



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ashkani, 2022 ONCA 34

DATE: 20220119

DOCKET: C66770

Tulloch, Pardu and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shiva Ashkani

Appellant

Shiva Ashkani, in person

Nicole Rivers, for the respondent

Heard: January 11, 2022 by
    video conference

On appeal from the conviction entered on
    December 12, 2017 by Justice A.J. OMarra of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The
appellant, who held herself out as a
    registered nurse, both qualified and physician supervised as a medical
    cosmetician to inject Botox and collagen fillers, was found guilty after trial
    of having committed a number of assaultive offences that resulted in injuries
    to a number of victims. Following a trial by judge alone, she was found guilty
    of fraud under $5000 by misrepresentation, three counts of assault with a
    weapon (a syringe), aggravated assault, assault causing bodily harm, assault,
    and threatening bodily harm. She was sentenced to a total sentence of two years
    less a day with a three-year probation period to follow.

[2]

In her appeal, the appellant claims that her trial counsel provided
    ineffective assistance. She bases this principally on two grounds; first, that
    her counsel failed to respect her wish for a jury trial, and second, that her
    counsel refused to permit her to testify on her own behalf. She also claims
    that her trial counsel failed to take her mental health challenges into
    account.

[3]

We do not accept these submissions.

[4]

In order to succeed on an appeal based on an allegation of ineffective
    assistance of counsel, an appellant must establish the facts upon which the
    allegation is based on a balance of probabilities:
R. v. Archer
(2005), 202
    C.C.C. (3d) 60 (Ont. C.A.) at para. 119. The appellant has not done this with
    respect to either the allegation that her trial counsel ignored her wish to be
    tried by a jury or that he refused to permit her to testify.

[5]

We note that the appellant did initially elect a jury trial but
    re-elected on the day of trial. She provides no details in her affidavit of any
    conversations that support her position. Mr. Mills, on the other hand, states
    in his affidavit that they discussed the matter in advance of the trial and before
    re-election. On cross-examination, Mr. Mills clarified that this discussion
    took place on the morning of trial. He expressed the view in his affidavit that
    a judge alone would be more receptive to the argument that the complainants
    consented to the treatments not because of the appellants representations as
    to her credentials but because of the price charged and the convenience of
    treatment in a non-clinical setting. The appellant was present in the courtroom
    at the time of re-election, did not object to the waiver of the re-reading of
    the indictment and expressed no disagreement with the re-election.

[6]

The appellant also fails to establish the factual basis for her claim
    that her former lawyer refused to permit her to testify. Once again, her
    allegations in this regard are vague and lack specificity, unlike the facts set
    out in Mr. Mills affidavit.

[7]

Mr. Mills explained, on cross-examination, that one of the factors
    leading him to advise her not to take the stand on her own behalf was that
    doing so would open her up to cross-examination on her prior conviction for
    aggravated assault. Second, he was of the view that the appellant had a
    tendency to be disruptive and this would not help her. Third, she was also
    inclined to raise irrelevant issues. Mr. Mills did acknowledge that she was reluctant
    but said that she took his advice and made the decision not to testify. In our
    view, Mr. Mills reasons for advising her not to testify on her own behalf were
    well founded and the appellant has not established that his advice was outside
    the range of professional judgment.

[8]

The appellant also claims that her counsel did not take adequate account
    of her mental health issues. This too is unfounded. Counsel was aware that the
    appellant had mental health challenges, that she was being treated, and that,
    according to a letter from her psychiatrist, was showing improvement. While her
    challenges required patience on his part, his experience was that she did
    understand the process and he had no basis to think that plea of NCR or a
    finding that she was unfit to stand trial would have been available. Indeed,
    assessments conducted between the trial and the sentencing confirmed this.

[9]

The appeal is dismissed.

M. Tulloch J.A.

G. Pardu J.A.

A. Harvison Young
    J.A.


