Accused was convicted of refusing breathalyzer after he failed to give proper sample after 14 to 16 attempts. Accused alleged he had ineffective counsel after counsel abandoned Charter s. 11(b) application with his consent and failed to call medical expert. Trial counsel was ready to call medical expert, however, expert became available at last moment and counsel claimed that accused agreed to abandon calling expert, which accused disputed. Trial counsel did not obtain written instructions from accused regarding those appellate issues. Trial judge also did not believe version of events as described by accused. Accused appealed his conviction. Appeal dismissed. Judge expressly disbelieved evidence of accused regarding alleged effects of being stopped by police and any expert reports would have to be based on acceptance of accused’s version of events. It was not court’s role to grade counsel’s professional conduct outside of courtroom. If accused was unhappy with manner in which his trial counsel conducted his trial, his remedy lay with Law Society of Upper Canada and its complaint procedures.
R. v. Namasivayam (Nov. 24, 2015, Ont. S.C.J., Nordheimer J., File No. 134/13) 126 W.C.B. (2d) 9.