R. v. Joanisse (R.), (1995) 85 O.A.C. 186 (CA)

• Judge: Robins, Doherty and Austin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 03, 1995
• Jurisdiction: Ontario
• Citations: (1995), 85 O.A.C. 186 (CA);1995 CanLII 3507 (ON CA);1995 CanLII 3507 (NS CA);102 CCC (3d) 35;44 CR (4th) 364;[1995] OJ No 2883 (QL);28 WCB (2d) 471;85 OAC 186

R. v. Joanisse (R.) (1995), 85 O.A.C. 186 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Richard Joanisse (appellant)

(C7137)

Indexed As: R. v. Joanisse (R.)

Ontario Court of Appeal

Robins, Doherty and Austin, JJ.A.

October 3, 1995.

Summary:

The accused was convicted of second degree murder following a jury trial and was sentenced to life imprisonment without eligibility for parole for 10 years. The accused appealed the conviction. On the basis of fresh evidence, the accused claimed that he was so impaired by prescription drugs during the trial that he could not meaningfully participate in the trial or effec­tively instruct counsel. Further, alcohol consumption on the last day of trial exacer­bated his condition and rendered him incapable of testifying. The accused claimed that his lawyer's decision to proceed with the trial, where he knew or ought to have known of his impairment, denied the accused effec­tive legal assistance. Alternatively, even if impairment was rejected, the accused claimed he was still denied effective legal assistance at trial.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - Counsel for an accused charged with sec­ond degree mur­der repeatedly advised him to testify at trial; that a conviction was certain if he did not testify - Counsel knew, for some time, of the accused's reluctance to testify - At lunch, on the last day of the Crown's case, the accused said he would not testify - Counsel again advised him of the need to testify and the consequences if he did not - Counsel was hopeful that he would testify once they returned to court - When the Crown closed its case, a short break was taken and the accused advised that he would not testify - Counsel opined that the decision was irrevocable and did not seek an ad­journment or longer break to try alternative methods of convincing the accused to testify - The Ontario Court of Appeal stated that counsel's conduct did not fall below the reasonableness standard and did not constitute incompetent repre­sentation - See paragraphs 120 to 131.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Ontario Court of Appeal stated that courts should take a cautious approach to allegations on incom­petence of trial coun­sel - The accused must establish the facts on which the claim of incompetence is based, that trial counsel was incompetent and that the incompe­tence resulted in a miscarriage of justice - The court stated that "incompetence is determined by a reasonableness standard measured by reference to counsel's per­formance in the particular circumstances of the case and from the point in time when counsel made the decisions challenged on appeal. The wisdom of hindsight has no place in this assessment. This approach also recognizes that in many situations counsel will have a wide range of options any of which, if taken, will constitute competent represen­tation. Appellate courts must give defer­ence to the choices made by counsel and the competence assessment must be informed by a presumption in favour of competence." - See paragraphs 66 to 72.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Ontario Court of Appeal rejected the submission that the "reasonableness stan­dard" of testing trial counsel's representa­tion was too uncertain and subjective and should give way to a predetermined cata­logue of conduct said to be essential to competent performance - The court stated that using the latter stand­ard "the court would quickly become involved in a never ending process of adjusting those predeter­mined standards to the facts of the par­ticular case. In short, the court would be required to consider the reasonableness of counsel's conduct. The reasonableness standard properly reflects the fact specific inquiry demanded by incompetence claims." - See paragraph 73.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Ontario Court of Appeal stated that "counsel's failure to meet competence standards does not auto­matically lead to a reversal of a conviction. The ultimate purpose of the appellate inquiry is not to grade counsel's perfor­mance, but to deter­mine whether a miscar­riage of justice occurred. The third and final component of this court's approach to allegations of incompetent representation at trial pre­sumes a finding of incompetence and looks to the effect of that incompe­tence on the fairness of the trial proceed­ings. This inquiry examines the nature and serious­ness of counsel's errors both from the perspective of the reliability of the verdict and the adjudicative fairness of the process leading to the verdict. If counsel's incom­petence rendered the verdict unreli­able or the process unfair, then the appel­lant has demonstrated that he received ineffective assistance resulting in a denial or the right to a fair trial and a miscarriage of justice." - See paragraph 74.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - An accused ap­pealed his second degree murder con­vic­tion on the ground of inef­fective legal assistance at trial - The Ontario Court of Appeal stated that, as­suming the accused established a lack of effective assistance by counsel, "the [accused] must show that, had he received competent legal represen­tation, there is a real probability that the [accused] would not have been convicted ... A reasonable probability lies somewhere between a mere possibility and a likeli­hood. A reasonable probability is estab­lished when the review­ing court is satisfied that because of coun­sel's incompetence, the verdict cannot be taken as a reliable as­sessment of the [ac­cused's] culpability." - See paragraph 80.

Civil Rights - Topic 4620.1

Right to counsel - Right to effective as­sistance by counsel - [See all Civil Rights - Topic 3158 ].

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - The accused ap­pealed his second degree murder con­vic­tion on the ground that he was so impaired during the trial by prescription drugs (Valium and chlorpromazine) that he was unable to meaningfully participate in the trial, effectively instruct counsel or testify on his own behalf - The Ontario Court of Appeal stated that the accused's evidence was not reasonably capable of belief, that it "smacks of fabrication" - See para­graphs 22 to 55.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evi­dence - An accused appealed his second degree murder conviction on the ground of ineffective legal assistance at trial - The accused sought admission of fresh evi­dence - The Ontario Court of Appeal admitted the evidence - The fresh evi­dence was not respecting an issue litigated at trial, but an issue raised for the first time on appeal (validity of the trial pro­cess) - The interests of justice required that fresh evidence relevant to the allega­tion be admitted - The interests of justice equally required that the Crown be per­mitted to challenge the fresh evidence and be permitted to tender their own additional evidence relevant to the same allegation - See paragraphs 17 to 19.

Practice - Topic 9031

Appeals - Evidence on appeal - Admis­sion of "new evidence" - [See Criminal Law - Topic 4970 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 14 C.R.(3d) 22 (Eng.); 17 C.R.(3d) 34 (Fr.); 50 C.C.C.(2d) 193, refd to. [para. 17].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46; 62 C.R.(3d) 313; 40 C.C.C.(3d) 1; [1988] 3 W.W.R. 193, refd to. [para. 17].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241 (C.A.), refd to. [para. 18].

R. v. Silvini (1991), 50 O.A.C. 376; 68 C.C.C.(3d) 251 (C.A.), refd to. [para. 21].

R. v. Collier (1992), 59 O.A.C. 76; 77 C.C.C.(3d) 570 (C.A.), refd to. [para. 34].

R. v. Irwin, [1987] 1 W.L.R. 902 (C.A.), refd to. [para. 60, footnote 1].

R. v. Garofoli et al. (1988), 27 O.A.C. 1; 41 C.C.C.(3d) 97 (C.A.), refd to. [para. 63].

United States v. Cronic (1984), 104 S.Ct. 2039 (U.S.S.C.), refd to. [para. 64].

Strickland v. Washington (1984), 104 S.Ct. 2052 (U.S.S.C.), refd to. [para. 66, foot­note 4].

Nix v. Whiteside (1986), 106 S.Ct. 988 (U.S.S.C.), refd to. [para. 66, footnote 4].

Kimmelmann v. Morrison (1986), 106 S.Ct. 2574 (U.S.S.C.), refd to. [para. 66, footnote 4].

Lockhart v. Fretwell (1993), 113 S.Ct. 838 (U.S.S.C.), refd to. [para. 66, footnote 4].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1; 63 C.R.(3d) 133 (C.A.), refd to. [para. 66, footnote 4].

R. v. McKellar (T.J.) (1994), 72 O.A.C. 398; 19 O.R.(3d) 796 (C.A.), refd to. [para. 66].

United States v. Decoster (1976), 624 F.2d 196 (D.C. Cir.), refd to. [para. 67].

R. v. Sarson (L.W.) (1992), 115 N.S.R.(2d) 445; 314 A.P.R. 445; 77 C.C.C.(3d) 233 (C.A.), refd to. [para. 71].

R. v. Brigham (T.B.) (1992), 52 Q.A.C. 241; 79 C.C.C.(3d) 365 (C.A.), refd to. [para. 71].

R. v. Morrissey (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 75].

R. v. Hertrich (1982), 67 C.C.C.(2d) 510 (Ont. C.A.), refd to. [para. 75].

R. v. Cook (1980), 53 C.C.C.(2d) 217 (Ont. C.A.), refd to. [para. 76].

R. v. Dunbar (1982), 68 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 77].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 683(1) [para. 17].

Authors and Works Noticed:

Gilles, S., Effective Assistance of Counsel: The Sixth Amendment and the Fair Trial Guarantee (1983), 50 U. Ch. L.R. 1380, pp. 1401 to 1402 [para. 67].

Law Society of Upper Canada Special Lectures, Defending a Criminal Case, "Problems in Ethics and Advocacy" (1969), p. 284 [para. 60, footnote 1].

Martin, G.A., The Role and Responsibility of the Defence Advocate (1970), 12 Crim. L.Q. 376, pp. 382 to 388 [para. 60, footnote 1].

Tanovich, D., Charting the Constitutional Right to Effective Assistance of Counsel in Canada (1994), 36 Crim. L.Q. 404, generally [para. 63, footnote 2].

Counsel:

Edward Greenspan and Alison Wheeler, for the appellant;

David Butt and Alexander Alvaro, for the respondent.

This appeal was heard on June 29-30, 1995, before Robins, Doherty and Austin, JJ.A., of the Ontario Court of Appeal.

The judgment of the Ontario Court of Appeal was released on October 3, 1995, and the following opinions were filed:

Doherty, J.A. - see paragraphs 1 to 119;

Austin, J.A. (Robins, J.A., concurring) - see paragraphs 120 to 131.