



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kormendy, 2021 ONCA 725

DATE: 20211015

DOCKET: C64638

Rouleau, Benotto and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth James Kormendy

Appellant

Kenneth James Kormendy, acting in person

Jessica Smith Joy, for the respondent

Heard: in writing

On appeal from the conviction entered on November 21,
    2016 by Justice Christopher Bondy of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was
convicted of five counts of
    attempted murder and arson. He was sentenced after trial to 11 years
    incarceration. The Crown appealed the sentence and this court increased it to
    20 years less credit for pre-sentence custody.

[2]

He appeals his conviction alleging ineffective
    assistance of his trial counsel.
[1]


FACTS IN BRIEF

[3]

The Crown alleged at trial that the appellant
    attempted to kill his girlfriend and her two daughters, then aged one and seven,
    by setting fire to her house while they were inside. The appellant testified
    that he did not set the fire. Instead, he implied that his girlfriend must have
    started the fire because he was breaking up with her. The trial judge rejected
    his evidence and found the Crowns case overwhelming.

[4]

The appellants claim of ineffective assistance
    of counsel focuses primarily on trial counsels decision to admit the
    voluntariness of his police statement. The appellant says his statement was not
    voluntary because he was intoxicated, overtired, and upset because of the fire.
    He also did not review the statement before he testified at trial, the result
    of which was that his testimony was inconsistent with what he said to the
    police. The inconsistencies, he submits, related to key issues including who
    started the fire, the motive for the fire and how he sustained an injury to his
    hand.

[5]

Crown counsel took the position that the
    statement would not be led as part of its case. However, in the week before
    trial, he approached defence counsel for a position on the use of the statement
    for cross-examination. Trial counsel was well familiar with the law on
    voluntariness and concluded that the appellant was cautioned, had the
    opportunity to speak to counsel several times in advance of the police interview
    and was treated respectfully. Throughout the police interview the appellant was
    responsive to detailed questions asked. The appellant did not tell his counsel
    that he was intoxicated and in fact had denied that he was intoxicated. Trial
    counsel discussed the statement with the appellant, who  according to trial
    counsel  did not want to view it.

ANALYSIS

[6]

The analysis of ineffective assistance of
    counsel proceeds on a strong presumption that the counsels conduct fell within
    the wide range of reasonable professional assistance. The purpose of the
    inquiry is not to grade trial counsels performance, but to determine whether a
miscarriage of justice
    occurred
:
    see
R. v.
Joanisse
(1995)
, 85 O.A.C. 186 (C.A.) at para. 74, leave to appeal refused, [1996]
    S.C.C.A. No. 347.

[7]

To determine whether a miscarriage of justice
    has occurred, the court considers whether the appellant has established the
    following:

1.

the facts material to his claim on a balance of
    probabilities;

2.

that trial counsels representation (or
    performance) was incompetent;

3.

that a miscarriage of justice occurred due to
    the incompetent representation (the prejudice aspect of the claim).

[8]

If there is a factual basis for the claim, the
    court first considers whether a miscarriage of justice occurred. If there is no
    miscarriage of justice, it is unnecessary to proceed with the performance
    component of the claim: see
Joanisse
,

at paras. 71-73;
R.
    v. Fiorilli
, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 51-59.

[9]

The appellant has not established on a balance
    of probabilities that there is a factual basis for his claim that his counsel
    refused to show him the video statement or tell him that it would be used in
    cross-examination.

[10]

In any event, even if the factual component had been
    met, the appellant fails on the prejudice component. While the trial judge did
    assess the appellants inconsistent statements in his analysis, he also provided
    detailed and extensive reasons for otherwise rejecting the appellants
    testimony, in particular:

1.

The trial
    judge rejected his evidence about the events leading up to the fire as contrary
    to the text messages the appellant had sent.

2.

The trial judge
    found the text messages between the appellant and his girlfriend corroborated
    her characterization of their relationship, not his.

3.

The trial judge
    rejected the appellants evidence about how the fire started because it was
    inconsistent with the evidence of the expert witness, who concluded that the
    bedroom door was closed when the fire started. The appellant testified that the
    bedroom door was open. The trial judge believed the expert witness and did not
    believe the appellant.

4.

The trial judge
    did not accept the appellants explanation for the injury to his hand. The
    appellant said that he burned his hand while attempting to open the childs
    bedroom door once the fire had engulfed it. The trial judge found that this
    evidence did not make sense considering the appellants testimony that he was
    unsure if there was anyone in the bedroom. Further, if the door was open as the
    appellant maintained, it would have been unnecessary to touch the doorknob to
    open the door. Finally, the appellants injuries were consistent with the
    expert testimony on expected injuries from igniting gasoline vapours by hand.

5.

The appellant
    testified that he did not call into the childs bedroom once the fire started
    as he was unsure if anyone was in the bedroom. The trial judge found that this
    evidence lacked harmony with the appellants own earlier testimony that he was
    aware that the child was in the bedroom and that he had not observed anyone
    leaving the bedroom.

6.

The appellants
    version of events leading to him bringing the child from the house was
    disbelieved by the trial judge as the appellants version was inconsistent with
    that of independent witnesses.

7.

The appellant
    denied seeing a gasoline container outside of the childs bedroom door after
    the fire started. The trial judge found that this evidence was irreconcilable
    with the evidence given by the three witnesses who entered the house to try to
    find the child, each one of whom saw the gasoline cannister.

8.

The police
    officer who arrested the appellant testified that he noted the strong smell of
    gasoline on the appellant at the time of his arrest. The appellant testified
    that he smelled like gasoline because he had been working on the lawnmower the
    day before. The trial judge gave extensive reasons as to why he disbelieved the
    appellants evidence on this point.

[11]

As
    a result of this analysis by the trial judge, it is clear that the inconsistencies
    in the appellants testimony with respect to the video statement would not have
    changed the result at trial.

[12]

In
    any event, we see no basis to conclude that counsels performance failed to
    meet the high threshold for incompetence. The video statement differed only
    slightly with the appellants testimony at trial. Counsel understood the test
    for voluntariness and
the
decision not to contest the Crowns ability to use the video statement was
    reasonable in the circumstances.

[13]

The
    appellant raises additional complaints about trial counsels assistance. For
    example, the appellant raises the following points:

1.

He complains
    that counsel did not properly use text messages to confirm the evidence of the
    witness Ms. Kormendi. However, her evidence was largely accepted by the trial
    judge who gave it little weight.

2.

He claims that
    counsel should have called an expert to opine that the injury to his hand was
    inconsistent with having started the fire. However, the Crowns expert agreed
    that the injury was consistent with both having started the fire and with the
    appellants testimony.

3.

He claims that
    counsel failed to prepare him to testify at trial while evidence supports that the
    appellant and counsel met several times, and that counsel was reasonably diligent.

4.

He claims that
    his mother should have been called as a witness, but counsel made a strategic
    decision that it would not be wise to call his mother as her evidence would be
    limited and her demeanor likely would not have helped the appellants case.

[14]

These
    complaints find no support in the record and do not satisfy the factual
    component of the test for ineffective assistance.

[15]

For
    these reasons, the appeal is dismissed.

Paul Rouleau J.A.

M.L. Benotto J.A.

B. Zarnett J.A.





[1]

The appellant indicated that he was assisted in the
    preparation of his factum on appeal by Mark C. Halfyard as duty counsel.


