



COURT OF APPEAL FOR ONTARIO

CITATION
:
R. v. Jonah,
2019
    ONCA 207

DATE: 20190314

DOCKET: C65756

Simmons, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kristoffer Jonah

Appellant

Robin Parker, for the appellant

Erica Whitford, for the respondent

Heard: March 11, 2019

On appeal from the conviction entered on April
    25, 2013 by Justice D.A. Harris of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

At the conclusion of the oral hearing, we dismissed this appeal for
    reasons to follow. These are our reasons.

[2]

On April 25, 2013, the trial judge convicted the appellant of arson in
    relation to a fire that occurred at his home on April 5, 2011.

[3]

The appellant appeals from his conviction and asserts that a miscarriage
    of justice occurred due to the ineffective assistance of his trial counsel.

[4]

In oral argument, the appellant advanced two main arguments in support
    of this ground of appeal and abandoned the third argument set out in his
    factum.

[5]

The appellant's first argument is that his trial counsel failed to
    properly cross-examine his former fiancé, L.R., the only alternative suspect
    who could have set the fire.

[6]

Concerning this issue, the appellant has not established a reasonable
    probability that a different cross-examination strategy would have resulted in
    a not guilty verdict. Although the trial judge noted in his reasons that L.R.
    was not challenged in cross-examination on several aspects of her evidence, he
    also concluded that the defence theory that L.R. might have started the fire
    was implausible. In his view, it was simply not realistic that L.R. could have
    accomplished all that was necessary for her to have started the fire within the
    window of time available - and to have done so without sustaining any visible
    injuries, without waking the appellant (who claimed he was sleeping in the
    master bedroom where the fire occurred) - and to have driven off without being
    seen by anyone. The appellant has not demonstrated any palpable and overriding
    error in the trial judge's conclusion. Nor has he presented as part of his
    fresh evidence application any evidence to undermine the trial judge's
    conclusion. In the circumstances, we conclude it is not reasonably probable
    that any failure to cross-examine L.R. concerning, in particular, any potential
    motives she might have had for starting the fire, and any failure to challenge
    L.R. about whether she had started the fire or sent a particular text message
    (matters which she had denied in examination in-chief), would have affected the
    verdict.

[7]

The appellant's second argument is that trial counsel overrode his
    desire to testify and improperly failed to call other defence evidence.

[8]

We reject this argument. Prior to the date on which the defence case was
    to be presented, the appellant acknowledged in writing that he had discussed
    the advantages and disadvantages of testifying with trial counsel, knew that
    his trial was his one opportunity to give his version of the events, and was
    content not to give evidence because he was satisfied that his statement to the
    police, which the Crown had presented at trial, set out his version of the
    events.

[9]

In the face of this acknowledgement, and in the absence of any evidence
    demonstrating the extent or impact of any mental health issues the appellant
    claims he may have been suffering as of the time of signing the
    acknowledgement, we are not satisfied that the appellant has established that
    he was not able to make an informed decision about whether to testify. As was
    the case in
R. v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont. C.A.), the
    direction was signed during the trial and sets out in clear language the appellants
    decision not to give evidence and the basis for the decision.

[10]

We
    note as well that even though the appellant discharged trial counsel following
    his conviction because he could no longer afford trial counsels services, he
    later requested, and trial counsel agreed to represent him on sentencing. This
    factor, as well, belies the appellants post-conviction claims that counsel
    overrode his desire to testify.

[11]

Similarly,
    the appellant has not led any evidence that demonstrates a reasonable probability
    that the evidence of others would have affected the verdict. His mother's
    evidence of a telephone call with her son the evening before the fire did not
    rebut L.R.'s evidence of conflict that evening; nor did it assist with the
    issue whether the appellant had texted L.R. on the morning of the fire.

[12]

We
    conclude that the appellant has failed to establish the prejudice component of
    the test for ineffective assistance of counsel. In these circumstances, it is
    neither necessary nor desirable that we address the performance component:
R.
    v. G.D.B.
, 2000 SCC 22.

[13]

The
    appeal is therefore dismissed.

Janet Simmons J.A.

M. Tulloch J.A.

David Brown J.A.


