Court Information

Date: January 16, 2020

Information No.: 2811-998-18-45940; 2811-998-19-27007

Ontario Court of Justice

Her Majesty the Queen - and – Humayon Fayez

Before: The Honourable Justice G. Wakefield

Location: Courthouse at 150 Bond St. E., Oshawa, Ontario

Date of Hearing: Thursday, January 16, 2020

Reasons for Judgment

Appearances

J. O'Connor – Counsel for the Crown

Humayon Fayez – In Person

Abdolalian Morteza – Affirmed – English/Farsi Interpreter

Judgment

WAKEFIELD J. (Orally)

Mr. Fayez stands charged that in July of 2018, he breached an Officer in Charge Undertaking term not to communicate with Maria Barakza, and further charged that on November 16, 2018, he breached the same condition of the same undertaking.

The defendant was self-represented and given the domestic context, there was previously made, by a different judge, a s. 486 appointment of counsel to prevent the defendant from personally cross-examining the complainant.

As both the defendant and complainant spoke English as a second language, two interpreters were ordered. Unfortunately, neither spoke the dialect of either the complainant or the defendant, being that these two spoke Dari Farsi, and the interpreters spoke a different Farsi, which meant numerous occasions of the interpreters having to ask qualifying questions in order to convey the meaning of the parties. Neither the defendant nor, more pertinently, did 486 counsel express any concern regarding the court's inquiry as to the interpreters and as I was informed at the time, there is apparently only one interpreter in the province for this dialect.

Crown's Case

The Crown called the complainant who testified about the two alleged breaches, together with Police Constable Rodriguez. The defendant testified, as did his brother, Sardar Jabarkhil. As such, all three branches of W.(D.) are engaged.

July 2018 Alleged Breach

In July of 2018, the complainant alleged that the defendant telephoned the complainant's sister to demand that the complainant and their children meet them at a Scarborough Park, which I inferred from her description was Bluffer's Park. That part of her testimony was clearly hearsay.

However, she went on to describe meeting the defendant and his brother at the park. They sat together at what sounds like a picnic bench on opposite sides. She testified to a conversation they had which commenced with greetings but devolved into an argument regarding family matters. That resulted in the complainant standing up and walking away from the picnic bench.

The complainant confirmed knowing about the terms keeping the defendant away from her and that she still went to the park to meet with him. She explained that she did so due to threats that he would tell people she was crazy and have their children taken away from her. She described a relationship with the defendant which was founded on his controlling her to the point of having her having to listen and to obey the defendant.

November 2018 Alleged Breach

She also testified to receiving a telephone call from the defendant around dinnertime in which he said he wanted to come home and that it was his house. It was apparently a very short conversation which only covered the above topic and during which she did not say anything as she did not wish to hear his voice. She did assert being able to recognize the defendant's voice despite the brevity of the conversation. The call was received on her cell phone but that did not show any caller number but rather a display that there was no caller identification.

Defence Case

Defendant's Testimony

The defendant testified. He concedes attending the park but did so at the invitation of the complainant's sister in order for him to have time with the children. He asserted being unaware of the complainant's presence until arriving but at that time, she was in excess of 100 metres away and as such, he knew he was not in breach of his release conditions. He testified that when she subsequently approached him, talking to him, he got up and left the bench to return to his car. He denied telephoning the complainant with regard to the second charge.

When cross-examined by 486 counsel, there were references to the Family Court proceedings not put to the complainant, and when I say when cross-examined by the Crown, the defendant made references to the Family Court proceedings not put to the complainant. The defendant did not recollect certain details of the park meeting such as what people were eating. There were minor variances from his testimony in-chief, though I am unsure how much of that arose from nuances lost in translation, especially given the different dialects used by the defendant and interpreter.

Brother's Testimony

However, the defendant also called his brother as a witness, who had been present at the park. The brother's testimony contradicted the defendant's testimony on almost all of the pertinent points. The brother asserted that the park meeting was arranged by that brother and the complainant's sister. Mr. Jabarkhil demonstrated considerable pride in having affected what he believed to be a reconciliation of the defendant and complainant.

Mr. Jabarkhil described inviting the defendant to the park to celebrate the defendant's daughter's birthday. The complainant's sister and her husband were also there in circumstances which appear to have been intended as an intervention by both sides of the family without regard to the binding conditions on the defendant and without telling the defendant first.

The brother described speaking to the complainant prior to the arrival of the defendant with the other relatives in order to solve the problem. He told the complainant that for the sake of the children, she should forgive and settle the problems between her and the defendant.

When the defendant arrived, the brother described the complainant leaving the family group while they all talked to the defendant about forgiving his wife. The defendant then apparently agreed to forgive her, resulting in the families inviting the complainant back to join the group. After this, the defendant was described as saying he was not allowed to be there after two or three minutes and left without even eating anything.

The brother was not consistent on the time the couple spent together, whether he told the defendant to expect the complainant to be there, but again, I have some concern in making credibility assessments given the challenges of interpreting different dialects. Disconcertingly, most of the details testified by the brother were not put to the complainant in cross-examination by 486 counsel.

Credibility Assessment

Just the contradictions between the defendant's brother, in comparison to the defendant's testimony are, by themselves, more than sufficient to undermine the credibility and reliability of the defendant. I do find that Mr. Jabarkhil testified in a credible fashion and demonstrated no basis for me to reject his testimony while testifying on behalf of his brother.

With Mr. Jabarkhil corroborating the complainant's testimony as to the defendant having both associated and communicated with her at the park, the Crown has proven its case beyond a reasonable doubt on the breach alleged during July 2018 no matter how the two came into contact with each other.

I reject the defendant's explanation of surprise at seeing his wife at the park and immediately absenting himself and find that there was at least some communication between them and some association by their proximity to each other. I find the defendant guilty of that charge.

November 2018 Breach – Concerns Regarding Cross-Examination

With respect to the alleged breach by telephoning the complainant in November of 2018, I again reject the defendant's testimony given the impact on his credibility by his brother's testimony.

However, the third branch of W.(D.) requires me to determine whether the Crown case has proven the second offence beyond a reasonable doubt. That would require me to accept the complainant's testimony as to both the telephone call and her recognition of the defendant's voice.

It has now become a legal axiom that a trial must be a fair trial but it does not need to be a perfect trial.

However, where there is an ineffectual cross-examination by counsel chosen by a defendant, or by a self-represented defendant, and the complainant is consequently unshaken in testifying, the trier of fact would normally accept that testimony as sufficient evidence amounting to proof beyond a reasonable doubt, assuming no other overwhelming contradictory evidence and subject to appellate review for ineffective assistance of counsel, or of the court for a self-represented defendant.

The question for me is: should the same result flow when an ineffectual cross-examination is conducted by counsel imposed by s. 486 upon a self-represented defendant? In other words, speaking generally, is the lowest common denominator of counsel sufficient for a fair trial when s. 486 counsel is appointed by the court and chosen by agreement between Legal Aid and the State without input or choice by the self-represented defendant?

In the case at bar, I will restrict my analysis to the impact of cross-examination of the complainant. It was remarkably succinct and apart from some minimal Browne and Dunn suggestions put to the complainant, in my view, lacked the indicia of a well-prepared cross-examination by way of leading questions, set-up questions or exterior evidence outside of disclosure. I find that the complainant was not, in any realistic manner, tested by cross-examination. Indeed, the version of Mr. Jabarkhil was not put to the complainant at all.

"The right of cross-examination is one of fundamental importance": R. v. H.(B.C.), 58 C.C.C.(3d) 16 "and an essential element of the right to make full answer and defence." In my view, that was lacking in the case at bar and as such, was precluded from the full ability to assess the complainant's credibility and reliability.

In my view, it would be dangerous to accept the testimony of an adverse witness where the defendant has been precluded from a full testing of the Crown case, which, in my view, was the consequence in the case at bar.

Due to the manner in which s. 486 has been complied with or, more to the point, s. 486 counsel has been complied with, I do not find that the Crown has proven its case on the November breach due to my inability to properly assess the reliability of the complainant and as such, find the defendant not guilty of the November breach.

I find that in the case at bar, I was left in a reasonable doubt, given my concerns in the manner in which cross-examination was conducted.

Analysis of Section 486 Appointed Counsel

Trial Judge Intervention and Appearance of Fairness

I do recognize the danger inherent in a trial judge assessing the manner in which cross-examination has been conducted when the trial judge is properly unaware of the discussions between 486 counsel and a defendant.

Indeed, I concede that in my engaging in discussion with 486 counsel regarding the concerns I had as to the cross-examination content, I either pushed against or trespassed over the line regarding the confidentiality of communications between 486 counsel and the defendant before the court. In most cases, concerns regarding the manner in which 486 counsel fulfilled their mandate is best left to an appellate review where more insight into the communications between 486 counsel and defendant can be reviewed.

I note that in R. v. Bakhash, 2017 ONSC 3835, at paragraph 28 that:

Most of the cases involving the appearance of fairness deal with inappropriate interventions by a trial judge during the hearing of evidence. Judges have the right to intervene in the proceedings, within limits: R. v. Brouillard, [1985] 1 S.C.R. 39 at para. 12.

In R. v. Stucky, 2009 ONCA 151, the Court of Appeal allowed an appeal where the trial judge's interventions had compromised the appearance of fairness. The Court set out at paragraph 68 Martin J.A.'s test in R. v. Valley (1986), 26 C.C.C. (3d) 207, for determining whether a trial judge's interventions have compromised the appearance of trial fairness:

The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial.

Returning to R. v. Bakhash, Justice Goldstein points out at paragraph 33 that:

The error here, in my respectful view, had to do with the trial judge's management of the supposed inconsistencies that were to be put to the complainant. The trial judge unfortunately prevented defence counsel from doing his job in the way that he deemed best. That compromised the appearance of fairness.

The live issue I see is to what degree and responsibility does 486 counsel have in "doing his job in the way that he deemed best"?

I do find that such conversation between myself and s. 486 counsel did not create any unfairness to the defendant, given the acquittal on the alleged telephone breach, and that the conviction on the park incident was based on the defendant's brother's testimony independent of the s. 486 role. I further note I gave the Crown opportunity to make submissions as to how to assess the complainant's credibility in the context of that cross-examination.

Professional Obligations of Section 486 Counsel

However, I am unaware of any clear guidance as to any limitations on the professional obligations of those counsel prepared to accept a 486 appointment together with the fees' limitation on compensation.

Firstly, in my view, 486 counsel's obligation in preparation time is not limited to the fee schedule set out in the Legal Aid tariff. It is only limited by the compensation for that time involved. The 486 appointment is an imposition on the defendant. It is there for the protection of the complainant.

I do recognize that some defendants, who cannot afford their own counsel and who have been rejected by Legal Aid, may both benefit by and be grateful for the appointment, but, again, that 486 appointment is not for the defendant's benefit but that of the witness.

The 486 appointment is made, with rare exceptions, despite any objections by the defendants who usually do not have input into the choice of the 486 counsel or the ability to determine the experience and quality of that appointment. Unlike a defendant who has the resources with which to retain counsel of choice, and accepts the quality of that choice, the defendant in the s. 486 situation is told to meet a lawyer who is often a stranger to him or her. Often the mechanism of assigning 486 counsel is unknown to the defendant or, for that matter, other than in the broadest strokes, to the court making the 486 order. In this jurisdiction, the jurist making the order, despite the wording of s. 486, is often not the trial judge given the scheduling complications that would require in a busy jurisdiction with 11 judges plus rotating per diem coverage.

I note as well that the "Guide to Self-Represented Accused" is silent about the 486 process, let alone what should be the expectations of the accused regarding the 486 appointee's time and skill in preparation of a cross-examination.

Should the expectation of a defendant relying on the counsel conducting the only opportunity to test the complainant's testimony be any less than that expressed by the Court of Appeal in R. v. Beckford, 2019 ONCA 998 at paragraph 53:

This submission must be rejected. The appellant retained experienced counsel to protect his interests and was entitled to rely on counsel. He cannot be faulted for failing to act on his own behalf during or following — in that case — the plea proceedings.

Naturally, this would only apply to the process involved in preparing the cross-examination, after which the 486 appointee's retainer would expire, subject to any recalling of the complainant.

Surely, at a minimum, the self-represented accused should expect counsel to protect his interests and is entitled to rely on counsel, not counsel relying on the accused to know what is relevant.

Role and Fiduciary Duty of Section 486 Counsel

The role of 486 counsel is different from amicus whose responsibility is to the court, not the defendant. 486 counsel, in my view, is more akin to counsel appointed to protect the complainant's privacy issues in third party record applications, or perhaps Children's Lawyer appointees in the Family context.

A Children's Lawyer has a unique role which is "fundamental to the proper functioning of the legal system": Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, which could easily describe the role of 486 counsel, albeit in a different forum.

While that judgment arises from the context of a Freedom of Information application to access what would otherwise be solicitor-client protected information, and a review by the appellate court through the prism of Family Law principles of the best interest of the child, I find this case has resonance as to the similar importance to the criminal justice system and complainant witnesses of the role of 486 counsel. To paraphrase Justice Benotto's description of the Children's Lawyer role, I perceive 486 counsel's role to be one requiring an expertise so as to not harm the defence and to use cross-examination to advance the defence case.

Despite being imposed on a defendant, and for the purposes of protecting the complainant from an accused questioning that person directly, the role of cross-examiner carries with it a fiduciary duty to the defendant requiring undivided loyalty, good faith and attention to the defendant's interests to the exclusion of other interests, including the interest of the complainant, subject to the obligations of all counsel as officers of the court.

Most importantly, 486 counsel should be able to provide an effective way for the defendant's voice to be heard.

Preparation and Professional Obligations

To facilitate the defendant's voice requires professional preparation well in advance of the trial date. Like the Children's Lawyer, 486 counsel must gather information in numerous ways of which the defendant may not even be aware, but which is essential to a properly crafted cross-examination, which is the only manner in which a defendant's voice can be heard in the context of the cross-examination having been muted himself by the Code provisions.

Of course, Children's Lawyers have a different relationship with their clients, but the fundamental skills and responsibilities of a Barrister remain the same in all forums: gathering information and preparation.

In my view, a 486 appointee is not a blank slate awaiting the accused to provide whatever information the accused believes to be important. The 486 appointee has an obligation to the court not to be a mere mouthpiece for the accused and is professionally responsible to not ask improper questions. That professional obligation requires the appointee to be aware of the entirety of the case in order to determine whether a question is improper. The appointee is required to ensure any notice provisions regarding the cross-examination are complied with, such as an alibi defence, third party records application where the appointee is in possession of documents for cross-examination or which require notice to the complainant. The appointee must also interview any defence witnesses who may testify on issues that would need to be put to the complainant in cross-examination.

Just as counsel of choice have an obligation to seek out additional evidence in protecting the accused's rights, an appointee counsel should be seeking and reviewing Family Court records, Children's Aid Society records, financial records and any other relevant material which only "experienced counsel" would be able to recognize as being relevant.

In my view, the expectation of 486 counsel is the same as any counsel preparing a cross-examination:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce.

Rondel v. Worsley [1969] 1 A.C. 191 at 227-228 (H.L.)

Within that ethical and professional context, all counsel who cross-examine must do so from a foundation of intensive preparation and distil that information into a series of probing questions more reminiscent of using a scalpel than a sledgehammer.

Wigmore once observed that cross-examination was the greatest legal engine ever invented for the discovery of the truth. Investigation and preparation by counsel is the necessary fuel for that engine, whatever the nature of counsel's retainer. 486 appointees must, at a minimum, fulfil that obligation or prevent the trier of fact from getting a true picture of the testimony.

Verdict

The result is that the defendant is found guilty on the first charge at the park but not guilty of the second allegation of the telephone conversation.