R. v. Qiu (X.D.), 2010 ONCA 736

• Judge: Feldman, Lang and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 21, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONCA 736;(2010), 268 O.A.C. 352 (CA)

R. v. Qiu (X.D.) (2010), 268 O.A.C. 352 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. NO.004

Her Majesty the Queen (respondent) v. Xiao Dan Qiu (appellant)

(C51403; 2010 ONCA 736)

Indexed As: R. v. Qiu (X.D.)

Ontario Court of Appeal

Feldman, Lang and LaForme, JJ.A.

November 3, 2010.

Summary:

The accused appealed from her convictions for possession and trafficking arising from a marijuana cultivation operation that the police discovered in the basement of her house when responding to a 911 call. The accused's position was that she had rented the basement to a tenant and had no knowledge that he was using it to cultivate marijuana. The accused did not testify at trial. The accused's primary ground of appeal was that her trial counsel provided her with ineffective assistance. She alleged that the decision that she not testify was in effect made by counsel and not by the accused, and a miscarriage of justice resulted therefrom. In the alternative, the accused argued that trial counsel's advice not to testify amounted to incompetence, as did his failure to call certain evidence.

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 accused appealed from her convictions for possession and trafficking arising from a marijuana cultivation operation that the police discovered in her basement when responding to a 911 call - The accused's position was that she had rented her basement to a tenant and had no knowledge that he was using it to cultivate marijuana - In support of that position, the accused's counsel filed as exhibits a purported tenancy agreement with a Mr. Feng and a Notice of Hearing of eviction - The accused did not testify - The accused's primary ground of appeal was that her trial counsel provided her with ineffective assistance - She alleged that the decision that she not testify was in effect made by counsel, not the accused, and a miscarriage of justice resulted therefrom - In the alternative, the accused argued that trial counsel's advice not to testify amounted to incompetence, as did his failure to call certain evidence - The accused's allegation that trial counsel failed to effectively advise her of her right to testify relied largely on attacking the competence of the interpreter provided by trial counsel who translated between English and Mandarin - The Ontario Court of Appeal dismissed the appeal - The accused failed to establish the material facts necessary to support her allegation of ineffective assistance of counsel on the balance of probabilities - Her evidence was not consistent with, inter alia, the absence of any complaint about the interpreter's translation - Trial counsel's evidence was that he had used this accredited interpreter without complaint for years and he gave evidence of a specific discussion with the accused about her right to testify and her response, "better if I don't" - The accused did not shake that evidence on cross-examination - The accused failed to establish that trial counsel's advice that she not testify amounted to ineffective assistance by counsel - The court also gave no weight to the accused's argument that trial counsel failed to call other pertinent evidence.

Civil Rights - Topic 4620.1

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

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - [See Civil Rights - Topic 3158 ].

Criminal Law - Topic 4784

Procedure - Counsel - Duties and powers of - Respecting evidence - [See Civil Rights - Topic 3158 ].

Criminal Law - Topic 4852

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

Cases Noticed:

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), leave to appeal refused (1997), 208 N.R. 79; 99 O.A.C. 79 (S.C.C.), refd to. [para. 6].

R. v. R.W.A. (2005), 203 O.A.C. 56 (C.A.), consd. [para. 6].

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. 8].

Counsel:

Edward F. Hung, for the appellant;

Rick Visca, for the respondent.

This appeal was heard on September 21, 2010, before Feldman, Lang and LaForme, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Lang, J.A, and was released on November 3, 2010.