R v Hjorleifson, 2022 MBCA 22

Citation: R v Hjorleifson, 2022 MBCA 22 Date: 20220214 Docket: AR21-30-09627 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner Madam Justice Lori T. Spivak BETWEEN : her majesty the queen ) G. J. Hjorleifson ) on his own behalf (Respondent) Respondent ) ) C. R.

Savage - and - ) for the Respondent ) grant jonathan hjorleifson ) Appeal heard and ) Decision pronounced: (Accused) (Appellant) Appellant ) February 14, 2022 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference. per curiAm [ 1 ] The sole question on this appeal is whether the accused received ineffective assistance of counsel at trial such that a miscarriage of justice occurred. The accused was granted leave to appeal on this point from a decision of the

summary conviction appeal Court (see 2021 MBCA 69 at para 19 ). [ 2 ] After a trial, the accused was convicted of one count of assault and one count of uttering threats. The offences occurred during an altercation with his former spouse (the victim). The Crown’s sole witness at trial was the victim. The accused gave evidence in his defence. [ 3 ] In support of his appeal, the accused relies on the transcripts of both the trial and the

summary conviction appeal hearing, as well as photographs of the victim’s injuries that were admitted into evidence at the trial. [ 4 ] In addition, the accused seeks to introduce fresh evidence on appeal: in particular, his affidavit attaching a transcript of the victim’s police statement made on the day of the offences and an email sent by the accused to his lawyer (trial counsel) approximately two and one-half weeks before the trial with suggested topics for impeaching the victim (the instructing email). [ 5 ] The accused suggests that trial counsel made many errors and he argues that trial counsel essentially “admitted to providing ineff[ective] counsel” during the

summary conviction appeal hearing when he made certain comments to the

summary conviction appeal judge.

Analysis [ 6 ] A miscarriage of justice due to ineffective assistance of counsel can result if “counsel’s overall trial performance” demonstrated “such pervasive incompetence” as to affect the fairness, or the appearance of fairness, of the trial process ( R v Le (TD) , 2011 MBCA 83 at para 182 ) or if the presumed incompetence affected the reliability of the verdict (see para 183). [ 7 ] Before a court will find ineffective assistance of counsel, an accused must establish a factual foundation to the claim, that prejudice to the accused occurred and that counsel’s performance was actually incompetent ( ibid at para 189). [ 8 ] As is commonly done, we will begin by assessing the prejudice component of the test ( see R v GDB , 2000 SCC 22 at para 29 ).

In doing so, we are prepared to accept that it is in the interests of justice to consider the fresh evidence proffered by the accused (see R v Richard (DR) et al , 2013 MBCA 105 at para 204 ).

[9] This was a very simple trial with two witnesses and no legal issues of any substance. Trial counsel cross-examinedthe victim on the key issues. There was no prejudice to the accused resulting from trial counsel not delving into all of the suggestedtopics of cross-examination set out in the accused’s instructing email. Much of it was irrelevant and trial counsel’s role was “not merelyto do the bidding of the accused”; rather, trial counsel was “expected and required to exercise independent judgment” (R v DiPalma,2002 CarswellOnt 6032 at para 38 (CA)).

We are not persuaded that further cross-examination would have elicited evidence that couldhave changed the result. [10] Despite some confusion apparent in trial counsel’s submissions on R v W(D), (SCC), [1991] 1 SCR742, this did not affect the outcome of the trial as the trial judge clearly understood and correctly applied the principles in W(D). Moreover, trial counsel’s self-deprecating comments to the

summary conviction appeal judge do not establish ineffective assistance ofcounsel—the test is not subjective. [11] We are all of the view that the accused has not established that “there is a real probability that the result of theproceedings would have been different but for the presumed incompetence” (Le at para 183). Simply put, the prejudice component of thetest has not been met and a miscarriage of justice has not occurred. [12] For these reasons, the appeal is dismissed. JA JA JA