COURT OF APPEAL FOR ONTARIO

CITATION: Moore v. 7595611 Canada Corp.,
    2021 ONCA 459

DATE: 20210625

DOCKET: C67757

Fairburn A.C.J.O., Harvison
    Young and Jamal JJ.A.

BETWEEN

Janet Moore and Robert Lamers

Plaintiffs (Respondents)

and

7595611 Canada Corp. and Konstantin
    Lysenko

Defendants (Appellants)

Konstantin Lysenko, acting in person
    for the appellants

Christopher I.R. Morrison, Michael
    Smitiuch and Luke Hamer, for the respondents

Heard: June 11, 2021 by
    videoconference

On appeal from the judgment of Justice
    Erika Chozik of the Superior Court of Justice, sitting with a jury, dated
    November 6, 2019.

Fairburn A.C.J.O.:

A.

OVERVIEW

[1]

The respondents daughter, Alisha Lamers, died
    from severe injuries suffered in a horrific fire. The fire broke out in the early
    morning hours of November 20, 2013, while she was asleep in the bedroom of her
    basement apartment located in a rooming house. That apartment was owned by the
    appellants, Konstantin Lysenko and his numbered corporation. Mr. Lysenko was
    Alishas landlord.

[2]

Alisha was trapped in an inferno with no way to
    escape. The windows were barred, and the only exit to the apartment was
    engulfed in flames and smoke. The interior access stairway connecting the
    basement apartment to the main rooming house was blocked off, thereby leaving only
    one potential exit and entry point to the basement apartment. Alishas rescue
    had to await the firefighters who arrived on scene.

[3]

Alisha clung to life for a few days with her
    parents at her bedside at Sunnybrook Hospital. Alishas parents witnessed the terrible
    reality of seeing their only child with third-degree burns over half of her
    body and parts of her body disintegrating before their eyes. They also watched
    as Alisha went into cardiac arrest on multiple occasions. Ultimately, the
    parents had to make the excruciating decision to remove their child from life
    support given that a brain scan showed that Alisha was without brain activity.

[4]

The respondents commenced an action against the
    appellants for their negligent conduct that led to the death of their daughter.
    Following a trial, the jury found the appellants fell below the standard of
    care of a reasonable landlord and found them responsible for Alishas death.
    The jury made the following damages awards:

1. Loss of care, guidance, and companionship: $250,000 to each
    respondent;

2. Mental distress: $250,000 to each respondent;

3. Future costs of care for the respondent father: $174,800; and

4. Future costs of care for the respondent mother: $151,200.

[5]

Mr. Lysenko advances multiple grounds of appeal
    on behalf of the appellants. For the reasons that follow, I would dismiss the
    appeal in its entirety.

B.

THE Jury Selection

[6]

First, Mr. Lysenko claims that the jury was
    improperly selected because of an irregularity that occurred before the trial.
    Specifically, there were 41 prospective jurors who had been inadvertently
    released from the jury pool. Technically, those 41 prospective jurors should
    have been in the jury pool used to select the jury in this case. Despite those
    41 people having been released from jury duty, the pool of prospective jurors
    was not exhausted before the jury was selected.

[7]

The trial judge learned of the irregularity
    after the jury was selected. She raised the issue with the parties and invited their
    input. The respondents counsel took no objection. However, Mr. Lysenko raised
    an objection, noting the appellants preference to proceed with a new jury
    selection. He then specified that the appellants would be prepared to move
    ahead with a judge alone trial if needed. The respondents counsel reiterated
    that the respondents preferred a jury and that the trial should proceed with
    the jury that has already been selected. In response, Mr. Lysenko raised an objection
    that was unrelated to the procedural glitch that had resulted from the release
    of the prospective jurors. His objection was that there were ladies dominating
    in the jury and that he had a preference for some representation of  both
    genders.

[8]

Section 44(1) of the
Juries Act
, R.S.O.
    1990, c. J.3, makes it clear that any omission to observe a provision of the
Juries
    Act
respecting the selection of jurors is not a ground for impeaching or
    quashing a verdict or judgment in any action. At most, the release of the 41
    prospective jurors was a minor irregularity that resulted in no prejudice to
    the appellants. Accordingly, I would not give effect to this ground of appeal.

C.

Section 76 of the
Fire Protection AND PREVENTION Act

[9]

Second, Mr. Lysenko argues that s. 76 of the
Fire
    Protection and Prevention Act, 1997
,
    S.O. 1997, c. 4,

precluded the respondents action in this
    case because it was not proven that the fire started from anything other than
    an accidental source. Section 76 of the
Fire Protection and Prevention Act

reads as follows:

No action shall be brought against any person
    in whose house or building or on whose land any fire accidentally begins, nor
    shall any recompense be made by that person for any damage suffered thereby;
    but no agreement between a landlord and tenant is defeated or made void by this
    Act.

[10]

While it is correct that the cause of the fire
    remained undetermined at trial, there is no need to delve into the inner
    workings of the
Fire Protection and Prevention Act
to resolve this ground of appeal because of what the jury
    found

in relation to
    the appellants negligent acts. At a minimum, the
genesis of a fire
    does not immunize a landlord from a failure to take reasonable precautions to
    protect the occupants of a building from a fire, even if that fire breaks out
    accidentally.

[11]

In this case, the jury found that the appellants
    were responsible for Alishas death for the following reasons: the failure to ensure
    that a safety plan for the building was prepared, approved, and implemented; the
    failure to maintain smoke alarms in operating condition; and the failure to
    provide at least two exits from each floor area of the rooming house. Therefore,
    the jurys finding of negligence had nothing to do with the source of the fire.
    Rather, the jury found that because of the appellants negligent acts, Alisha
    was left helpless in the face of a fire, which led to her injuries and eventual
    death. Therefore, I would not give effect to this ground of appeal.

D.

The Reasonableness of the Verdict

[12]

Third, Mr. Lysenko argues that the jurys verdict
    was unreasonable and that the circumstances surrounding the fire and Alishas
    death were suspicious. There is no basis upon which to advance this argument on
    appeal.

[13]

As just previously set out, the jurys verdict
    listed three bases upon which they found the appellants responsible for
    Alishas death: a lack of a properly implemented safety plan; inoperative smoke
    alarms; and insufficient exits. Importantly, there was a clear factual
    foundation for those findings. Indeed, prior to this matter going to trial, the
    appellants pled guilty to and were convicted of numerous offences under
    Ontarios
Fire Code
,

O. Reg. 213
/
07,
    made pursuant to the
Fire Protection and Prevention Act
. Those
    offences included: failing to provide at least two exits from each floor of the
    rooming house where Alisha lived; failing to maintain smoke alarms in operating
    condition; and failing to ensure a fire safety plan was prepared, approved, and
    implemented in the building. For those offences, the numbered corporation was
    fined $40,000, and Mr. Lysenko received a suspended sentence and probation for
    18 months and a fine of $20,000.

[14]

In my view, there is no basis upon which to
    suggest that the jurys verdict was unreasonable. This ground of appeal must
    therefore be rejected.

E.

Damages

[15]

Fourth, Mr. Lysenko maintains that the various awards
    for damages are too high. I do not accept these arguments.

(1)

Mental Distress

[16]

Regarding the mental distress damages, Mr.
    Lysenko argues that the jury award is wrong. Mr. Lysenko seems to be suggesting
    that the damages were directed at the respondents grief and, therefore, should
    not have been awarded. I do not accept this submission, as the mental distress
    claim was rooted in much more than the understandable grief experienced by the
    respondents.

[17]

The quantum of damages reflected compensation
    for psychological injuries sustained by the respondents, not only because their
    daughter had died but also because she died in horrific circumstances witnessed
    by the respondents. Ultimately, the respondents had to make the difficult
    decision to remove Alisha from life support.

[18]

Also, there was clear, expert evidence
    supporting both respondents claims involving the mental distress they suffered
    as a result of their daughters death. Notably, according to the psychological
    assessments of the respondents, following the death of Alisha, the respondent
    mother has suffered a marked deterioration in her mood and daily functionality
     and has also experienced passive suicidal ideation with previous serious
    contemplation of ending her own life, while the respondent father is now
    experiencing exacerbated PTSD symptoms with persecutory anxiety. The respondents
    also testified in exquisitely painful detail at trial about what they saw, what
    they experienced, and how they had been impacted by the death of Alisha. Based
    upon all of that evidence, there is no basis to interfere with the award of
    $250,000 in mental distress damages to each respondent.

(2)

Future Costs of Care

[19]

The appellants also object to the jurys finding
    that the respondents are entitled to damages to address their future costs of care.
    Although not advanced in oral argument, Mr. Lysenko suggests in his factum that
    the respondents had not shown that they would require a damages award for their
    future costs of care.

[20]

This position is contrary to the evidence at
    trial. For both of the respondents, the future costs of care awards were predicated
    on expert evidence, including in relation to their medication needs,
    counselling, and alternative treatment. The jury reduced the amounts
    substantially from what the experts suggested they should be, with the $403,247
    suggested for the respondent mother reduced to $151,200 by the jury, and the
    $349,560 suggested for the respondent father reduced to $174,800 by the jury.

[21]

In my view, there is no merit to this ground of
    appeal. The appellants do not object to the jury charge, only to the amounts
    awarded. Therefore, based upon the evidentiary foundation laid at trial, there
    is no basis upon which to interfere with the damages awarded for the
    respondents future costs of care.

(3)

Loss of Care, Guidance, and Companionship

[22]

The appellants also challenge the jurys award for
    loss of care, guidance, and companionship. Mr. Lysenko claims that the award is
    simply too high, given that this court in
To v. Toronto Board of Education

(2001), 204 D.L.R. (4th) 704 (Ont. C.A.), at para. 37, established that
    $100,000 adjusted for inflation represents the high end of an accepted range
    of guidance, care and companionship damages. Therefore, according to the
    appellants, the $250,000 awarded to each respondent for loss of care, guidance,
    and companionship goes against this courts established case law.

[23]

In
Young v. Bella
,

2006 SCC 3,
[2006] 1 S.C.R. 108,
at para. 66, the Supreme
    Court of Canada drew upon and reinforced its decision in
Hill v. Church of
    Scientology of Toronto
,
[1995] 2 S.C.R. 1130,

at para. 163, finding that in the
    context of non-pecuniary damages, an appellate court should only interfere with
    a jurys assessment where it shocks the conscience of the court. In
To
,
    at para. 31, a 2001 case of this court involving damages for loss of care,
    guidance, and companionship, Osborne A.C.J.O. characterized the standard of
    review as follows: In the circumstances where there was no error in the
[jury]
charge , the jurys assessment
must be so inordinately high
(or low) as to constitute
a wholly erroneous estimate
of the guidance, care and
    companionship loss (emphasis added). This standard was also used by this court
    in
Fiddler v. Chiavetti
, 2010 ONCA 210, 260 O.A.C. 363, at para. 77,
    and in
Vokes Estate v. Palmer
, 2012 ONCA 510, 294 O.A.C. 342, at para.
    12.

[24]

Whether using the language of
Young
, at para. 66, citing
Hill
, at para. 163

(shocks the
    conscience of the court), or
To
,
    at para. 31
(so inordinately high  as to constitute a wholly
    erroneous estimate), the message is clear: the threshold for interfering with
    a jurys award of damages on appeal is extremely high:
Vokes Estate
,
    at para. 12.

[25]

Mr. Lysenko argues that this threshold is met in
    this case. He relies upon
To
, at para. 37, where this court established
    that $100,000 in February 1992 dollars
might be viewed
as being the high end of an accepted range of guidance, care and companionship damages
    (emphasis added). I would also note that almost 10 years after
To
was
    decided, in
Fiddler
, at para. 78, LaForme J.A. referred to the $100,000
    quantum of damages awarded in
To

as the high end of an
    accepted range for guidance, care and companionship damages. See also
Rodrigues
    v. Purtill
, 2019 ONCA 740, at para. 14. Properly adjusted for inflation
    using the consumer price index, the damages in
Fiddler

were
    decreased from $200,000 to $125,000, roughly representing the equivalent of the
    $100,000 awarded in
To

but in January 2005 dollars:
Fiddler
,
    at para. 80.

[26]

If the
To

amount of $100,000
    from February 1992 is adjusted for inflation to the date of Alishas death in
    November 2013 using the consumer price index, it would amount to just shy of $150,000.
    Despite the difference between that indexed amount and the quantum of damages
    awarded in this case, the respondents contend that this court should not
    interfere, as the high standard for appellate intervention has not been met. I
    agree.

[27]

First, it is important to recognize that, while Osborne
    A.C.J.O. referred to the $100,000 in
To
as perhaps being viewed at the
    high end of an accepted range for damages of this nature, he just as quickly
    pointed out that, unlike Alberta with s. 8(2) of its
Fatal Accidents Act
,
    R.S.A. 2000, c. F-8, for example,

the legislature in Ontario did not
    establish an upper limit on these types of damages:
To
, at para. 29. In
    the absence of any such legislative cap, each case must be given separate
    consideration by the courts to determine the appropriate quantum of damages:
To
,
    at para. 30. Of course, locating the right amount for the loss of the
    guidance, care, and companionship of a child who has died because of anothers
    negligence verges on the near impossible to calculate, as the courts are called
    upon to measure the immeasurable and to calculate the incalculable:
To
,

at para. 30, citing
Gervais v. Richard

(1984), 48 O.R. (2d)
    191 (H.C.),

at p. 201. See also
Fiddler
,

at para. 76.
    Quite simply, there is no neat mathematical formula that can be applied to
    determine the correct amount.

[28]

Second, despite the damages awards given in both
To

and
Fiddler
, both courts were careful to reinforce
    the idea that, like the absence of a legislative cap for damages of this
    nature, there is no judge-made cap for this form of non-pecuniary damages:
To
,
    at para. 29;
Fiddler
, at para. 76. While one can look to other
    guidance, care, and companionship assessments in similar cases to test the
    reasonableness of a jurys determination of damages in any given case, these
    types of comparative exercises are not determinative of the outcome:
To
,

at para. 31. To the contrary, Each case must be considered in light of the
    evidence material to the guidance, care and companionship claims in that case:
To
, at para. 31. This includes, as LaForme J.A. set out in
Fiddler
,

at para. 77, considering each case in light of the particular family
    relationships involved in that case.

[29]

This case-by-case approach to the quantification
    of damages for loss of guidance, care, and companionship will necessarily
    result in damages awards that will fluctuate. Coming back to the standard of
    review on appeal, it is only where the quantum of damages set by the jury shocks
    the conscience of the court or is so inordinately high that it is wholly
    erroneous that appellate intervention will be appropriate:
Young
, at
    para. 66, citing
Hill
, at para. 163;
To
, at para. 31.

[30]

Therefore, while there is no question that the
    jury award for loss of care, guidance, and companionship in this case is high, in
    light of the factual backdrop of this case, it does not constitute an amount
    that shocks the conscience of the court:
Young
, at para. 66, citing
Hill
,
    at para. 163. Nor does it represent an amount that is so inordinately high
    that it is wholly erroneous in nature:

To
, at para. 31.

[31]

Importantly, this is not a case where the
    appellants object to the jury charge itself. Rather, this case is strictly
    about the quantum determined by the jury. That quantum was clearly informed by
    how the jury saw the facts of this case. Alisha was an only child. Her parents
    were divorced when she was younger. Despite that divorce, the family remained
    unified by the common love the respondents had for Alisha and that the
    respondents received from Alisha. While Alisha resided with her mother
    following the divorce, she would still see her father almost daily.

[32]

Both respondents testified at trial about the
    strong relationships they had with Alisha. They also testified about how, as
    she reached adulthood and right up to the night before the fire, she provided
    her parents with love, affection, emotional support, and more. Indeed, the respondent
    father testified about how Alisha had been instrumental in seeing him through
    some very difficult mental health challenges involving PTSD: She was my
    everything . She was the reason why I  kept on going to get through that at
    that time.

[33]

In short, Alisha was a loving, supportive
    daughter who had already demonstrated that her dedication to her parents as she
    moved further into adulthood was strong, as she started giving more than she
    was receiving. The impact of a loss of ones child was nicely captured by
    Robins J.A. in
Mason v. Peters

(1982),

139 D.L.R. (3d)
    104 (Ont. C.A.), at p. 111, leave to appeal refused,
[1982]
    S.C.C.A. No. 51,
where he said:

Whatever the situation may have been in
    earlier times when children were regarded as an economic asset, in this day and
    age, the death of a child does not often constitute a monetary loss or one
    measurable in pecuniary terms. The most significant loss suffered, apart
    from the sorrow, grief and anguish that always ensues from such deaths, is not
    potential economic gain, but deprivation of the society, comfort and protection
    which might reasonably be expected had the child lived  in short, the loss of
    the rewards of association which flow from the family relationship and are
    summarized in the word companionship.

[34]

The November 20, 2013 fire destroyed all hope of
    the society, comfort, and protection that Alisha would give to her parents. The
    respondents never got to experience these rewards of association past Alishas
    24th year. The fire eradicated their future together, ripping parenthood apart,
    the family away, and leaving both respondents childless.

[35]

In light of the facts of this case, while the
    jury award was undoubtedly high, it was not so inordinately high that it would
    shoc
[
k
]
the conscience of the court:
Young
, at para. 66, citing
Hill
,
    at para. 163;
To
, at para. 31. In the circumstances of this case,
    there is therefore no basis to interfere with the jurys award of $250,000 for
    loss of care, guidance, and companionship damages to each respondent.

F.

Fresh Evidence

[36]

Lastly, Mr. Lysenko seeks the admission of fresh
    evidence on appeal, which evidence includes the unredacted records of the
    Toronto Police Service. The subject report was previously provided to the
    appellants counsel. Although Mr. Lysenko says that he did not know that the
    report was provided to his counsel, this is not the test applicable for
    adducing fresh evidence. Applying the criteria from
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759, at p. 775, the subject evidence is not sufficiently cogent
    to have in any way impacted the result at trial. At the end of the day, Alisha
    found herself in a trap when the fire broke out. There was no working smoke alarm
    to alert Alisha to the need to get out quickly by the only possible exit. The
    jurys verdict turned on those facts. Therefore, the appellants motion to
    adduce fresh evidence is dismissed.

G.

Disposition

[37]

I would dismiss the appeal in its entirety and
    award costs in favour of the respondents in the amount of $30,000, inclusive of
    disbursements and applicable taxes.

Released: JMF June 25, 2021

Fairburn
    A.C.J.O.

I
    agree Harvison Young J.A.

I
    agree M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fiorilli, 2021 ONCA 461

DATE: 20210625

DOCKET: C63004

Feldman, Paciocco and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michele Fiorilli

Appellant

John Kaldas, for the appellant

Hannah Freeman and Elise Nakelsky, for
    the respondent

Heard: March 11 2021 by videoconference

On appeal from the convictions entered
    on September 24, 2013 by Justice Gary T. Trotter of the Superior Court of
    Justice, with reasons reported at 2013 ONSC 5999, [2013] O.J. No. 4343.

Paciocco J.A.:

OVERVIEW

[1]

Michele Fiorilli was prosecuted for his
    involvement in two series of Toronto real estate transactions, the first relating
    to 450 Clinton Street (the Clinton property), and the second relating to 30
    Buttonwood Avenue (the Buttonwood property). Each series of transactions
    culminated with mortgage funds being fraudulently obtained from the Royal Bank
    of Canada (RBC). The Canada Mortgage and Housing Corporation (CMHC), a
    Government of Canada Crown Corporation that insured the RBC mortgages,
    ultimately bore the combined loss of $267,083.

[2]

At his trial in connection with these two series
    of transactions, Mr. Fiorilli faced four counts of fraud, contrary to s.
    380(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46. Two of those
    counts related to the Clinton property; count 1 alleged that Mr. Fiorilli defrauded
    the Government of Canada and count 2 alleged that he defrauded RBC. Counts 3
    and 4 were an identical set of charges relating to the Buttonwood property.

[3]

On September 24, 2013, a judge of the Superior
    Court of Justice, sitting alone, found Mr. Fiorilli guilty of all four charges.
    To avoid double jeopardy, the trial judge convicted Mr. Fiorilli of the two
    charges involving the Government of Canada, and conditionally stayed the two
    RBC charges. Mr. Fiorilli received a global sentence of one year in prison. A
    restitution order was also imposed, with a fine of $110,000 in lieu of
    forfeiture and two years imprisonment in the event of default.

[4]

Mr. Fiorilli now appeals his convictions and the
    findings of guilt made against him. He advances one ground of appeal. He
    submits that he received ineffective assistance of counsel from his trial counsel,
    resulting in a miscarriage of justice. He claims that the manner of his
    representation resulted in unreliable verdicts of guilt and deprived him of a
    fair trial. The multiple challenges Mr. Fiorilli makes about the incompetence
    and misconduct of his trial counsel include allegations that trial counsel:

(1)

prohibited Mr. Fiorilli from testifying, and
    acted incompetently when advising him about testifying;

(2)

lost crucial evidence inconsistent with Mr.
    Fiorillis guilt;

(3)

failed to raise a theory of Mr. Fiorillis
    defence, or marshal available evidence of Mr. Fiorillis innocence;

(4)

failed to pursue or review disclosure;

(5)

failed to competently discredit key Crown
    witnesses; and

(6)

acted outside of his expertise, and otherwise
    contravened the Law Society of Ontarios
Rules of Professional Conduct
.

[5]

Despite the range of challenges made by Mr.
    Fiorilli, for reasons that follow I am not persuaded that he has met the burden
    required to succeed on an ineffective assistance of counsel appeal. I would therefore
    dismiss Mr. Fiorillis appeal.

MATERIAL FACTS & PROCEEDINGS BELOW

[6]

The subject series of transactions involving the
    Clinton and Buttonwood properties were initiated by an Ontario company called Camera
    Capital Investments Inc. (CCI). Mr. Fiorilli was, at the material time,
    President and one of two directors of CCI, and he had signing authority for
    CCI.

A.

The Clinton PRoperty

[7]

There were three material transactions involving
    the Clinton property, which I will refer to as the CCI Clinton transfer, the
    Cirillo transfer and the Gutnikov transfer.

The CCI Clinton Transfer

[8]

The Clinton property was purchased in April 2004
    by CCI for $265,000. CCI placed three mortgages on the property which together,
    at approximately $295,000, exceeded the purchase price. Mr. Fiorilli personally
    guaranteed the mortgages.

The Cirillo Transfer

[9]

On August 19, 2004, CCI transferred the Clinton property
    to Mr. Salvatore (Sam) Cirillo. Suspiciously, no consideration was provided.
    Mr. Cirillo testified as a Crown witness at trial and denied any knowledge of
    the transfer. He testified that he was Mr. Fiorillis uncle. He said that in
    2004 he was a drug addict, and that Mr. Fiorilli knew he was an addict at that
    time. Mr. Cirillo testified that he told Mr. Fiorilli he could use his name to
    do whatever he wanted, so long as it was legitimate.

[10]

As I will note again below, there were
    credibility and reliability problems relating to Mr. Cirillos testimony. The
    trial judge called him a most difficult witness.

The Gutnikov Transfer

[11]

On August 23, 2004, the Clinton property was transferred
    to Ms. Natalia Gutnikov for $469,000. The circumstances of this transfer were
    suspicious, as well. The sale price was approximately $200,000 more than CCI
    had paid for the property four months before. At trial the Crown presented
    evidence that, as of August 2005, the Clinton property was worth between
    $280,000 and $295,000. In addition, the agreement of purchase and sale had been
    executed on July 30, 2004, weeks before Mr. Cirillo even owned the property.
    Moreover, the agreement of purchase and sale identified RE/MAX Performance
    Realty Inc. (RE/MAX) as the broker for the transaction. The agreement of
    purchase and sale also reflected a deposit of $20,000 to be paid by CCI and
    held by RE/MAX. Yet RE/MAX had no record of the deposit having been received,
    or of any real estate commission having been paid. Ms. Gutnikov testified as a
    Crown witness at Mr. Fiorillis trial. She denied ever paying the $20,000
    deposit.

[12]

Ms. Gutnikov further testified that she became
    involved with Mr. Fiorilli after being introduced to Slava, a business
    associate of Mr. Fiorilli. Slava told her that Mr. Fiorilli had an uncle who
    needed to transfer his house for three months because of marital problems. She would
    receive $5,000 if she assisted. She agreed. Slava, Mr. Fiorilli, and another
    associate, Fred Procopio, had Ms. Gutnikov sign many documents, some of which
    were blank. She testified that Slava drove her to an office in Mississauga to
    sign some of the documents.

[13]

Ms. Gutnikov also testified that at one point
    during their dealings, Mr. Fiorilli was hospitalized.

[14]

Evidence showed that documentation signed by Ms.
    Gutnikov was used to secure cash back mortgage financing from RBC in the
    amount of $444,226. A cash back mortgage provides a payment to the mortgage borrower
    as an incentive to attract their business.

[15]

In support of the cash back mortgage application,
    RBC had also been provided with an employment letter signed by Mr. Wesel Peart,
    which represented that Ms. Gutnikov was employed by a company called Mr.
    Vigorous Roots Tonic with an income of $146,000. Ms. Gutnikov testified that
    she was, in fact, unemployed and impecunious at the time, and had never heard
    of Mr. Vigorous Roots Tonic.

[16]

Mr. Peart also testified at trial as a Crown
    witness. He confirmed that he operated Mr. Vigorous Roots Tonic. He denied
    knowing Ms. Gutnikov but confirmed knowing Mr. Fiorilli. He lived near, and
    parked his car on, a property Mr. Fiorilli owned, and would occasionally visit
    Mr. Fiorillis office. Mr. Peart denied supplying letterhead to Mr. Fiorilli.
    However, he said that his office was always open, and someone could have taken
    his letterhead.

[17]

An RBC mortgage specialist, Mr. Jack Abboud, who
    testified for the Crown, participated in processing the mortgage. Mr. Abboud
    would later become the subject of an internal RBC investigation involving
    numerous other suspicious mortgage transactions.

[18]

When the Gutnikov transfer was completed, the
    CCI mortgages were discharged with the proceeds of sale, thereby releasing Mr.
    Fiorilli from the guarantees he had signed for over $290,000. Mr. Fiorilli also
    received $102,435.49 from the closing funds, even though the property was in
    Mr. Cirillos name, not his. Mr. Procopio also received approximately $32,000. An
    individual named Mr. Siva Suthakaran received $9,200. There is no record that
    Mr. Cirillo received anything.

[19]

Ms. Gutnikov testified that she was paid the
    promised $5,000 after accompanying Mr. Fiorilli when he visited an RBC branch.
    She said that it had been agreed that Mr. Fiorilli would give her the money
    required to make the mortgage payments until the property was re-transferred to
    his uncle. She testified that, for a time, Mr. Fiorilli provided her with the
    money to make those payments, but that he eventually stopped doing so. Entries
    in Ms. Gutnikovs bank records, admitted into evidence, were consistent with
    this testimony. Those bank records confirmed that until early 2005, mortgage
    payments of approximately $3,000 per month were paid. Shortly before each
    payment, deposits of approximately that amount were made into her account.

[20]

Ms. Gutnikov also testified that when the money stopped
    coming, she went to see Mr. Fiorilli. She testified that he refused to pay her,
    and instead put a tape recorder on the desk and said that he had never seen her
    before. Ms. Gutnikov said she was thereby left with a mortgage debt that she
    could not afford.

[21]

After the mortgage fell into default, RBC took
    possession of the Clinton property. RBC eventually sold the property to recoup
    the money loaned to Ms. Gutnikov, but there was a significant shortfall. CMHC
    ultimately sustained a loss on the Clinton property of $172,637.82.

[22]

Mr. Procopio and Mr. Suthakaran did not testify
    at the trial. Neither did any real estate agents allegedly involved in the material
    transactions, nor anyone from the law firm of Mr. Zeyaul (Zeya) Haque (the
    Haque law firm), which handled the legal end of the Clinton property transfers
    and the Buttonwood property transfers described below.

B.

THE BUTTONWOOD Property

[23]

There were two relevant transactions involving
    the Buttonwood property, which I will refer to as the CCI Buttonwood transfer
    and the Smith transfer.

The CCI Buttonwood Transfer

[24]

CCI purchased the Buttonwood property in October
    2003 for $167,250. CCI obtained mortgage financing on the property under three
    mortgages, totalling approximately $220,000, mortgage funding that was, once
    again, well in excess of the purchase price. As he had done with respect to the
    CCI Clinton transfer, Mr. Fiorilli personally guaranteed the mortgages on the
    Buttonwood property.

The Smith Transfer

[25]

On September 8, 2004, CCI transferred the Buttonwood
    property to Mr. Orville Smith for $262,000, once again, significantly more than
    the purchase price paid by CCI. The Crown presented evidence of an appraisal
    showing that the value of the Buttonwood property as of August 2005 was between
    $190,000 and $214,000, well below the purchase price of the Smith transfer from
    September 2004, a little less than a year earlier.

[26]

Once again, the agreement of purchase and sale for
    the Smith transfer identified RE/MAX as the broker of record and provided for a
    deposit of $10,000 to be held by RE/MAX. As was the case with the Gutnikov
    transfer of the Clinton property, evidence was presented that RE/MAX had no
    record of this deposit, nor of any commission having been paid for the Smith
    transfer.

[27]

Mr. Smith testified as a Crown witness. He said that
    he never paid the $10,000 deposit. He described how his purchase materialized.
    He said that at the time of the purchase, he had a modest annual income of
    between $25,000 and $30,000 as a filmmaker but wanted to purchase a house for
    himself and his son. He said he mentioned this to Mr. Peart, with whom he was
    acquainted. Mr. Peart introduced him to Mr. Fiorilli to help him secure a home.
    Mr. Smith testified that he went to Mr. Fiorillis office and, with Mr.
    Fiorillis assistance, he signed documents, including for mortgage financing
    through RBCs $10,000 cash back promotion. Under Mr. Fiorillis direction, Mr.
    Smith said he also went to other locations accompanied by Mr. Procopio to sign
    documents. Once again, Mr. Abboud participated on RBCs behalf in the mortgage
    transaction.

[28]

Mr. Smith testified that he knew some of the
    statements about his financial background that Mr. Fiorilli had provided for
    use in his RBC mortgage application were false, including an employment letter
    from Mr. Vigorous Roots Tonic showing Mr. Smiths income to be $92,000. Based
    on the documentation admitted into evidence, RBC advanced Mr. Smith $248,087 to
    acquire the Buttonwood property.

[29]

Other documentation admitted into evidence
    showed that when the Smith transfer closed, the CCI mortgages that had been
    guaranteed by Mr. Fiorilli were paid off. Other funds were disbursed to several
    individuals, including Mr. Procopio ($10,140) and Mr. Suthakaran ($3,851.84). A
    further $8,720 was advanced to CCI under Mr. Fiorillis direction. Another
    individual named Mr. Farida Khan received $2,500.

[30]

Mr. Smith testified that after the closing he
    had difficulty getting keys to the Buttonwood property. He also had difficulty accessing
    the home because there were tenants occupying it. With the assistance of a
    lawyer, Mr. Smith obtained possession as well as funds from Mr. Fiorilli that
    he used to make mortgage payments. Mr. Smith said he understood the funds he
    obtained from Mr. Fiorilli were those owing to him from the RBC cash back
    program, which Mr. Fiorilli had wrongfully withheld. Bank documents confirmed
    that Mr. Smith received approximately $14,000 through cheques signed by Mr.
    Fiorilli.

[31]

It was put to Mr. Smith during cross-examination
    that Mr. Fiorilli in fact paid this money to Mr. Smith in settlement of a
    dispute relating to the number of bedrooms in the house. Mr. Smith confirmed that
    there had been such a dispute but insisted that the payments consisted of the
    cash back funds Mr. Fiorilli owed him.

[32]

Mr. Smith further testified that when this money
    dried up, RBC took possession of the house. Once again, when RBC sold the
    property there was a shortfall in repaying the mortgage, this time resulting in
    a loss to CMHC of $94,445.42.

C.

The Trial and the decision

[33]

During the trial, no issue was taken with
    whether there were fraudulent transactions relating to the Clinton and Buttonwood
    properties. It was the position of the defence that Mr. Fiorilli was not
    complicit in the fraud. Mr. Fiorilli did not advance this defence by testifying
    or offering affirmative evidence relating to his involvement. Instead, Mr.
    Fiorillis trial counsel contended that the Crown evidence could not establish
    that Mr. Fiorilli acted dishonestly beyond a reasonable doubt, given
    credibility and reliability problems with the Crown witnesses, the many
    unanswered questions about the transactions left by the Crowns evidence, and
    the number of other individuals implicated in the transactions.

[34]

The trial judge accepted that there were credibility
    and reliability problems with many Crown witnesses, that there were unanswered
    questions, and that other people were, or may have been, complicit in the
    fraudulent conduct. However, the trial judge disagreed with Mr. Fiorillis
    position that the Crown had not proved its case. He concluded that the
    evidence adduced at this trial points directly at Mr. Fiorilli as the person at
    the helm of both scenarios.

Findings regarding the Clinton property

[35]

With respect to the Clinton property
    transactions, the trial judge did not find Mr. Cirillo to have been a credible
    witness. He expressed skepticism about Mr. Cirillos assertion that he had no knowledge
    of the real nature of the Clinton transactions. Nevertheless, he held that
    even if Mr. Cirillo was complicit, it does not help Mr. Fiorilli.

[36]

Nor did the trial judge accept Mr. Pearts
    evidence. He said that Mr. Peart minimized his relationship with Mr. Fiorilli,
    and that Mr. Peart may have been complicit in preparing the false employment
    letter that was used to secure Ms. Gutnikovs RBC financing.

[37]

The trial judge was also skeptical of Ms.
    Gutnikovs claim that she did not think her involvement was wrong. Nonetheless,
    he found her testimony to be credible as it was completely confirmed by
    documentation. He accepted that there was some confusion in her evidence
    relating to meetings and who was in attendance, which he attributed to the
    passage of time.

[38]

The trial judge ultimately found that the
    agreement of purchase and sale executed by Ms. Gutnikov was fraudulent and
    created to lend the appearance of legitimacy to the transaction. He found
    indicia of fraud in the absence of the usual RE/MAX records of the transaction
    relating to the payment of the deposit and commission. He also noted the
    appraisal evidence showing the significant inflation in the value of the
    Clinton property over a short time. However, with respect to the appraisal
    disparity, the trial judge said, the Crown need not prove this aspect of its
    allegations to succeed in establishing fraud in this case; it merely speaks to
    the extent of the loss incurred by RBC (and CMHC) in this straw purchaser arrangement.

[39]

After finding beyond a reasonable doubt that Mr.
    Fiorilli was an active participant in the fraud, the trial judge found him
    guilty of defrauding the Government of Canada and defrauding RBC in the transactions
    involving the Clinton property.

[40]

In coming to this conclusion, the trial judge
    considered Mr. Procopios involvement in the fraudulent transactions. He said
    he had no doubt that Mr. Procopio was involved in these scenarios. The trial
    judge went on to say, It would appear that [Mr. Procopio] was paid a fee for
    his services in both transactions. However, this fact does not detract from the
    case against Mr. Fiorilli.

Findings regarding the Buttonwood property

[41]

With respect to the transactions involving the Buttonwood
    property, the trial judge expressed concerns about Mr. Smiths claim that he
    expected to receive a home from a stranger without investing any of his own
    money. The trial judge also concluded that Mr. Peart may have been complicit in
    preparing the false employment letter used to obtain Mr. Smiths mortgage on
    the Buttonwood property. He found, however, that the Crown allegation relating
    to the Buttonwood property transactions was supported by the documentary
    evidence. The trial judge held that whether or not Mr. Smith and/or Mr. Peart
    were complicit, he was satisfied that Mr. Fiorilli was a guiding hand, if not
    the directing force, in the process leading to what the trial judge found to
    be fraudulent transactions involving the Buttonwood property.

[42]

In finding the Buttonwood property transactions
    to be fraudulent, the trial judge once again noted that the deposit had not
    been made, the real estate commission had not been paid, and that there would
    have been no need for a real estate agent in the circumstances, given how Mr. Smith
    came to be involved in the transaction through Mr. Peart. He noted, as well,
    the apparently inflated purchase price, although once again commenting that such
    a finding is not necessary to sustain a finding of guilt on these counts.

[43]

Ultimately, the trial judge found that Mr.
    Fiorilli assisted and facilitated the fraudulent mortgage applications for Mr.
    Smith, who could not afford the mortgage, and that Mr. Fiorilli was able to
    discharge existing mortgages on the Buttonwood property that he had guaranteed,
    and to walk away with a little extra cash for himself and his associates,
    including Mr. Procopio. The trial judge therefore found Mr. Fiorilli guilty of
    defrauding the Government of Canada and defrauding RBC in the transactions involving
    the Buttonwood property.

ISSUES ON APPEAL

[44]

Mr. Fiorilli does not take any issue on appeal
    with the trial judges handling of the trial, or with his decision. Mr.
    Fiorilli argues instead that a miscarriage of justice occurred because he
    received ineffective assistance from his trial counsel.

[45]

As I will explain immediately below, the burden
    is on Mr. Fiorilli to establish this ground of appeal. There is therefore only
    one issue in this appeal: Has Mr. Fiorilli established that he received
    ineffective assistance of counsel, resulting in a miscarriage of justice?

[46]

In the context of answering this question, I
    will identify and consider each of the multiple challenges Mr. Fiorilli makes
    to the performance of his trial counsel. Before doing so, I will identify the
    relevant principles of law.

THE RELEVANT LEGAL
    PRINCIPLES

[47]

The right to effective assistance of counsel is
    of such importance that effective representation is a principle of fundamental
    justice:
R. v. G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 24.
    However, [c]ounsels failure to meet competence standards does not automatically
    lead to a reversal of a conviction, as [t]he ultimate purpose of the
    appellate inquiry is not to grade counsels performance, but to determine
    whether a miscarriage of justice occurred:
R. v. Joanisse
(1995), 102
    C.C.C. (3d) 35 (Ont. C.A.), at p. 62, leave to appeal refused, [1996] S.C.C.A.
    No. 347.

[48]

A three-part test is used to determine
    ineffective assistance of counsel appeals, with the appellant bearing the onus
    of proof and persuasion with respect to each part. The structure of the test was
    neatly summarized by Watt J.A. in
R. v. Girn
, 2019 ONCA 202, 145 O.R.
    (3d) 420, at para. 91:

An appellant must establish:

i.

the facts on which the claim is grounded [the
factual
component];

ii.

the incompetence of the representation provided
    by trial counsel (the
performance

component); and

iii.

a miscarriage of justice as a result of the
    incompetent representation by trial counsel (the
prejudice

component).

[49]

Naturally, the factual component is examined
    first, since there is no point in assessing the competence of unproven acts or
    omissions. As Watt J.A. affirmed, Once the facts that underpin the claim have
    been established, the ineffective assistance analysis begins with the prejudice
    component:
Girn
, at para. 92. This is because if the prejudice
    component cannot be met, there is no reason to subject the performance of
    counsel to judicial inquiry:
R. v. G.D.B.
, at para. 29. Put simply, it
    will usually be the case that the proper analytical order of the three-part
    test is (i), (iii), and then (ii).

[50]

Each of the three parts of the test requires
    elaboration.

(i)      The Factual Component

[51]

The factual component requires the appellant to establish
    the facts material to the claim of ineffective assistance on the balance of
    probabilities:
R. v. K.K.M.
, 2020 ONCA 736, at para. 55. In
    determining whether an appellant has done so, allegations of incompetent
    representation must be assessed in light of the strong presumption of
    competence in favour of counsel:
R. v. Archer

(2005), 202
    C.C.C. (3d) 60 (Ont. C.A.), at para. 140. Courts should also be mindful of the
    incentive there may be for a convicted appellant to make false allegations, particularly
    in light of the ease with which false allegations can be made, and the
    potential unreliability that can arise when events are recalled through the
    bars of a jail cell:
Archer
, at para. 142. As Doherty J.A. noted in
Archer
,
    at para. 141, Common sense dictates a cautious approach to allegations against
    trial lawyers made by convicted persons who are seeking to avoid lengthy jail
    terms.

(ii)     The Performance Component

[52]

To meet the performance component of the test the
    appellant must demonstrate that counsels acts or omissions amounted to
    incompetence, with incompetence measured against a reasonableness standard:
Archer
,
    at para. 119. The test for establishing incompetence is a strict one; the
    appellant must show that the acts or omissions of counsel could not have been
    the result of reasonable professional judgment:
R. v. Prebtani
, 2008
    ONCA 735, 243 O.A.C. 207, at para. 3 (quoting from
R. v. G.D.B.
, at
    para. 27), leave to appeal refused, [2009] S.C.C.A. No. 153.

[53]

In assessing the performance component, an
    appellate court must be mindful that the art of advocacy yields few, if any,
    absolute rules, and that there exists a broad spectrum of professional
    judgment that might be considered reasonable:
R. v. White
(1997), 114
    C.C.C. (3d) 225 (Ont. C.A.), at p. 247, leave to appeal refused, [1997]
    S.C.C.A. No. 248. In
Archer
,

at para. 119, Doherty J.A. helpfully
    elaborated on the highly deferential standard that applies when assessing the
    performance component:

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. The
    reasonableness analysis must proceed upon a strong presumption that counsels
    conduct fell within the wide range of reasonable professional assistance.
    [Citations omitted.]

(iii)    The Prejudice Component

[54]

To satisfy the prejudice component, the
    appellant must show the ineffective representation resulted in a miscarriage of
    justice, ether by rendering the trial unfair or the verdict unreliable:
R.
    v. K.K.M.
, at para. 55. Put otherwise, the appellant must meet either or
    both of two alternative prejudice branches, the trial fairness branch, and the
    unreliable verdict branch.

The trial fairness branch of the prejudice
    component

[55]

The trial fairness branch of the prejudice
    component is concerned with the adjudicative fairness of the process used to
    arrive at the verdict:
Joanisse
, at p. 57. Occasionally, appellate
    courts refer to procedural fairness instead of trial fairness to describe this
    branch: see e.g.,
R. v. G.D.B.
, at para. 34;
Prebtani
, at
    para. 4.

In
Joanisse
,
when illustrating the kinds of
    infirmities in legal representation that might cause a trial to become unfair, at
    pp. 62-63, Doherty J.A. spoke of lawyers who are intoxicated throughout a
    trial, or who are acting in a conflict of interest. In such cases, the
    incompetence is so pervasive that it destroys the fairness of the adjudicative
    process at trial, thereby amounting to a constructive denial of the assistance
    of counsel:
Joanisse
, at pp. 62-63.

[56]

Some of the decisions that must be made during
    the course of a trial, such as the mode of trial, whether to testify or plead
    guilty, or whether to advance the defence of not criminally responsible, are so
    fundamental to procedural fairness that counsels failure to permit the
    appellant to make the decision, or to provide effective advice on the matter,
    can raise questions of procedural fairness:
R. v. G.D.B.
, at para. 34;
R. v.
Trought
, 2021 ONCA 379, at paras. 46-50.

[57]

Where the trial fairness branch of the
    prejudice component is at issue, the focus is, in fact, on the appearance of
    the fairness of the trial:
Archer
, at para. 120. This is in keeping
    with the principle that justice must not only be done, but must manifestly be
    seen to be done:
Joanisse
, at p. 63, citing
R. v. Cook and Cain

(1980), 53 C.C.C. (2d) 217 (Ont. C.A.), at p. 224. If counsels performance
    has undermined the appearance of trial fairness, no further prejudice need be
    established:
R. v. Stark
, 2017 ONCA 148, 347 C.C.C. (3d) 73, at para. 14.

The unreliable verdict branch of the
    prejudice component

[58]

The unreliable verdict branch of the prejudice
    component operates differently than the trial fairness branch. As its name
    suggests, the unreliable verdict branch is concerned with the confidence that
    can be placed in the validity or reliability of the result of the trial:
R.
    v. Dunbar
, 2007 ONCA 840, at para. 23;
R. v. Nwagwu
, 2015 ONCA
    526, [2015] O.J. No. 3695, at para. 7. In
Joanisse
, at p. 63, Doherty
    J.A. explained this branch as follows:

Some claims of incompetence relate to specific
    decisions made or actions taken by counsel in the course of the defence. These
    claims do not assert an actual or constructive denial of the assistance of
    counsel, but instead contend that the assistance given was so deficient that it
    was ineffective. These claims come down to the assertion that because of
    counsels incompetence, the defence was not properly put, or the Crowns case
    was not properly challenged. In these situations, the effect on the fairness of
    the trial of counsels incompetence is measured by reference to the impact of
    the error or errors on the reliability of the result.

[59]

This court spoke in
Archer
, at para.
    120, of the appellant satisfying the unreliable verdict branch of the prejudice
    component by demonstrating that had counsel performed in a competent fashion,
    there is a
reasonable possibility
that the verdict could have been
    different (emphasis added). However, the authorities coalesce in requiring the
    appellant to establish a
reasonable probability
that the result would
    have been different: see e.g.,
Joanisse
, at p. 64;
Prebtani
,
    at para. 4;
R. v. R.S.
, 2016 ONCA 655, 341 C.C.C. (3d) 530, at para.
    44;
R. v. Al-Shammari
, 2016 ONCA 614, 350 O.A.C. 369, at para. 75. In
Joanisse
,
    at p. 75, Doherty J.A. described a reasonable probability as more than a
    mere possibility, but less than a likelihood. In
Al-Shammari
, at para.
    75, Juriansz J.A. said a reasonable probability is established when the
    reviewing court is satisfied that because of counsels incompetence, the
    verdict cannot be taken as a reliable assessment of the appellants
    culpability.

[60]

I will now apply the foregoing principles to Mr.
    Fiorillis appeal.

ANALYSIS

[61]

Below, I consider each of Mr. Fiorillis claims
    of incompetent or ineffective representation. I am not satisfied, examining
    those claims in turn or collectively, that Mr. Fiorilli has satisfied the
    ineffective assistance of counsel test. With some claims, he has not satisfied
    the factual component of the test. With others, he has not demonstrated
    prejudice, or he has failed to establish incompetence. I would therefore reject
    Mr. Fiorillis appeal.

(1)

Did trial counsel prevent Mr. Fiorilli from
    testifying, or act incompetently when advising Mr. Fiorilli about testifying?

[62]

An ineffective assistance of counsel claim can
    succeed where: (a) trial counsel has prevented the appellant from testifying,
    or (b) trial counsel has acted incompetently in giving the appellant client the
    full benefit of legal advice on whether to testify:
Trought
, at para.
    50. Although both claims engage the trial fairness branch of the prejudice
    component, the analysis required differs modestly depending on which claim is
    being made.

[63]

In
Archer
, at para. 139, Doherty J.A. described
    the analysis required if a lawyer is alleged to have prevented an appellant
    from testifying:

While counsel owes an obligation to advise his
    client as to whether he or she should testify, the ultimate determination is made
    by the client. If the appellant can show that it was trial counsel and not the
    appellant who decided that the appellant would not testify, and that the
    appellant would have testified had he understood that it was his decision, it
    seems to me that it must be accepted that his testimony could have affected the
    result, thereby establishing that a miscarriage of justice occurred. The
    crucial question becomes  who made the decision? [Citations omitted.]

[64]

Where the allegation is that the advice counsel gave
    to the client about testifying was not competent, the central issue is whether the
    appellant has established that counsel acted unreasonably by failing to give
    the client the full benefit of their advice, including an explanation of the
    reason for that advice:
R. v. K.K.M.
, at paras. 66 and 82.

[65]

As can readily be seen, this inquiry addresses
    the performance component of the ineffective assistance of counsel test. In
R.
    v. K.K.M.
, after resolving the factual component of an ineffective
    assistance of counsel claim by identifying the advice that had been given, Doherty
    J.A. went directly to the performance component without first addressing the
    prejudice component: at para. 62. He no doubt approached the ineffective assistance
    of counsel claim in this unconventional order because the performance and
    prejudice components are inextricably linked where the allegation is that,
    because of incompetent advice, an appellant has been deprived of the ability to
    make an informed choice on whether to testify. Where this has occurred, and it
    is shown there is a reasonable probability that the appellant would have
    testified had they been given competent advice, adjudicative fairness will have
    been undermined.

[66]

As I understand Mr. Fiorillis argument before
    us, he appears to be straddling both these claims. He contends that trial
    counsel prevented him from testifying, and he complains that trial counsel undermined
    his choice to testify by mocking his desire to do so and by failing to provide
    fulsome advice on the matter.

[67]

In my view, no matter how one characterizes Mr.
    Fiorillis claim relating to his failure to testify, it must fail. As I will describe
    below, he has not satisfied me on the balance of probabilities that trial
    counsel prevented him from testifying, nor has he established that trial
    counsels advice or conduct relating to whether he should testify was outside the
    range of reasonable professional judgment.

[68]

In coming to this decision, I have chosen to
    ignore trial counsels testimony relating to Mr. Fiorillis right to testify. I
    have made the choice to do so, instead of resolving Mr. Fiorillis challenge to
    trial counsels credibility, because trial counsels testimony is not needed to
    reject Mr. Fiorillis complaint. As I will explain, Mr. Fiorillis claim that
    trial counsel was incompetent relating to his right to testify fails because the
    affirmative evidence Mr. Fiorilli relies upon is incapable of proving the
    allegations he makes. Moreover, my decision to ignore trial counsels testimony
    will not prejudice Mr. Fiorilli. Trial counsel said nothing that would support
    Mr. Fiorillis claims relating to the decision that he not testify, and I have
    no other use for findings relating to trial counsels credibility since I do
    not rely on trial counsels evidence to resolve any of the other issues in this
    appeal.

(a)     Did trial counsel prevent Mr. Fiorilli from
    testifying?

[69]

Had trial counsel obtained written instructions
    from Mr. Fiorilli relating to whether to testify, as he should have, this would
    likely have been a simple matter to resolve (see the sage advice to defence
    counsel on this point offered in
Trought
, at paras. 76-78). Unfortunately,
    trial counsel did not obtain written instructions. Nonetheless, as I will
    explain, I am satisfied that Mr. Fiorilli has failed to satisfy the factual
    component of the ineffective assistance of counsel test relating to his claim
    that trial counsel prevented him from testifying.

[70]

First, Mr. Fiorilli has not presented
    affirmative evidence to support this allegation. Although in his fresh evidence
    affidavit he baldly asserts that trial counsel failed to let [him] take the
    stand to clarify points in [his] defence, the testimony Mr. Fiorilli provided
    when examined on his fresh evidence affidavit does not support this claim. On a
    fair reading, Mr. Fiorillis testimony suggests he let trial counsel know on
    several occasions that he wanted to testify, but ultimately acceded to trial
    counsels advice not to do so.

[71]

Most notably, during questioning, appellate
    counsel for Mr. Fiorilli offered him a summary of the evidence he had given on
    the subject by saying: you wanted to testify; he advised you against it and
    thats it? Mr. Fiorilli answered, A hundred percent.

[72]

When Crown counsel pressed Mr. Fiorilli on this
    issue, Mr. Fiorilli said, All I know is [trial counsel] said it wouldnt be a
    good idea. Hows that in plain English? Mr. Fiorilli then specified what he
    meant by saying, In the gist of the conversation [with trial counsel] that I
    wouldnt  I shouldnt take the stand.

[73]

Mr. Fiorillis daughter, Girardina Fiorilli, swore
    in her fresh evidence affidavit to having been at a Korean restaurant where her
    father and his trial counsel discussed the prospect of Mr. Fiorilli testifying.
    She swore that when her father said he wanted to take the stand, trial counsel
    told him not to be an idiot and that he should not take the stand. At no
    point does Ms. Fiorilli suggest in her affidavit that trial counsel prohibited her
    father from testifying.

[74]

Put simply, although the affirmative evidence
    shows on its face that Mr. Fiorilli expressed the desire to testify on several
    occasions, and that trial counsel was forceful in his views to the contrary, Mr.
    Fiorillis understanding of counsels position was that Mr. Fiorilli
should
not testify, not that he
could
not testify. This evidence is
    insufficient, in my view, to satisfy the factual component of Mr. Fiorillis
    claim that trial counsel prevented him from testifying.

[75]

Moreover, even had Mr. Fiorilli asserted clearly
    and consistently that his trial counsel prevented him from testifying, I would
    have arrived at the same result. It is simply not plausible that Mr. Fiorilli
    would have passively accepted the decision by his counsel not to permit him to
    testify. I reject this suggestion. In doing so, I make four material observations
    from Mr. Fiorillis fresh evidence testimony.

[76]

First, Mr. Fiorilli is not passive or retiring.
    He was brash and assertive when cross-examined by the Crown.

[77]

Second, based on Mr. Fiorillis own testimony, he
    was not shy about confronting trial counsel. When describing one of their
    conversations, Mr. Fiorilli testified that he confronted trial counsel by asking
    him, Do you f-----g have a hearing problem? He also testified that when trial
    counsel told him he was an idiot for wanting to testify, he was ready to punch
    [trial counsel]  right in the face.

[78]

Third, Mr. Fiorilli did not hesitate to raise
    concerns in court about trial counsel. He testified that prior to trial, and
    because of disagreements they were having, he asked a judge to remove trial
    counsel from the record.
[1]

[79]

Fourth, if Mr. Fiorillis version of events is
    true, his urge to reject trial counsels attempt to prevent him from testifying
    would have been irresistible. Specifically, Mr. Fiorilli testified he had
    evidence to give that could have clarified the record in his favour. He also expressed
    the belief that trial counsel did not want him to testify in order to shorten
    the trial, and that trial counsel did not care about the result. In these circumstances,
    it defies belief that Mr. Fiorilli would have passively accepted an effort by
    trial counsel to prevent him from testifying.

[80]

I make one further observation. In
Nwagwu
,
    this court faced a claim that counsel had coerced the appellant into not
    testifying. In rejecting this claim as unproven, this court noted, at para. 13,
    that the appellants long-standing relationship with counsel, which continued
    even after his conviction in this matter, causes us to be highly sceptical of
    his version of events. Similar considerations operate here. Trial counsel had represented
    Mr. Fiorilli in the past, as well as Mr. Fiorillis daughter on several
    occasions. Moreover, there is evidence before us that Mr. Fiorilli attempted to
    retain trial counsel to conduct his appeal after counsel supposedly prevented
    him from testifying. In my view, this is not the conduct of someone who,
    against his wishes, has been prevented from testifying.

[81]

Accordingly, I would find that Mr. Fiorilli has
    not satisfied the factual component of the ineffective assistance of counsel
    test relating to this allegation of incompetence.

(b)     Did trial counsel otherwise act incompetently when advising
    Mr. Fiorilli about testifying?

[82]

Mr. Fiorilli raises multiple concerns about
    trial counsels actions relating to whether he would testify at trial. In my
    view, those remaining concerns can be framed fairly as three arguments, namely,
    that counsel acted incompetently by: (i) describing Mr. Fiorilli as an idiot; (ii)
    failing to adequately explain why Mr. Fiorilli should not testify; and (iii)
    recommending that Mr. Fiorilli not testify. I would not accept any of these
    arguments.

(i)

Describing Mr. Fiorilli as an idiot

[83]

In framing his ineffective assistance of counsel
    arguments, Mr. Fiorilli objects to trial counsel telling him that he would be
    an idiot if he testified. Trial counsel denied that this exchange occurred, but
    I need not resolve this dispute. Even if it happened, in my view this event has
    no impact on Mr. Fiorillis ineffective assistance of counsel appeal. I come to
    this conclusion by looking at the two possible uses to which this event might
    be put.

[84]

First, I would reject any suggestion that trial
    counsels comment undermined Mr. Fiorillis ability to choose whether to
    testify. As indicated, Mr. Fiorilli and trial counsel had a long-standing
    relationship that was frank and familiar, and Mr. Fiorilli has a strong
    personality. This insult would not have intimidated or otherwise undermined his
    ability to decide whether to testify.

[85]

I would equally reject any suggestion that
    addressing a client in this way is an act of incompetence caught by the
    ineffective assistance of counsel test. The focus on reasonableness and
    professional judgment under the performance component of the ineffective
    assistance of counsel test is on the competence of the advice, not on the
    professionalism with which that advice has been delivered. Therefore, unless
    the way the advice is delivered undermines the advice itself, the mere fact
    that advice has been provided in an unprofessional manner will not satisfy the
    test. As I have said, in the circumstances of this case, even if trial counsel
    told Mr. Fiorilli that he would be an idiot if he testified, this could not
    have undermined trial counsels advice.

(ii)

Failing to adequately explain why Mr. Fiorilli
    should not testify

[86]

During his fresh evidence testimony, Mr.
    Fiorilli alleged that trial counsel never explained why it was not a good idea
    to testify. If this were true, this ground of appeal might succeed. However, I
    have no confidence in this claim. Mr. Fiorilli was unable to provide a reliable
    account of the relevant exchanges he had with trial counsel. He had little
    memory of the discussions surrounding whether he would testify. He was confused
    about the time and place of relevant conversations. In fact, he could provide
    no detail about the content of the conversations he had with trial counsel
    about testifying, other than to say he made clear to trial counsel that he
    wanted to testify, trial counsel told him that if he testified he would be
    eaten alive by the skilled and experienced Crown, it was not a good idea to
    testify, and he was an idiot for wanting to testify. In describing the relevant
    conversations, Mr. Fiorilli could offer only the gist of what was said. Quite
    simply, the factual record he presents is not complete enough to reliably capture
    the full scope of the advice that trial counsel gave him.

(iii)

Recommending against testifying

[87]

In his fresh evidence testimony, Mr. Fiorilli
    identified some of the things he would have testified to had he been called as
    a witness at trial, things he believes would have answered concerns that led to
    his conviction. He also suggests on this appeal that if he had testified, he
    would have had the benefit of the decision in
R. v. W.(D.)
, [1991] 1
    S.C.R. 742. As I understand these and other submissions, Mr. Fiorilli is
    arguing it was incompetent for trial counsel to recommend that he not testify.

[88]

I will assume, without deciding, that an
    appellant can ground an ineffective assistance of counsel appeal on an
    unreasonable recommendation to a client not to testify. I confess to some intuitive
    reservations about this, as the decision whether to testify is ultimately the
    clients decision to make. If trial counsel has reasonably provided the
    appellant with the information required to make their own informed decision, I
    am not certain the appellant can later challenge the competence of a
    recommendation they accepted. But I will leave that to the side. I would instead
    reject Mr. Fiorillis challenge to the competence of the recommendation not to
    testify because this challenge cannot satisfy the performance component of the
    ineffective assistance of counsel test.

[89]

It is important to understand that Mr. Fiorilli
    cannot satisfy the performance component simply by establishing that it would
    have been a sound  or even a preferable  trial strategy to have him testify
    in his defence. To meet the performance component, Mr. Fiorilli would have to
    establish that trial counsels recommendation not to testify fell outside the
    broad spectrum of professional judgment that might be considered reasonable:
White
,
    at p. 247. I am far from persuaded that this is so.

[90]

To be sure, I have no doubt that many defence
    lawyers would have recommended that Mr. Fiorilli testify so that he could
    attempt to clarify his role in the suspicious transactions by offering
    explanations for the apparently compromising circumstances. But I also have no
    doubt that other defence lawyers would have recommended the strategy trial
    counsel pursued; that of leaving gaps in the evidence which might make it more
    difficult for the trier of fact to arrive at findings beyond a reasonable
    doubt, while attempting to point the finger of blame elsewhere. As Doherty J.A
    observed in
Dunbar
, at para. 26, albeit in a slightly different
    context, Clarification is not always an advantage. This is particularly so
    where there is a risk that the clarification may not be credible, or where
    the appellant is not apt to be a good witness.

[91]

Based on the record before us, I am not
    persuaded that competent counsel would invariably have concluded that clarification
    would have been an advantage in Mr. Fiorillis case. I have reviewed the
    explanations Mr. Fiorilli proposes. By way of illustration, immediately below I
    offer my evaluation of the reasonableness of the explanation he would have
    provided had he testified about the gratuitous transfer of the Clinton property
    to Mr. Cirillo. I have also reviewed Mr. Fiorillis fresh evidence testimony
    and have acquired a measure of the kind of witness he would have made at trial.
    Suffice it to say, I do not accept on this record that trial counsels advice
    to Mr. Fiorilli not to testify in this case did not fall within the wide range
    of reasonable professional assistance:
Archer
, at para. 119.

(2)

Did trial counsel lose crucial evidence
    inconsistent with Mr. Fiorillis guilt?

[92]

Mr. Fiorilli claims he had a trust agreement
    with Mr. Cirillo that, if proven, would explain why CCI transferred the Clinton
    property to Mr. Cirillo without consideration shortly before the Gutnikov
    transfer. He testified that CCI was holding the property in trust for Mr.
    Cirillo. Mr. Fiorilli explained that he did this in order to help Mr. Cirillo
    obtain money he required.

[93]

Mr. Fiorilli alleges that he provided this trust
    agreement to trial counsel, but then trial counsel lost it. In my view, Mr.
    Fiorilli has not proved the existence of a trust agreement on the balance of
    probabilities, let alone that trial counsel had the trust agreement and lost it,
    an allegation that was not even put to trial counsel during his fresh evidence
    examination. Mr. Fiorilli has therefore failed to meet the factual component of
    the ineffective assistance of counsel test on this issue.

[94]

First, there are consistency issues with Mr. Fiorillis
    explanation for why Mr. Cirillo needed money, the purported motivation for
    having a trust agreement. Mr. Fiorilli initially said the money was required so
    that Mr. Cirillo, a Scientologist, could go to Scientology to take his
    courses, [and] that he needed a half-a-million dollars or whatever. Mr.
    Fiorilli then said he was helping Mr. Cirillo because Mr. Cirillo had prostate
    cancer and Scientology would help him heal. Perhaps Mr. Fiorilli meant that Mr.
    Cirillo wanted to take the half-a-million dollars in Scientology courses to
    heal his cancer, but his explanation is far from clear.

[95]

In any event, problems remain. Mr. Fiorilli
    testified that Mr. Cirillo was a top Scientology salesman on the Internet,
    selling I think a million books. Yet Mr. Fiorilli also said that he had
    always given Mr. Cirillo money because Mr. Cirillo never worked and was a con
    man and a gambler who had always taken advantage of him. Even leaving aside the
    contradiction between the testimony that Mr. Cirillo was a top online salesman
    and the claim that he never worked, Mr. Fiorillis expressed disposition
    towards Mr. Cirillo does not inspire confidence that he would have wanted Mr.
    Cirillo to have the proceeds of the Clinton property.

[96]

Most importantly, Mr. Fiorilli failed to offer a
    coherent explanation as to why a trust would have been used to furnish funds to
    Mr. Cirillo. The only explanation Mr. Fiorilli offered was that the trust would
    enable him to invest money in the stock market on Mr. Cirillos behalf, since
    Mr. Cirillo did not have a bank account. Frankly, this makes no sense. There is
    no evidence that money was being earned on the Clinton property pending the
    Gutnikov transfer. So, what money was being invested while CCI supposedly held
    the Clinton property in trust for Mr. Cirillo? And why would the trust be
    collapsed by transferring the property to Mr. Cirillo immediately prior to the
    Gutnikov transfer, if the purpose of the trust was to give Mr. Fiorilli access
    to the funds so that he could invest them on Mr. Cirillos behalf? By
    collapsing the trust, Mr. Cirillo, the so-called con man gambler, would be
    legally entitled to receive the proceeds, not Mr. Fiorilli.

[97]

Quite simply, the evidence does not support a
    finding on the balance of probabilities that there was a trust agreement with
    Mr. Cirillo, let alone a finding that trial counsel was provided with such an agreement
    and lost it.

(3)

Did trial counsel incompetently fail to marshal
    evidence of Mr. Fiorillis innocence, or raise a theory of his defence?

[98]

Mr. Fiorilli argues that trial counsel failed to
    marshal many signs of his innocence. Specifically, he argues that competent
    trial counsel would have cross-examined Mr. Cirillo to prove that the trust
    existed, and would have shown that Mr. Fiorilli had an alibi, had nothing to
    gain by committing fraud, and that there were other suspects. Ultimately, Mr.
    Fiorilli contends that his trial counsel failed to raise a theory of his
    defence, and that he provided incoherent closing submissions.

[99]

I will begin with the generic allegations that
    trial counsel failed to raise a theory of the defence or provide effective
    closing submissions, and then address the more granular complaints I have
    listed.

Generic allegations: the theory of the
    defence and the closing submissions

[100]

I reject the suggestion that trial counsel proceeded without a
    theory of the defence. I have alluded to that theory above. The explanation
    provided by trial counsel in his fresh evidence affidavit is fully verified by
    the trial record: instead of presenting an affirmative defence, trial counsels
    strategy was to raise a reasonable doubt about whether Mr. Fiorilli
    participated in the creation and submission of fraudulent mortgage
    applications. Trial counsel attempted to do so by casting a cloud of suspicion
    on others who were involved, a strategy that required a less is better
    approach, lest the unanswered questions and gaps left by the Crown evidence be answered
    or filled in inadvertently.

[101]

I accept that other counsel may have chosen to pursue different
    strategies. However, it was not unreasonable for trial counsel to take the
    approach he did. It is common for criminal allegations to be defended by
    challenging the Crowns ability to prove those allegations beyond a reasonable
    doubt. Further, this case accommodated trial counsels strategy. There would
    have been no sense denying that the mortgage transactions were fraudulent. It
    was patent that they were. And there would have been no sense in denying Mr.
    Fiorillis involvement. As such, the prosecution would come down to whether the
    Crown could prove that Mr. Fiorillis involvement was criminal. In these
    circumstances, in my view it was a reasonable strategy for trial counsel to attempt
    to create doubt relating to the nature and extent of Mr. Fiorillis involvement
    by exploiting uncertainty about what had transpired.

[102]

Nor do I accept that trial counsels closing submissions were incoherent
    and therefore incompetent. Even if they had been, Mr. Fiorilli cannot satisfy
    the prejudice component of the ineffective assistance of counsel test on this
    basis. It is evident that the trial judge fully understood the defence theory. I
    see no reasonable probability that the outcome could have changed had trial
    counsels closing submissions met the expectations Mr. Fiorilli alludes to in
    his factum.

Granular Complaints

[103]

An ineffective assistance of counsel appeal is not an opportunity
    for an appellant to benefit from a new trial by advancing arguments or
    strategies that were not presented at trial, in the hope of attracting a
    different result. As will often be the case in this type of appeal, Mr.
    Fiorillis submissions about what competent counsel would have done differently
    can readily be dismissed through a broad examination of the prejudice component.

[104]

First, as I have explained, Mr. Fiorillis claim that CCI held the
    Clinton property in trust for Mr. Cirillo makes no sense. I cannot see how the
    failure of trial counsel to try to prove the trust by cross-examining Mr.
    Cirillo could have prejudiced his defence.

[105]

Second, trial counsels decision not to advance an alibi on Mr.
    Fiorillis behalf could not have prejudiced Mr. Fiorilli because there was no
    alibi to advance. Evidence that Mr. Fiorilli was hospitalized for some of the
    relevant period could not assist in his defence, particularly not in a fraud
    case involving falsely dated documents.

[106]

Third, no prejudice could have arisen from the failure of trial
    counsel to suggest, in Mr. Fiorillis defence, that he had nothing to gain from
    the fraudulent transactions. Mr. Fiorillis contention that he recouped only his
    original investment is belied by proof that funds from the fraudulent
    transactions were used to retire mortgages he had guaranteed in excess of the
    purchase prices, and that he walked away with additional money from each
    transaction. The fact that he made money from the fraudulent mortgages also undercuts
    any utility in advancing his claim that he did not have to commit fraud to make
    money from the real estate.

[107]

Fourth, Mr. Fiorilli could not have been prejudiced by the failure
    of trial counsel to do more to show the fraudulent involvement of others in the
    transactions charged, or in other transactions. The involvement of others in no
    way exculpates Mr. Fiorilli. The trial judge was fully alive to the likely
    involvement of others but appropriately noted that Mr. Fiorilli was convicted
    based on evidence that points directly at Mr. Fiorilli as the person at the
    helm of both scenarios.

[108]

I would therefore reject any suggestion that trial counsel was
    ineffective by failing to present evidence of innocence on Mr. Fiorillis behalf.

(4)

Did trial counsel fail to pursue and review
    disclosure?

[109]

Mr. Fiorilli alleges that trial counsel was incompetent in failing to
    pursue disclosure relating to the involvement in other suspicious transactions of
    some of those who were connected to the charged transactions. He also claims
    that trial counsel failed to review the disclosure he did have relating to the
    transactions that were the subject of the prosecution, and he alleges that trial
    counsel failed to obtain copies of audiotapes, but incompetently rested content
    to rely on transcripts, without questioning redactions in this material.

[110]

I have already explained my view as to why the failure of defence
    counsel to pursue other suspicious transactions in evidence cannot ground an
    ineffective assistance of counsel appeal. On the same footing, the failure to
    pursue and review the disclosure relating to those other suspicious
    transactions cannot do so either.

[111]

Nor can Mr. Fiorilli meet the prejudice component with the other
    complaints he has made. Mr. Fiorilli has provided us with no basis for concluding
    that trial counsel failed to review material disclosure, or that the audiotapes
    would have added anything to the written disclosure that was received.

(5)

Did trial counsel fail to competently discredit key
    Crown witnesses or challenge the appraisals?

[112]

Mr. Fiorilli argues that trial counsel failed to competently
    discredit key Crown witnesses, most notably Ms. Gutnikov and Mr. Smith. He also
    contends that trial counsel failed to competently challenge the appraisals of
    the Clinton and Buttonwood properties adduced by the Crown at trial.

[113]

I would not accept these arguments. The trial judge was alive to the
    self-serving nature of Ms. Gutnikovs evidence. He did not believe her claim
    that she did not know she was doing anything wrong. Ultimately, the trial judge
    found her material evidence credible because he concluded her account was
    completely confirmed by documentation, including documentation showing her to
    be a straw purchaser. I can therefore see no prejudice arising from the
    failure by trial counsel to launch a more exerted attack on Ms. Gutnikovs credibility
    and reliability by employing the strategies Mr. Fiorilli now suggests.

[114]

The same holds true with Mr. Smith. I am not satisfied that there is
    a reasonable probability that cross-examining Mr. Smith differently could have
    affected the outcome. Mr. Smith admitted that he knew he was signing fraudulent
    mortgage application documents. Moreover, the trial judge was alive to the
    possibility that Mr. Smith was more heavily implicated in the fraud than he
    acknowledged.

[115]

Nor can I accept Mr. Fiorillis contention that trial counsels failure
    to challenge the appraisals of the subject properties advances his ineffective
    assistance of counsel appeal. Mr. Fiorilli holds out no evidence that those
    appraisals were wrong. Moreover, the disparities between the initial purchase
    prices and the subsequent straw purchaser sale prices, as well as those between
    the mortgage advances and the recovery achieved when RBC sold the properties,
    lend support on their own to the Crown theory that both subject properties were
    overvalued when mortgage funds were obtained. Finally, as the trial judge was
    quick to emphasize, the fraud charges would have been made out without proof of
    loss arising from overvaluation. Quite simply, there is no reasonable
    probability that the outcome of the trial could have changed had trial counsel
    been able to discredit the appraisals.

(6)

Did trial counsel act incompetently by acting
    outside his expertise, or by otherwise contravening the
Rules of Professional Conduct
?

[116]

As further indicia of ineffective assistance, Mr. Fiorilli presents
    evidence that trial counsel promoted his practice by overstating his experience
    in complex fraud cases, and acted outside his expertise in Mr. Fiorillis case.
    He also identifies numerous other alleged contraventions of the Law Society of
    Ontarios
Rules of Professional Conduct
, including trial counsels failure
    to obtain a written retainer, his failure to record and retain his work product,
    and improper billing practices, including his failure to keep proper dockets.

[117]

It is true that rules of professional conduct may be used to assist
    in showing what may reasonably be expected of trial counsel:
White
,
    at p. 247. However, as is evident from
R. v. G.D.B.
,
at paras.
    5 and 29, and

Prebtani
, at paras. 141-42, not all matters of
    professional competence are for appellate courts. Typically, matters of
    professionalism and professional competence are for the professions governing body.
    As the legal test makes clear, in an ineffective assistance of counsel appeal, an
    appellate court will not address issues of professional competence unless an
    appellant establishes that the incompetent acts or omissions impacted on the
    fairness or reliability of the criminal trial. This is determined not by
    exploring general questions, such as whether counsel accepted a retainer
    outside their experience, but through a specific inquiry into trial counsels
    performance at the trial. Nor is proof of counsels non-compliance with regulations
    on matters like recordkeeping or billing germane to an ineffective assistance
    of appeal.

CONCLUSION

[118]

As the governing jurisprudence makes clear, it is not our role to
    conduct a forensic autopsy into the quality of Mr. Fiorillis legal
    representation. I therefore do not want to be taken as criticizing or endorsing
    the representation Mr. Fiorilli received. Our role is to apply the
    ineffectiveness of counsel test to determine whether Mr. Fiorillis appeal should
    succeed.

[119]

I have considered each of the challenges that Mr. Fiorilli raises to
    the effectiveness of his representation. I have also considered the cumulative
    impact of the concerns he raises. In my view, Mr. Fiorilli has not established
    his sole ground of appeal. I would therefore dismiss his appeal.

Released: June
    25, 2021 K.F.

David M. Paciocco J.A.

I agree. K. Feldman J.A.

I agree. Coroza J.A.

[1]
Mr. Fiorilli subsequently reconciled with trial counsel.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smeltzer, 2021 ONCA 472

DATE: 20210625

DOCKET: C64381

Hourigan, Paciocco and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jordan Smeltzer

Appellant

Lance C. Beechener, for the appellant

Sarah Egan, for the respondent

Heard: June 22, 2021 by
    videoconference

On appeal from the conviction entered on
    July 5, 2017 by Justice Wayne G. Rabley of the Ontario Court of Justice.

REASONS FOR DECISION

FACTUAL BACKGROUND

[1]

On September 1, 2015, experienced drug unit
    officers were on Proudfoot Lane in London, an area known for drug activity,
    conducting an unrelated drug trafficking investigation.

[2]

After setting up to conduct surveillance for
    that unrelated investigation, they observed the driver of a vehicle behave in
    what they considered to be a suspicious manner. The driver first parked in a
    lot in front of 565 Proudfoot Lane, one of a cluster of apartment buildings, where
    he appeared to be looking around and texting. He then circled around one of the
    buildings, exited the parking lot, and parked on a nearby public road which
    bordered the parking lot.

[3]

Jordan Smeltzer, the appellant, then approached
    the vehicle on foot from the direction of the parking lot of the Proudfoot Lane
    apartment complex. He entered the vehicle. The vehicle drove a short distance
    down the road, turned around, and then returned to the parking lot, this time coming
    to a stop near the front of 585 Proudfoot Lane, in what the arresting officer
    described as a more secluded spot than the exposed parking area in front of
    565 Proudfoot Lane. Once the vehicle stopped, officers observed the appellant
    passing something to the driver. Approximately 30 seconds later, the appellant
    exited the vehicle and the vehicle left.

[4]

As the appellant was about to enter the building
    at 585 Proudfoot Lane, the arresting officer, by ruse, induced the appellant to
    approach him. The arresting officer testified that when the appellant got close
    to him, he began to smell the strong odour of marijuana coming from the area
    of [the appellants] person and the backpack. He then arrested the appellant.

[5]

A search incident to arrest of the backpack
    disclosed approximately 259 grams of marijuana and a large bundle of cash.
    During the search of the appellants person, three cellphones were also located.

ISSUES ON APPEAL

[6]

The appellant appeals his conviction for
    possession of marijuana for the purpose of trafficking. He submits that the
    trial judge erred in finding that the arresting officer had reasonable and
    probable grounds to arrest and search him, and thereby improperly dismissed his
    application under ss. 8 and 9 of the
Canadian Charter of Rights and
    Freedoms
.

[7]

Under this umbrella ground, the appellant raises
    three specific grounds of appeal:

(1)

The arresting officers explanation of his
    grounds for the arrest relied on the fact that it occurred in a low-income,
    high-crime area, and the trial judge failed to consider how this class-based
    discrimination contaminated the arresting officers subjective grounds for
    arrest.

(2)

The trial judge erred in concluding that the arresting
    officer had objectively reasonable grounds for arresting and searching the
    appellant, since the observed conduct of the parties was neutral and therefore
    an unreliable indicator of drug trafficking activity.

(3)

The trial judge erred in accepting the arresting
    officers evidence that he had smelled marijuana coming from the appellant and
    his backpack.

[8]

During oral submissions, the appellants appeal
    counsel (appeal counsel) pressed only this third ground of appeal. He did not
    argue the second ground of appeal, and, although he made submissions on the
    first ground, he acknowledged candidly that he did not expect the appeal to
    turn on that ground.

[9]

At the end of the hearing, we dismissed the
    appeal for reasons to follow. These are our reasons.

ANALYSIS

[10]

Although appeal counsel gave focused oral submissions,
    since none of the grounds of appeal were formally abandoned, we will address
    each of them in turn. We begin with the third ground, as listed above, which appeal
    counsel emphasized before us.

The Smell of Marijuana

[11]

Appeal counsel urges that the trial judge erred
    in his analysis of the arresting officers testimony that he had smelled
    marijuana coming from the appellant and his backpack. He submits that the trial
    judge was obliged to give this evidence more scrutiny than he did because this was
    the key observation relied upon by the arresting officer to form his grounds, and
    the appellants trial counsel (trial counsel) challenged the credibility of
    this evidence.

[12]

In what we interpret to be a related argument, appeal
    counsel says that the trial judge failed to consider the unreliability of smell
    evidence when determining whether reasonable and probable grounds existed,
    which appeal counsel argues he was obliged to do.

[13]

Finally, appeal counsel argues that the trial
    judge erred in accepting the arresting officers evidence based on circular
    reasoning.

[14]

We do not agree that the trial judge was obliged
    to say more than he did in accepting the arresting officers evidence that he had
    smelled marijuana. First, trial counsel did not make the credibility of this
    specific testimony as central a focus of the trial as appeal counsel now suggests.
    During cross-examination, trial counsel merely asked the arresting officer if
    he was exaggerating his claim that he had smelled marijuana. By the way trial
    counsel posed his questions, he did no more than imply that it was implausible that
    the arresting officer could have detected the odour of marijuana while it was wrapped
    in plastic and concealed in a backpack.

[15]

During his closing submissions, trial counsel
    did make a bald general assertion that the arresting officers testimony was concocted.
    However, he did not provide a basis for that assertion, nor did he tie it to
    the arresting officers testimony that he had smelled marijuana prior to
    arresting the appellant. The sole related argument that trial counsel made in
    his closing submissions was that the arresting officer didnt smell anything
    until he approached [the appellant] and arrested him. Put otherwise, the
    ultimate challenge made at trial was not that the arresting officer had not
    smelled marijuana, but that he had not smelled it before the appellant was
    arrested.

[16]

Appropriately, in his reasons for decision, the
    trial judge addressed the modest challenges trial counsel had made to the
    credibility and reliability of the arresting officers smell evidence. As he
    was entitled to do, the trial judge accepted the experienced arresting officers
    evidence that marijuana has a strong pungent odour and that he could smell it
    on the day in question. In doing so, the trial judge was clearly rejecting trial
    counsels suggestion that it was implausible that the arresting officer had smelled
    wrapped marijuana inside a backpack. Having rejected the sole basis for trial
    counsels challenge to the smell evidence, the trial judge concluded that he
    had no reason to reject the arresting officers testimony. Simply put, before
    accepting the arresting officers evidence, the trial judge considered and
    rejected the challenge that had been made to it. He was not obliged to say
    more.

[17]

Nor was the trial judge obliged to demonstrate in
    his reasons that he had considered that smell evidence can be highly subjective
    and suspect. In
R. v. Gravesande
, 2015 ONCA 774, 128 O.R. (3d) 111, at
    para. 40, Pardu J.A. was rightly critical of the trial judges failure to
    allude to this concern where there was a case-specific reason to doubt an officers
    smell evidence. Specifically, two correctional officers who had interacted with
    Mr. Gravesande only moments earlier had not smelled the odour of marijuana that
    a third correctional officer claimed to have smelled. Moreover, Pardu J.A. raised
    this point as one of several examples from the trial judges reasoning that
    reflected his uneven scrutiny of the evidence. Similar concerns are not present
    in the appeal before us.

[18]

Finally, we do not accept appeal counsels
    submission that the trial judge engaged in circular reasoning. We do not
    interpret the trial judges reasons, at para. 21, as stating that the arresting
    officer must have smelled marijuana or else he could not have arrested the
    appellant. Rather, the trial judges comments must be read in the context of
    trial counsels submission on smell. It thus becomes apparent that in the
    impugned passage the trial judge was rejecting the suggestion that the
    arresting officer had not smelled the marijuana until he had already arrested and
    detained the appellant. The trial judges point was the arresting officers objective
    in calling the appellant over in order to obtain the grounds for his arrest, supported
    his testimony that he secured the grounds  the smell  before arresting the
    appellant.

Relying on Neutral Behaviours

[19]

Appeal counsel was correct in not pressing the second
    ground of appeal listed above, which was based on the contention that the
    behaviours observed by the officers were neutral and thus not objective indicia
    of a drug transaction.

[20]

The relevant series of events included: the
    conduct of the driver upon arrival; the pickup of the appellant on a public
    road rather than out front of the building he came from; the otherwise
    pointless movement of the vehicle to a secluded area after the pickup; the
    apparent hand-off of something within the vehicle from the appellant, who was carrying
    a backpack; and the short duration of the meeting. The trial judge was entitled
    to accept the testimony of experienced drug officers that, viewed together, this
    series of events was consistent with a drug trafficking transaction.

[21]

We are satisfied that the cumulative behaviours
    of the parties, coupled with the smell of marijuana coming from the appellant
    immediately after departing the vehicle, provided reasonable and probable
    grounds for arresting and searching the appellant.

The Character of the Neighbourhood

[22]

Appeal counsel was also correct not to press the
    argument, advanced in the appellants factum, that the arresting officers
    grounds were undermined by his reliance on the fact that these events occurred
    in a low-income, high-crime area.

[23]

We agree that ones mere presence in a high-crime
    area is not an objective indicium that one is involved in criminal activity:
R.
    v. O.N.
, 2009 ABCA 75, 448 A.R. 253, at para. 40, citing
R. v. Mann
,
    2004 SCC 52, [2004] 3 S.C.R. 59, at para. 47. As such, the arresting officer
    should not have considered this factor in determining his grounds for arrest. However,
    as indicated, based on the remaining grounds the arresting officer considered,
    his conclusion that he had reasonable and probable grounds to arrest the
    appellant was objectively reasonable.

[24]

We do not accept that the arresting officers
    reliance on the fact that the apparent transaction occurred on the Proudfoot
    Lane apartment complex constituted discrimination based on perceived class,
    thereby contaminating and undermining the arresting officers subjective
    grounds. The arresting officer found relevance in his knowledge that the Proudfoot
    Lane apartment complex was a high-crime area, not that it was a low-income area.
    He mentioned the low rents in the buildings when explaining why it is common
    for the apartments to be used as drug stash houses. We see no indication that
    he relied on the alleged poverty of the neighbourhood as an indicium of
    criminal activity.

[25]

Had the arresting officer done so, or had he
    expressed suspicion of criminal activity because the area was low-income, closer
    consideration of the appellants submission on this point may have been
    warranted. That submission, by analogy to this courts racial-profiling
    decision in
R. v. Dudhi
, 2019 ONCA 665, 147 O.R. (3d) 546, is that reliance
    on discriminatory stereotypes about poverty and crime should be treated as
    tainting, and therefore undermining, an officers subjective grounds for
    interfering with the liberty of a suspect. In the circumstances of this appeal,
    however, we need not address this matter.

CONCLUSION

[26]

On the evidence, the trial judge was entitled to
    find that the arresting officer had subjective grounds to believe there was a
    credibly-based probability that the appellant had engaged in drug trafficking,
    and that the arresting officers belief was objectively reasonable.

[27]

The appeal is therefore dismissed.

C.W. Hourigan J.A.

David M. Paciocco J.A.

B. Zarnett J.A.