



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gorburn, 2017 ONCA 807

DATE: 20171023

DOCKET: C58226

van Rensburg, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gergy Gorburn

Appellant

Gergy Gorburn, acting in person

Avene Derwa, for the respondent

Heard: October 3, 2017

On appeal from the convictions entered by Justice Glenn
    Hainey of the Superior Court of Justice on July 8, 2013, and from the sentence
    imposed on August 30, 2013.

REASONS FOR DECISION

[1]

The appellant was convicted of numerous firearm and drug related
    offences. He received a global sentence of four and a half years custody,
    before 28 months credit for pre-sentence custody. He appeals from both
    conviction and sentence.

[2]

The appellant maintains that he was provided with ineffective assistance
    of counsel at trial and that this resulted in a miscarriage of justice. He
    swore an affidavit in support of this claim. His primary complaint rests on
    what he argues was counsels failure to seek the exclusion of evidence seized
    by the police during what he says was an unlawful detention and search.

[3]

The police received information that someone known as T.K. was selling
    drugs at a specified apartment building. The police were told where T.K.
    typically parked and that he was possibly armed with a gun. The police also
    learned that T.K. was part of a criminal gang associated with the apartment
    complex. The police were shown video footage that was said to capture the
    person who was believed to be selling the drugs.

[4]

The police then set up surveillance on the buildings parking area. They
    recognized the appellant from the video when he pulled into the parking lot.
    The appellant was ordered out of his vehicle and detained, after which he was
    subjected to a pat down search. After feeling something hard, the searching
    officer looked inside of the appellants pocket and located crack cocaine. The
    appellant was arrested and his vehicle was searched incident to arrest. Police
    located a loaded firearm, ammunition, drugs, and drug paraphernalia.

[5]

Trial counsel provided an affidavit responding to the claim of
    ineffective assistance. He explained that he was able to clearly identify his
    client from the video stills provided in disclosure, which were taken from the
    video seen by the police in advance of the appellants arrest. Trial counsel
    formed the view that the police were in a position to lawfully arrest his
    client and were justified in searching him because of the information they
    received that he may be armed. In trial counsels view, whether the appellant
    was arrested just before or after the search was immaterial on these facts. In
    any event, trial counsel formed the view that even if there was a
Charter
breach, the evidence would have been admitted under s. 24(2). In these
    circumstances, he saw no merit in advancing a
Charter
claim.

[6]

It is Crown counsels position that there was no
Charter
breach
    and, if there was, the evidence would not have been excluded under s. 24(2). Crown
    counsel acknowledges that there were insufficient grounds to arrest the
    appellant when he was first approached by the police. We agree. However, Crown
    counsel maintains that the appellant was properly detained for investigation
    and that a safety search was justified. Crown counsel argues that that once the
    police found the crack cocaine in the appellants pocket, they had grounds to
    arrest and search him incident to the arrest.

[7]

This ground of appeal is rooted in an ineffective assistance of counsel
    claim. There is a strong presumption that counsels conduct falls within a wide
    range of reasonable professional assistance: see
R. v. G.D.B.
, 2000
    SCC 22, [2000] 1 S.C.R. 520, at para. 27; and
R. v. Joanisse
(1995),
    85 O.A.C. 186 (C.A.), at para. 72. The questions on appeal are whether
    counsels conduct fell below the standard of reasonable professional assistance
    and, if so, whether the ineffective representation resulted in a miscarriage of
    justice: see
Joanisse
, at paras. 69-71; and
R. v. Stark
, 2017
    ONCA 148, 35 C.R. (7th) 455, at paras. 12-14. A miscarriage of justice can
    arise where the ineffective representation undermines the appearance of
    fairness or the reliability of the verdict: see
R. v. Archer
(2005),
    203 O.A.C. 56, at para. 120; and
Stark
, at para. 14. As noted in
Archer
,

at para. 120, [a] verdict is rendered unreliable where the appellant
    demonstrates that had counsel performed in a competent fashion, there is a
    reasonable possibility that the verdict could have been different.

[8]

It is unnecessary to consider whether trial counsels assessment as to
    whether the appellant was arrestable at the time of the pat down search fell
    below the standard of reasonable professional assistance because there was no
    miscarriage of justice in this case. Neither fairness, nor the reliability of
    the verdict were compromised by the alleged incompetence: see
Archer
, at
    para.

121.

[9]

Nothing turns on the fact that trial counsel held the view that the
    police were in a position to lawfully arrest the appellant at the time he was
    originally searched. Based on the disclosure available to trial counsel at the
    time, the police had ample grounds to detain the appellant for investigation.
    Given that the police had been informed that the suspect may be part of a
    criminal gang and carrying a firearm, the pat down search for safety reasons
    was justified. Based on all of the circumstances, it appears that the police
    may well have been justified in searching the appellants pocket once something
    hard was located.

[10]

While further exploration of the facts on a
Charter

voir
    dire
may have supported or undermined the grounds for looking in the appellants
    pocket, it cannot be said that the failure to pursue an application to exclude
    evidence resulted in a miscarriage of justice. This is particularly true given
    that, even if there was a
Charter
breach, there is no evidence to
    suggest that the appellant would have met his onus in having the evidence
    excluded under s. 24(2) of the
Charter
. To the contrary, he was
    lawfully detained at the time he was patted down. The pat-down search itself was
    justified in the circumstances. The search of his pocket occurred in
    potentially volatile circumstances. The search revealed reliable evidence. All
    of these factors would have pointed away from exclusion.

[11]

We are not satisfied that in these circumstances, counsels decision not
    to pursue exclusion demonstrates an absence of reasonable professional
    assistance and, in any event, there was no miscarriage of justice.

[12]

In addition, the appellant raises arguments that his trial counsel
    failed to provide him with timely disclosure and failed to call certain
    witnesses. He maintains that these things also demonstrate ineffective
    assistance.

[13]

Trial counsel disputes the claim that he did not provide his client with
    disclosure, maintaining that he visited him multiple times in jail and
    specifically went over the disclosure with him. Regardless, the appellant was
    present at the preliminary inquiry in this matter. The narrow issue in this
    case was one of knowledge. By the time of trial, the appellant clearly
    understood the prosecution case he was facing.

[14]

Nor do we accept that trial counsel failed to call certain witnesses or,
    if he had called them, that it would have made any difference. The appellant
    claims that trial counsel failed to call three witnesses: the registered owner
    of the van in which the firearm was located; his spouse; and the mechanic who
    had done work on the vehicle. Trial counsel maintains that the owner of the van
    knew nothing about the gun and wanted nothing to do with the matter. Other than
    the appellants claim, we do not see any evidence to the contrary. As for the
    appellants spouse, we are not satisfied she had relevant evidence to give. As
    for the mechanic, we accept that while trial counsel took steps to locate him,
    he was not successful. In any event, we do not see how the evidence about the
    van needing repairs would assist on the primary issue of knowledge at trial.

[15]

Finally, the appellant argues that his trial counsel failed to show up
    on the first day of trial and this is another example of his ineffective
    representation. While trial counsel accepts that he missed the first day of trial,
    it was due to a scheduling error. His failure to attend on the first day had no
    impact on the trial and it was still completed on time.

[16]

The appellant has failed to demonstrate that he received ineffective
    representation or that there was a miscarriage of justice. The conviction
    appeal is dismissed.

[17]

While the appellant originally sought leave to appeal sentence, he did
    not pursue it in oral argument. We see no error in the trial judges reasons on
    sentence. Having regard to all of the circumstances, it was a fit sentence.

[18]

The conviction appeal is dismissed. Leave to appeal sentence is
    dismissed.

K.
    van Rensburg J.A.

G.
    Pardu J.A.

Fairburn
    J.A.


