R. v. Greenham

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: R. v. Greenham, 2020 NLCA 14 Date: April 23, 2020 Docket Number: 201801H0092 BETWEEN: TONY GREENHAM APPELLANT AND: HER MAJESTY THE QUEEN IN RIGHT OF CANADA RESPONDENT AND: COLIN STRAPPS INTERVENOR Coram: Welsh, Hoegg and O'Brien JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Grand Falls - Windsor Appeal Heard: March 11, 2020 Judgment Rendered: April 23, 2020 Reasons for Judgment by: Welsh J.A. Concurred in by: Hoegg and O’Brien JJ.A. Counsel for the Appellant: John Duggan Counsel for the Respondent: Paul Adams Counsel for the Intervenor: Jason Edwards Page 2 Welsh J.A.: [1] Tony Greenham appeals his conviction for trafficking in oxycodone contrary to section 5(1) of the Controlled Drugs and Substances Act. In addition to Mr. Greenham’s allegation of ineffective assistance of counsel at trial, the appeal involves consideration of whether the judge’s reasons for conviction were sufficient, particularly in respect of assessing the complainant’s credibility in light of inconsistencies in his evidence and his criminal record. BACKGROUND [2] In his oral decision, the trial judge set out the circumstances leading to Mr. Greenham’s arrest: ... On March 19th, 2015, Constable Nick Clarke of the RCMP, ... received a call from [the complainant’s father]. [He] told the Constable that he’s having issues with his son, [the complainant], as he had oxy pills which were given to him by Tony Greenham. Constable Clarke went to the residence ..., was shown 20 pills that were small, light blue in colour, and marked 5 milligrams in a plastic bag. ... These pills were analyzed, and by consent, the certificate of analysis was entered showing that the pills contained oxycodone. ... [3] The trial judge then summarized the evidence of the complainant: [The complainant] gave evidence. He ... stated that in the spring of 2015 [when he was sixteen years of age], a weekday in March, he was asked by [Mr. Greenham] to come and shovel out his shed that contained a quad. Once this was done, [Mr. Greenham] asked [the complainant] to come to the house. [The complainant] said that he thought he was going to the house to get paid; however, he said he was brought down to the basement and was asked by [Mr. Greenham] to sell 20 oxy pills for him. And [Mr. Greenham] wanted 5 dollars a pill, and whatever else he could get for the pills, [the complainant] could keep. [The complainant] said yes because he was afraid that if he said no, Mr. Greenham would do something to him. He said he was afraid of the accused as he had tattoos and he thought he had been in jail. ... At the time he was in [Mr. Greenham’s] house, he said [Mr. Greenham’s] mother and his two children were there, but they saw nothing, as only he and [Mr. Greenham] were in the basement, and that [Mr. Greenham] went upstairs to get the pills. He described the basement as open concept only, having a furnace and a work bench in it. He kept the pills in his wallet, but he was afraid he would get caught, so he told his step-mother. ... On cross-examination, he admitted that he has a youth record for uttering threats against his birth mother, and was sentenced to a year probation, and that [a Page 3 term] of the probation was that he was not to have in his possession any drugs without a prescription. He said that he used to use marijuana, but he never used any other drugs, as he was allergic to morphine and codeine. He said he doesn’t have a drug problem. He said that he had a conversation with his step-mother about his probation, and at the end of the conversation, he gave the drugs to her. He told her when he got them, and he was firm in his answer. ... When he gave the pills to his step-mom, he said it could have been a week later, or it could have been [two days later]. ... [4] The complainant’s step-mother also testified, as summarized by the trial judge: ... She says that [the complainant] came home and seemed very nervous and a little on edge. The next day, he had an appointment with his probation officer. She had heard that he had an argument in school, and she didn’t want him to get in any further trouble. She wanted to prepare him for the meeting. She said he passed her a bag with pills in it and said he had got them from Tony Greenham on the same day he was shoveling snow. She called the police, who came to the home and seized the drugs. [She] told [the complainant] to tell the truth. ... She questioned [the complainant] as to why he took them, especially when allergic to codeine and morphine. He said [Mr. Greenham] gave him the pills to sell and they weren’t his pills. ... [5] No evidence was called by the defence. The trial judge accepted the evidence of the complainant, which was consistent with the evidence of his step- mother: As I stated above, I find the evidence of [the complainant] straightforward; his inconsistencies as to where he received the drugs on that day, that is, either outside or inside the residence, is not fatal to the Crown’s case. The fact that he went to [Mr. Greenham’s] residence to shovel snow on that weekday in March, 2015, was not challenged. ... I believe him when he says he was frightened by [Mr. Greenham], that [Mr. Greenham] asked him to sell drugs for him, and he was afraid not to take the drugs from him. [6] The trial judge convicted Mr. Greenham after determining that he had given the complainant oxycodone pills, a substance included in schedule 1 of the Controlled Drugs and Substances Act, with the intention of having the complainant sell the drugs for him. The judge concluded that the elements of the offence had been proven beyond a reasonable doubt. ISSUES [7] The first issue is Mr. Greenham’s allegation of ineffective assistance of counsel at trial (“trial counsel”). Also at issue is whether the judge’s reasons for Page 4 conviction were sufficient, particularly regarding inconsistencies in the complainant’s evidence and his criminal record. ANALYSIS Ineffective Assistance of Counsel [8] When an allegation of ineffective assistance of trial counsel is made on appeal, an affidavit from the appellant and from trial counsel is properly admitted without consideration of the factors that ordinarily apply to the admission of fresh evidence (R. v. Freake, 2012 NLCA 10, 318 Nfld. & P.E.I.R. 305, at paragraphs 10 to 14). [9] In this case, affidavits were filed by Mr. Greenham and by trial counsel. Trial counsel was granted intervenor status and was cross-examined on his affidavit by counsel for Mr. Greenham. Counsel for the Crown and for trial counsel chose not to cross-examine Mr. Greenham on his affidavit. As is required, Mr. Greenham waived solicitor-client privilege for purposes of the appeal. [10] In Freake, the approach to assessing a claim of ineffective assistance of counsel references the discussion in R. v. G.D.B, 2000 SCC 22, [2000] 1 S.C.R. 520, in which Major J., for the Court, explained: [26] ... For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. [27] Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. [28] Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised. [29] In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self- governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697). Page 5 [11] In his affidavit, Mr. Greenham makes a number of allegations which, he submits, support his claim of ineffective assistance by his trial counsel. In response, in his affidavit and on cross-examination at the hearing, trial counsel provided relevant explanations which, in my view, dispose of Mr. Greenham’s allegations. In short, as discussed below, the allegations are without merit. [12] At the outset, on cross-examination, trial counsel explained that he no longer worked at Legal Aid in this Province. In his affidavit, he stated that he did not currently have a copy of Mr. Greenham’s file and that he was “operating largely from memory” (paragraph 3). He also stated that his notes were missing from the file. Accordingly, in replying to Mr. Greenham’s affidavit, he conceded that he was relying on his memory and his ordinary practice. [13] Firstly, counsel for Mr. Greenham submits that trial counsel failed to take sufficient time with his client so as to advise him regarding the charges and to receive instructions, and that Mr. Greenham was not given proper disclosure. In his affidavit, trial counsel stated: 14. As to para. 23 [of Mr. Greenham’s affidavit], I agree that the first time I met the Appellant was prior to a court appearance. I take it that that date was January 30, 2017. I was aware well in advance of that date that the January 30, 2017 trial date was going to be postponed. I recall reviewing the full disclosure package, which was not lengthy, with the Appellant. We met in a private meeting room at the courthouse. At the time, it was not unusual for me to bring my work laptop to court with me to review disclosure with criminal clients in a private room. I also recall explaining the mandatory minimum sentence for the alleged offence, which was prominent on my mind throughout the proceeding. [14] Mr. Greenham’s submission that he was not provided with disclosure does not withstand scrutiny in light of the above testimony and explanation by trial counsel. Further, I would reject Mr. Greenham’s submission that trial counsel did not spend sufficient time with him. Disclosure was neither voluminous nor complex. As well, the trial was not complex. As a result of disclosure, Mr. Greenham knew what evidence the complainant and his step- mother could be expected to give. Mr. Greenham’s only defence was his denial that the incident had taken place and that the complainant was lying. In the circumstances, there were no other defences to explore. [15] Regarding Mr. Greenham’s submission that trial counsel did not permit him to testify in his own defence, counsel stated in his affidavit: Page 6 [21] As to para. 32 [of Mr. Greenham’s affidavit], I vividly recollect the incident described, as it was quite dramatic, and it was one of two major reasons that I advised Mr. Greenham not to take the witness stand in his own defence (the second major reason was his criminal record). After [the complainant’s step-mother] testified, the appellant exited the courtroom ahead of me. The complainant’s family was sitting in the foyer of the courthouse. The Appellant was walking away from me and I heard him swear at the family. I called to him to walk away, and he did. Seconds later, I privately and firmly reminded him that he could not speak to the complainant’s family, as there was a no-contact order in place. ... He said, “I know, I know,” repeatedly when I was telling him not to speak to the family. ... [Italics in original.] [22] I surmised from this event that putting Mr. Greenham on the witness stand could have a negative outcome based upon his inability to control himself enough to avoid taking actions that could have easily resulted in an additional charge. In short, I questioned how he could be trusted to control himself in court if he couldn’t prevent himself from knowingly subjecting himself to further criminal liability in the foyer of the courthouse where his trial was taking place. [16] Trial counsel reiterated on cross-examination that he had advised Mr. Greenham not to testify due to his lack of control and his significant criminal record, which included convictions for drug offences, thefts and violent crimes. Further, I accept trial counsel’s testimony that, contrary to what Mr. Greenham suggests, he did not tell him that he could not testify. In addition, trial counsel stated in his affidavit that: [29] ... Had he insisted on testifying against my advice, I certainly would have requested an adjournment to discuss his testimony in advance. [17] Similarly, I accept trial counsel’s testimony that he did not see an advantage to interviewing Mr. Greenham’s wife or children. The complainant’s evidence was that they were not present during the transaction. Indeed, in this Court, Mr. Greenham did not indicate how their information may have assisted in his defence. [18] In response to Mr. Greenham’s claim that trial counsel should not have consented to admission of the certificate of analysis of the drugs, trial counsel explained that there was no basis on which to object to admission of the certificate since the Crown had complied with all the legal requirements. Refusing to consent would not have served any purpose. [19] Finally, I am satisfied that where the evidence of trial counsel and Mr. Greenham differ, I would accept that of trial counsel who was forthright during cross-examination in this Court. He provided a comprehensive affidavit Page 7 responding to Mr. Greenham’s allegations and explaining how he dealt with the charges and the trial. [20] In summary, Mr. Greenham has not provided any basis on which to substantiate his claim of ineffective assistance by his trial counsel. No prejudice occurred and no miscarriage of justice resulted by virtue of the manner in which counsel proceeded. Sufficiency of Reasons – The Complainant’s Credibility [21] The test for sufficiency of reasons is discussed in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3: [15] ... The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review. [16] It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered [citations omitted]. [22] Mr. Greenham submits that the trial judge erred by failing to assess the complainant’s credibility in light of his criminal record. In particular, the complainant, who was a youth, had been convicted of the offence of uttering threats against his birth mother, for which he was sentenced to probation. [23] In his decision, the trial judge referred to the complainant’s admission that he had a criminal record for uttering threats. The judge indicated that the issue of the complainant’s record was raised by both counsel in their closing submissions. It is clear that the judge was aware of the record, though he did not specify what weight, if any, he gave it in assessing the complainant’s credibility. [24] However, given the nature of the complainant’s offence, and reading the decision as a whole, the inference follows that the trial judge did not consider the complainant’s record to be such as to impugn his credibility. The offence did not involve dishonesty which potentially could have undermined the complainant’s credibility in giving evidence regarding Mr. Greenham’s drug trafficking charge. Further, the sentence suggests that the circumstances surrounding the offence were not serious. The judge considered that the complainant “gives a straightforward account of what happened”. In the Page 8 circumstances, it was unnecessary for the judge to address the issue of the complainant’s record in more detail. [25] Mr. Greenham also submits that the trial judge erred in his assessment of inconsistencies in the complainant’s evidence. The first issue raised by Mr. Greenham relates to where the incident took place. In his statement to the police, the complainant told the officer: 1. Can you tell me what happened? He (Anthony Greenham) wanted me to shovel his tent so he could get his quad out as he was going to sell it and when I was done he asked if I could sell pills because I knows all the young people and he doesn’t know them. I didn’t know what to do so I said sure. Anyways he took a [unclear text] bag out. I don’t know if they were upstairs or downstairs. He came downstairs and counted Oxys one by one and gave me 20. He said don’t tell anyone about them. ... 2. Where did this happen? In his basement. He asked me about it outside and took me to his basement. ... 5. What did Tony Greenham say to do with the pills? He told me to sell them. If I could get them all sold he said to bring him $5 for each one and that whatever extra I made I could keep it. ... [26] At trial, during cross-examination, the complainant was asked about whether he was outside or in the basement when Mr. Greenham asked if he would sell the pills. His statement to the police said he was outside, but in direct examination, he said he was in the basement. After using his statement to the police to refresh his memory, he agreed that he was “mistaken about that detail” when he testified earlier. Counsel for Mr. Greenham used this detail to challenge the complainant’s testimony that he had said he would sell the pills because he was afraid to say no. However, the following exchange explains the complainant’s rationale, that is, that he would have been afraid only if he had refused Mr. Greenham’s request: Q. Okay. Alright, so he asked you to sell the pills. You said yes. Why wouldn’t you just have said no if you didn’t want to sell them? Page 9 A. Because I was afraid. Q. Afraid of what? A. I don’t know, I just figured that he was covered in tattoos, he was a bald guy, I’ve heard he’d been in jail before. So I didn’t know what he would do if I said no, then he knew that I would have known that he had pills to sell and he figured, well, if he said no, he’s just going to go off and tell somebody that I got pills here ... to sell. Like, [he] figured I would have ratted him out. [27] The complainant testified that he felt he was in immediate danger and the fact that he was outside when Mr. Greenham asked him to sell the pills did not change that. The exchange continued: Q. Okay. Alright, so he asked you outside to sell the pills, you say yes even though you didn’t want to, and then he asks you to come inside, right? A. Yes. Q. If you were so scared of this individual, why would you go inside, into his house, follow him in there? A. I just figured he was just going to give me whatever he wanted to give me and I’d leave again. Q. Okay. Do you see how it would be confusing why you would follow someone – voluntarily follow someone into their house when you’re scared of them? A. It wasn’t that I was scared, it was just that I was scared of what he would do if I didn’t take the pills. [28] Counsel for Mr. Greenham also cross-examined the complainant regarding whether Mr. Greenham got the pills from upstairs or downstairs. The trial judge stated that he did not consider either of these issues to be material. They did not affect his assessment of the complainant’s credibility, that is, whether the complainant was outside or in the basement when Mr. Greenham asked him to sell the pills, or whether Mr. Greenham got the pills from upstairs or in the basement. [29] It is clear from the above discussion, and from reading the record as a whole together with the judge’s decision, that the reasons were sufficient to fulfill their functions of explaining why Mr. Greenham was convicted, providing public accountability and permitting effective appellate review. Page 10 SUMMARY AND DISPOSITION [30] Mr. Greenham’s allegation of ineffective assistance of counsel at trial is without foundation. Further, the trial judge’s reasons for convicting Mr. Greenham are sufficient for their purpose. The manner in which the judge dealt with inconsistencies in the complainant’s evidence and his criminal record did not amount to error. [31] Accordingly, I would dismiss the appeal. _______________________________________ B. G. Welsh J.A. I Concur: ______________________________________ L. R. Hoegg J.A. I Concur: ______________________________________ F. P. O’Brien J.A.