R v Isernia, 2016 ABQB 521

Court of Queen’s Bench of Alberta Citation: R v Isernia, 2016 ABQB 521 Date: 20160920 Docket: 141374694S1 Registry: Calgary Between: Brandon Alexander M. Isernia Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Decision of the of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ Appeal from the Conviction and Sentence by The Honourable Judge MTC Tyndale Convicted on the 29 th day of October, 2015 ( Docket: 141374694P1) I. Introduction [ 1 ] The Appellant Brandon Alexander M.

Isernia appeals his conviction and sentence on charges of assault causing bodily harm, assault with a weapon and disobeying a court order on the following 2 bases:

(

a) the learned Provincial Court judge erred in denying the Appellant an adjournment following the Appellant’s receipt of late disclosure from the Crown; and (

b) the incompetence of the Appellant’s trial counsel. II. Background [ 2 ] The trial was heard on June 12, 2015. During the trial, the Crown called 3 witnesses, being a police officer and the 2 victims. Immediately following the presentation of this testimony, the Appellant advised his counsel that there were photographs in existence that show the injuries he sustained during his encounter with the victims.

The police had taken these photographs a few days after the offence date, at the Appellant’s request. [ 3 ] The Crown had not disclosed these photographs to the Appellant or his counsel, and it did not even know at that time, that they existed. The Appellant’s trial counsel said the following during the discussion concerning the photographs: ... [T]he way I think we can deal with it is if those pictures actually exist then probably we can put them in by consent, my friend and I, I think. I might need Mr. Isernia to comment on those photos to an extent, though.

Transcript of Proceedings June 12, 2015, p 95, ll 10-12. [ 4 ] The Appellant’s counsel had never asked the Crown for the photographs and, in fact, the Appellant had not even told his counsel that the photographs existed until the lunch break, which occurred near the end of the Appellant’s counsel’s cross-examination of the Crown’s last witness. In other words, the Appellant knew about the existence of the photographs, but did not request their disclosure. [ 5 ] Interestingly, the Appellant’s counsel did not request an adjournment.

It was the Crown who first suggested that this might be an option: see Transcript of Proceedings June 12, 2015, p 97, ll 23-26. The Court picked up on this when it said that “[e]ffectively this is a defence adjournment [application]”: Transcript of Proceedings June 12, 2015, p 97, l 41, p 98, l 1. The PCJ then denied this “application for an adjournment” and said the following: The Crown has made a concession that seems to me to be a fair compromise, that is he will make efforts to determine if these pictures exist and if they’re still in the possession of the Crown – or police.

And if they are, he’ll attempt to get them given to him and then disclose them immediately to the accused and by agreement to admit their – or to agree to their admissibility as exhibits, even though the trial is technically finished by the time ... Transcript of Proceedings June 12, 2015, p 98, ll 3-8. [ 6 ] After the Appellant testified, the trial concluded and the PCJ invited the parties to provide him with written submissions.

In his written submissions, the Appellant’s counsel included 3 of the photographs, which were the subject of the foregoing discussion, which showed the Appellant’s injuries, which were part of his self-defence argument. [ 7 ] Before he rendered his decision in this matter, the PCJ addressed the matter of the photographs as follows: THE COURT: All right. Before we begin, to complete the record there was, in the course of trial - I think in Mr. Isernia's evidence - evidence of photographs taken by police sometime after the event.

In the course of defence submissions, witness submissions, I was provided with a package of three photographs of Mr. Isernia and to complete the record I think we ought to make those the next exhibit. Are we agreed, counsel? [ 8 ] The Appellant’s trial counsel agreed. III. Discussion A. Standard of Review [ 9 ] Before dealing with the substantive issues the Appellant brings before it, this Court will examine the standard of review that it must apply when dealing with this appeal. This Court may allow an appeal of a

summary conviction for the reasons set out in Criminal Code s 686, which by Criminal Code s 822(1), are made applicable to

summary conviction appeals. Those provisions state: 686.

(1) On the hearing of an appeal against a conviction …, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (

b) may dismiss the appeal where

(

i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, wasproperly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellantwas convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby 1.

The verdict is unreasonable and cannot be supported by the evidence; 2. The decision was wrong on a question of law unless the court is of the opinion that no substantial wrong or miscarriage of justice hasoccurred; and 3. There was a miscarriage of justice. 822.

(1) Where an appeal is taken under

section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require. [10] By Criminal Code s 813, the Appellant is permitted to appeal his conviction and sentence to this Court. [11] In Canada, a question of law is to be reviewed on a standard of correctness, while a question of fact is to be reviewed on astandard of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235 [Housen].

A question ofmixed fact and law is to be reviewed on a standard of palpable and overriding error: Housen at paras 26-36. A question of mixed factand law with an extricable error in principle can be characterized as an error of law. An extricable error in principle is one that "can beattributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or a similar error inprinciple": Housen at para 36.

See also R v Shepherd, 2009 SCC 35, [2009] 2 SCR 527. [12] The Alberta Court of Appeal recently confirmed these standards of review in R v Meer 2015 ABCA 141 [Meer], in which themajority said the following: Trial judges have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in theirassessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown's case is made out, overall, beyond areasonable doubt ...

A trial judge's findings of credibility and of fact are entitled to great deference, and should only be interfered with onappeal if they are unreasonable, or in other words if they display palpable and overriding error ... Meer at para 8 [citations excluded]. B. Whether the PCJ erred in denying the adjournment [13] As mentioned earlier, it is unclear whether the Appellant’s trial counsel even sought an adjournment, or whether the PCJconsidered the issue sua sponte by inferring that the Appellant’s trial counsel was seeking one.

In either case, the PCJ has discretionwhether to grant or deny the motion for an adjournment. This Court addressed the issue of motions for adjournment in R v Travis, 2012ABQB 629 at paras 61-63, where it said the following: Whether a trial judge agrees to grant an adjournment is a matter of judicial discretion. In R. v. Toor, 2001 ABCA 88 , 2001CarswellAlta 408 (Alta. C.A. [In Chambers]) at para 15, 2001 ABCA 88 (Alta.

C.A. [In Chambers]) [Toor] the Alberta Court of Appealsaid, "[t]he granting of adjournments and the exercise of judicial discretion are generally afforded a considerable degree of deference,and the law is well established in the area." See also R. v. Darville, (SCC), 1956 CarswellOnt 28 (S.C.C.) at para 7,(1956), 116 C.C.C. 113 (S.C.C.) [Darville]. However, if this Court finds that the learned Provincial Court judge exercised his discretion improperly or in a manner that was notjudicious, it would have jurisdiction to address this issue, as it would be dealing with a question of law. In Darville ibid.

Taschereau J.said: I do not feel that it is essential in the present case to determine if the trial judge exercised his discretion in refusing the postponement ofthe trial in order to allow the appellant to subpoena his witness. If it were a proper exercise of discretion, I am satisfied that this exerciseof discretion would not be reviewable by this Court...as it would be without jurisdiction, the question being a question of fact. If thediscretion of the learned trial judge was not exercised in a judicial way, then this Court would have jurisdiction, as it would be dealingwith a question of law.

What constitutes the learned Provincial Court judge "acting judiciously "? In R. v. Dang, 2005 ABCA 441, 2005 CarswellAlta 1877(Alta. C.A.) at para 11, Costigan J. said: An adjournment decision is discretionary and must be accorded deference absent an error in principle. [14] As mentioned earlier, the Appellant was aware of the photographs, but did not advise his trial counsel until almost the end ofthe Crown’s case.

In fact, as part of his discussion concerning the photographs, the Appellant’s trial counsel said the following: I asked my client for a full accounting of relevant things related to this matter and he wrote it down for me. In conversations over thelunch hour he disclosed to me that he had actually had police attend I think at his ... parent’s address a few days later and take pictures ofthe injury that he received – that he says was received by dealing with this bat, defensive injuries ....

Transcript of Proceedings June 12, 2015, p 94, l 41, p 95 ll 1-9. [ 15 ] Thus, the Appellant was not only the subject of the outstanding disclosure, the photographs were created at his request. He had knowledge of their existence yet did not communicate this to his trial counsel until mid-way through trial, more than 6 months after the offence date. [ 16 ] Furthermore, the PCJ proposed a reasonable solution by allowing the photographs to be submitted in whatever form the parties chose, and to comment on them.

He did not deny the Appellant from providing any commentary or argument in respect of the photographs, and the Appellant’s trial counsel actually addressed the substance of the photographs in his written submissions. As well, nowhere in the transcript does it appear that the PCJ denied the parties the opportunity to recall witnesses if they felt there was a need so to do. [ 17 ] Accordingly, this Court finds that the PCJ committed no error in law by denying the adjournment application, if there was one. This ground of appeal is dismissed. C.

The Competence of the Appellant’s Trial Counsel [ 18 ] Why is this an issue? The answer to this question lies in the concern of when an accused person is represented by incompetent counsel. The Alberta Court of Appeal said the following: "Incompetence of counsel" is best analyzed as a component of the right to a fair trial, and the right to make full answer and defence to the charges ... A demonstration of incompetence is obviously a necessary foundation to this argument, but proving incompetence in the abstract is insufficient ... The essence of the argument is that there has been an unfair trial.

As it was stated in R v. Ryan , 20 12 NLCA 9 (N.L.C.A.) at para.124: The standard of counsel competence to which an accused is entitled is therefore grounded in results : was there a miscarriage of justice resulting from procedural unfairness or lack of "reliability of the trial's result" brought about by a level of representation that was below reasonable professional judgment. Meer at para 43 [emphasis in original, citations excluded]. [ 19 ] What did the court mean when it referred to a “miscarriage of justice” in this context?

The British Columbia Court of Appeal explained it as follows in R v Aulakh , 2012 BCCA 340 [ Aulakh ] at paras 42-43 : A miscarriage of justice will occur where there is a reasonable probability or reasonable possibility (the terms are used interchangeably in the jurisprudence) that "but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome" ... The standard of reasonable probability/possibility falls somewhere between a mere possibility and a likelihood ...

A miscarriage of justice will also occur where counsel's performance was so incompetent as to have undermined the "fairness of the adjudicative process" ... Thus, prejudice occurs where a reasonable probability is established that professional error resulted in an unreliable verdict or in an unfair adjudicative process. [ 20 ] It went on to say the following: Appellate courts are not courts of second instance.

The high standard of review for appellate intervention on allegations of ineffective assistance of counsel is necessary in order to limit such appeals to those which demonstrate tangible prejudice or procedural unfairness resulting in a miscarriage of justice. The appellant is unable to meet that standard in these circumstances. Accordingly, I would dismiss the appeal and the application to adduce fresh evidence.

Aulakh at para 90 . [ 21 ] In R v Le , 2011 MBCA 83 [ Le ], Scott CJM for the Manitoba Court of Appeal provides a roadmap of how courts must deal with allegations of counsel’s competence, when it said the following: ... [B]efore a court will find incompetency affecting the reliability of the verdict, certain prerequisites must be met. These prerequisites include a factual component (is there a factual foundation to the claim), a prejudice component (is there a miscarriage of justice) and a performance component (is there actual incompetence).

As the Supreme Court of Canada said in B. (G.D.) at para. 29, there is no need to evaluate the performance component if the prejudice component has not been proven. In order to determine whether an appeal will be successful on this ground, the following analysis must be undertaken:

(1) The factual component: an appellant must establish, on a balance of probabilities, the facts on which the claim of incompetency is based. If that is not established, there is no need to go any further.

(2) The prejudice component: if the factual foundation has been made out, the court will, for the purposes of this component, assume incompetence on the part of counsel. ... At this stage, an appellant must establish, on a balance of probabilities, that the presumed incompetence resulted in a miscarriage of justice. If it did not, there is no need to go any further.

(3) The performance component: if it is determined that the reliability of the verdict was affected by the presumed incompetence, the court will then consider whether the actions of counsel were, in fact, incompetent. At this stage of the analysis, the presumption reverts to "a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance" and the onus falls on an appellant to establish that it did not ... Again, that analysis is conducted without the benefit of hindsight. Le at para 189.

[22] This Court finds it useful to discuss each of these components individually. 1. The Factual Component [23] In Le, Scott CJM said the following with respect to the facts on which the claim of incompetency is based:

(1) It is an appellant who bears the onus of submitting evidence to establish the factual foundation underlying the allegation.

(2) Unless the trial transcript (unusually) reveals everything about the allegation, it is expected that appeal counsel will make inquiries oftrial counsel and apply to present evidence from trial counsel in response.

(3) Where the trial transcript and circumstances surrounding the allegation raise a concern about incompetent representation, courts aregenerally willing to order evidence to be taken from trial counsel prior to making a decision respecting the allegation.

(4) However, where the court is satisfied from the trial transcript and other circumstances that no valid concern has been raised, the courtwill generally determine at this preliminary stage that an appellant has failed to provide the necessary factual foundation.

(5) In more practical terms, just because an appellant has sworn to some facts in an affidavit does not automatically mean that a primafacie case has been raised requiring an answer from trial counsel. It all depends on the circumstances. Le at para 178. [24] How does the Appellant submit evidence to meet this onus? In the first instance, the transcript of the proceedings will providesome of that evidence.

If the transcript of the proceedings does not demonstrate the trial counsel’s incompetence, the Appellant will needto provide evidence of his trial counsel or some other cogent evidence: Le at para 81; R c Delisle (1999), (QC CA),133 CCC (3d) 541at para 15 (CA Que).

The Alberta Court of Appeal was more specific concerning how the Appellant must present thiscomponent, when it said the following: We note an increasing tendency on the part of appellate counsel to allege ineffective representation at trial without affording trialcounsel the opportunity to respond to that allegation and explain the trial strategy, limitations and instructions. An attack on a lawyer'scompetence strikes at the heart of that lawyer's practice and professional reputation.

Kelly J.A. of the Ontario Court of Appealconsidered this issue in the following terms: I consider it most unfortunate that any counsel, carried away by his enthusiastic support of his client's cause, should permit himself, byreason of his client's instructions, to make allegations inferring unjust conduct on the part of the Court, or unprofessional conduct on thepart of brother solicitors without first satisfying himself by personal investigations or inquiries that some foundation, apart from hisclient's instructions, existed for making such allegations.

His duty to his client does not absolve a solicitor from heeding his duty to theCourt and to his fellow solicitors. R. v. Elliott (1975), (ON CA), 28 C.C.C. (2d) 546 (Ont. C.A.), at 549. It would be inappropriate for this court to rule on whether the representation provided by trial counsel was ineffective or inadequate,absent an opportunity for input from that counsel. The nature of the onus on the accused also supports the need for evidence from trial counsel. There is a: strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.

The onus is on the appellantto establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdomof hindsight has no place in this assessment. R. v. B. (G.D.), [2000] 1 S.C.R. 520, 2000 SCC 22 (S.C.C.), at para. 27. R v C(LS), 2003 ABCA 105 at paras 30-31. [25] The Appellant goes through the facts, as this Court has outlined above, which it took from the transcript. This Court finds thatthe transcript alone does not point to any incompetence on the part of the Appellant’s trial counsel.

Thus, it behooves the Appellant toproffer evidence to show his trial counsel’s incompetence, or at least evidence that will assist this Court in determining whether suchincompetence existed. The Appellant has not filed an affidavit. Nor has his trial counsel been given an opportunity to respond to theallegations of incompetence, or to explain his trial strategy, limitations and instructions.

The Appellant has not applied to this Court forleave to admit fresh evidence regarding his version of events or his instructions to his trial counsel. [26] The Appellant must establish, on a balance of probabilities, the facts on which the claim of incompetency is based.

Absentrepresentations from the Appellant and trial counsel, the Appellant has not provided the Court with the required evidential foundation todetermine whether counsel's conduct fell into the realm of incompetence leading to a miscarriage of justice. [27] The Manitoba Court of Appeal in Le said that if the Appellant fails to establish the factual component, viz, the facts on whichhe claims his trial counsel’s incompetency, this Court need go any further. [28] Accordingly, this Court dismisses this ground of appeal. 2.

The Prejudice Component [29] Despite this Court’s holding that the Appellant’s appeal is dismissed, it will briefly comment on the other 2 factors that theManitoba Court of Appeal articulated in Le. The prejudice factor is the next.

[ 30 ] In Meer , the Alberta Court of Appeal confirmed the test for the prejudice component that the British Columbia Court of Appeal articulated in Aulakh , when it said the following: 52 The prejudice component of the test also presents a difficult hurdle. It requires the appellant to establish a reasonable probability that the ineffective assistance of counsel caused prejudice that resulted in a miscarriage of justice. The miscarriage of justice may be an unreliable verdict or an unfair adjudicative process.

However, absent a link between the demonstrated professional incompetency of trial counsel and prejudice to the appellant, there can be no miscarriage of justice. ... 90 Appellate courts are not courts of second instance. The high standard of review for appellate intervention on allegations of ineffective assistance of counsel is necessary in order to limit such appeals to those which demonstrate tangible prejudice or procedural unfairness resulting in a miscarriage of justice.

Meer at para 43 , quoting Aulakh at paras 52, 90 . [ 31 ] The finding of a “link” is made particularly difficult when this Court has found no factual foundation for the allegation of trial counsel’s incompetence. a. Unreliable Verdict [ 32 ] Among other things, the PCJ made certain findings of fact, based on the credibility of the key witnesses, being the Appellant and the complainant who suffered the injuries. He said the following: Mr. Isernia's testimony was given in a glib manner. His answers struck me as convenient and practised. There was no independent corroboration of any of his testimony.

Mr. lsernia testified that he had received defensive wounds to his left forearm when he struggled to disarm Mr. Bratz of the bat. In support of this, Mr. lsernia tendered - with consent of the Crown - three pictures taken of his arms a few days after the incident. These pictures show some minor yellow discolouration on what appears to be the inside of his left biceps and possibly the outside of his left upper arm. These pictures not only fail to corroborate Mr.

Isernia's account of defensive wounds on his left forearm, they appear to belie it in that the portions of Mr. lsernia's forearm shown in the pictures appear injury free. Transcript of Proceedings, October 29, 2015, p 163, ll 20-29. [ 33 ] This was the only reference to the photographs.

The PCJ went on for 2 more ps explaining in great detail why he rejected the Appellant’s testimony, calling it, among other things, “inconsistent,” “patently absurd,” “completely implausible,” “not worthy of belief,” “unbelievable,” and “unreliable.” As one can see, the photographs were only a very small part of the reason why the PCJ rejected the Appellant’s testimony. And it was an extremely minor fact that the PCJ considered. There were much more substantial reasons why he rejected the Appellant’s testimony. [ 34 ] In C (

R) v McDougall , 2008 SCC 53 at paras 72-73 , [2008] 3 S.C.R. 41, Rothstein J for the court said the following: … Assessing credibility is clearly in the bailiwick of the trial judge and thus heightened deference must be accorded to the trial judge on matters of credibility. As explained by Bastarache and Abella JJ. in R. c. Gagnon , [2006] 1 S.C.R. 621, 2006 SCC 17 (S.C.C.) , at para. 20 : Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L ., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

As stated above, an appellate court is only permitted to intervene when "the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence" ( L. (H.) , at para. 4 (emphasis deleted)). [ 35 ] This Court has reviewed in great detail the findings of the PCJ. It could find no palpable and overriding error. Furthermore, his findings of fact were not clearly wrong, unreasonable or unsupported by the evidence. Accordingly, this Court finds, without question, that the verdict is not unreliable as a result. b.

Unfair Adjudicative Process [ 36 ] The Appellant argues that the adjudicative unfairness stems from the fact that the photographs were untested by examination or cross-examination. The Appellant’s trial counsel should have sought to recall witnesses. In other words, the verdict is based, in part, on untested evidence. [ 37 ] This Court has already discussed the findings on which the PCJ based his decision, and the photographs formed only a very small part of his reasoning. As for the recalling of witnesses, the Appellant’s trial counsel was familiar with that procedure. He said, “I might need Mr.

Isernia to comment on those photos to an extent, though”: Transcript of Proceedings June 12, 2015, p 95, l 12. This is where it might have been useful for this Court to have the Appellant’s trial counsel explain why he did not recall any witnesses to comment on the photographs. This might have been part of his trial strategy, the Appellant’s instructions, or he, like the PCJ, saw no utility in the photographs. [ 38 ] This Court sees no adjudicative unfairness in this process.

3. The Performance Component [39] The British Columbia Court of Appeal described the performance component as relating “to acts or omissions of trial counselthat are alleged to have been incompetent”: Aulakh at para 46. Analysis of the performance component assumes that the Appellant hasmet the previous two steps, which this Court rules he has not. Had he met those steps, however, this Court would consider whether theAppellant’s trial counsel’s actions exhibited incompetence.

The Supreme Court of Canada established the standard that this Court mustapply, when it said the following in R v B (GD), 2000 SCC 22, [2000] 1 S.C.R. 520 at para 27: Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel's conduct fellwithin the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel thatare alleged not to have been the result of reasonable professional judgment.

The wisdom of hindsight has no place in this assessment. [40] In R v Lavoie, 2000 ABCA 318 at paras 37-39, the Alberta Court of Appeal said the following: In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (U.S. Fla. 1984), O'Connor, J., delivering the opinion of theUS Supreme Court, said (at p. 694): Judicial scrutiny of counsel's performance must be highly deferential.

It is all too tempting for a defendant to secondguess counsel'sassistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has provedunsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Issac, 456 US 107, 133-134, 71 LEd 2d 783, 102 S Ct 1558 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate thedistorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct fromcounsel's perspective at the time.

In R. v. Strauss (1995), (BC CA), 100 C.C.C. (3d) 303 (B.C. C.A.), the British Columbia Court of Appeal also spokeof the deference to be shown to trial counsel's conduct and the presumption of competence of counsel when such an issue is raised onappeal (at p. 307): The deference which ought to be shown in an examination of counsel's performance was referred to in R. v. Kelly (1992), 52 O.A.C. 241,15 W.C.B. (2d) 254 (Ont. C.A.), when Doherty J.A. said [at p. 241]: The incompetence of trial counsel can afford a ground of appeal. It is, however, one which should be raised only after the most carefulconsideration.

There is a strong presumption that trial counsel perform adequately and the onus rests on the appellant to demonstrate thatcounsel's conduct fell below the standard of competence. We respectfully agree with the position taken in R. v. Strauss, supra, and R. v.

Kelly, supra. [41] As discussed earlier, this Court has found that the Appellant has not met his onus to demonstrate that his trial counsel’sconduct fell below the standard of competence, or that his trial counsel’s actions were not the result of reasonable professional judgment.The Transcript of the Proceedings did not exhibit any lack of competence, on its face, and the Appellant did not produce any evidencethrough his own affidavit, or one from his trial counsel. The specific allegations that he makes are discussed earlier in these reasons. IV.

Conclusion [42] For the foregoing reasons this Court dismisses the Appellant’s appeal in its entirety. Heard on the 1st day of September, 2016. Dated at the City of Calgary, Alberta this 20th day of September, 2016. K.D. Yamauchi J.C.Q.B.A. Appearances: Tyson Dahlem Dunn & Associates

for the Appellant Christa White Alberta Crown Prosecution Service for the Respondent