R. v. Prebtani (A.), 2008 ONCA 735

• Judge: Rosenberg, Feldman and MacPherson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 26, 2008
• Jurisdiction: Ontario
• Citations: 2008 ONCA 735;(2008), 243 O.A.C. 207 (CA)

R. v. Prebtani (A.) (2008), 243 O.A.C. 207 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. OC.088

Her Majesty the Queen (respondent) v. Ally Prebtani (appellant)

(C39591; 2008 ONCA 735)

Indexed As: R. v. Prebtani (A.)

Ontario Court of Appeal

Rosenberg, Feldman and MacPherson, JJ.A.

October 27, 2008.

Summary:

The Ontario Superior Court convicted the accused of assault, assault with a knife and uttering a death threat. The accused appealed, arguing that he received ineffective assistance of counsel at his trial. The accused also argued that the court erred in excluding certain evidence, misapprehending important Crown evidence, and using inadmissible hearsay for the truth of its contents.

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 - The Ontario Court of Appeal held that an appeal based upon alleged ineffective assistance of counsel had a performance component and a prejudice component - For an appeal to succeed, the appellant had to show "that counsel's acts or omissions constituted incompetence and second, that a miscarriage of justice resulted" - The test for establishing incompetence was a strict one: the appellant had to show that the acts or omissions of counsel could not "have been the result of reasonable professional judgment" - There were two ways in which counsel's performance could result in a miscarriage of justice: procedural unfairness or an unreliable verdict - See paragraphs 3 to 5.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The trial judge convicted the accused of assault, assault with a knife and uttering a death threat - The victim was the accused's wife - The accused and the wife argued in the home, the car and public places - Some of the offences occurred when the victim complained to the accused that their condominium was too sparsely furnished and that he had transferred the title of a property to his father just before the marriage - One assault took place at Future Shop - The trial judge preferred the wife's evidence to the accused's - The accused appealed, arguing that he received ineffective assistance of counsel - Counsel's alleged incompetent acts included the following: (1) failure to use a sales receipt to confront the victim respecting the dates of purchase and delivery of furniture; (2) failure to object to the victim's father's testimony as to what she told him about the assault and the threat; (3) failure to confront the victim with documentation that established that the property had, until the transfer, actually been held by the accused and his father jointly; (4) failure to call evidence of good character; (5) failure to obtain the accused's version of the incidents; (6) failure to understand the collateral fact rule and resulting failure to make submissions when the Crown objected to the evidence of the accused's young cousin - The Ontario Court of Appeal dismissed the appeal where the reliability of the verdict had not been affected - See paragraphs 1 to 133.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The trial judge convicted the accused of assault, assault with a knife and uttering a death threat - The victim was the accused's wife - The accused appealed, arguing that he received ineffective assistance of counsel at his trial - Specifically, the accused submitted that a miscarriage of justice occurred because counsel's ineffective representation undermined the appearance of fairness of the trial - This submission turned principally on counsel's standing with the Law Society of Upper Canada - At the time of the trial, counsel had been suspended from practice for failure to maintain records in accordance with Law Society regulations - The Ontario Court of Appeal dismissed the appeal where counsel's ability to effectively represent the accused was not impaired as a result of his disqualification - See paragraphs 134 to 143.

Civil Rights - Topic 4620.1

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

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - [See third Civil Rights - Topic 3158 ].

Cases Noticed:

R. v. G.D.B. (2000), 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 143 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 3].

R. v. Davies (I.T.P.) (2008), 234 O.A.C. 291; 2008 ONCA 209, consd. [para. 4].

R. v. Profit (K.G.), [1993] 3 S.C.R. 637; 159 N.R. 395; 68 O.A.C. 37, consd. [para. 110].

R. v. Pargelen (G.) (1996), 95 O.A.C. 200; 112 C.C.C.(3d) 263 (C.A.), refd to. [para. 130].

R. v. W.W. and L.W. (1995), 84 O.A.C. 241; 100 C.C.C.(3d) 225; 25 O.R.(3d) 161 (C.A.), consd. [para. 140].

Counsel:

Mark J. Sandler, for the appellant;

Sandra Kingston, for the respondent.

This appeal was heard on May 26, 2008, by Rosenberg, Feldman and MacPherson, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Rosenberg, J.A., and released on October 27, 2008.