COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al-Enzi, 2014 ONCA 569

DATE: 20140731

DOCKET: C52834

Laskin, Goudge and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nawaf Barerh Al-Enzi

Appellant

Marie Henein and Matthew Gourlay, for the appellant

Jamie Klukach and Gavin MacDonald, for the respondent

Heard: February 26 and 27, 2014

On appeal from the conviction entered on September 26,
    2010 by Justice Roydon Joseph Kealey of the Superior Court of Justice, sitting
    with a jury.

Laskin J.A.:

A.

Introduction

[1]

On the night of August 18, 2006, Mohamed Zalal, an Ottawa-area drug
    dealer, was murdered. The appellant Nawaf Al-Enzi, Mahmoud Kayem and Ali
    Abdul-Hussein were charged with his murder. Abdul-Hussein made a deal with the
    Crown and gave a statement to the police in which he said that Al-Enzi shot
    Zalal in a car driven by Kayem. The Crown then proceeded jointly against
    Al-Enzi and Kayem, charging each with first degree murder. Both pleaded not
    guilty and blamed the other. Al-Enzi claimed that he was elsewhere when the
    murder occurred.

[2]

When the trial began, both Al-Enzi and Kayem were represented by
    experienced and competent defence counsel. Midway through the trial, the
    Crowns main witness, Abdul-Hussein, recanted his statement to the police. He
    was then cross-examined. Before his cross-examination was finished, Al-Enzis
    counsel withdrew from the case, leaving Al-Enzi unrepresented.

[3]

The trial judge adjourned the trial for nearly four months so Al-Enzi
    could find another lawyer. But, despite an extensive search throughout the
    province, no defence lawyer was prepared to step into the middle of a first
    degree murder trial.

[4]

Al-Enzi sought a severance or a mistrial so that he could be represented
    by counsel at a new trial. The trial judge refused either remedy. Instead, he
    ruled that the trial should proceed and appointed
amicus curiae
, with
    whom Al-Enzi had no relationship, to assist him during the rest of the trial. Neither
    accused testified or called any evidence. Kayem, represented throughout the
    trial, was acquitted; Al-Enzi was convicted and sentenced to the mandatory term
    of life imprisonment with no eligibility for parole for 25 years.

[5]

Al-Enzi appeals his conviction on two grounds. His first and main ground
    is that the trial judges refusal to grant a severance or a mistrial caused a
    miscarriage of justice. Al-Enzi submits that his right to be represented by
    counsel outweighed the importance of a joint trial. He argues that the trial
    judges ruling deprived him of a fair trial, both in appearance and in reality.

[6]

Al-Enzis second ground of appeal is that the trial judge erred by
    admitting private telephone conversations between Al-Enzi and his wife, in
    breach of the spousal privilege rule. This evidence was important to the
    Crowns case, and Al-Enzi argues that its erroneous admission prejudiced him.

[7]

In response, the Crown first submits that in the light of the
    antagonistic defences of the two accused, the trial judge exercised his
    discretion reasonably by ordering the joint trial to proceed and appointing
amicus
in an expanded role to assist Al-Enzi. Second, the trial judge admitted only
    conversations that were facilitated by three-way calls, and therefore were not
    privileged. Alternatively, if the trial judge erred, his error was harmless
    because the calls he admitted formed a relatively insignificant part of the
    Crowns case.

[8]

I agree with Al-Enzis main ground of appeal. I would therefore allow
    his appeal, set aside his conviction for first degree murder, and order a new
    trial.

B.

The
    Crowns theory AND the positions of the two accused

(1)

The relationship among the
    individuals involved

[9]

The victim Zalal and Al-Enzi were distant cousins, though not close. Both
    were in the drug trade. Abdul-Hussein is Al-Enzis brother-in-law. During the
    summer of 2006, Abdul-Hussein and Kayem became friends. Through that friendship,
    Kayem knew Al-Enzi.

(2)

The Crowns theory about how
    Zalal was murdered

[10]

According
    to the Crown, Zalal was murdered over a 9mm handgun. The handgun belonged to
    Zalal but he had been in jail, and while there, he loaned the gun to Al-Enzi.

[11]

Zalal
    was released from jail during the day on August 18 and demanded his gun back.
    Al-Enzi liked the gun and did not want to return it. The Crown alleged that
    Al-Enzi and his friends, Abdul-Hussein and Kayem, lured Zalal into a car on the
    pretext that he would get his gun back. Kayem drove and Abdul-Hussein sat in the
    back seat behind him; Zalal sat in the front passenger seat, and Al-Enzi sat
    behind him in the back seat. They drove east from Ottawa along Highway 417 late
    at night. Al-Enzi took out the gun Zalal had given him and shot Zalal in the
    back of the head. Kayem kept driving. Eventually they dumped Zalals body in a
    field, where it was discovered the next day.

[12]

In
    June 2008, nearly two years after the killing and after a lengthy police
    investigation, Abdul-Hussein, Kayem and Al-Enzi were charged with Zalals murder.

(3)

The positions of the accused

[13]

Originally,
    Kayem was charged separately, and Abdul-Hussein and Al-Enzi were charged
    jointly. After his arrest, Kayem was confronted with his DNA on a cigarette butt
    left at the scene. He then gave a statement in which he admitted that he was
    present at the murder but claimed that he had no advance knowledge of it. He
    said that Al-Enzi was the killer. After his preliminary inquiry, Kayem was
    committed for trial separately.

[14]

At
    the end of the preliminary inquiry for Abdul-Hussein and Al-Enzi, Abdul-Hussein
    made a deal with the Crown. He gave a
KGB
statement
[1]
to the police and pleaded guilty to accessory after the fact, for which he
    received a sentence of time served. In his statement, he also pointed to
    Al-Enzi as the killer. Like Kayem, he said that he was present for the murder
    but knew nothing about it in advance. He also said Kayem was shocked and
    surprised when Al-Enzi shot Zalal. After the police obtained Abdul-Husseins statement,
    the Crown decided to proceed jointly against Kayem and Al-Enzi.

[15]

Al-Enzi
    gave a statement to the police in which he said that he had been nowhere near
    the scene of the murder. He claimed that he had gone to the Exhibition with his
    wife and then to a nightclub in Gatineau.

C.

Background
    to the main ground of appeal

[16]

The
    question of the appropriate remedy after the withdrawal of Al-Enzis counsel
    must be sensitive to the context. It calls for a case-specific inquiry into the
    surrounding facts. It thus becomes necessary to review these facts in some
    detail. I begin with a list of the important points disclosed by that review.

·

Kayem and Al-Enzi blamed each other for Zalals murder.

·

When Al-Enzis counsel, Gary Barnes, withdrew, Kayems interest
    and the Crowns interest were aligned: both sought to show Abdul-Husseins
    police statement inculpating Al-Enzi was truthful and his recantation at trial
    was fabricated.

·

Barness withdrawal was required by the Law Societys Rules of Professional
    Conduct.

·

Although Barness withdrawal was mandatory, he gave uncontested
    statements that Al-Enzi was not to be blamed.

·

By the time of Barness withdrawal, the Crown had mounted a
    formidable case against Al-Enzi: the risk of conviction was high.

·

Al-Enzi, his family, Barnes and the Legal Aid Office all
    diligently searched throughout the province for a new lawyer.

·

Over 100 lawyers were contacted and not one was willing to take
    on Al-Enzis defence in the middle of the trial.

·

Al-Enzi had never met and had no relationship with the
amicus
appointed by the trial judge.

·

After Barness withdrawal and for the remainder of the trial,
    Al-Enzi continued to ask for his own lawyer.

·

Three more weeks of motions and evidence took place after Barness
    withdrawal. During that time, the Crown led more evidence to strengthen its
    case against Al-Enzi.

(1)

The trial proceedings

[17]

As
    I have said, after the Crown obtained Abdul-Husseins police statement, it
    proceeded jointly against Al-Enzi and Kayem. Al-Enzi was represented by Gary
    Barnes. Kayem was represented by Leonard Shore and Patrick McCann. All three
    were experienced Ottawa defence counsel. The trial began in April 2010 and
    concluded in September 2010.

[18]

The
    timeline of the trial was as follows:

·

April 14: Pre-trial motions begin. They include the spousal
    privilege
voir dire
(which is not concluded before the trial begins)

·

April 29: The jury begins to hear evidence

·

May 18: Barnes withdraws

·

May 18 - Aug 31: The trial adjourns to permit Al-Enzi to retain
    counsel

·

May 31  June 2  The severance application is argued and the
    trial judge reserves his ruling

·

August 6: The trial judge dismisses the severance application and
    appoints
amicus

·

August 31: The spousal privilege
voir dire
resumes

·

September 7: The trial resumes before the jury

·

September 17: The Crown closes its case

·

September 22: Al-Enzi,
amicus
, counsel for Kayem and the
    Crown address the jury

·

September 23: The jury begins its deliberations

·

September 26: The jury returns its verdict

[19]

May
    18, the date Barnes withdrew, was a pivotal moment in the trial. By then, the
    jury had been hearing evidence for three weeks. The Crown had called seven
    witnesses. Its last witness before Barness withdrawal was its main witness,
    Abdul-Hussein.

[20]

When
    the Crown called Abdul-Hussein to testify, he recanted his police statement. He
    said that he had been coerced into giving it to get out of jail and that he had
    essentially adopted Kayems statement to the police. The Crown, of course,
    applied to have Abdul-Husseins police statement admitted for its truth. The
    trial judge granted the application. Abdul-Hussein was then cross-examined by
    the Crown, by Barnes for Al-Enzi and by counsel for Kayem. Kayems counsel had
    nearly completed his cross-examination when Barnes asked to withdraw as counsel
    for Al-Enzi.

(2)

Barness withdrawal

(i)

The withdrawal

[21]

On
    the morning of May 18, Barnes advised the court that issues had arisen between
    him and Al-Enzi that made it impossible for him to continue to act for his
    client. He asked to withdraw as counsel. He said that the major issue between
    him and Al-Enzi was a matter of ethics. He had conferred with the Law Society
    and was instructed that he must apply to be removed from the record under rule
    2.09(7) of the Rules of Professional Conduct, which governs situations of mandatory
    withdrawal.  He undertook to help Al-Enzi find another lawyer.

(ii)

The positions of the parties

[22]

Crown
    counsel did not oppose Barness application, but said that the Crown would not
    consent to proceeding against an unrepresented accused on a first degree murder
    charge. At the same time, Crown counsel opposed a severance. He asked that
    Al-Enzi be instructed to retain counsel within a specified period.

[23]

Counsel
    for Kayem also said that the Crown could not proceed against an unrepresented
    accused. They said, however, that the prosecution need not proceed as a joint
    trial. They opposed a mistrial for both accused because it would severely
    prejudice Kayem.

[24]

By
    this time, the interests of Kayem and Al-Enzi were diametrically opposed. Kayem
    was aligned with the Crown. Both sought to discredit Abdul-Husseins
    recantation and demonstrate the truth of his original statement to the police. That
    statement suggested Kayem had not knowingly participated in Zalals murder. Abdul-Hussein
    had been effectively cross-examined on his recantation and Kayem did not want
    to lose the fruits of that cross-examination. Moreover, he had retained his
    counsel privately and had been in custody for two years. He wanted the trial to
    continue against him.

[25]

Al-Enzi,
    on the other hand, wanted to discredit Abdul-Husseins police statement and
    affirm the veracity of his recantation. And Al-Enzi wanted a new lawyer to
    represent him  indeed, he blurted out that it was going to take a year to find
    one. At the very least, he wanted a severance and a new trial.

[26]

The
    trial judge sent the jury away. He granted Barness application to withdraw and
    said that he would hear an application for severance. In the meantime, he
    adjourned the trial to permit Al-Enzi to find another lawyer.

(iii)

Al-Enzi is not to be blamed
    for Barness withdrawal

[27]

Because
    Barnes withdrew under the mandatory withdrawal rule of the Law Societys Rules
    of Professional Conduct, the Crown (both at trial and on appeal), and, as I
    will discuss, even the trial judge, suggested that Al-Enzi should be faulted
    for his counsels withdrawal.

[28]

The
    only evidence on the record, however, came from Barnes. And, at several of the
    court appearances after his withdrawal, Barnes unequivocally stated to the
    court that Al-Enzi was blameless. He was not to be faulted for his lawyers
    withdrawal. On July 8, for example, Barnes asserted that this was a no fault
    situation  nothing can impugned against Mr. Al-Enzi about it. No evidence
    on the record contradicted Barness assertions.

(3)

The unsuccessful
    attempts to find another lawyer

(i)

Initial positions

[29]

The
    trial judge was optimistic that Al-Enzi could find new counsel. He decided he
    would hear submissions on severance and reserve judgment on the application,
    and would monitor Al-Enzis progress in retaining new counsel by regular court
    attendances over the summer. The trial judge did not regard the case as
    terribly complex. He later expressed incredulity that no counsel would take the
    matter on.

[30]

From
    the moment Barnes withdrew, counsel for Kayem were highly skeptical that Al-Enzi
    would find another lawyer to take on the case in the middle of the trial. On
    May 18, McCann said it was pie-in-the-sky hopes and highly, highly unlikely
    that Al-Enzi could find another lawyer. A week later, Shore told the court that
    no lawyer worth his salt is going to come and we are all dreaming in
    technicolour to think that any serious lawyer would come in mid-trial.

[31]

Craig
    Fleming from the Toronto office of Legal Aid Ontario, which had been asked to
    assist in finding a new lawyer, had a similar view. On May 31, he told the
    trial judge that he had a grave concern on an ethical basis whether a lawyer
    could walk into a trial of this magnitude and complexity and provide competent
    representation.

[32]

The
    views of Kayems counsel and Fleming proved to be prophetic.

(ii)

Lawrence Greenspon
    is willing to act for Al-Enzi, but not mid-trial

[33]

On
    May 25, a week after his withdrawal, Barnes told the court that Al-Enzi had
    spoken to Lawrence Greenspon, a senior Ottawa lawyer. Greenspon was interested
    in taking the case, and Al-Enzi wanted him. Shore did not believe Greenspon
    would come in mid-trial. The trial judge responded that the trial was going
    ahead in September. Al-Enzi and Greenspon were not going to control the process.
    If Al-Enzi could not get a lawyer,
amicus
would be appointed.

[34]

On
    May 27, Greenspon appeared. He told the court that he expected to be retained
    but that he was not prepared to pick up the case in the middle of trial when he
    had not selected the jury or seen the evidence. He would take the case only if a
    new trial was granted.

[35]

The
    trial judge said that he would not grant a mistrial. He was not losing this
    trial. If he did not grant a severance, the trial would go forward with an
amicus
.

(iii)

The search for counsel

[36]

Barnes,
    the Legal Aid Office, Al-Enzi himself and Al-Enzis family all tried to find a
    lawyer to take on the case in the middle of the trial. The record is clear that
    they searched diligently and that although Al-Enzi preferred Greenspon, he was
    willing to accept another lawyer.

[37]

The
    record is also clear on the results of the search. Despite everyones diligent
    efforts over the course of several months, not a single lawyer was prepared to
    take on Al-Enzis defence in the middle of the trial. I set out here a brief
    summary of these efforts:

·

Ms. Champagne, a lawyer from the Ottawa office of Legal Aid,
    canvassed almost everyone on the extremely serious matters list in her region
    and contacted the major case management unit in Toronto. She received the
    identical response from everyone: no one was willing to pick up the case in the
    middle of the trial.

·

Barnes made similar inquiries. He expanded the search to lawyers
    on the extremely serious matters list for all of eastern Ontario. He, too, was
    told no one would step in.

·

Eventually, Barnes contacted the Criminal Lawyers Association
    and lawyers in Toronto and across eastern and southern Ontario. There, too, he
    had no success finding a lawyer willing to take on Al-Enzis defence.

·

Al-Enzi and his family contacted lawyers throughout the province.
    Barnes confirmed that Al-Enzi and his family had actively searched for a lawyer.
    Their efforts were also unsuccessful.

[38]

All
    told, over 100 lawyers were contacted. Nobody was willing to act.

(iv)

The provisional appointment of
amicus

[39]

In
    late June at one of the attendances to update the trial judge, Barnes said that
    two lawyers who had spoken to him were willing to act as
amicus
. One
    was Clay Powell, a lawyer with many years experience at the criminal bar, both
    as a Crown counsel and as a defence lawyer.

[40]

The
    Crown asked that
amicus
be appointed immediately. Barnes objected. He
    argued that appointing
amicus
was inappropriate because Al-Enzi wanted
    to retain his own lawyer and had done nothing blameworthy to prolong the
    proceedings. Indeed, he had done everything in his power to find another lawyer
    and had not stopped looking. Barnes contended a severance was the most
    effective way to prevent Al-Enzi from being prejudiced.

[41]

The
    trial judge disagreed with Barnes. He gave an oral ruling appointing Powell as
amicus
provisionally. He did not define Powells role but did say that solicitor-client
    privilege would attach to Powells communications with Al-Enzi. The question
    whether Powell was to be appointed for the balance of the trial was deferred
    for further argument. Up until Powells provisional appointment, Al-Enzi had
    never met or even spoken to him.

[42]

The
    trial judge then addressed Al-Enzi directly and told him that his time to find
    counsel was drawing down. The trial was going to continue on September 7. Al-Enzi
    replied that he did not want
amicus
; he wanted his own lawyer.

(v)

Greenspon
    and Fleming

[43]

During
    the search for new counsel, two related matters arose: whether Greenspons
    offer to act if a severance were granted deterred other counsel from taking on
    the case; and whether Fleming from the Legal Aid Office was willing to act for
    Al-Enzi. I will deal briefly with the evidence on each of these matters.

[44]

At
    one of the many court appearances during the summer of 2010, Crown counsel
    claimed that Greenspons involvement had dissuaded other defence lawyers from
    stepping in. The trial judge apparently held the same view. During the argument
    on the provisional appointment of
amicus
, he observed that Greenspons
    willingness to act only if a new trial was granted had poisoned the process.

[45]

The
    record, however, does not bear this out. Even before Greenspons name surfaced,
    Barnes, Al-Enzi and even the Legal Aid Office had tried unsuccessfully to find
    another lawyer. This was hardly surprising. Kayems very experienced defence
    counsel had told the trial judge that the court was dreaming in technicolour
    to think another lawyer would step in.

[46]

Barnes
    did acknowledge that some lawyers he had contacted were turned off when told
    that Greenspon was prepared to take the case if the trial began anew. But
    Barnes also said that the lawyers he had spoken to had given several other reasons
    for declining to act: they had no involvement in jury selection, no involvement
    in the various pre-trial motions and no opportunity to cross-examine the
    important witnesses who had already testified. As I read the record, the trial
    judges observation that Greenspons involvement had poisoned the entire
    process is not supportable.

[47]

At
    one of the court appearances during the summer, Fleming seemed to suggest that
    he would be willing to act as defence counsel if Al-Enzi agreed. In this court,
    the Crown submitted that Al-Enzi chose not to avail himself of Mr. Flemings
    willingness to represent him for the continuation of the trial.

[48]

Unfortunately,
    the record is unclear on whether Fleming actually extended the offer, and if
    so, whether Al-Enzi declined it. Instead, the matter seems to have been left
    hanging. That Fleming would have been willing to act seems quite inconsistent
    with his initial comment to the court: he would have grave concern on an
    ethical basis whether a lawyer could step into the trial and adequately
    represent Al-Enzi. Moreover, in his many comments on the search for counsel and
    in his severance ruling, the trial judge does not advert to Flemings supposed willingness
    to act. On this record, therefore, no reliable inference can be drawn that
    Fleming was prepared to act for Al-Enzi.

(4)

The Crowns case against
    Al-Enzi

[49]

When
    Barnes withdrew, unquestionably the Crown had already put forward a formidable
    case against Al-Enzi. Its principal evidence consisted of the following:

(i)
Abdul-Husseins police statement
: In his statement,
    Abdul-Hussein described in some detail how Al-Enzi shot Zalal and disposed of
    his body. Although Abdul-Hussein recanted his statement at trial, both the
    Crown and Kayems counsel had effectively cross-examined Abdul-Hussein on the
    implausibility of his recantation.

(ii)
Kayems police statement
: it substantially corroborated
    Abdul-Husseins statement.

(iii)
Forensic evidence
: Zalal was killed by a single gunshot
    wound to the head. The Crown claimed that he was shot while sitting in the
    passenger seat of the car. Blood staining on Zalals clothing was shown to be
    consistent with his being in a seated position when shot and then slumping
    forward with his head down.

(iv)
Telephone records
: Phone records for August 18, the day
    of the murder, showed 17 telephone calls between Al-Enzi and Kayem, a level of
    communication that was allegedly unusual for them. Additionally, phone records
    of the relevant service towers were consistent with Abdul-Husseins description
    of the movement of the perpetrators on August 18.

(v)
Al-Enzis intercepted telephone calls
: After Zalal was
    killed, Kayem went to Dubai. While he was there, Al-Enzi spoke with him on the
    phone many times. During their calls, Al-Enzi repeatedly told Kayem that the
    police knew nothing and that if they said nothing they would be alright. He
    tried to persuade Kayem to stay in Dubai, but also told him that if he came
    back he should resist breaking down.

[50]

The
    Crown also relied on intercepted telephone calls between Al-Enzi and various
    friends and family members, which took place while Al-Enzi was in jail. The
    calls with Al-Enzis wife contained what the Crown alleged were conversations
    about how to keep Kayem in Dubai and keep her brother, Abdul-Hussein, from
    talking to the police. Early in the trial, Barnes had applied to exclude these
    conversations on the ground of spousal privilege. That application had not been
    completed when Barnes withdrew. It was dealt with when the trial resumed. The
    trial judge ruled that the calls were admissible.

(5)

The severance ruling and the
    appointment of
amicus

[51]

The
    severance application took place between May 31 and June 2. As he said he
    would, the trial judge reserved his ruling. He gave his ruling on August 6. He
    dismissed the application and appointed Powell as
amicus
in an
    expanded role to assist Al-Enzi.

[52]

In
    his ruling, the trial judge framed the question he had to resolve this way:

[T]he question is, in all the circumstances present in this
    case, should Mr. Al-Enzis right to be represented by counsel of his choice
    prevail over the Crowns right to have the one trier of fact deal with jointly
    accused persons, and Mr. Kayems right to the continuance of his trial now
    rather than later[?]

[53]

The
    trial judge then gave three reasons why he was ordering the trial to proceed
    jointly against both accused:

·

[T]he overwhelming public interest in joint trials where the
    accused blame one another.

·

Al-Enzi is without counsel by his own doing, having directly or
    indirectly made it necessary for Mr. Barnes to withdraw from the case.

·

[T]he very substantial criminal record of Mr. Al-Enzi shows
    that [h]e is no neophyte, but rather it would seem he is quite familiar with
    the criminal justice system and retaining lawyers to defend him.

[54]

The
    trial judge therefore concluded that the trial would continue against both
    accused before the jury on September 7, though Al-Enzi would be without
    counsel.

[55]

Then,
    to assure trial fairness for Al-Enzi, the trial judge appointed Powell as
amicus
in an expanded role. This expanded role included:

·

Consulting with and taking instructions from Al-Enzi, and
    assisting in the cross-examination of the remaining witnesses;

·

Leading any evidence Al-Enzi chose to call; and

·

Making any appropriate submissions to the court and final submissions
    to the jury on Al-Enzis behalf.

[56]

In
    addition, the trial judge affirmed that communications between Al-Enzi and
    Powell shall be cloaked with the usual solicitor-client privilege.

(6)

The resumption and
    completion of the trial

[57]

On
    August 31, the court reconvened for the
voir dire
on the issue of
    spousal privilege for the intercepted telephone calls between Al-Enzi (who was
    in jail at the time of the phone calls) and his wife. Powell was present during
    the
voir dire
and the trial judge told Al-Enzi that Powell was
    available to assist him. Al-Enzi replied that Powell was the courts lawyer,
    not my lawyer. I dont have a lawyer. Im forced to represent myself. I dont
    know how to do that.

[58]

On
    September 7, the trial resumed before the jury. The jurors were given
    transcripts of the evidence to date to refresh their memory. After Kayems
    counsel completed his cross-examination of Abdul-Hussein, the Crown called more
    witnesses to strengthen its case against Al-Enzi. Powell did cross-examine
    these witnesses. Throughout the remainder of the trial, however, Al-Enzi
    continued to assert his right to counsel and express his dissatisfaction with
    the role of
amicus
. He did on occasion act as his own counsel, usually
    by objecting to the Crowns evidence.

[59]

Neither
    Kayem nor Al-Enzi called a defence. Powell and Al-Enzi gave closing addresses
    to the jury. Both were brief.

[60]

The
    jury began its deliberations on September 23 and gave its verdict on September
    26. It convicted Al-Enzi and acquitted Kayem.

D.

Did the trial
    judges refusal to grant a severance or a mistrial cause a miscarriage of
    justice
?

(1)

The legal context

[61]

The
    legal context for analyzing this main ground of appeal is well established and
    uncontroversial. Section 591(3) of the
Criminal Code
sets out the test
    for severance: the court may order that two accused be tried separately where
    it is satisfied that the interests of justice so require. This provision
    confers broad discretion on a trial judge. In exercising that discretion, the
    trial judge must take account of the interest of each accused and of the
    public, represented by the Crown: see
R. v. Suzack
(2000), 141 C.C.C.
    (3d) 449 (Ont. C.A.), at para. 85, leave to appeal to S.C.C. refused, [2000]
    S.C.C.A. No. 583.

[62]

When,
    as in this case, two persons are accused of committing a crime in concert,
    there is a presumption in favour of trying the accused together. That
    presumption applies with particular force when two accused mount a cut-throat
    defence and blame each other, as Kayem and Al-Enzi did: see
Suzack
, at
    paras. 87-89. Thus, in cases in which two accused engage in cut-throat tactics,
    only exceptionally should they be tried separately.

[63]

Similar
    considerations apply to decisions on applications for a mistrial. In
    determining whether to grant a mistrial, a trial judge must consider whether
    there is a real danger of prejudice to the accused or of a miscarriage of
    justice if the trial were to continue:
R. v. Burke
, 2002 SCC 55, [2002]  2 S.C.R. 857, at para. 74.
As
    with decisions on severance applications, the trial judge must balance the
    interests of the accused against other considerations, including the public
    interest:
Burke
, at para. 75.

[64]

Because
    severance decisions (and decisions refusing a mistrial) are discretionary, they
    are entitled to deference on appeal. An appellate court is justified in
    intervening only if the trial judge exercised this discretion unreasonably or
    acted on a wrong principle.

[65]

In
    this part of my reasons, I will focus on the trial judges severance decision
    because severance was the subject of a formal application and ruling, while the
    possibility of a mistrial was only referred to in passing. Nonetheless, the two
    remedies engage similar considerations.

(2)

The trial judges
    severance ruling

[66]

Once
    Barnes withdrew as counsel for Al-Enzi in the middle of the trial, the trial
    judge faced a difficult decision about how to proceed. He had to consider
    Al-Enzis interest; he had to consider Kayems interest; he had to consider the
    Crowns interest; and he had to consider the strong presumption in favour of
    joint trials when two accused are alleged to have acted in concert and put
    forward antagonistic defences. There is indeed some merit to Ms. Klukachs
    submission that in weighing these considerations and denying severance, the
    trial judge did not err.

[67]

However,
    for reasons I will discuss, I have concluded that the trial judges severance
    ruling cannot stand. He asked himself the wrong question and thus acted on a
    wrong principle. And he exercised his discretion unreasonably by relying on two
    unsupportable considerations and by failing to take into account other highly
    relevant considerations.

[68]

This
    is one of those exceptional cases in which the interests of justice demand that
    Al-Enzi be given a new trial so that he can be defended throughout by his own
    counsel. The appointment of
amicus
, even with an expanded mandate, was
    not an adequate substitute. The trial judges ruling thus deprived Al-Enzi of
    the reality and appearance of a fair trial and produced a miscarriage of
    justice.

[69]

Although
    it is not necessary to decide whether a severance or a mistrial was the
    appropriate remedy, an order for severance would likely have been preferable. It
    would have preserved the proceedings against Kayem and would have put the two
    accused in the position they were in when they were first charged  with
    separate trials. The availability of Abdul-Husseins police statement
    implicating Al-Enzi would have diminished any prejudice to the Crown.

[70]

In
    his severance ruling, the trial judge said that the question he had to decide was
    whether Al-Enzis right to be represented by counsel of his choice prevailed
    over the Crowns right to proceed jointly against the two accused with
    antagonistic defences and Kayems right to continue the trial. This was not the
    right question. The trial judge thought he had two options: preserving the
    joint trial or giving Al-Enzi his counsel of choice at a new and separate trial.
    But this was not a case in which an accused insisted on counsel of choice. This
    case was about a choice between counsel or no counsel. Although Al-Enzi did
    want Greenspon to act for him, he would have accepted another lawyer. And the
    critical fact is that no lawyer was willing to take on his defence in the
    middle of a first degree murder trial  a fact the trial judge seemed unwilling
    to accept or even recognize.

[71]

The
    right question  the question the trial judge ought to have asked himself  is
    this: would requiring Al-Enzi to proceed without counsel but with the
    assistance of
amicus
strike a reasonable balance between Al-Enzis
    right to a fair trial, the Crowns interest in a joint trial and Kayems
    interest in the continuation of this trial?  That question should have led, in
    my view, to a very different answer from the one given by the trial judge.

[72]

The
    trial judge compounded this error by giving two unsupportable reasons for his
    ruling and by failing to take into account other important considerations. As I
    have said, the trial judge gave three reasons for his ruling: the public has an
    overwhelming interest in joint trials when two accused blame each other for the
    crime; Al-Enzi caused Barnes to withdraw; and Al-Enzi was familiar with the
    criminal justice system from his extensive criminal record.

[73]

As
    Al-Enzi and Kayem mounted cut-throat defences, the strong presumption in favour
    of joint trials was an important consideration on the severance application. Indeed,
    it seemed to dominate the trial judges thinking in the weeks leading up to his
    severance ruling. More than once, he commented on his overriding obligation
    to preserve the integrity of the joint trial. As important as this
    consideration was, however, it was not the exclusive consideration. And I do
    not agree with the other two reasons given by the trial judge.

[74]

For
    the first of these reasons  that Al-Enzi caused Barness withdrawal and thus
    was to blame for it  the trial judge relied on rule 2.09(7) of the Law
    Societys Rules of Professional Conduct, which prompted Barness application. The
    Rule states:

Mandatory
    Withdrawal

(7) Subject to the rules about criminal proceedings
    and the direction of the tribunal, a lawyer shall withdraw if

(a) discharged by the client,

(b) the lawyer is instructed by the client to do
    something inconsistent with the lawyers duty to the tribunal and, following
    explanation, the client persists in such instructions,

(c) the client is guilty of dishonourable conduct
    in the proceedings or is taking a position solely to harass or maliciously
    injure another,

(d) it becomes clear that the lawyers continued
    employment will lead to a breach of these rules,

(d.1) the lawyer is required to do so pursuant to
    subrules 2.02(5.1) or (5.2) (dishonesty, fraud, etc. when client an
    organization), or

(e) the lawyer is not competent to handle the
    matter.

[75]

As
    Al-Enzi did not discharge Barnes, his application would have been based on any
    one or more of subsections (b), (c) and (d). All three of these subsections
    speak explicitly or implicitly of dishonourable conduct by the client. Because
    they do, it seems tempting to infer that Al-Enzi should be blamed for Barness
    withdrawal.

[76]

But
    that is not a fair inference to draw for two reasons. First, Barnes stated
    unequivocally to the court several times that Al-Enzi should not be blamed for
    his withdrawal. It is, Barnes said, a no-fault situation  nothing can be
    impugned against Mr. Al-Enzi about it. Barnes was not contradicted on his
    statements, and no one has questioned his credibility. Indeed, he acted
    admirably throughout these proceedings.

[77]

Second,
    to attribute blame here is rank speculation, not fair inference, in the absence
    of any evidence about what occurred between Al-Enzi and Barnes. Solicitor-client
    privilege prevented Barnes from disclosing his discussions with Al-Enzi to the
    court. There is simply no evidence on the record of any dishonourable conduct
    on the part of Al-Enzi or of any attempt by him to manipulate the proceedings.
    He did not fire Barnes and he did not want Barnes to withdraw.

[78]

The
    second of the trial judges reasons with which I disagree is his reliance on
    Al-Enzis criminal record. In some cases, that might be a legitimate
    consideration. But not in this case. Al-Enzis criminal record and therefore
    his apparent familiarity with the criminal justice system had little
    significance in the light of the complexity of this case and the seriousness of
    the charge. Moreover, the record does not show that Al-Enzi was using his
    knowledge of the criminal justice system to manipulate the proceedings against
    him.

[79]

Thus,
    of the three reasons given by the trial judge for denying severance, only the
    first, the presumption in favour of joint trials, was a fair consideration. Other
    considerations not referred to by the trial judge should have been taken into
    account in the exercise of his discretion. They include:

·

The trial was complex, both legally and factually. And the
    admissibility and use of dozens of wiretaps remained to be decided when Barnes
    withdrew.

·

A charge of first degree murder is the most serious charge in
    Canadian law. Although the right to counsel at trial is not an absolute right,
    representation by counsel is generally essential to a fair trial, and that is
    especially so when an accused is charged with a serious offence and the trial is
    likely to be complex. See
R. v. Bitternose
, 2009 SKCA 54, 244 C.C.C.
    (3d) 218; and
R. v. Rowbotham
(1988), 41 C.C.C. (3d) 1 (Ont. C.A.).

·

The Crown and Kayem, both represented by experienced counsel,
    were aligned in interest against Al-Enzi. If a severance were refused, Al-Enzi
    would have to face these adversaries unrepresented.

·

The Crowns case against Al-Enzi was formidable, heightening his
    need to be represented.

·

Al-Enzi was not particularly literate and was not conversant
    with the use of computers,
[2]
making it difficult for him to defend himself without assistance.

·

Although Al-Enzi was represented for part of the trial, including
    for the cross-examination of Abdul-Hussein, the Crowns main witness, other
    important parts of the trial had not taken place when Barnes withdrew. The
    Crown still had considerable evidence to lead to buttress its case against
    Al-Enzi, and closing jury addresses had yet to be given.

·

There was no evidence that Al-Enzi was attempting to frustrate the
    proceedings or, as Crown counsel at trial charged, to engineer a severance. Moreover,
    Al-Enzi had no history of discharging or precipitating the withdrawal of his
    lawyers.

·

Al-Enzi and others trying to help him made sincere and diligent
    efforts to find a lawyer to replace Barnes.

·

The evidence uniformly showed that not a single lawyer in the
    province would take over the defence of a first degree murder charge in the
    middle of the trial.

·

While severance would mean losing the advantage of a joint trial,
    the Crown still had Abdul-Husseins police statement implicating Al-Enzi in
    Zalals murder.

[80]

These
    considerations argued forcefully for a severance, unless an
amicus
to
    assist Al-Enzi for the rest of the trial was an adequate substitute.

(3)

Amicus
was
    not an adequate substitute for counsel for Al-Enzi

[81]

The
    traditional role of
amicus
was to assist the court, typically by
    making submissions on points of law. Only indirectly did the traditional
amicus
assist a party. The trial judge, however, did not appoint
amicus
in a
    traditional role. He appointed Powell in an expanded role more akin to the role
    of defence counsel. That expanded role fits uncomfortably with the Supreme
    Court of Canadas recent decision in
Ontario v. Criminal Lawyers
    Association of Ontario
, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 49-56. However,
    this trial took place before the Supreme Courts decision, and thus the trial
    judge did not have the benefit of that decision.

[82]

Even
    with an expanded mandate, however,
amicus
was not an adequate substitute
    for defence counsel. Al-Enzi needed a person fully familiar with his case, a
    person in whom he had full trust and confidence. The solicitor/client
    relationship is built on intangible characteristics, not transferable to a
    person appointed by the court  certainly not a person with whom the client has
    had no relationship: see
R. v. McCallen
(1999), 43 O.R. (3d) 56 (C.A.);
    and
R. v. Rafferty
, 2013 ONCA 741, [2013] O.J. No. 5550. Both the actual
    fairness and perceived fairness of criminal proceedings against an accused
    partly depend on this relationship. Courts zealously guard ones right to be
    represented by a lawyer at a criminal trial. Only in rare cases do courts limit
    this right. In my view, this was not one of those rare cases.

[83]

In
    saying all of this, I do not criticize Powell or his performance as
amicus
.
    Any
amicus
would have fallen short. Powell himself recognized this. He
    refused to take on the duties of Al-Enzis defence counsel mid-stream; yet the
    trial judge expected him to discharge these very duties in fulfilling the
    expanded role of
amicus
. It is telling that on several occasions
    during the trial, Powell commented that he had not had sufficient time to fully
    familiarize himself with the facts of the case. This comment alone should have
    signalled to the trial judge that the appointment of
amicus
, even in
    an expanded role, could not assure Al-Enzis right to a fair trial. And the
    most telling evidence of all that
amicus
was not an adequate
    substitute for defence counsel  not one person was willing to take this case
    on as defence counsel.

[84]

The
    Crown makes two submissions in support of its contention that the refusal of a
    severance and the appointment of
amicus
did not cause an injustice:
    Al-Enzis right to a fair trial was not prejudiced because Powell performed
    admirably once he was appointed; and this court has upheld first degree murder
    convictions at least twice in cases in which the accused was unrepresented for
    part of the trial and had only
amicus
to assist him: see
R. v.
    Amos
, 2012 ONCA 334, 292 O.A.C. 298, leave to appeal to S.C.C. refused,
    [2014] S.C.C.A. No. 160; and
R. v. Phung
, 2012 ONCA 720, [2012] O.J.
    No. 5058, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 97. I do not
    accept either of the Crowns submissions.

[85]

It
    seems to me that an inquiry into Powells performance and whether it did or did
    not prejudice the fairness of Al-Enzis trial is neither a desirable nor a
    relevant inquiry: see
McCallen
, at pp. 78-80. This is a case in which the
    accused was deprived of counsel, not a case in which he claimed to be
    ineffectively represented by counsel. In a claim of ineffective representation
    the issue of prejudice is central to an appeal courts determination of whether
    a miscarriage of justice has occurred. See
R. v. Joanisse
, [1995] 102
    C.C.C. (3d) 35 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A.
    No. 347; and
R. v. G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at para.
    29. When, however, an accused is deprived of the right to counsel altogether,
    that deprivation almost always gives rise to the appearance of unfairness. No
    demonstration of actual prejudice is therefore needed.

[86]

In
McCallen
, at pp. 78-80, OConnor J.A. rejected the Crowns argument
    that an accused had to show actual prejudice from the denial of a right to
    counsel of choice. The denial itself created a perception of unfairness and
    resulted in a miscarriage of justice. That perception is even stronger here,
    when Al-Enzi was deprived not just of counsel of his choice, but of counsel
    altogether. He was left unrepresented, facing two well-represented
    adversariesthe Crown and Kayemwho were lined up against him. Forcing him to
    proceed without a lawyer was unfair and produced a miscarriage of justice.

[87]

There
    is a related reason why it is not desirable to try to assess whether Al-Enzi
    was prejudiced. To do so when he was unrepresented would require the court to
    attempt to guess how the trial might have played out if he had been
    represented. As Rosenberg J.A. said in
R. v. Rushlow
, 2009 ONCA 461,
    245 C.C.C. (3d) 505, at paras. 39-40: the court must, however, be wary of
    speculating as to how the case might have been different had counsel been
    appointed . [P]ondering the utility of assistance of defence counsel in a
    complex case is an inherently dangerous exercise.  In short, one can never
    really know what would have happened if Al-Enzi had had his own counsel
    throughout the trial.

[88]

Finally
    I come to this courts decisions in
Amos
and
Phung
. As I said at the beginning of these reasons,
    deciding whether the refusal of a severance caused an injustice calls for a
    case-specific review of the record that is sensitive to the context giving rise
    to the refusal. The facts and context in both
Amos
and
Phung
were very different from the facts and context in this case. Most strikingly,
    the accused in both
Amos
and
Phung
were blatantly trying to
    manipulate the proceedings. No such finding can be made here. The evidence
    points to the opposite conclusion.

[89]

In
Amos
, the appellant and two others were jointly tried for first degree
    murder. At the end of the Crowns case, the appellants counsel applied to be
    removed from the record, and the trial judge granted the application. The
    appellant then sought an adjournment to retain new counsel. The trial judge
    refused the adjournment. He found that the request was a sham and appointed
    the appellants former counsel as
amicus
. The appellant was convicted.
    On the appeal, he argued that the trial judge erred in refusing an adjournment
    and in appointing as
amicus
a lawyer in whom he had lost confidence.

[90]

This
    court dismissed the appeal. Watt J.A., writing for the panel, held that there
    was an adequate evidentiary foundation for the trial judges finding of a sham
    request for an adjournment. In particular, the appellant ignored the trial judges
    offer of assistance to find a new counsel. Instead the appellant called only
    one lawyer  the lawyer he had fired after the preliminary inquiry because of
    her lack of experience with murder cases. Additionally, in asking to be removed
    from the record, the appellants lawyer told the court that he could not in
    good conscience follow his clients instructions, suggesting those
    instructions were inconsistent with the lawyers professional ethical
    obligations.

[91]

By
    contrast, Al-Enzi and others searched extensively for a replacement counsel,
    contacting over 100 lawyers. Also, Barnes did not impute any unethical
    behaviour to Al-Enzi; he said that Al-Enzi was blameless.
Amos
does
    not assist the Crown.

[92]

In
Phung
, the appellant and another were charged with first degree murder
    and attempted murder. Midway through the trial, the appellant fired his lawyer
    and sought an adjournment to retain new counsel. The trial judge refused to
    adjourn the trial. He described the appellants conduct as patent manipulation.
    Indeed, the accused had been overheard saying that he [had] to get this judge
    off the panel, and he had asked two separate court officers if he would obtain
    a mistrial if he fired his lawyer. This was powerful evidence that the accused
    was attempting to engineer a mistrial, and it is understandable why the trial
    judge denied that request.

[93]

Instead,
    with the appellants consent, the trial judge appointed two
amici
to
    assist him, one of whom had argued his request for an adjournment. The
    appellant was convicted of both murder and attempted murder. One of his grounds
    of appeal was that the trial judge erred by refusing an adjournment and forcing
    him to proceed unrepresented. This court rejected this argument (and the other
    grounds of appeal) and dismissed the appeal.

[94]

The
    panel noted that the trial judges refusal to grant an adjournment was rooted
    in his finding that the appellant was trying to manipulate the process and delay
    the proceeding. In the panels view, that considered and pivotal finding is
    unassailable. In addition, the panel held that the appellant had not shown how
    his trial was unfair or appeared to be unfair because he represented himself,
    but with the assistance of an
amicus
whose appointment he consented
    to.

[95]

By
    contrast, Al-Enzi did not fire his lawyer and he did not try to manipulate or
    delay the proceedings. And he did not consent to Powells appointment as
amicus
.
    Throughout the trial, he said repeatedly that he wanted his own lawyer.
Phung
,
    too, does not assist the Crown.

[96]

For
    all these reasons, I conclude that the trial judge exercised his discretion
    unreasonably by denying Al-Enzi a severance or a mistrial so that he could
    retain a lawyer to represent him at a new trial. The appointment of
amicus
,
    even with an expanded mandate, was not an adequate substitute for counsel for
    Al-Enzi. The trial judges denial of a severance or a mistrial deprived Al-Enzi
    of a fair trial, both in appearance and in reality. It produced a miscarriage
    of justice.

E.

Conclusion

[97]

I
    would allow the appeal, set aside Al-Enzis conviction for first degree murder,
    and order a new trial. It is thus unnecessary to consider Al-Enzis other
    ground of appeal concerning the admissibility of the telephone conversations
    between him and his wife.

[98]

I
    would like to thank all counsel for their advocacy on this difficult appeal.

Released: July 31, 2014  JL

John
    Laskin J.A.

I
    agree S.T. Goudge J.A.

I
    agree David Watt J.A.

[1]
A
KGB
statement is a previous
    inconsistent out-of-court statement that, although hearsay, is admissible for
    the truth of its contents because it is both necessary and reliable: see
R. v. K.G.B.
, [1993] 1 S.C.R. 740.

[2]
Al-Enzis unfamiliarity with computers put him at an additional disadvantage
    because during the trial, everybody in the courtroom  the police, Crown
    counsel and Kayems counsel  were using computers to facilitate their work.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v.
    Archer, 2014 ONCA 562

DATE: 20140722

DOCKET: C56699

Strathy C.J.O., Rouleau and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Clare Archer

Appellant

Douglas Clare Archer, appearing in person

Peter Copeland, appearing as
duty counsel

Jamie Klukach, for the respondent

Heard and released orally: July 10, 2014

On appeal from the sentence imposed on December 11, 2012
    by Justice Kathleen Caldwell of the Ontario Court of Justice.

ENDORSEMENT

[1]

Mr. Archer appeals his sentence of six years less six and one-quarter
    months of pre-trial custody for his March 16, 2012 breach of a Long Term
    Supervision Order and his concurrent sentence of four years for his March 18,
    2012 breach. On his release from Kingston Penitentiary, he was supposed to
    report to the Keele Street Correctional Centre and to stay out of Oxford
    County. Instead, he immediately went to Oxford County and then to Winnipeg
    where he was apprehended. He did not commit any substantive offence while on
    release.

[2]

The appellant had previously breached his Long Term Supervision Order in
    2008, in circumstances similar to these, for which he received a four year
    sentence. This was prior to the Supreme Court of Canadas decision in
R. v.
    Ipeelee
, 2012 SCC 13. He was also convicted of breaches while on statutory
    release in 2010 and 2011, for which he received four months and 60 days
    sentences respectively.

[3]

In our respectful view, the sentence in this case was disproportionate,
    having regard to the principles expressed in
Ipeelee
and having regard
    to the circumstances of the breach, the nature of the condition breached and
    the role the condition played in managing the appellants risk of re-offending.

[4]

In
Ipeelee
the Supreme Court of Canada observed at para. 50:

The purpose of an LTSO is two-fold, to protect the public and
    to rehabilitate offenders and reintegrate them into the community.

[5]

In fact, s. 100 of the
Corrections and Conditional Release Act
,
    S.C.1992, c.20, singles out rehabilitation and reintegration as the purpose of
    community supervision including LTSOs.

[6]

The Supreme Court of Canada added, at para. 55:

Breach of an LTSO is not subject to a distinct sentencing
    regime or system. In any given case, the best guides for determining a fit
    sentence are the well-established principles and objectives of sentencing set
    out in the
Criminal Code
.

[7]

In our view, the six year sentence gave undue emphasis to deterrence and
    inadequate emphasis to the appellants rehabilitation and his reintegration
    into society.

[8]

In all the circumstances, it is our view that a four year sentence on
    both counts would accomplish those objectives.

[9]

Accordingly, we grant leave to appeal, allow the appeal and substitute a
    four year sentence, less six and one-quarter months of pre-trial custody,
    concurrent on both counts.

G.R.
    Strathy C.J.O.

Paul Rouleau J.A.

K. van
    Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2014 ONCA 525

DATE: 20140707

DOCKET: C55743

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Al-Najair Oliver Brown

Appellant

Mark Halfyard, for the appellant

Cindy Afonso, for the respondent

Heard and released orally: June 24, 2014

On appeal from the conviction entered on February 16,
    2012 by Justice Roland J. Haines of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for possession of cocaine for the
    purpose of trafficking on the ground the trial judge erred in finding there
    were reasonable and probable grounds for his arrest. He asserts the evidence
    obtained as a result of the search of the appellant and his vehicle should have
    been excluded under s. 24(2) of the
Charter
.

[2]

His principal submissions are:

i.

the trial judge erred in finding that the grounds relied upon by the
    arresting officer were objectively reasonable; and

ii.

the trial judge misapprehended the evidence in finding that the
    officers evidence did not conflict with that of two defence witnesses (an
    expert and an articling student) who testified that on re-enactment of the
    conditions prevailing at the time, it was impossible to identify anything more
    than the presence of a light-skinned black male in the drivers seat of the
    car.

[3]

We do not agree with these submissions for two reasons.

[4]

First, in determining whether the grounds for arrest were objectively
    reasonable, the trial judge was entitled to consider, as he did, all the
    surrounding circumstances: see
R. v. Lawes,
2007 ONCA 10, at para. 4,
    relied upon by the trial judge. Those circumstances included:

i.

the information received from a reliable informant that a drug dealer
    would be receiving drugs from his supplier (the appellant, who was known to the
    arresting officer) in the early morning hours of the day in question;

ii.

the observation of a vehicle parked on a street near the dealers home
    at 1:18 a.m. on the day in question;

iii.

the officers observations of the appellant in the company of the drug
    dealer on two previous occasions, the last of which was two and one-half months
    earlier, and his review prior to the arrest of a video taken of the appellant
    on that occasion; and

iv.

the appellants distinctive hairstyle, which consisted of a ponytail flipped
    up at the back and worn at the top of his head.

These circumstances provided important context to the
    officers identification of the appellant as he drove past the parked car with
    the highbeams of his truck on.

[5]

Second, we do not accept the submission that the trial judge misapprehended
    the evidence when he found the officers evidence could be reconciled with that
    of the defence witnesses, who said it was impossible to make out the facial
    features of the occupants of the vehicle as they drove past in their
    simulations.

[6]

A careful reading of the officers evidence indicates that the most
    important factor in his identification of the appellant was his distinctively
    placed ponytail, a feature with which the officer was familiar, based on his
    earlier observations. The appellants hair had been cut and the ponytail
    removed when the defence witnesses performed their simulations. As well, the
    officer did not say he observed any specific features, but said he recognized the
    face in general.

[7]

In our view, the trial judges acceptance of the officers evidence was
    not inconsistent with his acceptance of the evidence of the defence witnesses
    who said they were unable to observe facial features.

[8]

It follows that both the objective and subjective requirements were
    satisfied. The appeal is therefore dismissed.

G.R.
    Strathy C.J.O.

K.
    Feldman J.A.

David
    Watt J.A.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge
    or justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

(ii) an offence under section 144 (rape),
    145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of the offences referred to
    in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)  at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, make the order.

(3)
In proceedings in respect of an offence under section
    163.1, a judge or justice shall make an order directing that any information
    that could identify a witness who is under the age of eighteen years, or any
    person who is the subject of a representation, written material or a recording
    that constitutes child pornography within the meaning of that section, shall
    not be published in any document or broadcast or transmitted in any way.

(4)
An order made under this section does not apply in
    respect of the disclosure of information in the course of the administration of
    justice when it is not the purpose of the disclosure to make the information
    known in the community. 2005, c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

486.6     (1)
Every person who fails to comply with an order
    made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an
    offence punishable on summary conviction.

(2)
For greater certainty, an order referred to in subsection
    (1) applies to prohibit, in relation to proceedings taken against any person
    who fails to comply with the order, the publication in any document or the
    broadcasting or transmission in any way of information that could identify a
    victim, witness or justice system participant whose identity is protected by
    the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Graham, 2014 ONCA 566

DATE: 20140729

DOCKET: M43406 and M43566 (C50624)

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Respondent

(Respondent on appeal)

and

Dale Graham

Respondent/Applicant

(Appellant on appeal)

Dale Graham, appellant in person

Jill Copeland,
amicus curiae

Alison Wheeler, for the Crown

Heard: March 25, 2014

On motion by the Crown for directions and on application
    by the appellant for an order pursuant to s. 683(3) of the
Criminal Code of
    Canada
for the examination or cross-examination of a witness.

By the Court:

[1]

There are two matters before the court:

(1)

a motion
    for directions by the Crown regarding an ineffective assistance of counsel
    claim sought to be advanced by the appellant, Dale Graham, on his pending
    conviction appeal in this court; and

(2)

an
    application by the appellant for an order pursuant to s. 683(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46 for the examination or cross-examination of his
    former trial counsel in aid of his proposed ineffective assistance claim.

Background

[2]

The background to these matters is somewhat complicated.  In brief, it
    may be summarized as follows.

[3]

The appellant, Dale Graham, was charged with 16 counts relating to child
    pornography.  On September 26, 2008, following a trial by judge alone, he was
    convicted of one count of making child pornography, one count of accessing
    child pornography, one count of voyeurism, and three counts of possession of
    child pornography.  His conviction for voyeurism was stayed in accordance with
R.
    v. Kienapple
, [1975] 1 S.C.R. 729.  On June 4, 2009, the appellant was
    sentenced to a total effective sentence of four years and one-months
    imprisonment.

[4]

The appellant appealed his convictions and sentence.  On June 16, 2011,
    this court heard his sentence appeal and reduced his sentence to three years
    and two months imprisonment, to reflect enhanced credit for pre-trial custody.
    The appellant has now been released from custody.  His conviction appeal is outstanding.

[5]

The appellant is self-represented on his conviction appeal and does not
    wish to have counsel appointed on his behalf.  Prior to his release from
    custody, he was assisted by counsel from the Queens Correctional Law Project.
    After the appellants release,
amicus curiae

assisted him with
    aspects of his conviction appeal, as described below.

[6]

The full transcripts from the appellants trial and his pre-trial
    conferences are now available for the purpose of the appellants conviction
    appeal.

[7]

In his Notice of Appeal, the appellant raises several grounds, including
    the alleged ineffective assistance of his trial counsel.  By an order dated
    October 4, 2011, Rosenberg J.A. (In Chambers), appointed
amicus
to
    assist the appellant on some of the grounds he seeks to advance, excluding his
    ineffective assistance of counsel ground.  Subsequently, pursuant to a pilot
    project then in progress at this court, the Crown agreed that the scope of
amicus
appointment should be extended to provide the appellant with an opinion
    concerning his ineffective assistance claim.
Amicus
has provided that
    opinion to the appellant.

[8]

The appellant swore three affidavits in support of his ineffective
    assistance claim.  He seeks to introduce these affidavits as fresh evidence on
    his appeal.

[9]

As part of his ineffective assistance claim, the appellant applied for
    an order pursuant to s. 683(1)(b) of the
Criminal Code
for the
    examination of various witnesses before a judge of this court or a special
    examiner.  The appellant did not name his former trial counsel as one of the
    proposed witnesses to be examined, apparently because he was then unaware that his
    trial counsel could be so included.

[10]

Extensive
    submissions were received from the appellant,
amicus
and the Crown on
    the appellants s. 683(1)(b) application.  The application was heard by a panel
    of this court on October 11, 2013 and was dismissed on October 30, 2013 on the
    ground that it did not meet the test under s. 683(1)(b) of the
Criminal
    Code
for the requested order:
R. v. Graham
, 2013 ONCA 652.

[11]

The
    appellant now applies under s. 683(3) of the
Criminal Code
for an
    order permitting him to examine or cross-examine his former trial counsel.  The
    court has been informed that, throughout, his former trial counsel has been
    prepared to voluntarily submit to examination or cross-examination, as
    necessary, without the necessity of a court order.

[12]

The
    appellants conviction appeal was first scheduled for argument before this
    court on December 5, 2013.  Following submissions by both parties and
amicus
on that date, on the request of the appellant and with the consent of the Crown
    and
amicus
, the appeal was adjourned to be rescheduled for argument as
    soon as possible after the determination of the Crowns motion for directions.
    In its endorsement dated December 5, 2013, the court confirmed various steps
    that the parties agreed to undertake in order to permit argument of the Crowns
    motion before this panel on March 25, 2014.

[13]

After
    the December 5, 2013 attendance, the appellants former trial counsel sought to
    file submissions with the court outlining his position regarding aspects of the
    appellants application.  His submissions, together with the appellants responding
    submissions (delivered with the assistance of
amicus
) were filed on
    consent.  The court has considered these submissions as part of the materials
    relevant to the matters now before the court.

The Protocol

[14]

Effective
    May 1, 2000, this court introduced a procedural protocol regarding allegations
    of incompetence of trial counsel in criminal cases (the Protocol).  The
    Protocol provides for various procedural steps to be taken, many by the Crown, when
    an appellant seeks to raise an ineffective assistance claim in support of an appeal
    to this court.  These steps include the involvement of a case management judge
    of this court, the potential filing of an affidavit from trial counsel in
    response to the appellants allegation of ineffective assistance, the
    facilitation by the Crown in filing such an affidavit, and the possible
    examination or cross-examination of trial counsel.

[15]

In
    this case, for the reasons described below, a full fresh evidence process as
    envisaged under the Protocol has not yet been undertaken.  Specifically, the
    Crown has not sought an affidavit from the appellants trial counsel responding
    to the appellants allegation of ineffective assistance at trial, nor has it
    sought to cross-examine the appellant on his affidavits.

[16]

However,
    both the Crown and
amicus
have made inquiries of and have corresponded
    with the appellants former trial counsel.  Copies of that correspondence have
    been provided to the appellant.  In addition, the court was informed that the
    appellant has had access to his former trial counsels file and to the Crowns
    pre-trial disclosure.

Parties Positions

[17]

The
    Crown takes the position that: 1) the appellants ineffective assistance of
    counsel claim is without merit and, as a result, a full fresh evidence process
    in respect of this ground of appeal, as contemplated by the Protocol, is not
    only unjustified, but would also be a waste of time and resources; 2) in the
    circumstances, the appellant should be required to establish, as a preliminary,
    threshold matter, that this ground has a reasonable prospect of success before
    being allowed to advance it on appeal; 3) whether by means of this courts
    power to control its own process and/or by application of the leave requirement
    under s. 675(1)(a)(iii) of the
Criminal Code
, this court should make a
    preliminary determination whether the appellant has demonstrated sufficient
    potential merit to his ineffective assistance claim so as to justify full
    compliance with the Protocol (including obtaining a responding affidavit from
    the appellants former trial counsel and conducting a cross-examination on that
    affidavit); and 4) the appellants application for the examination or
    cross-examination of his former trial counsel should be dismissed.

[18]

For
    his part, the appellant argues that his ineffective assistance claim should be
    allowed to proceed and that he should be permitted to examine or cross-examine
    his former trial counsel in support of that claim.

[19]

Amicus
submits that the Crowns motion for directions should be dismissed.  She
    contends that the Crowns request for a threshold determination of the merits
    of the appellants ineffective assistance claim should be rejected: 1) as
    inappropriate, because it is difficult on a preliminary motion to consider the
    claim in the context of the full trial record; 2) as inefficient, since, as in
    most cases, other grounds advanced by the appellant will still require a full
    hearing on the merits before a panel of this court; and 3) because, in many
    cases, the lack of a response from trial counsel to an ineffective assistance
    claim in a criminal appeal will result in unfairness to the accused/appellant
    and corresponding injustice to the appellate process due to an incomplete
    record on the ineffective assistance issue.

Discussion

(1)

Crowns Motion for Directions

[20]

We
    turn first to the Crowns motion for directions.

[21]

The
    Crown seeks an order that the full application of the Protocol is neither
    appropriate nor warranted in the circumstances of this case.  As we understand
    Crown counsels submissions, the Crown invites this court to revisit the
    general application of the Protocol, to recognize a procedure for the Crown to
    obtain relief from the obligation to fully comply with the Protocol in a proper
    case, and to grant such relief in this case.

[22]

In
    our view, it is unnecessary to revisit the general application of the Protocol in
    addressing the case-specific issues raised by the Crown.

[23]

The
    Protocol sets out procedural guidelines to be followed in any criminal appeal to
    this court where the appellant proposes to advance an ineffective assistance
    claim.  The provisions of the Protocol are not cast in stone.  Neither are they
    intended to be rigidly applied in all instances where an ineffective assistance
    claim is proposed as a ground of appeal.  The flexibility of the procedural
    rules set out under the Protocol, on a case-by-case basis, is specifically confirmed
    by paragraph 19 of the Protocol, which reads in part as follows:

Judicial Variations of Procedural Rules
: This Protocol
    outlines the Rules that generally govern the procedure to be followed with
    respect to any appeal before the Court of Appeal for Ontario where the
    appellant proposes to allege that his or her counsel at trial conducted him or
    herself in a manner that amounted to professional incompetence or otherwise
    contributed to a miscarriage of justice.
Where a party is of the view,
    however, that the circumstances of the individual case are such that one or
    more of the Rules outlined in this Protocol should not apply, that party may
    bring an application, upon notice to the opposing party, to the case management
    Judge for an order making any necessary modification to the Rules of the
    Protocol
.  [Emphasis added.]

[24]

In
    addition, paragraph 18 of the Protocol states:

Compliance with Procedural Rules
: Where a party is
    having difficulty securing compliance with any of the Rules of the Protocol,
    the party at any time may seek a conference call with the case management Judge
    to address the issue.

[25]

Thus,
    the Protocol explicitly contemplates that some of its procedural rules may not
    be appropriate or necessary in all cases.  Further, any party may seek specific
    relief from strict adherence to the Protocol on an application to the involved
    case management judge of this court.

[26]

The
    Protocol is of great assistance to this court in adjudicating ineffective
    assistance claims on appeal. The Protocol seeks to ensure procedural fairness
    to appellants, involved trial counsel, and the Crown in respect of such
    claims.  Thus, compliance with the Protocol advances the administration of
    justice.  The Crown does not suggest otherwise.

[27]

That
    said, where the Crown is of the view that adherence to the entire process set
    out under the Protocol is neither necessary nor advisable in a given case, as in
    this case, it is open to the Crown to apply to the applicable case management
    judge of this court for relief from this obligation.
[1]
In effect, this is what the Crown did in this case.  At the end of the day, it
    remains for the Crown to determine the nature of its response to an appellants
     including a self-represented appellants  appeal to this court.

[28]

The
    merits of an appellants ineffective assistance claim on appeal and of the
    Crowns response to such a claim are matters to be determined by the panel
    hearing the appeal.  It is not for this panel of this court, on a motion for
    directions in a single appeal, to change the established practice of the court:
    see for example,
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R. (3d) 641 (Ont.
    C.A.), at para. 40.

[29]

The
    critical issue is to ensure that sufficient evidence is placed before the court
    in respect of an ineffective assistance claim so as to permit the proper
    adjudication of the claim and to ensure fairness to all parties, including the
    trial counsel whose assistance at trial is impugned by an appellant.  In some
    cases, these objectives will be met without full compliance with the Protocol.

[30]

In
    this case, we conclude that it is both unnecessary and inappropriate to make a
    preliminary determination on the merits of the appellants proposed ineffective
    assistance claim.

[31]

The
    record before us establishes that the appellants ineffective assistance claim
    has been particularized, trial counsel has been notified of the fact and
    details of that claim, inquiries have been made of him concerning the claim,
    and the nature and result of those inquires have been communicated to the
    appellant.  Further, the basis for the Crowns opposition to further compliance
    with the Protocol has been fully disclosed to the appellant and to the court.

[32]

In
    these circumstances, it cannot be said that the Protocol has been ignored, that
    its purposes have been undermined, or that the appellants ability to advance
    his ineffective assistance claim has been frustrated or impeded.  The Crown, as
    it may elect, is therefore at liberty to decline to follow the full fresh
    evidence process contemplated by the Protocol, subject to any further order as
    may be made by the panel hearing the appeal.

[33]

In
    our opinion, no criticism of the Crowns election in this case, once made, is
    warranted.  The Crown has made a proper and good faith attempt to seek judicial
    consideration and variation of the procedural rules set out under the Protocol
    in the particular circumstances of this case, as is permitted by the Protocol.

[34]

The
    Crowns motion for directions is therefore allowed in part, to the extent set
    out in these reasons.

(2)

Appellants Section 683(3) Application

[35]

Section
    683(3) of the
Criminal Code
states:

A court of appeal may exercise, in relation to proceedings in the
    court, any powers not mentioned in subsection (1) that may be exercised by the
    court on appeals in civil matters, and may issue any process that is necessary
    to enforce the orders or sentences of the court, but no costs shall be allowed
    to the appellant or respondent on the hearing and determination of an appeal or
    on any proceedings preliminary or incidental thereto.

[36]

In
    addition, the Protocol provides for the examination of trial counsel.
    Paragraph 15 of the Protocol states in part:

The Examination of Trial Counsel
: Whether or not an
    affidavit from trial counsel has been filed by any party in connection with the
    allegation that the conduct of trial counsel amounted to professional
    incompetence or otherwise contributed to a miscarriage of justice, if any party
    wishes to compel the appearance of trial counsel at an Office of the Special
    Examiner for purposes of: (a) cross-examining trial counsel on his or her
    affidavit; or (b) examining trial counsel, in the absence of an affidavit, upon
    the issue of his or her professional performance in connection with the case,
    any party may bring an application to the Court, on notice to trial counsel and
    the opposing party, for an order compelling the appearance of trial counsel for
    purposes of such examination.  If the opposing party and trial counsel agree to
    the proposed order, the order may be made, on consent, without any court
    appearance.

[37]

Usually,
    where a self-represented appellant wishes to examine or cross-examine his or
    her former trial counsel in aid of an ineffective assistance claim, the Crown
    seeks to have counsel appointed for this purpose or, where the appellant
    opposes such an appointment, to have
amicus
appointed to attend and
    participate in the examination or cross-examination.

[38]

In
    this case, as we have said, the appellant is self-represented and does not wish
    to have counsel appointed on his behalf, either for the purpose of his appeal
    or for the purpose of examining or cross-examining his former trial counsel.  He
    wishes to conduct the examination or cross-examination of his former trial
    counsel himself.  Further, although
amicus
was instrumental in
    ensuring that a proper record in support of the appellants s. 683(3)
    application was placed before the court, her appointment does not extend to
    assisting the appellant with the merits of his ineffective assistance claim.
    The appellant opposes the appointment of
amicus
(or the expansion of
amicuss
current appointment) to conduct any examination or cross-examination of his
    former trial counsel.

[39]

Having
    considered the record, and having had the benefit of both written and oral
    submissions from the appellant as well as the Crown on the appellants s.
    683(3) application, we are satisfied that the appellants application to
    examine or cross-examine his former trial counsel should be dismissed.

[40]

The
    appellants affidavits and related application materials outline in
    considerable detail his complaints about the assistance of his former trial
    counsel and the proposed areas on which he wishes to examine or cross-examine
    his former trial counsel.  The appellants complaints fall generally into four categories,
    as detailed in his affidavit sworn March 21, 2013 and his oral submissions.
    The appellant maintains that his former trial counsel allegedly failed:

(1)

to follow
    his instructions regarding cross-examinations conducted at trial;

(2)

to effectively
    cross-examine a number of Crown witnesses;

(3)

to call a
    number of witnesses who the appellant asserts should have been called as defence
    witnesses; and

(4)

to file
    documents on time.

[41]

During oral argument, the appellant also maintained that his former
    trial counsel was confused and argumentative at trial and that he failed to
    provide any defence at all to the charges faced by the appellant.

[42]

We have carefully considered the details of these complaints, as
    furnished by the appellant.  Without commenting on the merits of his ineffective
    assistance claim, we are not persuaded on this record that the appellant has
    demonstrated any reasonable possibility that anything his former trial counsel
    might say on examination or cross-examination in respect of the appellants
    complaints would materially advance the appellants ineffective assistance
    claim.

[43]

In particular, through the efforts of the Crown and
amicus
, the
    appellant knows what his former trial counsel has to say in response to the
    appellants allegations.  We see no basis to conclude that examining or
    cross-examining his former trial counsel would add anything pertinent to the
    body of information now available to the appellant.  To the contrary, in our
    view, the proposed questioning of his former trial counsel that the appellant wishes
    to undertake relates to peripheral and speculative matters.

[44]

Further,
    in connection with the witnesses that the appellant says should have been
    called at trial, this court has already determined in its October 30, 2013
    ruling, described above, that much of the evidence that the appellant submits
    might have been provided by the identified witnesses would simply be irrelevant
    or redundant or mere speculation given the undisputed fact that child
    pornography was found on the appellants computer.  We note that with respect
    to at least one of these witnesses, the appellant is even uncertain as to the
    witness identity.

[45]

Finally,
    given the availability of the full trial transcripts, the panel hearing the
    appeal is positioned to assess the comportment and conduct of the appellants
    former counsel at trial, and the nature of the defence advanced on the
    appellants behalf.

[46]

We
    therefore conclude that the appellants affidavits, together with the full
    trial record and the record on this application, provide a basis on which the
    panel hearing the appeal may assess the appellants complaints about his former
    trial counsel.  Should that panel determine that evidence from the appellants
    former trial counsel is required in order to fully and fairly evaluate the
    appellants ineffective assistance of counsel claim, that panel may provide such
    further direction or order as it considers appropriate in the interests of
    justice.

Disposition

[47]

For the reasons given, the Crowns motion for directions is allowed in
    part, in accordance with these reasons, and the appellants application to
    examine or cross-examine his former trial counsel is dismissed.

[48]

We
    thank Crown counsel and
amicus
for their thorough and thoughtful
    submissions, which greatly assisted the court.

Released:

DW                                        E.A. Cronk
    J.A.

JUL 29 2014                           David Watt J.A.

K. van
    Rensburg J.A.

[1]
Given the particular history of this case, the Crowns motion here was brought
    at the outset of the scheduled appeal hearing.  In future, we anticipate that
    similar Crown motions, if any, will be brought before the involved case
    management judge of this court well in advance of any scheduled appeal hearing
    date.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Harmsworth, 2014 ONCA 531

DATE: 20140707

DOCKET: C57584

Laskin, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Thomas Harmsworth

Respondent

Michelle Campbell, for the appellant

James Lockyer and B. Eberdt, for the respondent

Heard and released orally: June 18, 2014

On appeal from the sentence imposed on August 8, 2013 by
    Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

By the credit given for pre-sentence custody, the sentencing judge
    effectively imposed a low penitentiary sentence for an unprovoked and brutal
    aggravated assault.  The sentence was undeniably lenient.  The Crown appeals
    this sentence.

[2]

The Crown submits that the trial judge erred by failing to give proper
    effect to denunciation and deterrence and by imposing a sentence that was
    manifestly unfit.  We do not accept the Crowns submissions.

[3]

The trial judge recognized that this was a difficult sentencing
    decision.  Having listened to the respondent, she accepted the sincerity of his
    statement and decided to give him one last chance to turn his life around.
    Therefore while recognizing that ordinarily denunciation and deterrence are the
    most important sentencing principles for aggravated assault, in this case, she
    decided to emphasize the principle of rehabilitation.  As we read the fresh
    evidence, it supports the trial judges conclusion that the respondents efforts
    to rehabilitate himself were likely to be more successful than they had been in
    the past.  On the particular facts of this case, we see no basis for appellate
    intervention.

[4]

Accordingly, although leave to appeal sentence is granted, the appeal is
    dismissed.

John
    Laskin J.A.

E.A.
    Cronk J.A.

R.A.
    Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hepp, 2014 ONCA 555

DATE: 20140721

DOCKET: C54169

Hoy A.C.J.O., Gillese and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gregory Hepp

Appellant

Brian H. Greenspan and Seth Weinstein, for the appellant

Eric Siebenmorgen and Nathan Kruger, for the respondent

Heard: July 15, 2014

On appeal from the sentence imposed on July 22, 2011, by
    Justice R.D. Gordon of the Superior Court of Justice.

By the Court:

[1]

The appellant, a 17-year-old at the time of the offences, received a
    life sentence with eligibility for parole after seven years, for his role in
    the brutal murder of a 15-year-old girl who wanted to be his girlfriend.

[2]

He appeals against the imposition of an adult sentence.

BACKGROUND IN BRIEF

[3]

The victim accompanied the appellant and his older companion, Kris
    Lavallee, to a campsite in a remote forest location outside of Sudbury.  After
    killing her, the appellant and Lavallee burned her body, dismembered the
    remains and buried them in an effort to destroy the evidence.

[4]

The victim was missing for over a month before her remains were
    discovered.  Due to the condition of the remains, it was difficult to establish
    a medical cause or the instrumentality of death.

[5]

The Crown theory at trial was that the appellant and Lavallee acted in
    concert in killing the victim and burning and dismembering her corpse.  The
    appellant testified that Lavallee was solely responsible for the offences and
    that he took no part in them.

[6]

After deliberating for approximately ten hours over two days, the jury
    convicted the appellant of second degree murder and offering an indignity to a
    dead body.  The Crown then brought an application pursuant to s. 64(1) of the
Youth
    Criminal Justice Act,
S.C. 2002, c. 1
    (the
YCJA
) to have
    the appellant sentenced as an adult.

[7]

Despite a positive pre-sentence report and psychiatric assessment which
    found that the appellant was a low to moderate risk of violence in the future,
    the trial judge sentenced him as an adult.  In doing so, he gave full,
    thoughtful reasons.

[8]

At p. 2 of those reasons, the trial judge reminded himself that in
R.
    v. D.B
.
, 2008 SCC 25, [2008] 2 S.C.R. 3, the Supreme Court said
    that there is a separate legal and sentencing regime for young people because
    they have heightened vulnerability, less maturity, and a reduced capacity for
    moral judgment, which together entitles them to a presumption of diminished
    moral blameworthiness or culpability.  As a result, the Crown and not the young
    person has the burden of showing that the presumption of diminished moral
    culpability has been rebutted and the young person is no longer entitled to its
    protection.

[9]

He then carefully considered the factors in s. 72 of the
YCJA

to determine whether the presumption had been rebutted.  He concluded that
    it had and explained why a youth sentence would not be of sufficient length to
    hold the appellant accountable for his actions.  At p. 17 of the reasons he
    stated:

The seriousness of this offence along with the circumstances
    surrounding it are of concern including, in particular, [the appellants]
    involvement in the murder, his involvement in the desecration of [the victims]
    remains, and most tellingly, in the detached and indifferent manner in which he
    continued with his life thereafter.

[10]

Further,
    he noted, unlike a youth sentence, an adult sentence would come with lifetime
    supervision following parole, which would ensure that the appellants treatment
    needs receive long term management well beyond his time in custody (p. 17).

THE FRESH EVIDENCE

[11]

The
    appellant introduced fresh evidence on the appeal in the form of institutional
    records.  The fresh evidence shows that the appellant has continued to make
    progress in his rehabilitation while serving his sentence, including the
    completion of a number of correspondence courses.  It also includes an updated risk
    assessment by Dr. Evans which confirms that, as at the time of sentencing, the
    appellant poses a low to moderate risk of violence in the future.  The fresh
    evidence also shows that since the appellant has been moved from a youth
    facility to an adult provisional facility, he has not received treatment for
    his mental health issues.  It further indicates that the appellant, who was
    born in Germany and lived there until he was a young teenager, may wish to
    ultimately return to Germany.

[12]

The
    Crown filed responding fresh evidence which indicates that the appellant is currently
    housed in a prison wing in which he is not completely segregated from other
    inmates.  The evidence also shows that the appellant has repeatedly requested
    to remain housed in his current area.  But for those requests, there is no
    impediment to his being housed within the general inmate population.
    Furthermore, the appellants requests to remain in his current area have
    impacted on his ability to access programming available to inmates within the
    regular prison population.

THE ISSUES

[13]

The
    appellant raises two grounds of appeal.  He submits that the trial judge:

1.      mischaracterized
    the implied factual findings in the jurys verdict; and

2.

erred in imposing an adult sentence.

ANALYSIS

Did the trial judge mischaracterize the implied factual
    findings in the jury verdict?

[14]

The
    trial judge held that the implied factual finding from the jurys verdict for
    second degree murder was that the appellant had stabbed the victim.  The
    appellant contends that this was speculative reasoning on the part of the trial
    judge as it was not a necessary implication of the jurys verdict.  He points
    to the fact that the jury had been told that there were two possible routes to
    conviction in this case  that the appellant had stabbed the victim or that he
    was a party to the assault that led to her death.

[15]

On
    the facts of this case, we do not accept this submission.  The judge was fully
    alive to his responsibilities in terms of fact finding.  At p. 12 of his reasons,
    he correctly recites the legal principles governing the fact-finding duties of
    a trial judge embarking upon a sentencing hearing following a jurys verdict.
    He noted that because he did not have the benefit of expressed findings of
    fact, he had to determine the facts that reasonably flowed from the jury
    findings.  He refers to
R. v. Ferguson
, 2008 SCC 6, [2008] 1 S.C.R.
    96, stating that he was bound by the expressed and implied factual implications
    of the jurys verdict and where the factual implications are ambiguous, he had
    to make his own independent determination of the relevant facts.

[16]

In
    light of the jury instruction in this case, a finding of guilt required the
    jury to conclude that the appellant had participated in the assault on the
    victim from which her death ensued, and that his participation was of such a
    degree that it was a substantial and integral cause of the death.  The jury
    was also instructed that if they were satisfied beyond a reasonable doubt that
    the appellant and Lavallee had acted in concert, they did not have to determine
    who, as between the two, struck the fatal blow

[17]

In
    the agreed statement of facts filed on this appeal, there is an admission by
    Lavallee, to a fellow musician, that he and the appellant had killed the
    victim.  According to Lavallee, he had started to choke her and the appellant
    then reached over and stabbed her once.  Dr. Fairgrieve gave evidence that ribs
    six and seven on the right side of the victims body had an indentation and
    sharp force trauma caused by a metal implement.  The insert and orientation of
    the wound was such that it was from the front of the body to the back.  He also
    identified that thoracic vertebra number four exhibited sharp force trauma
    caused by a bladed instrument.

[18]

As
    a practical matter, in light of the evidence, the only way in which the jury
    could have found that the appellant participated in the assault to such a
    degree that it was a substantial and integral cause of the death is if he
    inflicted at least one stab wound on the victim.

Did the trial judge err in imposing an adult sentence?

[19]

The
    appellant argues that despite the seriousness of the offence, an adult sentence
    was not necessary to achieve the objectives of the
YCJA
.  He contends
    that his progress by the time of sentencing  as well as his progress since
    then  demonstrates his motivation to change and his capacity for
    rehabilitation.  He maintains that imposition of the maximum youth sentence, in
    addition to pre-trial custody of over two years, was sufficient to hold the
    appellant accountable.

[20]

We
    see no basis on which to interfere with the trial judges imposition of an
    adult sentence.

[21]

The
    trial judges reasons show a full and balanced assessment of all of the factors
    set out in s. 72(1) of the
YCJA
.  He identified and considered the
    practical consequences of imposing an adult sentence, rather than a youth
    sentence.  Further, he acknowledged the remarkable progress that the appellant
    had made since the offences and the remorse that he had demonstrated.  In assessing
    the appellants moral culpability, the trial judge expressly took into
    consideration Dr. Evans evidence regarding the appellants history of
    substance abuse and his diagnosed mood order.  The trial judge addressed the
    evidence regarding the appellants mental condition and identified treatment
    needs.  In this regard, it is to be noted that the trial judge ordered that the
    appellant be placed in a youth facility until his 21st birthday and then be
    transferred to an adult provincial facility until the completion of his
    sentence.

[22]

However,
    as explained above, the trial judge ultimately concluded that a youth sentence
    would not be of sufficient length to hold the appellant accountable for his
    actions.

[23]

The
    fresh evidence, in the main, is confirmative of the evidence before the trial
    judge.  It does not alter the balancing which the trial judge undertook in
    determining that an adult sentence was necessary.  As for the fresh evidence
    indicating that the appellant may wish to ultimately return to Germany, we
    accept the Crowns submission that pursuant to the
International Transfer
    of Offenders Act
, S.C. 2004, c. 21 and the
Convention on the Transfer
    of Sentenced Persons
,

21 March 1983, Can. T.S. 1985 No. 9
    (entered into force 13 May 1985), a mechanism exists for the appellant to seek
    to have Canada and Germany agree to transfer him to Germany to serve the
    remainder of his sentence.

DISPOSITION

[24]

Accordingly,
    the appeal is dismissed.

Released: July 21, 2014 (A.H.)

Alexandra Hoy A.C.J.O.

E.E. Gillese
    J.A.

P. Lauwers J.A.