



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. John, 2012
    ONCA 114

DATE: 20120217

DOCKET: C49362

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kervin John

Appellant

Kervin John, appearing in person

Heather Pringle,
amicus curiae

Jamie Klukach, for the respondent

Heard and released orally: February 8, 2012

On appeal from the convictions entered by Justice Deena
    Baltman of the Superior Court of Justice, sitting with a jury, on June 3, 2008
    and the sentences imposed by Justice Baltman on September 8, 2008.

ENDORSEMENT

(1)

Conviction Appeal

[1]

The appellant argues that his trial counsels assistance was ineffective,
    resulting in a miscarriage of justice.  On this basis, he says, his convictions
    for breaking and entering and theft over $5,000 (motor vehicle) should be set
    aside and acquittals entered.

[2]

Extensive fresh evidence was tendered on appeal in support of the
    appellants ineffective assistance claim.  The fresh evidence, which we have
    reviewed in detail, wholly fails to displace the presumption of trial counsels
    competency that applies by operation of law.  Quite the opposite.  The record
    in this case, including the fresh evidence, reveals trial counsels high degree
    of effort and professionalism in advancing the appellants defence and
    interests in accordance with his express and repeated instructions,
    notwithstanding trial counsels retainer only a short time prior to this jury
    trial.

[3]

On behalf of the appellant,
amicus
attacks trial counsels
    closing submission concerning the theft of the car and its contents.  The Crown
    had a strong circumstantial case on the issue of the car theft.  DNA analysis
    revealed the appellants blood in the car, his fingerprints on the car and his
    DNA on objects in the car.  This evidence clearly linked the appellant to the
    stolen car.  In addition, there was DNA evidence linking the appellant to the
    scene of the crime.  Moreover, the appellant steadfastly refused to provide
    trial counsel with any explanation for his presence in or possession of the
    admittedly stolen car or for his whereabouts at the critical times in question,
    thus preventing trial counsel from advancing any explanation on his behalf
    before the jury. The appellant elected not to testify.  In all these
    circumstances, there was an ample evidentiary basis for the jurys verdict of
    guilty on the theft over charge.

[4]

We conclude, therefore, that there is no basis on this record to hold
    that, by reason of trial counsels conduct, trial fairness was impaired in this
    case or the jurys verdicts are unreliable.  The appellant has failed to
    demonstrate any prejudice arising from the acts or omissions of his trial
    counsel.

[5]

The conviction appeal is dismissed.

(2)

Sentence Appeal

[6]

The appellant appeals his sentences of five years imprisonment for
    breaking and entering and two years imprisonment, concurrent, for theft of the
    car, after credit for pre-sentence custody, on the basis that his total
    sentence was too harsh.

[7]

We disagree.  On the basis of the appellants extensive criminal record,
    including his record for prior similar offences, and the evidence of his
    virtually uninterrupted pattern of criminal behaviour since his return to
    Canada, the sentence imposed was fully justified.

[8]

Leave to appeal sentence is granted and the sentence appeal is
    dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.


