R v Delorme, 2017 MBCA 119

Citation: R v Delorme, 2017 MBCA 119 Date: 20171212 Docket: AR16-30-08708 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Madam Justice Diana M. Cameron BETWEEN: her majesty the queen ) W. G. Marks ) for the Appellant ) Respondent ) S. C. Cawley and ) J. P. R.

Deniset- and - ) for the Respondent ) marcel clay delorme ) Appeal heard: ) October 31, 2017 ) (Accused) Appellant ) Judgment delivered: ) December 12, 2017 MONNIN JA [1] The accused appeals his conviction on a charge of trafficking in cocaine on the ground that he failed to receiveeffective assistance of counsel resulting in a miscarriage of justice. [2] For the reasons that follow, I would dismiss the appeal. [3] In R v Rhodes (KHC), 2015 MBCA 100, Beard JA set out the standard for review when dealing with an issue of theadequacy of legal representation.

She wrote (at para 18): There is a strong presumption in favour of competence. (See R v GDB, 2000 SCC 22 at para 27, [2000] 1 SCR 520.) Therefore, thestandard of review for assessing the representation provided by counsel is high, as has been emphasized in the following statements byDoherty JA in R v Joanisse (R) (1995), (ON CA), 85 OAC 186 (at paras 72, 74): . . . The wisdom of hindsight has no place in this assessment. . . . Appellate courts must give deference to the choices made by counseland the competence assessment must be informed by a presumption in favour of competence. . . .

The ultimate purpose of the appellate inquiry is not to grade counsel’s performance, but to determine whether a miscarriage of justiceoccurred. . . . (See also R v Aulakh (BS), 2012 BCCA 340 at paras 40-55, 326 BCAC 177.)

[4] The test that must be met by one alleging ineffective representation was set out by Scott CJM in R v Le (TD), 2011MBCA 83 (at para 189): To recap, before a court will find incompetency affecting the reliability of the verdict, certain prerequisites must be met. Theseprerequisites include a factual component (is there a factual foundation to the claim), a prejudice component (is there a miscarriage ofjustice) and a performance component (is there actual incompetence).

As the Supreme Court of Canada said in G.D.B. at para. 29, thereis no need to evaluate the performance component if the prejudice component has not been proven. In order to determine whether anappeal 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 isbased. 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, assumeincompetence on the part of counsel. See Joanisse at p. 62, Doherty J.A. At this stage, an appellant must establish, on a balance ofprobabilities, 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, thecourt will then consider whether the actions of counsel were, in fact, incompetent. At this stage of the analysis, the presumption revertsto “a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance” and the onus falls on anappellant to establish that it did not (G.D.B. at para. 27).

Again, that analysis is conducted without the benefit of hindsight. [5] Le also sets out that it is an appellant, alleging ineffective representation, who bears the onus of submitting evidence,to establish the factual foundation underlying the allegation. In this case, the accused relies solely on the transcript of the trialproceedings to justify his allegations. [6] In accordance with a practice direction issued by this Court on January 15, 2016, counsel who acted on behalf of theaccused at trial (trial counsel) was notified of the grounds of appeal being advanced.

Trial counsel opted to remain silent (see Manitoba,Court of Appeal, Practice Direction: Re: Directive Regarding Appeal Proceedings Involving Allegations of Ineffective Counsel in FirstInstance (15 January 2016), online: <www.manitobacourts.mb.ca/site/assets/files/1139/notice_re_ineffective_counsel.pdf>). [7] The accused was arrested following the sale of three one-quarter gram rocks of crack cocaine to an undercover policeofficer. He was tried before a judge alone (the trial judge).

The main issues before the trial judge were the identity of the accused andthe accused’s reliance on alibi evidence. [8] The undercover police officer who purchased the crack cocaine from the accused identified him, within a few hoursof the purchase, from a photo lineup that was prepared and presented to him by other officers who had been involved in the undercoveroperation.

The accused’s position at trial was that the identification process was improperly conducted because there was a possibilitythat the undercover police officer’s identification of the accused could have been tainted by the process utilized in putting the photolineup together. [9] The alibi evidence came from the accused, along with his brother and sister. The brother only came forth with hisevidence by way of a statement to the police almost two years after the time of the accused’s arrest. [10] The trial judge was satisfied with the police identification evidence.

He found that the alibi evidence of the accused andhis two witnesses contained too many inconsistencies to be relied upon, and accordingly, he rejected it. [11] The accused now alleges that his trial counsel provided him with ineffective representation in three instances.

Healleges that his trial counsel’s failure to cross-examine the undercover police officer in relation to the photo lineup led to an argumentthat the rule in Browne v Dunn (1893), [1894] 6 R 67 (HL (Eng)) had been violated; that counsel should not have called the accused’ssister to testify as her evidence undermined his alibi defence; and finally, that trial counsel failed to properly argue that the accusedshould be acquitted under the first leg of the test in R v W(D), (SCC), [1991] 1 SCR 742, and, instead, concentrated hisargument on the second leg of that test, namely, that the Crown had failed to prove the accused’s guilt beyond a reasonable doubt. [12] With respect to the first area of complaint, the accused argues that trial counsel failed to cross-examine the undercoverpolice officer as to whether or not he accessed the computer system or printer from which the photo of the accused was generated. [13] To this allegation, the Crown replies firstly that the rule in Browne was not violated by the manner in which theundercover police officer was cross-examined as there was nothing of substance that the accused could advance which would challengethe identification evidence.

Secondly, it argues that, in fact, the issue was raised by trial counsel, as evidenced by the following excerptfrom the cross-examination at trial of the undercover police officer: Q Okay, and, and I, I don't want to repeat the question, but I'll ask it a different way just to make sure that it’s clear. I’m going to

suggest to you that you thought the person would be in this, in those pictures? A That, my, my thoughts was the, ‘cause again I have no idea what their investigation was or how they got the pictures, but in my mind there was a possibility he would be there, or there was also a possibility that he, he would not be in there. [ 14 ] I accept the Crown’s argument on this issue.

Having said that, it follows that the accused’s allegation must fail as it does not pass the first leg of the test he must meet as set out in Le , as he has not established the factual component for his allegation. [ 15 ] The accused also failed to meet the second leg of the test, as I am satisfied that the trial counsel’s cross-examination of the undercover police officer did not result in a miscarriage of justice. [ 16 ] As to the second allegation, regarding the alibi evidence of the accused’s sister, there is no evidence that trial counsel knew that her evidence would be inconsistent with that of the accused and his brother and that therefore, he should not have called her.

The failure by the accused to present any cogent evidence on this point dooms his allegation to failure. There is no factual context to substantiate the allegation. [ 17 ] Dealing finally with the last allegation of incompetence, namely, the manner in which trial counsel argued the W(

D) test, I can only say that I find it devoid of any merit. Trial counsel argued the case as best he could, based on the evidence that was before the Court. The manner in which a case is argued is more often than not a question of trial strategy and tactics and, in this case, based on the evidence, it was a reasonable argument to advance. There is no issue of incompetent counsel made out. [ 18 ] Therefore, for the reasons outlined above, I would dismiss the appeal. JA I agree: JA I agree: JA