R. v. O'Keefe (No. 2), 2012 NLCA 25

Date: 2012 0517 Docket: 11/27 Citation: R. v. O'Keefe (No. 2) , 2012 NLCA 25 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : JOHN J. O’KEEFE APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (General) 200901T5792 Appeal Heard: April 2, 2012 Judgment Rendered: May 17, 2012 Reasons for Judgment by Harrington J.A. Concurred in by Welsh and Rowe JJ.A. Counsel for the Appellant: No appearance Counsel for the Respondent: Sheldon Steeves Harrington J.A.: INTRODUCTION

[ 1 ] In an oral decision, dated February 16, 2011, the trial judge found John O’Keefe guilty of breaking and entering into Sonya O’Keefe’s home and committing a mischief therein (contrary to section 348(1) (

b) of the Criminal Code ), assaulting Ms. O’Keefe (contrary to

section 266) and two counts of breaching a probation order (contrary to

section 733.1(1)). [ 2 ] On June 14, 2011, Mr. O’Keefe received a suspended sentence for the break and entry with commission of a mischief in the home. The trial judge also imposed a suspended sentence for the assault charge. He imposed 14 days imprisonment for each count of breach of probation, to be served concurrently to one another. Finally, the judge ordered three years probation. [ 3 ] Mr. O’Keefe now appeals from his convictions. For the reasons that follow Mr. O’Keefe’s appeal is dismissed. TRIAL DECISION ( R. v. O’Keefe , 2011 NLTD(G) 24) [ 4 ] The Crown called six witnesses, including Ms. O’Keefe, Mr.

Mulrooney (a friend of Ms. O’Keefe), certain of Ms. O’Keefe’s family members and the investigating police officer. The defence called Mr. O’Keefe who testified on his own behalf. [ 5 ] After reviewing the testimony of the witnesses, the trial judge made the following findings of fact. At around 10:30 p.m. on December 14, 2007, Mr. O’Keefe attended at the residence of Ms. O’Keefe, with whom he had a child and had previously been in a troubled romantic relationship. Upon arriving, he noted a vehicle belonging to a Mr. Mulrooney, whom he believed had had a previous relationship with Ms. O’Keefe. Mr.

O’Keefe was angry and aggressively knocked on Ms. O’Keefe’s door, demanded that he be allowed in and that Mr. Mulrooney leave. [ 6 ] The trial judge held what he referred to as a “reasonable doubt” that Mr. O’Keefe then entered Ms. O’Keefe’s home through the front door, but found that if he did, this was without any specific invitation. He further found that any subsequent conversation that took place was not of an agreeable nature and related to Mr. Mulrooney’s presence in the home and Ms. O’Keefe’s claim for full custody of their child. Mr. O’Keefe left the residence after these events. [ 7 ] While Mr.

O’Keefe was still outside the home, either Mr. O’Keefe or Ms. O’Keefe initiated a phone call to the other. While speaking to each other, Mr. O’Keefe asked that Ms. O’Keefe return some items he had given her. She opened her bedroom window to pass him some of the articles, at which point John O’Keefe forced the window open fully and entered through it. Importantly, the trial judge did not accept Mr. O’Keefe’s testimony that Ms. O’Keefe spoke in a threatening manner as related to herself or their child. He further found that Mr. O’Keefe had not entered the home as a result of concern for Ms.

O’Keefe or their child, as he had alleged. [ 8 ] The trial judge found that Mr. O’Keefe had broken and entered Ms. O’Keefe’s residence contrary to section 348(1) (

b) of the Criminal Code . He was deemed to have broken and entered because “he entered without lawful justification or excuse” (

section 350 (b) (ii) of the Criminal Code ). The trial judge further found that Mr. O’Keefe committed mischief while in Ms. O’Keefe’s house by intentionally interfering with her lawful use and enjoyment of her property without justification. [ 9 ] While the trial judge found that Mr. O’Keefe had committed an assault on Ms. O’Keefe while in the home, he found this to be a technical assault, consisting of a hug or embrace, which was an attempt to convince her to remain committed to their relationship. [ 10 ] The trial judge found that Ms.

O’Keefe then attempted to call her mother and her mother attempted to call back, but Mr. O’Keefe prevented her from speaking to her mother. At this point, Ms. O’Keefe’s father and two brothers attended at the house and got Mr. O’Keefe to leave the dwelling house. ISSUES [ 11 ] The questions which must be answered on this appeal are:

(1) Was Mr. O’Keefe’s representation so ineffective that it resulted in a miscarriage of justice? Specifically, was his counsel ineffective because he: i. Failed to call witnesses that would have bolstered his defence of necessity; and ii. Failed to arrange a trial by judge and jury?

(2) Can Mr. O’Keefe bring Charter arguments on appeal that were not raised at trial in these circumstances?

(3) Mr. O’Keefe also alleged, “serious errors in findings of fact”, but he does not identify the findings of fact he challenges. ANALYSIS - Findings of Fact [ 12 ] A review of the trial judge’s thorough consideration of the evidence and resulting findings of fact leads to the conclusion that allegations on this basis are without foundation. In the absence of identification by Mr. O’Keefe of specific findings of fact which he says the judge erred in making, nothing further can be said about this. - Was Mr.

O’Keefe’s representation ineffective? [ 13 ] The proper approach for analyzing whether trial counsel was ineffective was recently discussed by this Court in R. v. Freake , 2012 NLCA 10 . At paragraph 15 of that decision, Welsh and Rowe JJ.A. followed the approach set out by the Supreme Court of Canada in R. v. G.D.B ., 2000 SCC 22 , [2000] 1 S.C.R. 520, where Major J., for the Court, stated: [26] The approach to an ineffectiveness claim is explained in Strickland v. Washington , 466 U.S. 668 (1984), per O’Connor J. The reasons contain a performance component and a prejudice component.

For an appeal to succeed, it must be established, first, that

counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. [27] Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. [28] Miscarriages of justice may take many forms in this context.

In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised. [29] In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body.

If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow ( Strickland v. Washington (1984), 104 S. Ct. 2052 at p. 697). [ 14 ] Here, Mr. O’Keefe is alleging a “lack of due diligence by the defence lawyer” and further alleges that his trial counsel “abandoned” his defence. As explained in Freake , where an appellant is alleging that trial counsel was ineffective, they will generally adduce fresh evidence, by affidavit or otherwise, setting out the alleged deficiencies in the conduct of trial counsel.

Trial counsel will then be given an opportunity to respond to the allegations made by his or her former client. Mr. O’Keefe did not adduce any such evidence. The nature of the specific acts or omissions alleged to have constituted incompetence may, however, be gleaned from Mr. O’Keefe’s notice of appeal and factum.

They can be summarized in the following manner: (1) his counsel failed to call certain witnesses and adduce certain evidence which would have bolstered his defence of necessity; and (2) his counsel failed to arrange a trial by judge and jury. - Failing to Call Witnesses and Adduce Evidence [ 15 ] While Mr. O’Keefe alleges that his counsel failed to call certain witnesses and adduce evidence, he does not specify who the witnesses are or the nature of their evidence in any of his written submissions. Further to this, Mr. O’Keefe declined to make oral submissions on the appeal. Mr.

O’Keefe’s counsel at trial similarly opted not to make submissions on the appeal. The end result of this was that the Court was left largely in the dark regarding the utility (or futility) of calling the witnesses that Mr. O’Keefe now asserts should have been called. As a result, there is no basis on which to conclude that Mr. O’Keefe has rebutted the presumption that his counsel’s conduct fell within the wide range of reasonable professional assistance referenced in G.D.B. - Failing to Arrange Trial by Judge and Jury [ 16 ] With respect to Mr.

O’Keefe’s submission that his trial counsel failed to arrange for a trial by judge and jury, it is important to review the procedural history on this issue. [ 17 ] On February 12, 2008, counsel appeared by telephone in Provincial Court for Mr. O’Keefe and elected trial in the Supreme Court by judge alone. Mr. O’Keefe was not present at that time. That counsel withdrew from that file on July 8, 2008. [ 18 ] Mr. O’Keefe then applied for and was granted counsel by the Newfoundland and Labrador Legal Aid Commission. There was a subsequent breakdown in the relationship between Mr.

O’Keefe and the Legal Aid counsel appointed. As a result of this the Preliminary Inquiry was rescheduled. Because of Crown objections to Mr. O’Keefe cross-examining the complainant himself at the Preliminary Inquiry, Flynn P.C.J. made an order in the Spring of 2009 that counsel be appointed for Mr. O’Keefe for the purposes of cross-examining Ms. O’Keefe. [ 19 ] The lawyer who ultimately acted for Mr. O’Keefe at the trial was assigned by the Newfoundland and Labrador Legal Aid Commission to assume carriage of the cross-examination of Ms. O’Keefe at the Preliminary Inquiry. That lawyer and Mr.

O’Keefe established a solicitor-client relationship and the former assumed carriage of the matter. [ 20 ] Mr. O’Keefe’s counsel filed an application on October 27, 2010 seeking to re-elect trial by judge and jury. In that application he indicated his understanding that Mr. O’Keefe had instructed his original counsel to elect trial by judge and jury and that Mr. O’Keefe had believed that that was his election up until he received the Bill of Indictment which indicated that his trial was to be by judge alone. [ 21 ] Prior to the hearing of that application, however, Mr.

O’Keefe’s counsel contacted the Court indicating that he had been instructed by his client “to discontinue the application” and “to proceed to trial by Judge alone in January, 2011”. The question of election to trial by judge and jury did not arise again until the appeal before this Court. [ 22 ] Regardless of whether Mr. O’Keefe had intended at some point to request a trial by judge and jury, he ultimately instructed his counsel “to discontinue the application” and “to proceed to trial by Judge alone in January, 2011”. He had effectively waived his right to trial by judge and jury. The act complained of by Mr.

O’Keefe was in fact sanctioned by him. [ 23 ] The ground of appeal alleging the ineffectiveness of trial counsel therefore fails. - Can Mr. O’Keefe make Charter arguments on appeal that were not raised at trial? [ 24 ] Mr. O’Keefe, on this appeal, submits that there was a “lack of due process”. He notes specifically that “Court records indicate that [he] was held for more than 24 hours upon [his] arrest before being brought before a judge”, as is required under

section 503 of the Criminal Code . Presumably this is an allegation that his right not to be arbitrarily detained, guaranteed by

section 9 of the Charter , was infringed. He further submits that “It took more than three years from the time [he] was charged to the time [he] was convicted”. Again, this is presumably an allegation that his right to a trial within a reasonable time, guaranteed by

section 11(

b) of the Charter , was

infringed. The Crown contends that these arguments may not be raised for the first time on appeal and, in the alternative, that Mr.O’Keefe has not established a breach of his

section 9 or 11(

b) rights. [25] The circumstances in which a party may raise a new issue on appeal were discussed by this Court in R. v. Aisthorpe, 2006NLCA 40, 257 Nfld. & P.E.I.R. 1. There, Rowe J.A., after conducting a review of the case law, noted that in order to raise a new issueon appeal, a party must first seek leave of the court. In that case the party had failed to apply for leave but Rowe J.A. dealt with the issueas if leave had been sought. As Mr.

O’Keefe was self-represented, I find that it is appropriate to do the same here. [26] In dealing with the issue of when it is appropriate to grant leave, Rowe J.A. cited R. v. Vidulich (1989), (BCCA), 37 B.C.L.R. (2d) 391 (B.C.C.A.) with approval. In that case, Lambert J.A. wrote at paragraph 37: The decision whether to grant leave is a matter for the discretion of the court. The exercise of the discretion will be guided by balancingthe interests of justice as they affect all the parties.

The rule is no different in criminal cases than it is in civil cases, though the balancingof the interests of justice may have a different emphasis. … The result is that it is only in those exceptional cases where balancing the interests of justice to all parties leads to the conclusion that aninjustice has been done, that a new ground is likely to be permitted to be raised on appeal.

Such a new ground is more likely to bepermitted where it raises an issue of law alone than where it requires the leading of evidence either in the appeal court or at a new trial.…. [27] Doherty J.A. for the Ontario Court of Appeal took a similar approach in R. v. Roach, 2009 ONCA 156 with the followingreasons: [6] Generally speaking, appeal courts will not entertain arguments not made at trial: Kaiman v. Graham, 2009 ONCA 77 ,[2009] O.J. No. 324 at paras. 18-19 (C.A.).

That general rule applies to constitutional arguments raised for the first time on appealregardless of whether the arguments invoke the remedial powers of s. 24 of the Charter or the nullifying power in s. 52(1) of theConstitution Act, 1982: e.g. see R. v. L.G. (2007), 2007 ONCA 654 , 228 C.C.C. (3d) 194 at para. 43 (Ont. C.A.); R. v. Seo(1986), (ON CA), 25 C.C.C. (3d) 385 at 394 (Ont. C.A.). [7] An appellate court does, however, have the discretion to permit new arguments, including Charter arguments.

In exercising thatdiscretion, the appellate court must be satisfied that the new issue raised on appeal can be fully, effectively and fairly addressed onappeal even though it was not raised at trial. An appellate court will be most inclined to exercise its discretion in favour of hearing a newargument where that new argument can be fully addressed and determined based on the trial record: e.g. see R. v. Sweeney (2000), (ON CA), 148 C.C.C. (3d) 247 at paras. 34-40 (Ont. C.A.).

More rarely, an appellate court will hear a new argumentbased on an evidentiary record laid out for the first time in the court of appeal: e.g. R. v. Seo, supra. [8] In my view, the more numerous and contentious the evidentiary disputes generated by the material filed on appeal in respect of theissue raised for the first time on appeal, the less likely it is that the appellate court will exercise its discretion in favour of considering themerits of the new argument.

While appeal courts do resolve evidentiary disputes from time to time in the course of deciding appeals,appellate procedures are not designed for that purpose. The appellate forum and its procedures are not adapted to the weighing ofevidence and the finding of facts. Appeal courts review decisions made at trial. The appeal process is premised on the issues underappeal having been vetted in the trial court and subjected to the reasoned analysis of the trial court.

If a new argument put forward onappeal can only be effectively and fairly resolved by conducting what amounts to the trial of an issue or several issues in the appellatecourt, the appellate court should, absent exceptional circumstances where the interests of justice require otherwise, decline to resolve thenew issue raised on appeal. - Arbitrary Detention [28] Assuming leave was granted on the issue of whether or not Mr. O’Keefe was brought before a judge or justice within 24 hoursof his arrest, this argument fails as it is not supported by the facts adduced at the trial.

The only evidence on the circumstances of Mr.O’Keefe’s arrest came from Constable Gregory. He indicated that Mr. O’Keefe was apprehended at 2:15 a.m. on December 15, 2007. Itis clear from the transcript of proceedings in the Provincial Court that Mr. O’Keefe then appeared by phone before Judge English in theWeekend Arrest and Statutory Holiday Court on the same day, December 15, 2007. This was within 24 hours. Mr. O’Keefe’ssubmission with regard to a breach of

section 9 of the Charter is without merit. - Unreasonable Delay in Bringing the Matter to Trial [29] With respect to the unreasonable delay issue, there was no evidence led at trial regarding the length of or reasons for any delaysthat occurred in bringing the matter to trial. In fact, the only delay referred to in the materials was a rescheduling of the PreliminaryInquiry resulting from a breakdown in the relationship between Mr. O’Keefe and his counsel at the time. Given the lack of factualgrounding for this argument, leave to raise this issue is denied. DISPOSITION [30] For the reasons outlined above, the appeal from Mr. O’Keefe’s convictions is dismissed.

________________________ M.F. Harrington J.A. I Concur: _________________________ B.G. Welsh J.A. I Concur: _________________________ M. Rowe J.A.