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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
486.4(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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
486.4(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.
486.4(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; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
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.
486.6(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 Information
Court of Appeal for Ontario
Date: 2019-07-05
Docket: C66619
Judges: Feldman, van Rensburg and Huscroft JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
Temitope Olusoga Appellant
Counsel
Temitope Olusoga, acting in person
Michael Dineen, duty counsel
Andrew Hotke, for the respondent
Heard: June 4, 2019
On appeal from the convictions entered by Justice Peter Bawden of the Superior Court of Justice on November 1, 2018, and from the sentence imposed on January 28, 2019.
Reasons for Decision
[1] Introduction
The appellant was convicted of one count of sexual assault and one count of threatening death following a trial by judge alone. He was sentenced to two years in custody, less time served. In his notice of appeal, the appellant indicated that he appealed from conviction and sentence. In oral argument, duty counsel focused on the conviction appeal. The appellant did not make any oral submissions.
[2] Ground of Appeal
Duty counsel advances one ground of appeal: allowing the appellant's convictions to stand in the face of the breach of solicitor-client privilege that occurred during his trial would constitute a miscarriage of justice. We agree. For the reasons that follow, we would allow the conviction appeal and order a new trial. It is therefore unnecessary to address the sentence appeal.
Background
[3] The Charges
The appellant pleaded not guilty to sexual assault and threatening death. The events giving rise to those charges occurred on September 27, 2015. Both the appellant and the complainant testified at trial about what happened.
[4] Complainant's Evidence
The complainant testified that while she was waiting at a bus stop, the appellant approached her from behind and said either "hey cutie" or "hey sexy". When she did not respond, the appellant grabbed her by the hair and put his hand over her mouth. Then, he dragged her on her knees to an alleyway and put his hand down her shirt, underneath her bra. He also put his hand inside her leggings, underneath her underwear, and touched her genitals. The appellant kept a hand over the complainant's mouth throughout the assault. At one point, the complainant managed to get the appellant's hand off her mouth long enough to start screaming. This prompted the appellant to tell her "shut the fuck up or I will kill you".
[5] Appellant's Evidence
In his testimony, the appellant denied sexually assaulting the complainant, though he admitted to assaulting her. He stated that he was trying to frighten the complainant, because he mistakenly thought she was a friend of his former girlfriend. He hoped that by frightening the complainant, his former girlfriend would get the message that he was still angry with her. So, he walked up to the complainant and said "where's Tasha", referring to his former girlfriend. When the complainant did not respond, he grabbed her by the collar, shook her, and slapped her across the face. He asked the complainant "where are all your friends now", to which she responded several times by asking what he was talking about. After the appellant slapped her, the complainant fell to the ground and the appellant decided to walk away. He denied touching the complainant's breast or reaching down her pants. He acknowledged that he may have told her to "shut the fuck up" but denied threatening to kill her.
[6] Trial Judge's Initial Assessment
In his reasons for judgment, the trial judge rejected the appellant's testimony. He accepted the complainant's testimony, and found that it left him without a reasonable doubt as to the appellant's guilt.
[7] The Breach of Solicitor-Client Privilege
Before turning to the trial judge's reasons, however, it is necessary to review an interaction that occurred between the trial judge and defence counsel during submissions.
[8] The Trial Judge's Questions and Defence Counsel's Response
The defence presented its closing submissions first. During the course of those submissions, the trial judge suggested to defence counsel that he had violated the rule in Browne v. Dunn (1893), 6 R. 67 (U.K.H.L.), by failing to put the appellant's version of events to the complainant during her testimony. Counsel informed the trial judge that this was because he did not know that was how his client would testify. The trial judge continued to question defence counsel about why he did not put certain questions to the complainant. The trial judge suggested that he knew defence counsel to be an ethical lawyer, and that it must therefore be the case that the appellant testified to a different version of events than counsel expected to hear. Counsel, in breach of solicitor-client privilege, confirmed that this was the case.
[9] Trial Judge's Use of Privileged Information
In his reasons for judgment, the trial judge referred to the information disclosed to him in breach of solicitor-client privilege as one reason for rejecting the appellant's testimony. He explained:
[The rule in Browne v. Dunn is] really a rule of fairness, and it's a well-known rule. All counsel are obliged to follow it. So in the context of this case, we know what [the complainant] has said about what happened to her. She was cross-examined very well, by an experienced and well-prepared lawyer, and in the course of that cross-examination a very well-prepared lawyer never said to her that she had been slapped. He never put to her that she had said "what are you talking about?" when you had said to her "where are your friends now?"
Well, if that had actually occurred, then it would demonstrate that she could hear, and she was responding to you, so it was an important point in the trial. It wasn't put to her. The reason it wasn't put to her was because your lawyer didn't know, and that is one of the very rare instances where this rule of Browne and Dunn causes me as a judge to say "I can't rely as much on the evidence of Mr. Olusoga." The legal term for it is drawing an adverse inference, but the reality of it is simply saying "look, if this guy hasn't told his own lawyer what he's going to say on the stand, how much weight can I give it?" [Emphasis added.]
[10] Trial Judge's Other Reasons
The trial judge went on to say that the adverse inference he drew based on Browne v. Dunn was "not determinative in the context of this case" because there were several reasons for rejecting the appellant's evidence, including that it did not accord with the DNA evidence tendered by the Crown. He went on to explain why he accepted the complainant's evidence, and why he was left without a reasonable doubt about the appellant's guilt in all the circumstances of the case.
Argument and Analysis
[11] Duty Counsel's Submission
Duty counsel advances one ground of appeal: the breach of solicitor-client privilege that followed the trial judge's questions about the rule in Browne v. Dunn, and the trial judge's use of that information in finding the appellant guilty, constitutes a miscarriage of justice: see Criminal Code, R.S.C. 1985, c. C-46, s. 683(1)(a)(iii). It is immaterial, he contends, that the information that was improperly disclosed to the trial judge and the adverse inference he drew based on that information were not essential to his findings of guilt. Duty counsel submits that the appearance of unfairness in this case is so severe that the appeal must be allowed.
[12] Crown's Submission
Counsel for the Crown takes the position that the appeal should be dismissed because the information disclosed to the trial judge in breach of solicitor-client privilege had no impact on his decision to reject the appellant's testimony. Counsel notes that the trial judge gave several proper reasons for rejecting the appellant's evidence. Further, the trial judge explicitly stated that the adverse inference he drew – purportedly relying on the rule in Browne v. Dunn – was not determinative in rejecting the appellant's testimony. The Crown contends that there was accordingly no prejudice or unfairness, and that the appeal should be dismissed: see R. v. Pomanti, 2017 ONCA 48, at para. 10; R. v. A.K., 2018 ONCA 567, at paras. 8-9.
[13] Court's Analysis: Miscarriage of Justice
We agree with duty counsel that the appeal must be allowed and a new trial ordered. It is well-established that "a miscarriage of justice need not always be supported by the demonstration of actual prejudice to an appellant; sometimes, public confidence in the administration of justice is just as shaken by the appearance as by the fact of an unfair proceeding": R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 51 (quoting from R. v. Kankis, 2012 ONSC 378, 281 C.C.C. (3d) 113, at para. 37); see also R. v. Cameron (1991), 2 O.R. (3d) 633 (C.A.), at pp. 638-39; R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at pp. 541-42.
[14] Breach of Solicitor-Client Privilege
We are satisfied that the breach of solicitor-client privilege, and the trial judge's use of that privileged information in his assessment of the appellant's credibility, occasioned a miscarriage of justice.
[15] Importance of Solicitor-Client Privilege
The proper functioning of the adversarial system depends on the assurance, given to every accused, that communications with their lawyer for the purpose of receiving legal advice are, subject to certain exceptions, privileged. Individuals facing criminal charges must be free to discuss their case openly with their lawyer, so that their lawyer can help them navigate the system and give them competent legal advice: see R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 33; Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, at para. 9; Adam M. Dodek, Solicitor-Client Privilege (Markham, ON: LexisNexis Canada Inc., 2014), at pp. 7-9. This assurance would be undermined if information improperly disclosed to the trier of fact in breach of solicitor-client privilege could be used by the trier of fact to support a conviction.
[16] Application to This Case
That is precisely what happened in this case. Regardless of whether it was "determinative" in finding the appellant guilty, the trial judge's use of the information disclosed to him in breach of solicitor-client privilege created an appearance of unfairness that rises to the level of a miscarriage of justice. The appearance of unfairness in this case requires that the appeal be allowed, the convictions set aside, and a new trial ordered. In these circumstances, the proviso in s. 686(1)(b)(iii) of the Criminal Code does not apply: see R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 25-27; R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 88.
Disposition
[17] Order
The appeal is allowed, the convictions are set aside, and a new trial is ordered.
K. Feldman J.A.
K. van Rensburg J.A.
Grant Huscroft J.A.
Footnote
[1] On appeal, duty counsel and the Crown agree that the trial judge misapplied the rule in Browne v. Dunn in his reasons for conviction. It is unnecessary to address that error, since the breach of solicitor-client privilege that followed the trial judge's line of questioning and used by the trial judge to find the appellant guilty constituted a miscarriage of justice, which itself requires appellate intervention.