



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simoni, 2019 ONCA 480

DATE: 20190611

DOCKET: C62458

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aldo Simoni

Applicant/Appellant

J. Randall Barrs, for the appellant

Christine Tier, for the respondent

Heard: May 21, 2019

On appeal from the conviction entered on February 3, 2016
    and the sentence imposed on June 7, 2016 by Justice Dale F. Fitzpatrick of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

Introduction

[1]

The appellant, Aldo Simoni, and four co-defendants were charged as a
    result of the vault-breaking of a bank in Burlington. At trial, the appellant
    testified that he participated in the vault breaking under duress. He was
    convicted. After conviction, his trial counsel intended to bring a
Carosella
application for a stay of proceedings on the basis of lost evidence. However,
    such an application could not be brought because the trial judge was
functus
    officio
.

[2]

The appellant submits that he was deprived of effective assistance of counsel.
    He also submits that the trial judge erred in failing to provide a final
    caution to the jury on how they could consider the lost evidence. In addition,
    the appellant seeks leave to appeal against his sentence of two and a half
    years imprisonment.

[3]

For the reasons that follow, we dismiss the conviction appeal. We grant
    leave to appeal sentence, but dismiss that appeal.

The Break-in

[4]

On March 18, 2013, the police arrested the appellant along with four
    other individuals and charged them with two counts of breaking and entering.
    The five individuals were alleged to have orchestrated an elaborate bank theft
    by breaking into a vacant office space above a TD Bank, drilling a hole into
    the concrete floor of the office, and gaining access to the banks vault. Once
    inside the vault, the robbers used hammers and pry bars to open safety deposit
    boxes and take the contents.

[5]

A brick of bait money in the vault stolen by the robbers contained a GPS
    tracking device. The police and tracker dogs followed the path of the GPS into
    a field. There, the appellant and one of his confederates, Mr. Vishaj, were
    discovered lying on the ground; the other robbers were found shortly
    thereafter.

[6]

The robbers had an escape plan. Down the street from the bank, there was
    a locked parking lot backing onto railway tracks. In the lot, a car was found
    rented in the appellants name.

[7]

When he was arrested, the police allegedly seized from the appellant a
    key to the office above the bank and a cell phone that had been used to call
    the phones of his co-defendants. At the police station, the appellant signed a
    property report that listed the key and cell phone. Nevertheless, the appellant
    later denied that those items were in his possession.

Ineffective Assistance

[8]

The allegation of ineffective assistance of counsel relates to the
    appellants duress defence at trial. The essence of that defence was that Mr. Vishaj
    forced him to drill the hole into the bank vault at gunpoint. The appellant
    complied because he feared for his own life and the lives of his family members.
    It was also the appellants evidence that his family and Mr. Vishajs family
    were engaged in a long-standing blood feud in Albania.

[9]

The appellant deposed that he told his lawyer about the defence and the
    fact that the key and cell phone did not belong to him prior to the preliminary
    inquiry in June 2014.

[10]

Trial
    counsel deposed that he remembered first being made aware of the duress defence
    shortly before the trial in January 2016. Before that, he did not have an
    affirmative defence for the appellants case, beyond relying on the absence of
    direct evidence and the exculpatory evidence of the co-defendants. When the
    appellant disclosed the information about Mr. Vishaj, trial counsel believed he
    had the ability to advance a duress defence. Trial counsel then realized he had
    not requested the police booking video and that it had not been disclosed to
    him. The video might have shed light on what was or was not in the appellants
    possession, which was relevant to the duress defence.

[11]

According
    to the trial counsel, he requested the booking video on January 5, 2016. On
    January 7, the officer in charge informed trial counsel that the video had been
    destroyed due to an equipment malfunction that deleted all data in February
    2014. The officer also indicated that it was the Divisions practice to delete
    booking videos after a 30-month retention period. Trial counsels request came
    at month 34.

[12]

Trial
    counsel further stated that he made a strategic decision to use the lost
    booking video evidence to further his argument about the existence of a reasonable
    doubt in the appellants guilt by highlighting the lack of evidence. He stated
    that he considered bringing a
Carosella

application at the end
    of evidence but chose not to do so. Trial counsel did not realize he could seek
    a jury instruction as a remedy under s. 24(1) of the
Canadian Charter of
    Rights and Freedoms
.

[13]

At
    trial, a discussion took place in the absence of the jury about what they
    should be told about the missing booking video. The defence wanted to tell the
    jury that the video had been destroyed by the state, but the Crowns position
    was that the state could only be blamed for the missing evidence as a remedy
    for a s. 7
Charter
violation. The trial judge gave the following
    mid-trial instruction:

A request for the booking video was made before trial. No one
    is suggesting this was deliberate, but the video was never produced for reasons
    that are not material to you.

[14]

Trial
    counsel felt the instruction was insufficient but did not request a further
    instruction in the final charge to the jury. He believed the best course of
    action was to highlight the evidentiary gap, rather than to bring a
Carosella

application at the close of his case. Only after he provided notice and
    filed his factum did he realize that he could not bring a
Carosella

application post-verdict.

Analysis

[15]

In order to succeed on a claim of ineffective assistance of
    counsel at trial, an appellant must establish: (i) the facts on which the claim
    of incompetence is based; (ii) that the representation provided by trial
    counsel was incompetent (the performance component of the test); and (iii) that
    the incompetent representation resulted in a miscarriage of justice (the
    prejudice component of the test):

R. v. B. (M.)
, 2009 ONCA 524,
    68 C.R. (6th) 55, at para. 8.

[16]

We are of the view that the appellant
has failed to
    establish the prejudice branch of the ineffective assistance test.
A
Carosella

application
would have had no chance of success in the circumstances
    of this case. The appellant had no credible explanation for the delay in seeking
    the video evidence. In addition, there was an innocent explanation for the loss
    of the evidence that would not qualify as unacceptable negligence. Therefore,
    even if a
Carosella

application had been brought, it
    would not have succeeded.

[17]

We note as well that even if a breach of s. 7 had been
    established, a stay of proceedings would have been a remedy of last resort:
R.
    v. La
, [1997] 2 SCR 680, at para. 23;
R. v. Bero
, 151 C.C.C. (3d)
    545 (Ont. C.A.), at para. 55. The more likely remedy would have been a corrective
    instruction to the jury. As will be discussed below, the mid-trial charge
    provided by the trial judge was actually more beneficial to the appellant than
    the standard charge. Thus, prejudice has not been established.

Jury Charge

[18]

There is also no merit in the submission
    that the trial judge erred in not providing the model lost evidence instruction
    in his final charge.

[19]

Such an instruction, which was not asked for by trial
    counsel,
permits the jury to draw an inference that the missing evidence
    may not have assisted the Crown in circumstances where the defence acted
    diligently and the Crown explanation is inadequate. If the trial judge had used
    the model instruction and told the jury about the Crowns failure to preserve
    the evidence, he would have had to balance that by telling the jury that the
    defence had failed to act diligently in requesting the evidence, a fact that
    would have undercut the duress defence.

[20]

The
    mid-trial instruction that the trial judge did provide was more advantageous to
    the defence. It raised the fact that the defence had been deprived of evidence,
    but did not discuss the appellants lack of diligence in seeking that evidence.

Sentence Appeal

[21]

Two
    arguments are advanced on the sentence appeal. The first is an allegation that
    the trial judge violated the parity principle because he sentenced the
    appellant to the same term of incarceration as Mr. Papic, despite the fact that
    Mr. Papic had a criminal record. This argument ignores the fact that Mr. Papic
    pleaded guilty, which explains why a sentence identical to the one received by
    Mr. Papic was imposed on the appellant even though he had no criminal record.

[22]

Contrary
    to the second submission of the appellant, the trial judge was well aware of
    the fact that the sentence may have had adverse immigration consequences for him.
    The trial judge correctly found that the sentencing process could not be skewed
    or dominated in order to avoid those consequences.

[23]

In
    short, the sentence is fit and free from error. There is no basis for appellate
    interference.

Disposition

[24]

The
    conviction appeal is dismissed. Leave to appeal sentence is granted, but the
    sentence appeal is dismissed.

David
    Watt J.A.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.


