



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Desbiens, 2012
    ONCA 744


DATE: 20121105

DOCKET: C53357

Goudge, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Desbiens

Appellant

Breese Davies, for the appellant

Riun Shandler, for the respondent

Heard: October 25, 2012

On appeal from the sentence imposed on May 14, 2010 by
    Justice Donald Downie of the Ontario Court of Justice, sitting without a jury.

By the Court:

[1]

On May 14, 2010, the appellant pleaded not guilty to robbery with a
    firearm, but guilty to simple robbery. The trial judge accepted a joint
    submission of 30 months in prison with no credit for pre-trial custody.

[2]

The appellant has appealed his sentence, arguing ineffective assistance
    of his lawyer during the sentencing process. At the close of argument we
    dismissed the appeal with reasons to follow.

[3]

These are those reasons.

[4]

The appellant was arrested on March 25, 2010, for robbing a convenience
    store using a BB gun. He was charged with use of a firearm in committing robbery,
    which carries a minimum sentence of four years.

[5]

At the time of his arrest, the appellant was 36 years old and living
    with his wife and two children. He had a criminal record of driving with over
    80 mg of alcohol, assault, uttering threats, theft under $5000, possession of
    break-in instruments and mischief.

[6]

The appellant had been on anti-psychotic and anti-anxiety medication for
    ten years. He was also addicted to Oxycontin and Percocet. On his arrest, he
    was immediately denied all medication until March 31, when some, but not all of
    his anti-psychotic and anti-anxiety medication was restored, and then only in
    partial amounts. As a result, he was in constant severe physical pain and
    endured what he described as horrendous emotional suffering. He also
    experienced withdrawal symptoms from the drugs to which he was addicted.

[7]

He retained as counsel the lawyer who had acted for him on previous
    occasions over the preceding three and a half years. On April 7, counsel
    reviewed with him the Crowns pre-trial screening form which contained a
    resolution offer of a guilty plea to robbery and 15 months in jail, less credit
    for pre-trial custody.

[8]

The appellant says that he instructed counsel to immediately accept this
    offer, and then make a bail application to get the appellant released from
    custody.

[9]

Counsel says that he advised the appellant to accept the offer, but that
    the appellant was fixated on getting bail. He insisted that a bail application
    be made first, so that he could be released. Counsel concluded this was so he
    could get the drugs he so badly needed. Counsel says this was consistent with
    instructions he had received from the appellant in previous cases.

[10]

On
    April 12, a bail hearing was scheduled for April 15. On April 13, counsel
    received a revised pre-trial screening form withdrawing the first offer and
    proposing a four-year sentence on the basis that a BB gun is a firearm. Counsel
    advised the appellant of this new Crown position.

[11]

Thereafter,
    following discussions between counsel and the Deputy Crown Attorney, and on written
    instructions from the appellant, it was agreed that the appellant would plead
    guilty to simple robbery followed by a joint submission for 30 months in prison
    in addition to pre-trial custody. That is what unfolded on May 14. The trial
    judge accepted the joint submission and imposed that sentence.

[12]

The
    appellant says he received assistance of counsel that was ineffective in three
    ways.

[13]

Two
    are simply disposed of. The appellant says that counsel failed to advocate for
    a return to the original offer once it was revoked. In our view, given the
    facts, and the four-year minimum sentence required for the offence charged, it
    is hard to see that advocating return to the withdrawn offer had any prospect
    of success. Counsel cannot be criticized for not doing so, but rather moving
    forward to negotiate down from the Crowns revised position.

[14]

The
    appellant also criticizes counsel for failing to argue for a reduced sentence
    because of the inadequate medical treatment received by the appellant in
    custody. We do not agree. Having successfully negotiated the Crown down to the
    joint submission, counsel could hardly have advocated a further reduction on
    this basis.

[15]

The
    appellants main complaint is that counsel failed to follow his instructions to
    immediately accept the Crowns original offer and only then apply for bail. To
    succeed in this argument, the appellant first must establish these facts on a
    balance of probabilities.

[16]

In
    our view, the appellant cannot do so on this record. The appellant says he gave
    those instructions. Counsel is equally clear that he did not, but insisted on
    bail being sought as a very first step.

[17]

In
    our view, counsels version is strongly supported by the appellants
    acknowledgement that because of his condition, he was suffering severe physical
    pain and horrendous emotional stress together with withdrawal symptoms from the
    drugs to which he was addicted. In light of this, his firm preoccupation with
    obtaining his release before anything else is entirely understandable. We
    therefore find counsels evidence more credible.

[18]

As
    a result, we need not deal with the legal issues raised in Ms. Davies able
    argument, which depend on a finding that counsel failed to follow instructions
    in not immediately accepting the Crowns first offer.

[19]

The
    appeal must be dismissed.

Released: November 5, 2012 (S.T.G.)

S.T. Goudge J.A.

Paul Rouleau J.A.

David Watt J.A.


