the appellants
    pocket, it cannot be said that the failure to pursue an application to exclude
    evidence resulted in a miscarriage of justice. This is particularly true given
    that, even if there was a
Charter
breach, there is no evidence to
    suggest that the appellant would have met his onus in having the evidence
    excluded under s. 24(2) of the
Charter
. To the contrary, he was
    lawfully detained at the time he was patted down. The pat-down search itself was
    justified in the circumstances. The search of his pocket occurred in
    potentially volatile circumstances. The search revealed reliable evidence. All
    of these factors would have pointed away from exclusion.

[11]

We are not satisfied that in these circumstances, counsels decision not
    to pursue exclusion demonstrates an absence of reasonable professional
    assistance and, in any event, there was no miscarriage of justice.

[12]

In addition, the appellant raises arguments that his trial counsel
    failed to provide him with timely disclosure and failed to call certain
    witnesses. He maintains that these things also demonstrate ineffective
    assistance.

[13]

Trial counsel disputes the claim that he did not provide his client with
    disclosure, maintaining that he visited him multiple times in jail and
    specifically went over the disclosure with him. Regardless, the appellant was
    present at the preliminary inquiry in this matter. The narrow issue in this
    case was one of knowledge. By the time of trial, the appellant clearly
    understood the prosecution case he was facing.

[14]

Nor do we accept that trial counsel failed to call certain witnesses or,
    if he had called them, that it would have made any difference. The appellant
    claims that trial counsel failed to call three witnesses: the registered owner
    of the van in which the firearm was located; his spouse; and the mechanic who
    had done work on the vehicle. Trial counsel maintains that the owner of the van
    knew nothing about the gun and wanted nothing to do with the matter. Other than
    the appellants claim, we do not see any evidence to the contrary. As for the
    appellants spouse, we are not satisfied she had relevant evidence to give. As
    for the mechanic, we accept that while trial counsel took steps to locate him,
    he was not successful. In any event, we do not see how the evidence about the
    van needing repairs would assist on the primary issue of knowledge at trial.

[15]

Finally, the appellant argues that his trial counsel failed to show up
    on the first day of trial and this is another example of his ineffective
    representation. While trial counsel accepts that he missed the first day of trial,
    it was due to a scheduling error. His failure to attend on the first day had no
    impact on the trial and it was still completed on time.

[16]

The appellant has failed to demonstrate that he received ineffective
    representation or that there was a miscarriage of justice. The conviction
    appeal is dismissed.

[17]

While the appellant originally sought leave to appeal sentence, he did
    not pursue it in oral argument. We see no error in the trial judges reasons on
    sentence. Having regard to all of the circumstances, it was a fit sentence.

[18]

The conviction appeal is dismissed. Leave to appeal sentence is
    dismissed.

K.
    van Rensburg J.A.

G.
    Pardu J.A.

Fairburn
    J.A.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hughes, 2017 ONCA 814

DATE: 20171023

DOCKET: C60631

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Hughes

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Kevin Rawluk, for the respondent

Heard: October 18, 2017

On appeal from the conviction entered on March 11, 2015
    and the sentence imposed on May 26, 2015 by Justice J. Elliot Allen of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual
    assault and sentenced to 18 months in jail.  Consent was the only issue at
    trial.  The incident occurred in the complainants dormitory room at the
    university that both the complainant and the appellant attended.  She testified
    that she did not consent.  The appellant chose not to testify.  The Crown,
    however, introduced a lengthy and mainly exculpatory statement that the
    appellant gave to the police.  He claimed the sex was consensual.

[2]

The trial judge found the complainants evidence credible, the
    circumstantial evidence compelling, and the appellants exculpatory statements
    unbelievable.  After a review of the evidence, and a specific reference to the
    principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742, the trial judge said:

When I look at the overall context of this case, I see what I
    think are the important, and indeed determinative factors in the case.  Mr.
    Hughes and Ms. M. were mere acquaintances, not friends. They had no
    relationship in which one might anticipate they would become intimate.  He
    walked into her room uninvited while the lights were off and she was sleeping.
    Ten minutes later, he had sex with her.  She was naked and hiding behind the
    closet door when her roommate appeared.  She was distraught for some hours
    after the event.  She went to counselling, and she did not sleep in her own
    room for some time.  This is not a scenario suggesting consensual sex.

[3]

The appellant appeals both his conviction and sentence.

[4]

On the conviction appeal he submits that the trial judge erred in
    several respects. He contends that the trial judge arrived at an unreasonable
    decision in finding that the complainant did not have a motive to mislead, and
    then overemphasized a perceived lack of motive on the complainants part to
    lie about what happened.  He also argues that the trial judge misapprehended
    evidence relating to how the complainants bra came to be removed, resulting in
    a miscarriage of justice. Finally, he claims that comments made by the trial
    judge during sentencing raise a reasonable apprehension of bias requiring a new
    trial.

[5]

On the sentence appeal he urges that the trial judge erred by treating
    the failure of the accused to leave the university he and the complainant
    attended as an aggravating feature, that he implicitly used the absence of
    remorse as an aggravating fact, and gave insufficient weight to the fact that
    the appellant is a youthful first offender.

[6]

We do not accept these grounds of appeal.

[7]

With respect to motive, t
he trial judge
    was not instructing a jury but was, as the trier of fact, making findings in
    respect of factors relevant to the complainants credibility.
An
    examination of the trial judges reasons do not support the appellants
    complaints. The trial judge said this in the course of assessing the
    complainants credibility:

Ms. M. presents as an honest witness, doing her best to recount
    what occurred.  She had no malice against Mr. Hughes.  She had no motive of any
    kind to make this up, although there is absolutely no onus on the defence as a
    matter of law to demonstrate any such thing.  She recounted a very embarrassing
    detail, the wetting of the bed, and was unshaken in her evidence that she did
    not respond sexually to Mr. Hughes.  She was generous in admitting the
    possibility of certain things, but as I said earlier I interpret her
    concessions as being based on her not having a complete memory due to her
    grogginess in the brief and unexpected encounter with Mr. Hughes.

[8]

The finding that the complainant did not have a motive to mislead was
    not unreasonable. The trial judge was entitled, on the evidence he heard, to
    conclude that the complainant did not have a motive to make up the allegation.
    He found that the appellant and complainant were mere acquaintances, there was
    no indication of malice in her testimony, and she was ready to make
    concessions. Simply put, she did not present as a witness with an agenda.

[9]

The trial judge rejected the submission
    that she was motivated by her embarrassment at being caught by her roommate in
    the middle of having sex. Counsels submission that the complainant may have
    had some unknown motive, not revealed by the evidence, cannot assist.  The
    trial judge, as the trier of fact, came to a different assessment.

[10]

The submission that the trial judge moved directly
    from his conclusion that the complainant had no motive to fabricate to a
    finding that the complainant was credible, is also belied by the extracts from
    the reasons quoted above.  The trial judges reference to the absence of a
    motive by the complainant to make up the allegation was one of many factors the
    trial judge identified in his assessment of the complainants credibility.

[11]

In any event, on a reading of the totality of the
    reasons, it is clear that the trial judge was most heavily influenced by the
    circumstances which, in his view, contraindicated consensual sexual intercourse,
    and his finding that the appellant had repeatedly lied about the relevant
    events to school authorities and the police.  Neither of these features of the
    case had anything to do with the complainants motivation.

[12]

The appellant is correct that the trial judge did misapprehend
    the evidence when he indicated that the appellant had removed the complainants
    bra. The appellants account in his police statement was that he undid the
    complainants bra, but that she removed it.  The complainant could not recall how
    her bra came to be removed.

[13]

The trial judges misapprehension of the evidence
    the appellant undid the complainants bra as opposed to removing her bra  was
    of minimal, if any, significance.

[14]

The appellant seems to assume that had the trial judge
    properly recalled the evidence, he would have accepted the appellants evidence
    and found that the complainant removed her own bra.  This finding, says the
    appellant, would have supported the defence position that the sex was
    consensual.

[15]

We cannot agree with this line of reasoning.  The only
    evidence that the complainant removed her own bra came from the appellants
    statements to the police.  As the trial judge explained, he found many parts of
    those statements incredible.  We do not think it follows that had the trial judge
    properly recalled the evidence, he would have accepted the appellants evidence
    that the complainant removed her bra.  It is much more likely that he would
    have found only that her bra came to be removed somehow.

[16]

Not every misapprehension of evidence warrants
    reversal of verdicts.  The misapprehension must relate to evidence that plays
    an essential role in the trial judges reasoning process.  The misapprehension
    identified by the appellant does not touch evidence that reaches that level of
    significance in the trial judges analysis.

[17]

The reasonable apprehension of bias appeal fares no
    better. The presumption of impartiality has not been displaced. The appellant has
    not demonstrated that a reasonable and right-minded person, reflecting on the
    matter with the required information, would conclude that, more likely than
    not, the trial judge, whether consciously or unconsciously, would not decide
    fairly.

[18]

The trial judges impugned comments relate mainly to
    the policy of the university where the sexual assault occurred.  The university
    permitted the appellant to continue to attend the university while the charges
    were outstanding.  The trial judge expressed his strong disagreement with this
    policy.

[19]

The trial judge also made one very negative comment
    directed specifically at the appellants decision to remain on campus while the
    charges were proceeding through the courts.

[20]

With respect to the comments about conditions at the
    university, we take no issue with
a sentencing judge commenting on a
    social problem relating to a case, or the prevalence of the crime in the
    community, including the prevalence of sexual assaults in universities. It was
    not appropriate, however, for the trial judge to castigate the university where
    the sexual assault happened for its response to the sexual assault complaint.
    The trial judge had no information about what the university did or why. Nor
    should he have. The universitys actions and policies were irrelevant to the
    determination of the appropriate sentence. Further, the university was not even
    a party before the trial judge. The trial judges comments were uninformed and
    consequently potentially misleading and unfair to the university. It should not
    have been subject to this criticism.

[21]

The
    comment about the appellants choice to remain on campus was also unnecessary, and
    this comment was unfair to the appellant.  The appellant was entitled to
    maintain his innocence and live his life accordingly while the charges were
    pending.

[22]

We do not accept, however, that the comments made are
    suggestive of any reasonable apprehension of bias at the sentencing phase, much
    less during the trial itself. The sentence imposed of 18 months was within the
    range suggested by both counsel at trial.  We see no connection between the quantum
    of sentence imposed and the trial judges improper criticism of the appellants
    decision to remain at the university after the charges were laid.

[23]

This
    was a rape.  Even when, as in this case, there are many legitimately strongly
    mitigating factors, a significant reformatory sentence is a fit sentence.

[24]

These
    observations pertain, as well, to the sentence appeal. There is no basis for
    inferring that the trial judge treated the appellants decision to remain in
    school as an aggravating factor, or for concluding that the absence of
    demonstrated remorse was aggravating. The trial judge was aware that the
    appellant was a youthful first offender, but he was a youthful first offender
    convicted of a serious sexual assault. We would not vary the sentence.

[25]

The
    appeal is dismissed.

Doherty J.A.

H.S. LaForme J.A.

David M. Paciocco J.A.