R. v. Davies

R. v. Davies Collection Decisions of the Court of Appeal Date 2008-03-28 Neutral citation 2008 ONCA 209 Docket numbers C46667 Judges Moldaver, Michael James; Feldman, Kathryn N.; Armstrong, Robert Patrick Subject Criminal Decision Content CITATION: R. v. Davies, 2008 ONCA 209 DATE: 20080328 DOCKET: C46667 COURT OF APPEAL FOR ONTARIO MOLDAVER, FELDMAN and ARMSTRONG JJ.A. BETWEEN: HER MAJESTY THE QUEEN Respondent and IVOR TOM PRICE DAVIES Appellant Dirk Derstine and Alice Barton for the appellant John Pearson for the respondent Heard: October 12, 2007 On appeal from conviction by Justice John R. McIsaac of the Superior Court of Justice dated March 26, 2004 and on appeal from sentence dated June 1, 2004 MOLDAVER J.A.: [1] Following his trial by McIsaac J. without a jury, the appellant was convicted of the following four counts in an indictment: (1) Criminal negligence causing the death of Dr. Barry Ehrlich; (2) Criminal negligence causing bodily harm to Tamar Ehrlich; (3) Impaired driving causing the death of Dr. Barry Ehrlich; and (4) Impaired driving causing bodily harm to Tamar Ehrlich. [2] At the appellant’s sentence hearing, the trial judge stayed the impaired driving convictions. On the charge of criminal negligence causing death, he sentenced the appellant to imprisonment for three years, after crediting him on a one-for-one basis for time spent (slightly over one year) in pre-trial custody. On the charge of criminal negligence causing bodily harm, the appellant received a sentence of two years’ imprisonment consecutive. Hence, in total, the appellant was sentenced to imprisonment for five years. In addition, he was prohibited from driving for fifteen years and was required to provide a DNA sample. [3] The appellant appeals from both conviction and sentence. I. CONVICTION APPEAL [4] In support of his appeal from conviction, the appellant has raised numerous grounds of appeal, most of which relate to the trial judge’s fact-finding process. Although the various grounds are framed as legal issues, by and large, the appellant is attempting to have this court re-try the case. That, of course, is not our function. [5] Of the grounds that actually do raise legal issues, only one has merit. It relates to the trial judge’s misuse of certain after-the-fact evidence to infer guilt. Overall, however, I am satisfied that the error was harmless and the verdicts would necessarily have been the same had it not been made. Hence, on that ground, the curative proviso can safely be applied to sustain the convictions. [6] The appellant also alleges that his trial counsel was incompetent and that he failed to provide the appellant with effective representation. The appellant maintains that with proper representation, it is reasonably likely that the verdicts would have been different; alternatively, he submits that he was deprived of a fair trial. [7] Much as I am concerned about the quality of representation the appellant received at trial, I am not persuaded that the alleged ineffective representation undermined the reliability of the verdicts; nor did it deprive the appellant of his right to a fair trial. Hence, I would not give effect to this ground of appeal. (a) Fact-Driven Issues [8] The appellant submits that the verdicts against him are unreasonable because in reaching them, the trial judge misapprehended material evidence and failed to consider material evidence. Hence, he submits that the verdicts cannot stand and a new trial should be ordered. I disagree. [9] This was not a complicated case. The appellant was driving westerly along Highway 9 when his vehicle suddenly swerved into the eastbound lane and collided with Dr. Ehrlich’s vehicle. Dr. Ehrlich, the driver, was killed in the accident; his wife, who was a passenger, was badly maimed. Stripped to its essentials, the case turned on one issue—how did the appellant’s vehicle come to be in the wrong lane? The Crown put it down to reckless driving fuelled by alcohol impairment; the appellant claimed “inevitable” accident. (i) The Crown’s Position [10] The Crown took the position that in the several minutes preceding the accident, the appellant was driving erratically, in treacherous driving conditions, in a Ford Mustang vehicle that he knew to be unstable under such conditions. Three motorists who came into proximity with the appellant shortly before the accident attested to his erratic driving, which they said consisted of changing lanes without signalling, driving with one hand on the steering wheel, passing on a hill, passing on the right in a dangerous snow-covered lane and, most significantly, exceeding the 80 km per hour speed limit by as much as 15 to 20 km per hour. [11] According to the Crown, the appellant’s high rate of speed was particularly perilous under the prevailing weather and road conditions. High winds and gusting and blowing snow made for treacherous driving. Visibility was poor and the road surface was wet and slippery in places and snow-covered in others. [12] Blowing snow created a particular hazard that day, especially as it accumulated and developed into drifts along the travelled portion of the roadway. Indeed, according to a central Crown witness who was travelling immediately behind the appellant when the accident occurred, after the appellant’s vehicle passed his tractor trailer unit on its right at a speed of 95 to 100 km per hour, it accelerated, hit a patch of snow, and careened out of control. [13] According to the Crown, the appellant’s erratic driving was attributable, at least in part, to his impairment by alcohol. A blood sample taken from him at 4:00 p.m., three hours after the accident, revealed a blood alcohol level of 80 mg of alcohol per 100 mL of blood. Extrapolating backwards, this meant that at the time of the accident, at around 1:00 p.m., the appellant’s blood alcohol content would have been at least 100 mg per 100 mL of blood. Expert testimony confirmed that at that level, the appellant’s ability to drive would have been impaired. The appellant himself admitted to consuming at least 32 oz and quite possibly 40 oz of beer over a quick lunch. He stopped drinking some 25 minutes before the accident occurred. [14] In sum, the Crown attributed the accident to the appellant’s erratic driving at high rates of speed, in treacherous weather conditions, in a car known by him to be unstable in such conditions, while his ability to drive was impaired by alcohol. In combination, those features supported the charges of criminal negligence and driving while impaired. (ii) The Appellant’s Position [15] The appellant attributed the accident to a powerful gust of wind that pushed his car from the westbound lane to the eastbound lane into the path of Dr. Ehrlich’s vehicle. He denied that he was driving erratically before the accident. He maintained that his speed was not excessive in the circumstances and, in any event, was in line with that of the other vehicles that he encountered. He denied passing the tractor-trailer on the right and claimed that he was not impaired as a result of the beer he consumed at lunch. Overall, from his perspective, the accident was a tragic mishap occasioned by forces of nature beyond his control. (iii) The Trial Judge’s Reasons [16] The trial judge in his reasons for judgment reviewed the pertinent evidence and, in the end, he rejected the appellant’s version of the events. [17] In his reasons, the trial judge explained in some detail why he found the appellant to be an incredible witness. In particular, he rejected the appellant’s evidence as to the amount of alcohol he consumed at lunch, first, because it did not comport with the toxicological evidence, and second, because the appellant, in an effort to mislead, falsely told the investigating officer and a paramedic at the scene of the accident that he had not consumed any alcohol that day. [18] The trial judge further found that the appellant’s departure abroad shortly after the accident was evidence from which he could infer guilt. More will be said about that finding in due course. [19] The trial judge rejected the appellant’s evidence that his car was blown from the westbound lane into the eastbound lane by a violent gust of wind. While other motorists attested to strong winds, none described them as reaching “the extraordinary level described by [the appellant].” Moreover, when the appellant’s vehicle went out of control, it rotated in a counter-clockwise fashion, as portrayed in the accident reconstruction sketch, with its “rear end rotating into the wind as opposed to with the wind.” Although the trial judge did not say so explicitly, that rotation, in his view, did not accord with what he would have expected had the wind caught hold of the rear end (the light end) of the appellant’s vehicle. [20] The trial judge then considered the evidence of the three motorists, called by the Crown, who described the appellant’s erratic driving. He explained, in straightforward terms, why he accepted their evidence: I accept the evidence of the witnesses James Youldon, Robert Tadier and David Fox when they describe erratic driving on the part of the defendant even though their descriptions are of different aspects of that driving. They describe actions and conduct which are predicted from Dr. Mayer’s expectations of a driver who has had too much to drink. They include improvident passing of other vehicles, failure to modify driving to accommodate weather conditions and failure to respond to emergent circumstances such as snow drifts across the roadway. I accept all of this evidence from these independent witnesses who have absolutely no reason to falsely accuse the defendant. Accordingly, I am satisfied beyond a reasonable doubt that, at the time in question, the ability of the defendant to operate a motor vehicle was impaired by alcohol and that such condition was not only a real factor in the cause of the collision, it was the major cause of it. [21] Finally, the trial judge turned his attention to whether the appellant’s conduct amounted to criminal negligence. In concluding that it did, the trial judge noted that when the appellant entered his vehicle after lunch, he was impaired by alcohol “to the extent that he should not [have been] operating a motor vehicle.” Nonetheless, the appellant did so and in the process, “he chose to blind himself to the inevitable consequences of that conduct despite his condition when coupled with the treacherous conditions of the roadway.” [22] In these circumstances, the trial judge was satisfied beyond a reasonable doubt that the appellant had attained “that degree of greater moral fault which elevates dangerous driving to the level of criminal negligence based on the factor of impairment by alcohol”. Accordingly, he found the appellant guilty on all counts. (b) Inferring Guilt from Post-Offence Conduct [23] The appellant left Canada several weeks after the accident. Before leaving, he spoke to the investigating officer, who informed him that charges were pending but that the investigation was continuing. After the appellant was abroad, he again contacted the investigating officer and was given the same information as before. [24] Ultimately, the appellant was arrested in April 2003 in Gibraltar. According to the appellant, it was then, for the first time, that he learned that he was wanted in Canada . Apparently, unbeknownst to him, a warrant for his arrest had issued in April 2001, approximately one and a half months after the accident. [25] After being arrested, the appellant was returned to Canada in July 2003. He did not contest extradition. According to the investigating officer, the appellant kept her abreast of his whereabouts after going abroad. She also testified that he had been completely cooperative in the investigation from the time of the accident to the time of his return to Canada , and noted that he waived his right to contest extradition. The appellant testified that he went abroad not to flee the Canadian authorities but to get some relief from the emotional stress he was experiencing after the accident. He testified that while abroad, he travelled across England , Portugal , and Gibraltar using his own passport and he registered at the tax offices in those countries using his own name. The Crown led no evidence to the contrary. The appellant further testified that his girlfriend joined him abroad and that his pets were flown to Portugal as soon as they were released from quarantine. In short, the appellant vehemently denied that he went abroad to avoid potential criminal liability in Canada . [26] Against that evidentiary backdrop, the trial judge found that the appellant departed Canada “to flee the reach of the Canadian authorities” and that “he remained a fugitive until he was arrested in Gibraltar in April 2003.” In so concluding, the trial judge counted the appellant’s dated criminal record as a further incentive to flee. The appellant’s record consisted of two prior driving offences—one for driving with a blood alcohol level over 80 mg of alcohol per 100 mL of blood in 1988 and the other for criminal negligence in the operation of a motor vehicle in 1985. [27] With respect, I am of the view that the trial judge erred in treating the appellant’s departure from Canada as post-offence conduct from which guilt could be inferred. In drawing that conclusion, the trial judge made no mention whatsoever of the evidence, including that of the investigating officer, that lent credence to the appellant’s account of his activities and his explanation for leaving. In the face of the appellant’s communication with the investigating officer and his continuous cooperation, the inference drawn by the trial judge was at best tenuous and, in my view, unwarranted. In short, the departure evidence should not have been used as a basis for inferring the appellant’s guilt; nor should it have been used to discredit him. [28] That said, the misuse of the departure evidence was not fatal. It was one of many factors that the trial judge took into account in rejecting the appellant’s evidence and in finding that his guilt had been proved beyond a reasonable doubt. In the circumstances, I am satisfied that the verdicts would necessarily have been the same had the trial judge not misused the departure evidence. [29] In this regard, I note that the trial judge’s critical findings as to the appellant’s manner of driving are anchored in the evidence of three independent witnesses who had “absolutely no reason to falsely accuse the defendant”. His finding of impairment is anchored in the unassailable toxicological evidence, about which more will be said, which showed that the appellant had a blood alcohol level of at least 100 mg per 100 mL of blood at the time of the accident. [30] The picture that emerges from those findings is clear. The appellant was driving with reckless abandon for a considerable distance in treacherous driving conditions, in a car known by him to be unsuited to such conditions, while his ability to drive was impaired by alcohol. In those circumstances, it seems to me that little turns on whether the appellant lost control of his vehicle by reason of a strong gust of wind (a known and obvious hazard) or by coming into contact with a mound of drifting snow (another known and obvious hazard) or both. [31] In short, I am satisfied that the evidence of the appellant’s guilt on the charge of criminal negligence was overwhelming and that a new trial would merely postpone the inevitable. Accordingly, this is a case in which the curative proviso in s. 686(1)(b)(iii) of the Criminal Code can safely be applied to sustain the convictions. (c) Incompetence of Counsel [32] The appellant seeks a new trial on the basis that his trial counsel, Mr. Peter Scully, was incompetent and that he failed to provide the appellant with effective representation. [33] In support of this allegation, the appellant has filed a “fresh evidence” affidavit in which he registers numerous complaints about the conduct and performance of Mr. Scully. These include: · failing to adequately test the evidence of three civilian witnesses and the expert witness called by the Crown; · calling a defence expert whose evidence proved more harmful than helpful to the appellant’s case; · failing to properly investigate the facts surrounding the accident and its aftermath; · failing to address the admissibility of the blood-alcohol test conducted on the appellant at the hospital and the admissibility of various statements made by the appellant to the investigating officer; · failing to adequately communicate with the appellant both before and during the trial; · calling the appellant to the witness stand without advance warning or preparation and failing to prepare him for cross-examination; and · failing to make adequate submissions in his closing argument and in his submissions on sentencing. [34] In advance of the appeal, the appellant underwent a forceful and probing cross-examination on his affidavit. By and large, he stood his ground and did not retreat from his many complaints. [35] In contrast, the Crown did not tender a responding affidavit from Mr. Scully and Mr. Scully did not seek intervenor status to present his position. [36] The lack of a response from Mr. Scully is highly unusual and most disconcerting, especially in the face of serious allegations made by the appellant that call into question his competence and professional integrity. [37] Before considering whether Mr. Scully’s conduct amounted to incompetence, our initial task is to consider the record, as augmented by the fresh evidence, to determine whether the appellant was prejudiced by reason of his counsel’s alleged incompetence. To succeed in that regard, the appellant must establish either that there is a reasonable probability that the verdicts would have been different had he received effective legal representation, or that his counsel’s conduct deprived him of a fair trial: see R. v. G.D.B., [2000] 1 S.C.R. 520. In the end, although I have concerns about this ground of appeal, I have not been persuaded that trial counsel’s alleged incompetence undermined the integrity or reliability of the verdicts, or that it rendered the trial unfair. In other words, the appellant has failed to establish prejudice. [38] In order to determine whether trial counsel’s conduct undermined the reliability of the verdict, it is important to understand the strong evidentiary basis upon which the appellant was convicted. The Crown presented a formidable case against the appellant, consisting of the following four components: · driving erratically at a high rate of speed; · in treacherous driving conditions; · in a vehicle known by the appellant to be unstable in such conditions; · while the appellant’s ability to drive was impaired by alcohol. [39] Of those four components, the second (treacherous driving conditions) and the third (unstable vehicle) were all but acknowledged by the appellant and they play no part in the determination of this appeal. Neither of these components would have been affected had the appellant’s trial counsel performed differently. [40] As for the first component (erratic driving at a high rate of speed), three civilian witnesses registered serious complaints about the appellant’s manner of driving. Despite the appellant’s efforts to downplay their concerns, their evidence was striking when viewed cumulatively, and they presented the appellant with a very difficult hurdle to overcome. [41] The appellant contends that Mr. Scully could have made inroads into the testimony of these witnesses had he prepared better. The appellant points to several instances where one or another of the witnesses gave evidence at trial that differed from a prior statement the witness had provided to the police or at the preliminary hearing. The appellant also points to a statement from one of the witnesses, Mr. Tadier, which reported that Mr. Fox, the tractor-trailer driver who testified at trial, showed anger towards the appellant for having “caused the accident” and he refused to let the appellant use his cell phone at the accident scene (something which Mr. Tadier and his wife “felt was kind of appropriate in a way”). The appellant submits that his counsel should have elicited that evidence, as it demonstrated animus and could have been used to impugn the testimony of Mr. Fox and Mr. Tadier. [42] I see little substance in the appellant’s submission. The alleged inconsistencies to which he refers are minor and inconsequential and they would not, in my view, have impacted on the verdicts had they been elicited. In particular, although the appellant makes much of the fact that Mr. Fox supposedly changed the evidence he gave at the preliminary hearing—by testifying at trial that the appellant accelerated after passing his tractor trailer on the right—a close reading of Mr. Fox’s testimony at the preliminary hearing fails to support this contention. At best, Mr. Fox’s preliminary hearing evidence is ambiguous; in the end, he testified that after the Mustang passed him on the right, it was “pulling away” from him when it hit a patch of snow and went out of control. [43] As for the evidence of Mr. Fox’s animus towards the appellant at the scene, it is not at all obvious how the appellant was prejudiced by counsel’s failure to raise this animus. Indeed, had Mr. Scully done so, he might have reinforced the Crown’s case by showing the intensity of Mr. Fox’s reaction to the appellant’s bad driving. [44] In sum, even if counsel had cross-examined the civilian witnesses as the appellant contends he should have, I am not persuaded that it would have made any difference to the trial judge’s assessment of their evidence. [45] That leaves the fourth component of the Crown’s case—namely, whether the appellant was impaired by alcohol at the time of the collision. [46] It is on this issue, perhaps more than any other, that the appellant submits that his trial counsel fell down on the job and failed to provide him with effective assistance. In particular, he faults counsel for calling Dr. Kader, a defence toxicologist who ended up doing more harm than good. Far from establishing that the appellant was not impaired (the reason for his retention), Dr. Kader did just the opposite. In the end, the appellant maintains that he would have been better off without a defence expert and that his counsel would have realized this had he thought about the case and been properly prepared. [47] For reasons that follow, I would not give effect to this argument. This conclusion is not intended as an endorsement of defence counsel’s decision to call the defence expert that he used in this case, nor of his strategy at large in addressing the issue of the appellant’s impairment. Indeed, I have reason to believe that the strategy he adopted was ill-conceived, either due to a lack of preparation or a failure on his part to think the case through. [48] Be that as it may, the appellant’s overriding problem stems not from his counsel’s strategy, good or bad, but from a particularly damaging piece of evidence that went unchallenged at trial and remains unchallenged on appeal—the test results from the blood sample taken from the appellant at the hospital at 4:00 p.m., some three hours after the accident, which revealed a blood alcohol level of 80 mg of alcohol per 100 mL of blood. Absent a finding that this evidence should not have been admitted—or, if admitted, that it was unreliable—it virtually sealed the appellant’s fate when considered with the toxicological evidence concerning the rate at which alcohol is eliminated from the human body. [49] Both toxicologists, Dr. Mayers for the Crown and Dr. Kader for the defence, agreed that the human body eliminates alcohol at a rate of 10 to 20 mg per 100 mL of blood every hour. That evidence was unchallenged at trial and remains unchallenged on appeal. Applying the lowest of those figures (10 mg) to this case, that would mean that when the accident occurred at around 1:00 p.m., the appellant would have had a blood alcohol level of 110 mg per 100 mL of blood; using the highest of those figures (20 milligrams), his blood alcohol level could have been as high as 140 mg per 100 mL of blood. [50] Under no circumstances could the appellant have reached those levels had he only consumed the proverbial two beers over lunch. Based on the toxicological evidence adduced at trial, it is theoretically possible that he could have reached the lower end of those levels if he had consumed two 20-oz glasses of beer over lunch, something that the appellant agreed was possible during his own testimony. If, however, he only consumed two 16-oz glasses of beer over lunch, he could not possibly have reached a level of 100 mg or more of alcohol per 100 mL of blood at 1:00 p.m. [51] Regardless of how he reached a level of more than 100 mg of alcohol per 100 mL of blood at around 1:00 p.m., it was Dr. Mayers’ uncontradicted opinion that “all individuals would have their ability to operate a motor vehicle impaired by alcohol” at that level. Dr. Mayers elaborated that at levels exceeding 100 mg of alcohol per 100 mL of blood, a person’s ability to judge distances and the speed of vehicles would be affected, reaction times would be compromised, and visual cues and peripheral information would be missed. [52] As indicated, this body of evidence, when viewed as a whole, was highly damaging to the appellant. In the face of it, if the appellant hoped to cast doubt on the issue of his impairment at the time of the accident, he had to keep the 4:00 p.m. hospital test result of 80 mg of alcohol per 100mL of blood out of evidence, or at the very least, discredit it. [53] His counsel at trial did neither. Indeed, although the record is not entirely clear, Mr. Scully may have actually conceded the reliability of the 80 mg of alcohol per 100 mL of blood reading. Regardless, absent a reasonable explanation from trial counsel as to why he did not attempt to exclude the blood sample or to at least discredit it—something we do not have—his competence is presumptively called into question. [54] However, this does not get the appellant home. As indicated, to succeed on his incompetence of counsel claim, the appellant must show that he was prejudiced, and in my view, he has not done so. Specifically, he has failed to tender any evidence on appeal (and none exists in the trial record) from which we could infer, let alone find, that the 4:00 p.m. blood alcohol test at the hospital should have been excluded from evidence or if not excluded, that it was otherwise unreliable: see R. v. Persad (2001), 82 C.R.R. (2d) 373 at paras. 5–7 (Ont. C.A. ); R. v. Missions (2005), 196 C.C.C. (3d) 253 at paras. 30–35 (N.S.C.A.). [55] Put differently, absent an evidentiary foundation, it is not enough for the appellant to claim that the blood sample evidence might theoretically have been excluded on the basis of some unidentified Charter breach; nor is it enough to speculate that the hospital staff may have taken the sample improperly or that it somehow became contaminated thereafter and that these hypothetical breaches would have been uncovered by more diligent counsel. [56] It follows that even if the defence put forward by the appellant on the issue of impairment—that he only had two pints of beer and that he was not above the legal limit or impaired at the time of the accident—was ill-conceived or poorly presented, there is nothing before us to indicate a reasonable likelihood that the verdicts would have been different had the appellant been more effectively represented. [57] Nor do I think, turning to the second basis for finding a miscarriage of justice, that trial counsel’s performance resulted in an unfair trial. In rejecting this ground of appeal, I have not ignored the many complaints raised by the appellant about Mr. Scully’s “less than adequate” performance at trial, his inadequate preparation in general, and his failure to prepare the appellant to give evidence and to be cross-examined—complaints that have gone unanswered by counsel. In the end, while those allegations are troubling, they fall short of satisfying me that the appellant received an unfair trial. Poor though his counsel’s performance may have been, it did not approximate the level of “non-performance” required to establish a miscarriage of justice due to an unfair trial.[1] In particular, based on the record, I am satisfied that counsel knew the appellant’s version of what happened (see R. v. B. (L.C.) (1996), 27 O.R. (3d) 686 at 704 ( C.A. )) [2] and that the appellant (as he affirmed in his affidavit) “gave an accurate description of what happened that day.” Furthermore, I am satisfied that the appellant handled himself adequately in cross-examination and in any event, he has not explained how he could have been better prepared or have made greater headway in the face of the strong Crown case against him. [58] The same can be said of counsel’s cross-examination, his closing submissions, and his submissions on sentence. Again, counsel’s performance exceeded the “non-performance” standard needed to establish a miscarriage of justice as a result of an unfair trial. [59] For these reasons, I am not persuaded that trial counsel’s performance occasioned a miscarriage of justice, either by undermining the reliability of the verdict or by rendering the trial unfair. Accordingly, I would dismiss the appeal from conviction. II. SENTENCE APPEAL [60] As indicated, the appellant received a total sentence of five years’ imprisonment. This consisted of four years for the offence of criminal negligence causing death, less one year, on a one-for-one basis, for time spent in pre-trial custody, and two years consecutive for the offence of criminal negligence causing bodily harm. In other words, absent time spent in pre-trial custody, the trial judge considered that a global sentence of six years imprisonment was fit. [61] In my view, the six-year total sentence was fit and well within the range of sentences imposed for crimes of this nature. The appellant was driving with reckless abandon in driving conditions that were treacherous. He and others like him must be deterred. They are a menace on the highways and they cause terrible carnage. [62] The appellant’s moral culpability was high and was significantly enhanced by his impairment by alcohol. In short, on the afternoon in question, he showed callous disregard for the lives and safety of others and his criminal conduct resulted in horrific consequences. He killed Dr. Ehrlich and maimed Mrs. Ehrlich for life. The Ehrlich family has suffered greatly and their lives will never again be the same. [63] The one difficulty that I have with the sentence imposed by the trial judge relates to his treatment of the time spent by the appellant in pre-trial custody (approximately one year). In refusing to credit the appellant on a two-for-one basis, the trial judge stated that he was not prepared to do so “due to the aggravating factor of the offender’s flight from justice.” [64] As discussed earlier, the trial judge’s assessment of the appellant’s departure from Canada was wrong and he erred in treating it as post-offence conduct capable of supporting the appellant’s guilt. [65] With his usual candour, Mr. Pearson for the Crown acknowledged that if the trial judge erred in his assessment of the appellant’s departure from Canada , then he erred as well in failing to credit the appellant on a two-for-one basis for the time spent in pre-trial custody. Given my conclusion on this issue, and Mr. Pearson’s concession, I am of the view that the global sentence must be reduced by one year. I would give effect to this by reducing the sentence on the charge of criminal negligence causing death from three years to two years. In all other respects, I would not interfere with the sentence imposed at trial. In particular, I see no error in the 15-year driving prohibition imposed by the trial judge under s. 259(2)(a) of the Criminal Code, especially in view of the appellant’s prior driving convictions. [66] In the result, leave to appeal sentence is granted and I would vary the sentence imposed by the trial judge as indicated. Signed: “M. J. Moldaver J.A.” “I agree K. Feldman J.A.” “I agree Robert P. Armstrong J.A.” RELEASED: “MJM” March 28, 2008 [1] A finding of non-performance generally occurs in cases where counsel’s incompetence is pervasive. See, for example, R. v. Cook and Cain (1980), 53 C.C.C. (2d) 217 at 224 (Ont. C.A.), in which counsel was impaired during a good part of the trial, including his closing address; see also R. v. Widdifield (1995), 25 O.R. (3d) 161 at 171–78 (C.A.), in which this court held that an accused can sustain a claim of ineffective representation of counsel, without proving prejudice, where trial counsel has a conflict of interest that impairs his or her capacity to effectively represent the accused’s interests. [2] R v. B. (L.C.) was ultimately decided on the basis that trial counsel’s performance did not undermine confidence in the verdict, rather than on trial fairness grounds.