minicounsel

Footnotes

Mr. Hassan’s phone records show he received a call from the appellant’s cell phone number at 1:48 a.m.
Ms. Asekunowo had two phones, one of which the appellant regularly used and referred to informally throughout the trial as his phone. At the time, the appellant was subject to bail conditions that forbade him from having a cell phone.
The appellant was sentenced on May 15, 2013.

CITATION: R. v. Ibrahim, 2021 ONCA 241

DATE: 20210416

DOCKET: C62636

MacPherson, Trotter and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fayisa Ibrahim

Appellant

James Lockyer and Alexander Ostroff, for the appellant

Frank Au, for the respondent

Heard: January 19, 2021 by videoconference

On appeal from the conviction entered by Justice Gladys I. Pardu of the Superior Court of Justice, sitting with a jury, on May 15, 2013.

Trotter J.A.:

A. introduction

1Fayisa Ibrahim was convicted of the first degree murder of Kamal Hercules. Mr. Hercules was shot 10 times as he stood outside a grocery store at 171 Front Street, in downtown Toronto, on September 5, 2009.

2The two men had exchanged angry words just a few hours before the shooting. With the assistance of others, the appellant obtained a gun and went looking for Mr. Hercules, culminating in the killing.

3The appellant raises two grounds of appeal: (1) the trial judge erred by not granting the appellant an adjournment to retain new counsel after he discharged his trial counsel; and (2) the Crown’s cross-examination of the appellant and her closing address to the jury undermined the fairness of the trial.

4The following reasons explain why I would dismiss the appeal.

5The trial judge properly exercised her discretion in handling the appellant’s decision to discharge his lawyer. She appointed his former lawyer as amicus curiae and took appropriate steps to ensure that the appellant received a fair trial.

6The Crown’s cross-examination of the appellant, combined with some ill-advised comments and factual inaccuracies in her closing address, was problematic. However, the trial judge’s interventions, along with her mid-trial and final instructions, neutralized any prejudice.

B. factual overview

(1) Introduction

B. factual overview

7This part provides a general overview of the evidence presented at trial. Further references to the evidence are provided as necessary during the discussion of the issues raised on appeal.

8The Crown’s case rested primarily on the testimony of three witnesses, all of whom were with the appellant at various times on the night of the murder: Rajko Tanovic, Abdalla Hassan, and Yvonne Asekunowo.

9Mr. Tanovic was the appellant’s friend, although they were not particularly close. By the time of the trial, Mr. Tanovic had moved to Serbia. He was not charged in relation to Mr. Hercules’ murder.

10Mr. Hassan had known the appellant all of his life. Before he testified against the appellant at trial, they were good friends. The appellant testified they were “like brothers”. Mr. Hassan said he feared for his safety while in jail because of his decision to testify against the appellant, however he did not attribute these concerns to anything the appellant may have done. Mr. Hassan was also charged with murdering Mr. Hercules, but was to be tried separately, after the appellant’s trial.

11Ms. Asekunowo was the appellant’s girlfriend at the time of the shooting. When Mr. Hercules was murdered, she and the appellant lived together in an apartment at 171 Front Street – the building above the Rabba Fine Foods store where Mr. Hercules was murdered. She was pregnant with the appellant’s child at the time. Ms. Asekunowo was charged with being an accessory after the fact for helping to dispose of the gun used to kill Mr. Hercules.

12Collectively, these key witnesses provided a first-hand account of the following: the dispute between the appellant and Mr. Hercules a few hours before the shooting; the procurement of the gun used to kill him; how the appellant located Mr. Hercules later that night; the appellant’s actions just before he shot Mr. Hercules; and how the gun was disposed of immediately after the shooting. The Crown also tendered cell phone records, which arguably corroborated the evidence of these witnesses.

13All three witnesses had credibility issues: Mr. Hassan and Mr. Tanovic lied in their police statements, and Mr. Tanovic and Ms. Asekunowo lied at the appellant’s preliminary inquiry. Accordingly, the trial judge gave Vetrovec warnings in relation to all three witnesses: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.

14The appellant testified that he was elsewhere at the time Mr. Hercules was ambushed. He claimed that the phone records supported his version of events.

(2) Background to the Shooting

15“This murder was over nothing. Inconsequential words exchanged that resulted in a killing.” These were the words of the trial judge at sentencing. This is an apt characterization of what happened.

16The appellant and Mr. Hercules met each other at a party at Mr. Tanovic’s house in August 2009. They became involved in a trivial dispute. The appellant was talking to a guest outside. Mr. Hercules came outside and vomited. Concerned that vomit might get on him, the appellant asked Mr. Hercules to back up. Mr. Hercules’ friend, Vanteno Whynder, said that Mr. Hercules was very upset by the way the appellant treated him.

17On September 5, 2009, Mr. Whynder was drinking with Mr. Hercules and some other men. Between 1:00 and 2:00 a.m., they walked along Front Street. Around 2:00 a.m., Mr. Tanovic and the appellant drove up in a car to speak to Mr. Whynder. Like the appellant and Ms. Asekunowo, Mr. Whynder also resided at 171 Front Street. Mr. Hercules, intoxicated at the time, was still upset about what happened at the party the month before. He muttered profanities under his breath, called the appellant a “bitch”, and challenged him to a fight. Mr. Whynder and Mr. Tanovic tried to calm the situation. Mr. Tanovic and the appellant drove off.

(3) Obtaining a Gun

18According to Mr. Tanovic, as he and the appellant drove away, the appellant was angry and kept saying “I’m going to get this guy” and “I’m going to do him”, which Mr. Tanovic understood to mean that he was going to hurt or kill Mr. Hercules. The appellant called Mr. Hassan and arranged to meet him at a bar nearby.

19Mr. Hassan testified that at roughly 2:00 a.m., the appellant called him and asked for a gun.¹ He did not have one at the time, but he knew where he could get one. The appellant and Mr. Tanovic met Mr. Hassan at the bar.

20Ms. Asekunowo testified – and the cell phone records confirm – that the appellant called her at 2:24 a.m. She was in bed. He asked her to go downstairs at their building to see if there were security cameras outside. At 2:28 a.m., he called her again and when she said she had not checked, he again directed her to do so, while he remained on the line. There were no security cameras.

21After arriving at the bar to meet Mr. Hassan, Mr. Tanovic drove himself, the appellant, and Mr. Hassan to a building west of downtown Toronto, where Mr. Hassan was to get a gun from a person known as “Grizz”. Cell phone records suggest Mr. Tanovic drove the group to Grizz’s apartment around 2:45 a.m. Mr. Hassan was in the front passenger seat; the appellant was seated behind the driver. Mr. Tanovic said that during the drive the appellant and Mr. Hassan conversed in another language. Mr. Hassan confirmed that he and the appellant sometimes spoke Oromo with each other.

22Mr. Tanovic said that at some point on the drive to Grizz’s apartment, the appellant gave his cell phone to Mr. Hassan. This fact takes on significance in terms of the usefulness of the cell phone records, discussed below.

23When the men arrived at Grizz’s building, Mr. Tanovic said that he remained in the car with Mr. Hassan while the appellant went inside alone. When he came back out, the appellant appeared to be carrying something wrapped in a red sweater. The appellant got into a taxi. Mr. Tanovic and Mr. Hassan followed the taxi downtown until both vehicles were within a few blocks of 171 Front Street, at which point the taxi turned onto a side street and Mr. Tanovic continued on. Mr. Tanovic said they saw Mr. Hercules and Mr. Whynder standing outside of the Rabba grocery store at 171 Front Street. Mr. Tanovic hoped that Mr. Hassan did not see them, but he did. Mr. Hassan made a call and started speaking in a different language. Mr. Tanovic assumed Mr. Hassan was talking to the appellant. Mr. Tanovic wanted to warn Mr. Hercules and Mr. Whynder, but his phone was dead.

24Mr. Hassan’s account was different. He said that both he and the appellant went into the building to the apartment to meet Grizz. Grizz gave him a loaded handgun. When they left the building, Mr. Hassan got back into Mr. Tanovic’s car and the appellant got into a taxi that Mr. Hassan had ordered. Mr. Hassan and Mr. Tanovic followed the taxi downtown. Once in the area of 171 Front Street, Mr. Tanovic panicked because he saw Mr. Whynder and Mr. Hercules. Mr. Tanovic made a quick call. Mr. Hassan denied that he had the appellant’s phone and that he called the appellant just before the shooting.

(4) The Shooting of Mr. Hercules

25Ms. Asekunowo testified that sometime after 2:30 a.m., the appellant showed up at their apartment at 171 Front Street, changed into black clothes, and asked Ms. Asekunowo to follow him downstairs. They went to a door that opened to the building’s east side. It had a push bar and locked when it was closed. The appellant told Ms. Asekunowo to hold the door open for him. He covered his face with a black mask, said “you didn’t see anything”, and went outside. Ms. Asekunowo heard clicking sounds, then gunfire. She let the door close. Shortly afterwards, the appellant was knocking on the door and she let him back in. They ran upstairs to their apartment.

26Mr. Whynder was standing next to Mr. Hercules outside the Rabba store. He testified that the masked gunman walked up to them and started shooting. After firing many shots in rapid succession, the gunman ran away.

27When they got back to their apartment, Ms. Asekunowo asked the appellant, “What did you do?” The appellant said that he shot a man. She was upset and asked him why he would do such a thing when they were expecting a baby. The appellant explained that he felt threatened and, if he did not act first, the other person would. The appellant changed out of his black clothes and made arrangements to return the gun.

28Mr. Tanovic testified that roughly one minute after Mr. Hassan ended his call with the person he believed was the appellant, he and Mr. Hassan heard gun shots. Mr. Hassan testified that after Mr. Tanovic made the phone call, they turned the car around and heard gun shots as they were leaving the neighbourhood. After hearing the shots, the two of them were shocked. Neither thought that the issue between the appellant and Mr. Hercules was that serious.

(5) The Aftermath

29Mr. Tanovic testified that, after he and Mr. Hassan heard shots fired, he dropped off Mr. Hassan and then went home at about 4:30 a.m.

30Mr. Hassan said that after they heard the shots, he and Mr. Tanovic stopped near 200 Wellesley Avenue. Mr. Tanovic then spoke to someone on the phone and told Mr. Hassan that Ms. Asekunowo was on her way up to where they were. Mr. Hassan assumed she was coming to return the gun. Mr. Tanovic gave a phone to Mr. Hassan and told him to give it to Ms. Asekunowo. Mr. Hassan believed the phone belonged to the appellant.

31Meanwhile, according to Ms. Asekunowo’s testimony, back at the apartment, the appellant instructed her to take a taxi to 200 Wellesley Avenue and return the gun to Mr. Hassan. The appellant told her to contact Mr. Hassan by calling him at the appellant’s cell phone number. At around 4:20 a.m., she got into a taxi approximately two blocks west of 171 Front Street. Once she was in the taxi, she used her cell phone to call Mr. Hassan on the appellant’s number and told him she was on her way. Cell phone records support her claim that she used her phone near 171 Front Street and that the appellant’s phone was near 200 Wellesley Avenue when she called from the taxi. When she arrived at 200 Wellesley, Mr. Hassan got into the taxi and told her who he was. Ms. Asekunowo had the gun in her purse. The taxi took them to Grizz’s apartment where they were to return the gun. For reasons that are not important to this appeal, this errand was unsuccessful. The next day Mr. Hassan threw the gun in the lake by the Argonaut Rowing Club. A passerby recovered the gun on September 7, 2009.

32The appellant did and said various things after the shooting. He became aware that the police were looking for someone named “Fuzzy” in connection with the murder. “Fuzzy” was the appellant’s nickname. Ms. Asekunowo and others testified that the appellant instructed them not to refer to him by this name any longer. He told Ms. Asekunowo to assume that her phone calls were being monitored.

33Mr. Hassan testified that he spoke with the appellant after the shooting. The appellant described approaching and shooting Mr. Hercules while Mr. Whynder stood by. He reported that Mr. Whynder did not run, which Mr. Whynder confirmed.

(6) The Appellant’s Evidence

34The appellant advanced an alibi defence: he was at the apartment of his friend Ahmed Muktar at 200 Wellesley Avenue when Mr. Hercules was murdered. He revealed this alibi for the first time at trial.

35The appellant explained that, when he and Mr. Tanovic encountered Mr. Whynder and Mr. Hercules that night, Mr. Hercules was intoxicated and muttered profanities. Mr. Whynder attempted to control Mr. Hercules. The appellant was not particularly bothered by the confrontation, nor was he concerned about their interaction at the party the previous month.

36At about 2:00 a.m., the appellant and Mr. Tanovic met with Mr. Hassan at a bar on Sherbourne Street. Afterwards, the appellant went to visit Mr. Muktar. When he arrived, he encountered several men who he did not know. Mr. Muktar was asleep.

37The appellant left 200 Wellesley Avenue after 3:00 a.m. He took a taxi to a Coffee Time store near Queen and Sherbourne to purchase pastries for Ms. Asekunowo. He called her, but because she was angry at him, she told him not to come home. The appellant directed the cab back to 200 Wellesley, where he spent the night. He said that Ms. Asekunowo came to Mr. Muktar’s apartment to see him later that night, but he refused to see her. He returned to 171 Front Street the next day. He said he first learned about the shooting on the news.

(7) Cell Phone Evidence

38An important part of the Crown’s case was comprised of cell phone records relating to the phones of Mr. Tanovic, Ms. Asekunowo, and the appellant.² The usefulness of the records associated with the appellant’s phone depended upon who had the phone at the time. The appellant denied that he gave someone else his phone that night, insisting that it did not make sense to do so. The evidence of Mr. Tanovic, Mr. Hassan, and Ms. Asekunowo, while inconsistent in certain respects, suggested otherwise.

C. refusal to grant aN adjournment

(1) Background

C. refusal to grant aN adjournment

39About four weeks into the trial, the appellant advised the trial judge that he wished to discharge his counsel. This occurred towards the end of the Crown’s case, after Mr. Tanovic, Mr. Hassan and Ms. Asekunowo had testified, one after the other.

40His trial counsel, Mr. Dennis, advised the trial judge of this development when the court convened on April 18, 2013. He told the trial judge that the appellant thought that his cross-examination of Ms. Asekunowo was inadequate and that the appellant could have done better. The following discussion occurred:

MR. IBRAHIM: And I feel that the way he cross-examined the most critical witness in the case was below satisfaction.

THE COURT: Mr. Dennis is a very experienced counsel.

MR. IBRAHIM: I understand that.

THE COURT: Do you think you could do better yourself?

MR. IBRAHIM: With those witnesses I honestly thought I believe that I could have. And I respect Mr. Dennis a lot. Ah we have a pretty good relationship. This is nothing personal, you know what I mean. This is my life, and this is a personal choice of mine.

41The trial judge advised the appellant that if he discharged Mr. Dennis he would have to examine witnesses and address the jury himself. The appellant spoke of retaining new counsel, saying that “it should not be an issue.”

42Discussion ensued about the potential difficulties in retaining counsel in the circumstances, including the willingness of Legal Aid Ontario (“LAO”) to fund a new lawyer. The trial judge mentioned that she might consider an adjournment for a week. She acknowledged the appellant’s concern that he may not be able to retain the services of a lawyer during that period of time. As the trial judge said:

So the consequence of your decision might be that you continue unrepresented in this case and you should know that before you make the final decision about terminating Mr. Dennis’ services. You would definitely be at a disadvantage to proceed on your own without a lawyer, but that might happen….

43Mr. Dennis advised the trial judge: “The remaining witnesses are not that contentious.” He then explained that although one remaining witness – a cell phone records expert – could be contentious, he assured the trial judge that the appellant knew “the cell phone records extremely well” and that he had had access to Mr. Dennis’ work product. He described the rest of the evidence as “not controversial.” He also mentioned that wiretaps, the admissibility of which was not contested, would be played and said: “you know, you can’t cross-examine a wiretap, so it’s not that complicated from here on in.”

44The trial judge arranged for the parties to appear before McMahon J. for a mid-trial conference to discuss the implications of the appellant’s intention to discharge his counsel. The appellant agreed to this arrangement. When proceedings resumed before the trial judge, the appellant outlined his understanding of his options – he could request a mistrial or request an adjournment to retain new counsel. He brought applications for both. The appellant reiterated his concerns with Mr. Dennis’ performance, but again insisted that his decision was not personal, and that he had a great deal of respect for him.

45The Crown opposed the granting of a mistrial or a lengthy adjournment.

(2) The Trial Judge’s Ruling

46Following the discussion with the appellant and counsel, the trial judge dismissed the mistrial and adjournment applications. She said the following:

Having regard to the stage at which this discharge of counsel has occurred and the reasons for the discharging, in my view it would be contrary to the public interest to declare a mistrial under these circumstances. I must be satisfied that Mr. Ibrahim can have a fair trial. He is charged with a very serious offence. I will give fuller reasons for dismissing the request for a mistrial and for an adjournment to retain new counsel at a later date.

The most important witnesses have testified already as part of this case, as Mr. Ibrahim has referred to, the evidence of Mr. Hassan and the evidence of his former girlfriend. Having regard to the nature of the evidence that rests as part of the Crown’s case, I am satisfied that Mr. Ibrahim can have a fair trial with the appointment of Mr. Dennis as Amicus.

47In her subsequent written decision, R. v. Ibrahim, 2013 ONSC 2412, at paras. 1-2, 4-7, the trial judge made a number of observations that are important to this ground of appeal:

Mr. Hassan and Ms. Asekunowo both gave very incriminating evidence, though it differed from the evidence Mr. Hassan made in his police statement and Ms. Asekunowo gave at the preliminary inquiry;
the appellant was informed ahead of trial that Mr. Hassan and Ms. Asekunowo’s testimony would be changing, though until they testified, no one could be sure what they would say;
nevertheless, their trial testimony undoubtedly had a substantial impact on the likelihood of conviction, and that impact was likely the reason the appellant discharged Mr. Dennis and requested a mistrial;
the appellant’s primary reason for discharging Mr. Dennis was “to derail the trial because the evidence ha[d] become uncomfortably incriminating”;
most of the important Crown witnesses had already testified and the remaining evidence – much of which related to the cell phone records – was not controversial;
the appellant had made no attempts to secure new counsel and there was no realistic prospect of new counsel, therefore the appellant’s request for an adjournment was effectively a request for a mistrial;
in light of the reasons for and timing of the discharge, it would be contrary to public interest to declare a mistrial;
appointing Mr. Dennis as amicus would ensure the appellant received a fair trial, as Mr. Dennis was prepared to assist the court and he had the experience and ability required to effectively take on the role; and
fairness to both sides required that the trial continue, despite the fact the appellant was on trial for first degree murder, which is one of the most serious offences.

48Later in the day on April 18, the trial judge formally appointed Mr. Dennis as amicus curiae.

49The trial judge then gave the appellant detailed instructions, both orally and in writing, about how to participate in the trial without counsel. The appellant made no complaint about the adequacy of these instructions.

50At the end of this presentation, as the trial judge was vetting the admissibility of the evidence of a firearms expert, the appellant said: “I thought that it was my right to have a fair trial. I feel like without being represented by counsel the whole fairness goes right out the window.” The trial judge explained to the appellant that his present circumstances were the result of the decision that he made, saying to the appellant: “it’s a poor decision on your part, but it’s your right to make that decision. And I simply cannot force you to continue with counsel.”

51The appellant responded, saying: “I understand that, but I mean the whole point of me doing that [discharging Mr. Dennis] was from my understanding to be able to obtain another lawyer. I wouldn’t fire a lawyer to continue my trial to represent myself. That’s just ridiculous.” After further discussion, the case was adjourned to April 22, 2013. The trial judge said the following to the appellant:

I have already told you I think it’s a bad decision to terminate your counsel. You can change your mind about it if you wish. You don’t have to. The trial will continue one way or the other, but it’s up to you to make that decision.

52The appellant did not change his mind.

(3) The Continuation of the Trial

53When the trial resumed a few days later on April 22, 2013, Mr. Dennis requested clarification in his role as amicus. He asked that he be restricted to a “traditional role” in assisting the court. The trial judge acceded to this request.

54The trial continued that day. By the end of the following day, April 23, the Crown had called its last four witnesses – the person who found the gun in the lake, the firearms expert, the cell phone records expert, and a police officer who introduced intercepted communications. During the examination-in-chief of the police officer, the trial judge intervened on her own motion to stop the Crown from eliciting unnecessary and potentially prejudicial investigative hearsay evidence. The appellant cross-examined the cell phone records witness in some detail and asked some questions of the police officer.

55Once the Crown’s case was closed, the trial judge granted the appellant’s request to adjourn the case so that he could properly prepare for the next stage of the trial. Initially, the trial judge was prepared to adjourn the case for five days. However, after the appellant advised her that it would be difficult to get access to his court papers while incarcerated, the trial judge adjourned the case for eight days, from April 24 to May 2.

56When the trial resumed on May 2, the appellant told the trial judge that he did not have sufficient access to his materials at the institution to prepare his defence. Considering all of the circumstances, including the delay that had already transpired, the trial judge decided to continue with the trial. This was after learning that the appellant planned to call one or two witnesses, and that he might testify on his own behalf.

57Accordingly, the trial continued and the appellant gave his opening address to the jury, which was brief but focused and articulate. He called a single witness – Malleena Browne – a resident of a building near the murder location. In questioning this witness, the appellant more than once successfully refreshed her memory with her preliminary inquiry testimony. Ms. Browne described hearing shots and said she saw the shooter go down some stairs and into an alleyway. She said the shooter was dressed in all black. She was roughly 500 metres away at the time. When she made these observations, emergency vehicles were already on the scene, making it unlikely that she actually saw the shooter running away.

58The appellant conferred with the amicus before stating his intention to testify. He gave his examination-in-chief in narrative form; the amicus did not assist him. He was cross-examined for part of that same day, the following day, being Friday, May 3, and then on the following Monday, May 6.

59The appellant delivered his closing address to the jury on May 9, 2013. He addressed the jury at length and covered the evidence in great detail. At the pre-charge conference, the amicus made some submissions on behalf of the appellant. The appellant used this opportunity to make objections to inaccuracies in the Crown’s closing address to the jury, an issue to which I return below.

60Following the trial judge’s instructions to the jury, both the Crown and the appellant raised a few concerns. The trial judge characterized their objections as relating to “mostly factual matters that [were] the province of the jury” and declined to provide further instructions. Subsequently, the amicus assisted the appellant with providing input to the trial judge on the jury’s sole question, concerning the meaning of the words “planned and deliberate”.

(4) The Positions of the Parties

61The appellant originally appealed the trial judge’s failure to declare a mistrial. However, at the hearing of the appeal, he did not pursue this issue. Instead, he submitted that the trial judge erred in failing to adjourn the proceedings so that he could retain new counsel. The appellant submits three underlying issues contributed to the trial judge’s error. First, the trial judge erred in her finding, in para. 47 above, that the appellant discharged Mr. Dennis in an attempt to “derail” the trial. The appellant submits that this finding was unfair because the suggestion was never raised in submissions and the appellant was never directly asked about it. Moreover, the appellant submits that, instead of focusing on whether Mr. Dennis had performed to standard, the trial judge should have focused on whether the appellant had a legitimate reason to believe that Mr. Dennis was not doing a proper job.

62Second, the trial judge erred in failing to raise alternatives to an undefined adjournment to retain new counsel with the appellant. The appellant submits those alternatives included: giving him a time-limited opportunity to retain new counsel; permitting him to recall witnesses for further cross-examination; and canvassing whether the Crown would consent to a re-election to a judge-alone trial, based on the existing record, if an adjournment were permitted to obtain new counsel.

63Lastly, the appellant submits that, given the strength of the evidence and seriousness of the charge, appointing his discharged counsel as the amicus was an insufficient substitute for the appellant being represented by proper defence counsel. The appellant points to the fact that the trial judge initially envisaged that the amicus would assume an enhanced role, akin to defence counsel, a view the Supreme Court of Canada subsequently ruled against in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 49-56. However, when the trial judge later restricted the amicus to a more limited role, she failed to revisit whether that limited role would ensure trial fairness. The appellant also argues that appointing his discharged counsel as amicus risked tension between the amicus and the appellant.

64The respondent submits that the objective circumstances of the case support the trial judge’s finding that the appellant attempted to derail the trial. He further contends that the appellant never expressed a desire for anything other than a jury trial or sought to recall witnesses, and that the appointment of amicus was appropriate in the circumstances, particularly in light of the steps the trial judge took to ensure a fair trial for both sides.

(5) Analysis

(a) Introduction

(5) Analysis

65The case against the appellant took a serious turn once Mr. Tanovic, Mr. Hassan, and Ms. Asekunowo testified. Their trial evidence was very different from their police statements and preliminary inquiry testimony. As the trial judge observed, before they testified at trial, no one knew what they would say; after they testified, their trial evidence “had a substantial impact on the likelihood of conviction.” The appellant attempted to palliate his predicament by discharging Mr. Dennis.

66On appeal, the appellant does not allege that he received ineffective assistance from Mr. Dennis. Nonetheless, this was an undertone in the appellant’s written and oral submissions, which focused on Mr. Dennis’ cross-examinations of the key Crown witnesses, especially Ms. Asekunowo. The appellant criticized Mr. Dennis’ cross-examination for being too gentle, despite the fact Ms. Asekunowo was the appellant’s former girlfriend and the mother of their child. The appellant told the trial judge that he could have done a better job. The trial judge was dubious of this claim. Four weeks into the trial, and having had the opportunity to observe Mr. Dennis in action, the trial judge was well-placed to make this appraisal. As she said at para. 3 of her written ruling:

It is always easy to second guess counsel’s approach to cross-examination. There was nothing about the cross-examination which could support an argument that the accused lacked competent counsel. Reasonable counsel may take different approaches to this task. It was established in cross examination that the witnesses [Mr. Tanovic, Mr. Hassan and Ms. Asekunowo] made prior statements under oath about important matters, which did not incriminate the accused in the way their trial testimony did. [Emphasis added.]

67The appellant reviewed these inconsistencies in his closing address, as did the trial judge in her charge, in which she instructed the jury in accordance with Vetrovec. The appellant makes no complaint about this instruction.

68Following the appellant’s declared intention to discharge Mr. Dennis, the trial judge urged him to reconsider. She told him it was ill-advised. But he was unpersuaded. As was his right, he decided to represent himself.

(b) An Attempt to “Derail” the Trial

69I would not upset the trial judge’s finding that the appellant attempted to derail the trial by discharging counsel. The circumstances surrounding the appellant’s applications and the potential consequences of his decision were discussed in submissions leading up to the trial judge’s ruling. No unfairness was occasioned merely because the appellant’s motivation was not put to him directly. Had it been, the response would undoubtedly have been a denial.

70This court has upheld similar findings by trial judges. In R. v. Amos, 2012 ONCA 334, 292 O.A.C. 298, leave to appeal refused [2014] S.C.C.A No. 160, the appellant was convicted of first degree murder. At the end of the Crown’s case, five or six weeks into the trial, the appellant discharged his counsel. The trial judge permitted counsel to withdraw and adjourned the proceedings to allow the appellant to retain new counsel. However, the trial judge denied the appellant’s application for a subsequent three-week adjournment to allow one of his former counsel to re-acquaint herself with the case. The trial judge characterized the adjournment request as “a sham” and appointed trial counsel as amicus curiae.

71On appeal, this court held that the trial judge did not err in this characterization of the adjournment request. The court looked to the circumstances surrounding the request, including the fact that the appellant essentially ignored the trial judge’s offers of assistance to obtain new counsel. This court found, at para. 17, that there was an “adequate evidentiary foundation for the trial judge’s finding that the appellant’s request for an adjournment … was a ‘sham’.”

72In R. v. Phung, 2012 ONCA 720, leave to appeal refused, [2014] S.C.C.A. No. 97, involving one count of first degree murder and one count of attempted murder, the trial judge refused to grant an adjournment when the appellant discharged his lawyer. The trial judge heard evidence that the appellant told a court officer that he did not like the judge and asked if he would get a mistrial if he fired his lawyer. The trial judge found the circumstances, including the timing of the discharge of counsel (i.e., after an unfavourable ruling), demonstrated “patent manipulation” on the part of the appellant. This court found that this “pivotal finding [was] unassailable”: at para. 33.

73In R. v. P.D.C., 2021 ONCA 134, the appellant was convicted of sexual assault, criminal harassment, and breach of recognizance. On appeal, he submitted that the trial judge erred by not declaring a mistrial when he discharged his counsel, failing to appoint an amicus curiae, and failing to preserve the fairness of the continuing trial.

74The appellant alleged, among other things, that his trial lawyer’s performance was lacking. The trial judge disagreed and stated that the appellant’s request for a mistrial “appear[ed] to be nothing more than an attempt … to delay th[e] trial.” As in this case, the appellant submitted that the trial judge’s finding about the appellant’s motivation was procedurally unfair because this position was not put to him, the Crown did not argue it, and it was in any event unsupported by the evidence.

75This court dismissed this ground of appeal. Zarnett J.A. observed that, as soon as the appellant stated his intention to discharge counsel, the trial judge expressed his concerns about the timing of the request, especially when he afforded the appellant an earlier opportunity to seek an adjournment to address counsel-related issues. Zarnett J.A. wrote, at para. 42: “The concern that this was a delay tactic was thus effectively put on the table. On the record before him, the trial judge was entitled to draw the conclusion that a desire for delay motivated the request for a mistrial.”

76Timing was also critical in the case at bar. The testimony from Mr. Tanovic, Mr. Hassan, and Ms. Asekunowo was key to the Crown’s case. It was only after the completion of their testimony that the appellant made his move. At that stage, there was little in the anticipated evidence that was controversial. The damage had already been done. Realistically, the only curative course was to start all over again. This could only be achieved by terminating – i.e., derailing – the trial. The appellant hoped to achieve this goal by turning on his lawyer who, by all accounts, had performed perfectly well.

77The appellant was entitled to discharge Mr. Dennis, and the trial judge recognized that she had no authority to force the appellant to continue to be represented: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 9. As in Amos, at paras. 20-21, the trial judge ensured that the appellant was aware of the consequences of his actions. She asked him to reconsider. She also arranged for a mid-trial conference before another judge so that the appellant could truly understand what might lay ahead. The appellant made his decision, fully informed of the consequences.

78Having made an informed decision to discharge Mr. Dennis, the appellant was not automatically entitled to a mistrial or a lengthy adjournment: these matters lie in the discretion of the trial judge, “who must assess whether there is a real danger that trial fairness has been compromised”: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79. In this case, as in Amos, Phung, and P.D.C., the surrounding circumstances of the appellant’s decision to discharge Mr. Dennis supported the trial judge’s finding that the appellant’s actions were not taken in good faith and that he was attempting to subvert the trial process. Notwithstanding his true motivation, the trial judge ensured that he received a fair trial.

(c) Failure to Grant a Longer Adjournment

79The appellant states that after he raised his intention to discharge his counsel on Thursday, April 18, the trial judge only permitted an adjournment until the following Monday. Pointing to the time the trial judge subsequently and cumulatively afforded him during the remainder of the trial, the appellant submits this makes his point that the trial judge should have granted a longer adjournment when the issue first arose.

80This submission benefits from hindsight, but it does not undermine the trial judge’s decision, which was made on the facts known at the time. The trial judge’s refusal of a potentially lengthy adjournment must be afforded deference on appeal: R. v. Nichols, 2001 CanLII 5680 (Ont. C.A.), at para. 23, leave to appeal refused, [2001] S.C.C.A. No. 508; R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 131 C.C.C. (3d) 518 (Ont. C.A.). The trial judge was correct to conclude that it would be both unrealistic that new counsel would be prepared to take on the case on such short notice such that the trial could continue, and that it was highly unlikely that LAO would permit a change of counsel at that juncture. A lengthy adjournment of this jury trial was essentially just another request for a mistrial.

81This case differs markedly from R. v. Al-Enzi, 2014 ONCA 569, 121 O.R. (3d) 583, leave to appeal refused, [2014] S.C.C.A. No. 405, upon which the appellant places great reliance. In Al-Enzi, this court found that the appellant did not receive a fair trial after his counsel asked to withdraw for “ethical” reasons. The appellant was charged and tried with another individual. After the appellant’s counsel was discharged, the trial judge granted a four-month adjournment for the appellant to obtain new representation. During that time, the appellant, with the assistance of others, made extensive good faith efforts to retain new counsel. However, no lawyer was willing or prepared to represent him mid-trial. The trial judge refused to grant severance or a mistrial; instead, he appointed an amicus and the trial continued. The appellant was convicted; his co-accused was acquitted.

82On appeal, this court considered the severance and mistrial issues together, in part because the two remedies engage similar considerations: at para. 65. Those considerations also apply to this case in terms of the propriety of the appellant’s adjournment request.

83There are several points of contrast between this case and Al-Enzi. First, in Al-Enzi, this court noted that the appellant was blameless in the discharge of his counsel, who effectively withdrew on his own motion: at para. 91. In this case, the appellant discharged his counsel for what the trial judge believed to be dubious reasons.

84Second, in Al-Enzi, the appellant made extensive efforts to retain new counsel. The appellant and others collectively contacted over 100 lawyers, but to no avail: at para. 38. By contrast, in this case, it appears the appellant had no plan to engage new counsel. He mentioned that he had spoken to other lawyers before his trial, and indicated that it “should not be a problem”. However, throughout this process, he never mentioned a specific lawyer. There is no indication that the appellant tried to retain new counsel. There was no realistic prospect that a new lawyer would be retained. A lengthy adjournment would have been fruitless.

85Third, in Al-Enzi, the case was legally complex: at para. 79. In this case, it was not.

86Fourth, in Al-Enzi, the appellant faced a trial with a co-accused who was adverse in interest. They ran so-called “cut-throat” defences: at para. 62. The appellant was forced to defend himself on two fronts – battling both the Crown and his co-accused. Mr. Al-Enzi was convicted and his co-accused was acquitted: at para. 4. In this case, the appellant did not face similar challenges.

87Lastly, in Al-Enzi, the appellant was described as “not particularly literate”: at para. 79. In this case, the appellant demonstrated that he was intelligent, literate, and effective in his in-court dealings.

88Many of the key factors that supported allowing the appeal in Al-Enzi are non-existent in the appellant’s case; Al-Enzi does not support the appellant’s position on this appeal.

(d) Other Options

89The appellant further submits that, having refused an adjournment to allow him to retain new counsel, the trial judge should have considered other options, such as recalling witnesses, exploring the possibility of discharging the jury, or permitting a re-election to a judge-alone trial with an adjournment until new counsel could be retained to continue the trial on the existing record. I disagree.

90There is no indication that the appellant wished to have any witnesses recalled. It is difficult to see how he would benefit from having Mr. Tanovic, Mr. Hassan and/or Ms. Asekunowo provide further testimony. Realistically, it was the last thing the appellant could have wanted.

91The suggestion of re-electing the mode of trial is completely speculative. There is no indication – either at trial or on appeal – that the appellant was prepared to waive his constitutional right to trial by jury. Moreover, in a prosecution for an offence listed in s. 469 of the Criminal Code, of which murder is one, the Crown’s consent is required for a trial to be conducted by a judge sitting without a jury: ss. 471, 473. It is not known whether the Crown would have been prepared to consent.

(e) The Appointment of Amicus Curiae

92The appellant submits that the trial judge’s decision to appoint amicus curiae was inadequate to preserve the fairness of the trial.

93The appellant points out that, as originally envisaged, the trial judge expressed the hope that, in this new position, Mr. Dennis would take on a robust role that included cross-examining witnesses. As the appellant correctly points out, this expanded role sits uncomfortably with the Supreme Court’s decision in Ontario v. Criminal Lawyers’ Association, at paras. 49-56. However, Ontario v. Criminal Lawyers’ Association was decided on August 1, 2013, after the appellant’s trial was complete.³

94Notwithstanding the trial judge’s initial approach to the scope of assistance the amicus would provide, Mr. Dennis requested that he be permitted to fulfill a narrower, more traditional role. The appellant submits that, in these circumstances, the trial judge should have re-assessed whether a fair trial was still possible. I disagree.

95Although Mr. Dennis fulfilled the more traditional aspects of the amicus role, he continued to provide valuable assistance to the appellant. As set out in the respondent’s factum:

As amicus, Mr. Dennis made himself available to the appellant for consultation, explained legal concepts to him, assisted with subpoena for defence witnesses, made objections, argued points of law and points of evidence, facilitated an agreed statement of facts, and offered advice on the closing address.

96In addition, the trial judge repeatedly took steps to ensure that the appellant received a fair trial by accommodating his numerous requests for more time and assistance.

97The appellant also submits that it was not appropriate to appoint his discharged trial counsel as amicus curiae. I disagree. In Amos, Watt J.A. rejected this general proposition, at para. 29: “No bright line rule bars the appointment of former counsel as amicus.” The propriety of such an appointment is determined by the circumstances of the case.

98The appellant again relies upon Al-Enzi, in which the court concluded that the appointment of amicus, even with an expanded mandate, “was not an adequate substitute for defence counsel”: at para. 82. Laskin J.A. explained, at para. 82:

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 had no relationship; see R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56 (C.A.); and R. v. Rafferty, 2013 ONCA 741, [2013] O.J. No. 5550.

99Once more, the comparison with Al-Enzi does not assist the appellant. In the appellant’s case, and in line with Amos (distinguished in Al-Enzi), it was appropriate to appoint former defence counsel as amicus curiae. Mr. Dennis was completely familiar with the case; in Al-Enzi, the amicus was new to the case. In this case, the appellant said that he had a good relationship with and a lot of respect for Mr. Dennis, despite being dissatisfied with some aspects of his performance as counsel. No one was better placed to assume the role of amicus in the circumstances.

(f) Conclusion

100When the appellant discharged Mr. Dennis, the trial judge was required to consider numerous factors in plotting the path ahead. At the forefront was the appellant’s fair trial interests. However, there were also public interest considerations to be taken into account. The trial judge decided that it would be contrary to the public interest to grant a lengthy adjournment – which she likened to granting a mistrial – given the timing and reasons for discharging counsel. The trial judge’s conclusion that “fairness to both sides” required that the case continue was a reasonable one in the circumstances. With no prospect of new counsel on the horizon, the trial judge’s accommodation of the appellant’s requests, the appointment of amicus, and the trial judge’s assistance to the appellant ensured that he received a fair trial.

101I would dismiss this ground of appeal.

D. the conduct of the Crown

(1) Introduction

D. the conduct of the Crown

102The appellant submits that the Crown misconducted herself in her cross-examination of the appellant and gave a jury address that was unfair and riddled with inaccuracies. He contends that the Crown took advantage of him, as a self-represented party, and thereby rendered the trial unfair.

103Certain aspects of the Crown’s conduct are concerning. She occasionally tested the limits of propriety when cross-examining the appellant. However, the trial judge intervened to minimize the potential damage.

104The appellant also criticizes the Crown for not confronting the appellant with evidence that contradicted his version of events, including the cell phone records. The appellant submits that, by failing to do so, the Crown denied him the opportunity to give his version of events. I disagree. The Crown was not required to put her case and theory to the appellant, step-by-step. The Crown’s failure to do so did not render the trial unfair.

105Finally, the appellant correctly notes that the Crown misstated the evidence a few times during her closing address and made comments that were ill-advised. However, these missteps did not render the trial unfair. The Crown’s factual mistakes were corrected in the trial judge’s final instructions, which were impeccable, both for their fairness and their accuracy.

(2) Cross-Examination

106The appellant has isolated a number of aspects of the Crown’s cross-examination which he contends crossed the line.

(a) Bail Conditions and Drug Charges

107At the time of the murder, the appellant was bound by the terms of a bail order in relation to drug charges, which had been withdrawn by the time of the trial. Under the terms of the bail order, the appellant was prohibited from possessing a cell phone; he was required to live with his mother (and not Ms. Asekunowo); and he had a curfew.

108The issue respecting the appellant’s bail conditions first arose ahead of Ms. Asekunowo’s examination-in-chief. Mr. Dennis was still on the record at this time. The Crown sought an advance ruling from the trial judge about her line of questioning on the appellant’s bail conditions. Counsel had pre-trial discussions and reached an agreement. Mr. Dennis had no objection to references to a “court order”, but objected to any mention of the withdrawn drug charge. The trial judge ruled as follows:

Yes. I think it would be safer to stay away from the area of selling drugs. You can simply elicit that he was under a court order that he had to reside in a certain place and that he was not to have cell phones in his possession.

109Mr. Dennis was content with this limitation, and advised the trial judge that information about the court order would also be apparent from the wiretaps that would subsequently be played for the jury. Following this colloquy, the trial judge clarified her ruling:

So that it’s clear, it can be adduced from this evidence that Mr. Ibrahim was under a court order that required he reside at a certain address and which prohibited him from having cell phones in his possession. I gather you’re going to adduce the fact that she had cell phones in her name and that he used them.

The Crown agreed that this was the case. The evidence was adduced through Ms. Asekunowo.

110The issue arose again when the appellant testified. In her opening questions in cross-examination, the Crown asked: “Mr. Ibrahim, you at that time were under a court order to reside with your mother, is that correct?” The Crown pursued this theme over a number of pages of transcript, finishing with: “So then you are at times disrespectful to court orders, aren’t you?”. The appellant answered “Possibly”, and the Crown followed up with “how about to the judicial process in general, Mr. Ibrahim?” The appellant never got a chance to answer this question because the Crown moved onto her next inquiry.

111Inexplicably, the Crown later initiated the following exchange:

Q. And you indicated that you’re a very laid back kind of guy –

A. Yes.

Q. Very peace loving?

A. Very calm –

Q. Is that what you say?

A. Yes, calm, cool, collective, yes.

Q. Yes. What was the court order in relation to?

A. Um well, in all fairness ah it was in relation to drug charges that were withdrawn.

Q. I see, but at the time you were on a court order in relation to drug charges, correct?

A. Correct.

112The following morning, the appellant complained about the Crown’s line of questioning. Without expressly saying so, the trial judge seemed to agree that it was improper. She said:

I will be telling the jury that they can draw no conclusions at all from the fact that at one stage you had drug charges against you. I will tell them that those charges were withdrawn and they can draw no conclusions from that whatsoever.

113In her final instructions, the trial judge instructed the jury that the fact that the appellant breached his bail could not be used to conclude “that he [was] a person of bad character who for that reason [was] likely to have shot Kamal Hercules”. She limited the jury’s use of the appellant’s evidence on this issue to the assessment of his credibility. With respect to the references to the drug charges, the trial judge explained to the jury that the charges were withdrawn, that there was no evidence the appellant was guilty of a drug offence, and that the charges were “irrelevant to [the jury’s] deliberations.”

114The appellant does not submit that the trial judge erred in permitting the Crown to question Ms. Asekunowo and the appellant about his “court order” and the breach of his conditions. In combination, this conduct was relevant to the use of cell phones the night of the murder and, arguably, the appellant’s credibility. However, the questions concerning the underlying, yet withdrawn, charges were clearly improper and contrary to the trial judge’s ruling.

115The trial judge provided a corrective instruction that was sufficient to defuse any prejudice caused by this line of questioning.

(b) The Right to Silence

116In the course of his testimony, the appellant said that, after the murder, there were rumours that Mr. Hercules was shot by someone named “Fuzzy”, a nickname by which the appellant was known. The appellant told people that “[he] had nothing to do with [the shooting]”. The following exchange occurred during cross-examination:

Q. Did you tell the police?

A. I tried getting in contact with the police.

Q. Did you tell the police –

A. I never spoke to the police.

Q. Correct. And when you were arrested in May of 2010 for the first degree murder of Kamal Hercules, did you tell the police that you had not –

MR. DENNIS: Excuse me, Your Honour, I’m not sure –

THE COURT: Yes, the accused has an absolute right to remain silent.

MS. RICHARDS: I’m – all I’m asking is did he tell the police?

THE COURT: No, I don’t think you should go there.

117Shortly afterwards, when the jury was excused, the trial judge addressed the issue with counsel. The Crown insisted that she was entitled to ask the disputed questions because the appellant asserted an alibi for the first time during his testimony. The appellant maintained that he was not asserting an alibi because he accepted that there was evidence that proved that he was in the area of the shooting when it happened.

118After hearing submissions and considering the matter over the weekend, the trial judge provided a ruling. She found that the appellant had raised an alibi defence and that he raised it for the first time at trial. The trial judge further said:

Accordingly, the Crown will be permitted to put questions to the accused with a view to eliciting evidence that he has not at anytime between arrest and trial disclosed to police or the Crown his position that he was not at 171 Front Street in the early morning hours of September 5th, or at the time of the shooting, nor his actual whereabouts at the relevant times.

I will warn the jury about the right of an accused person to remain silent and that no inference as to guilt can be drawn from a failure to disclose an alibi. That any failure to disclose only goes to the weight of the alibi.

The Crown was limited to questioning the appellant about his failure to disclose the alibi post-arrest, but after he had the opportunity to consult counsel.

119After the appellant completed his testimony, the trial judge provided the jury with a mid-trial instruction that addressed the alibi issue. I will return to this instruction below, when dealing with the Crown’s closing address on this issue. On the issue of the right to silence, the trial judge provided the following mid-trial instruction:

An accused person has an absolute right to remain silent. No person is obliged to speak to police. You cannot draw any conclusions as to guilt from the fact that a person exercised his or her right to remain silent. An accused person is in under no duty to come forward and give an explanation.

However, if you find that the alibi evidence, that is to say the evidence by Fayisa Ibrahim that he was not at 171 Front Street at the time of the shooting, was not disclosed in time to make a meaningful investigation of the alibi evidence, you may take this delay into account when you decide how much weight to give to the accused’s evidence that he was not at 171 Front Street at the time of the shooting. You may or may not believe the alibi evidence; however, you may not draw an inference that the accused is guilty from a delay in disclosing alibi evidence. Any delay should only be considered until you decide how much weight, if any, you will give to the alibi evidence. [Emphasis added.]

120The trial judge repeated this instruction in her final charge to the jury.

121The appellant accepts that these instructions amounted to a “satisfactory correction” of the Crown’s cross-examination, but maintains that these questions should not have been asked of an unrepresented accused person.

122Represented or not, the questions should not have been asked. Nonetheless, the trial judge’s instructions defused any prejudice arising from the Crown’s questioning.

(3) The Crown’s Closing Address

123The appellant submits that the Crown’s closing address was unfair in a number of ways. He points to erroneous and prejudicial submissions about the appellant’s alibi, inaccuracies in the Crown’s review of the evidence, and improper comments about the evidence or witnesses. I will deal with each in turn.

(a) Alibi Submissions

124Picking up on the issue concerning the appellant’s whereabouts at the time of the killing, the appellant testified that he was at Mr. Muktar’s apartment. Mr. Muktar was not called as a witness. The Crown said the following about this evidence:

I suggest to you that Mr. Ibrahim’s testimony was a fabrication. The cell records easily confirm Ms. Asekunowo’s testimony and that of Hassan and Tanovic that Ibrahim did not have his cell phone after returning to the apartment over the Rabba store before the shooting around 3:40 in the morning. Mr. Ibrahim testified that both before and after the crucial time of 3:40 a.m. he was at 200 Wellesley and people that he knew were with him. In fact, when Mr. Fayisa [sic] returned to 200 Wellesley for the second time between 3:00 and 4:00 a.m., he told you he actually had a conversation with Ahmed Muktar.

None of those individuals who could confirm Mr. Ibrahim’s story testified in this trial. You did not hear from Ahmed Muktar, or the others, because I suggest to you they cannot corroborate or support his alibi. Mr. Ibrahim was not at 200 Wellesley, he was at 171 Front Street, masked and prepared to ambush Kamal Hercules and Vanteno Whynder. [Emphasis added.]

125On the issue of the late disclosure of the alibi and the consequent inability of the police to investigate it, the Crown said: “Ladies and gentlemen, I submit to you it is obvious that Mr. Ibrahim’s evidence is fabricated and I ask you not to accept it.”

126The appellant submits that the Crown’s closing address invited the jury to draw an adverse inference from the appellant’s late disclosure and failure to call evidence to support his alibi.

127For criminal lawyers and judges, “fabricated” is a term of art in the context of alibi evidence, potentially giving rise to an inference of consciousness of guilt; whereas, an alibi that is simply disbelieved cannot support such an inference: see R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 67; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 67. However, this distinction would not have been apparent to the jury. More importantly, the Crown did not invite the jury to infer guilt from fabrication; she simply asked the jury not to accept the alibi because it had been fabricated. This was in line with the trial judge’s instructions, when she told the jury: “Because the Crown bears the onus of proving his guilt, you cannot draw any inference against Fayisa Ibrahim because of his failure to call a witness such as Ahmed Muktar.”

128Similarly, in relation to the timing of the disclosure, the trial judge told the jury:

You may take this delay into account when deciding how much weight you will give to the accused’s evidence that he was not at 171 Front Street at the time of the shooting. You may or may not believe the alibi evidence. However, you may not draw an inference that the accused is guilty from a delay in disclosing alibi evidence.

129This was a correct instruction, to which the appellant made no objection on appeal. It clarified any confusion that may have been associated with the Crown’s comments.

130I would dismiss this ground of appeal.

(b) Factual Inaccuracies

131The Crown made a number of inaccurate factual claims in her closing address, including: (a) misstating that the appellant could not recall who answered or let him in when he buzzed into Mr. Muktar’s residence at 200 Wellesley Avenue and that he subsequently changed his testimony to say no one answered and he was simply let in, when the appellant in fact always maintained that he was simply let in; (b) misstating that the appellant never disclosed the name of the coffee shop he attended to obtain pastries for Ms. Asekunowo, when he had named “Coffee Time” twice; (c) misstating that Ms. Asekunowo’s phone “suddenly” happened to call the appellant’s phone at 3:40 a.m., when in fact the appellant’s phone initially called Ms. Asekunowo’s phone and her phone then called back twice; and (d) misrepresenting her questions and the appellant’s answers in cross-examination by saying the appellant made “no mention whatsoever” of Ms. Asekunowo’s apparent visit to 200 Wellesley Avenue at 4:00 a.m., when the Crown never cross-examined the appellant on that point.

132The appellant picked up on some of these inaccuracies and brought them to the attention of the trial judge during the pre-charge conference.

133The special duties imposed on Crown counsel in conducting trials, including their duties when addressing juries, are well known and need not be addressed in detail: see R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262. In R. v. Mitchell (2006), 2006 CanLII 29632 (ON CA), 212 C.C.C. (3d) 258 (Ont. C.A.), Blair J.A. said, at para. 19:

Where Crown counsel has failed to comply with these obligations, it is the duty of the trial judge to remedy the situation. If the trial judge fails to redress properly the harm caused by a clearly inflammatory, unfair or significantly inaccurate jury address, a new trial may ensue: R. v. Rose, supra, at para. 127. [Emphasis added.]

134In Regina v. Gregoire (1980), 1980 CanLII 2902 (QC CA), 60 C.C.C. (2d) 542 (Que. C.A.), leave to appeal refused, [1980] 2 S.C.R. viii, L’Heureux-Dubé J.A., then a member of the Court of Appeal of Quebec, said, at p. 563:

In trials of this length where the addresses of counsel and the Judge's charge extend over several hours, it is not surprising to find some weaknesses, unfortunate expressions, an idea poorly expressed and even certain discrepancies in speech. (An address by counsel with no mistakes and a perfect jury charge have not yet been delivered.) What should concern us is whether the accused has thereby been so prejudiced that he cannot receive a fair and just trial. [Emphasis added.]

135The respondent relies on the following statement from the Crown at the beginning of her jury address: “As I review the evidence for you and ask you to recall it, it is, of course, your collective memory of the evidence that counts. It is your memory of the evidence that must be relied upon in the course of your deliberations”. The respondent submits: “The trial Crown did her best to be accurate, but she cannot be held to a standard of perfection”.

136It is impossible to know, and in any event, I need not decide whether the Crown did her best or not; there is no credit for failed attempts if the result is an injustice. But the trial judge’s instructions alleviated any prejudice. The trial judge provided an accurate review of the evidence. The appellant takes no issue on appeal about the correctness of the trial judge’s review of the facts.

137The appellant submits that, in addition to merely summarizing the evidence accurately, it was incumbent on the trial judge to go one step further and explicitly identify for the jury the mistakes in the Crown’s closing address. Although it would have been open to the trial judge to instruct the jury in this manner, she was not obliged to explicitly correct or admonish counsel. Trial judges are best situated to gauge the temperature of a trial in determining what corrective steps should be taken to maintain equilibrium: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 90, leave to appeal refused, [2016] S.C.C.A. No. 203, citing R. v. Giroux (2006), 2006 CanLII 10736 (ON CA), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 49, leave to appeal refused, [2006] S.C.C.A. No. 211. In this case, the trial judge successfully removed any unfairness associated with the Crown’s factual inaccuracies. It was unnecessary to go further.

(c) Questionable Comments

138The appellant submits that the Crown made a number of inappropriate comments in her final address, comments that contributed to an unfair trial. Although I agree that some of these comments may have been ill-advised, they did not undermine the fairness of the trial.

No Explicit Denial

139At the very end of her address to the jury, the Crown said the following:

Ladies and gentlemen, I ask you to recall the most important part of Fayisa Ibrahim’s testimony before you, in actuality it’s what Fayisa Ibrahim did not say to you while in that witness stand under oath, at no time in his evidence did Fayisa Ibrahim look you in the eye, Members of the Jury, and tell you that he did not shoot Kamal Hercules. At no time did Fayisa Ibrahim say to you he was not the masked man.

140The respondent submits that this comment was “accurate and harmless”. It was not entirely accurate. The appellant’s position throughout the trial was that he did not kill Mr. Hercules and that he was elsewhere at the time of the shooting. The following exchange occurred in the cross-examination of the appellant:

Q. Now obviously, Mr. Ibrahim, I’m going to suggest to you that you had never been associated with causing the death of an individual or a shooting before, would that be fair?

A. Um I never have, period.

141Notwithstanding the unfortunate rhetorical finale to the Crown’s closing address, the appellant’s position at trial – that he did not kill Mr. Hercules because he was elsewhere at the time – was squarely before the jury by virtue of his own evidence, his closing address, and the trial judge’s instructions. The Crown’s remarks did not undermine the fairness of the trial.

Ms. Asekunowo’s Apology

142The appellant relies on the Crown’s comments about an aspect of Ms. Asekunowo’s evidence in which she started crying and said, “I’m really sorry”. In addressing her credibility, the Crown told the jury: “at one point in her testimony Yvonne Asekunowo looked into the body of the court at Kamal Hercules’ mother and tearfully stated ‘I’m really sorry.’”.

143The appellant referred to this aspect of the closing address during the pre-charge conference. He submitted that the Crown was acting on an assumption or was speculating about who Ms. Asekunowo was apologizing to and the reason for her apology. The Crown argued that it was her view that Ms. Asekunowo was apologizing to the mother of Mr. Hercules. She insisted it was “an issue for the jury to determine.” The trial judge did not mention this issue in her final instructions.

144Again, the Crown’s comment was ill-advised. Dressed up as a badge of trustworthiness for Ms. Asekunowo’s testimony, the jury may have experienced it as an appeal to sympathy for Mr. Hercules and his family. The trial judge was best placed to gauge the impact of this statement. In all of the circumstances, it was a minor distraction which must be viewed in the context of the trial judge’s entire instructions, which included the following admonition: “You must consider the evidence and make your decision without sympathy, prejudice or fear.”

The Appellant’s Mother

145The appellant takes exception to the Crown’s reference to Ms. Asekunowo’s testimony in which she described middle-of-the-night phone calls with the appellant’s mother.

146After the confrontation between the appellant and Mr. Hercules earlier in the night, the appellant called Ms. Asekunowo to ask her what she was doing. She testified: “sometime after I got a phone call from his mother asking me where Fayisa was and what he was doing, um and she was a little bit frantic because um she’d heard – she overheard an argument … [o]ver the cell – over the phone.” At this point, the Crown cautioned Ms. Asekunowo not to testify about anything that she did not hear or see herself. Ms. Asekunowo then elaborated that as a result of her call with the appellant’s mother, she called the appellant and told him to call his mother. This theme was not pursued further in the evidence. Mr. Dennis was still engaged as counsel at this point. He raised no objection to this line of questioning.

147The matter arose again in the Crown’s closing address, when she was reviewing the sequence of phone calls that night. She said:

I respectfully suggest to you, ladies and gentlemen, the calls occur in the middle of the night, and one of them is 15 minutes long because, indeed, [the appellant’s mother] is most certainly frantic. I suggest to you she’s concerned about her son’s whereabouts, what he has done and what he is about to do.

148The appellant submits that the appellant’s mother’s “comments and state of mind as expressed by [Ms.] Asekunowo were inadmissible hearsay.” Further, he submits that the Crown took advantage of this evidence, which the trial judge did not correct. The respondent contends that the Crown properly relied upon the evidence that the appellant’s mother was “indeed frantic” and that no hearsay value was attributed to this evidence.

149The evidence does not identify exactly what the appellant’s mother was frantic about. Through the evidence of Ms. Asekunowo, we learn that the appellant’s mother overheard a conversation, which presumably made her frantic. This suggests an implied hearsay use of the statement. However, without knowing why the appellant’s mother was frantic, the evidence had little value. The Crown’s comment about the appellant’s mother being concerned with “what he ha[d] done and what he [was] going to do” was speculative and should not have been said.

150The appellant submits that “[n]o correction was given by the trial judge.” However, the trial judge did address this evidence. Reviewing some of the evidence of Ms. Asekunowo, the trial judge said: “During the walk she got a call from Fayisa Ibrahim asking her where she was and what she was doing. She then got a call from Fayisa Ibrahim’s mother, and then she called Fayisa Ibrahim and told him to call his mother.” The trial judge omitted the impugned aspects of the evidence and the spin the Crown placed upon it. In my view, this was an appropriate manner of addressing this issue. A rehashing of this evidence and the Crown’s address would not have benefitted the appellant. In the end, while improper, in the context of the evidence as a whole, the Crown’s brief comments were inconsequential.

(d) Failure to Confront

151The appellant submits that the trial was rendered unfair because, in her closing address, the Crown relied heavily on certain parts of the evidence, especially the cell phone records, but failed to confront the appellant with this evidence during cross-examination. He argues that because he was self-represented, it was incumbent on the Crown to afford him the opportunity to speak to those facets of the evidence. The appellant submits that the Crown’s approach unfairly ambushed him. I disagree.

152When he testified, the appellant had the benefit of advice from the amicus. He also knew the case that he had to meet, including the cell phone records. As discussed above in the context of discharging counsel, the amicus assured the trial judge that the appellant was very familiar with the cell phone records.

153The Crown was entitled to restrict her cross-examination to the evidence that the appellant gave in-chief. She took the appellant through his evidence in-chief, testing it at various stages. It was quite clear that the importance of the cell phone records hinged on who had “the appellant’s” phone at various points in the evening, especially in the aftermath of the shooting, when Mr. Tanovic, Mr. Hassan, and Ms. Asekunowo testified about returning the murder weapon and the meeting outside 200 Wellesley Avenue. It was also clear that the Crown viewed the appellant’s version of events about Mr. Muktar and his apartment as a fanciful attempt to explain the whereabouts of “his” phone at a critical time. The appellant addressed the issue of leaving his phone with the other men, contending that it would make no sense for him to do so. His position was placed squarely before the jury and may have been an answer to the cell phone records; however, it was at odds with the evidence of the three main witnesses – Ms. Tanovic, Mr. Hassan, and Ms. Asekunowo.

(4) Conclusion

154Although there were some issues with the manner in which the Crown conducted her case, they did not rise to a level that requires intervention on appeal. Through her interventions and instructions to the jury, the trial judge maintained the fairness of the trial.

155I would dismiss this ground of appeal.

E. conclusion

156I would dismiss the appeal.

Released: April 16, 2021 “JCM”

“Gary Trotter J.A.”

“I agree. J.C. MacPherson J.A.”

“I agree. Harvison Young J.A.”

Footnotes

Mr. Hassan’s phone records show he received a call from the appellant’s cell phone number at 1:48 a.m.
Ms. Asekunowo had two phones, one of which the appellant regularly used and referred to informally throughout the trial as his phone. At the time, the appellant was subject to bail conditions that forbade him from having a cell phone.
The appellant was sentenced on May 15, 2013.