Court File and Parties

COURT FILE NO.: CR-15-30000058-00AP DATE: 20170623 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – IMTIAZ BAKHASH Appellant

Counsel: Neville Golwalla, for the Respondent, Crown Nicola Langille, for Mr. Bakhash

HEARD: June 12, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT on summary conviction appeal

[1] Imtiaz Bakhash, the appellant, and Araceli Bravo Gonzalez, the complainant, had a very tempestuous relationship. She is Mexican. He is Canadian. She lived in Mexico most of the time. He remained in Canada and paid support to her and their two children. She would come to visit for three months at a time and bring them. They decided to make a go of living together. She came to live permanently in Canada in 2014. On July 26, 2014, they had an altercation. He was charged with one count of assault and two counts of threatening death. He represented himself at trial. The Crown proceeded on one count of assault and one count of threatening death. What should have been a relatively straightforward 3-hour credibility case became a lengthy and convoluted multi-day trial. That happened despite the best efforts of the trial judge. At the end of the day the trial judge, Hackett J., convicted Mr. Bakhash of both counts. She suspended the passing of sentence on both counts and placed Mr. Bakhash on probation for 18 months.

[2] Mr. Bakhash now appeals. His counsel argues that the trial was unfair because of the trial judge’s trial management and curtailing of cross-examination. He also says that it was unfair because the trial judge relied on evidence of prior misconduct in convicting him. Regrettably, I agree that the trial took on an appearance of unfairness. The appeal is allowed a new trial ordered.

BACKGROUND

[3] The allegations of the assault and threatening were straightforward: Ms. Gonzalez and Mr. Bakhash had a long-term and long-distance relationship. They had two young daughters. The relationship was stormy, with name-calling, arguments about money, and even the occasional racial slur. Ms. Gonzalez came to Canada with their daughters on July 22, 2014. They commenced living in Mr. Bakhash’s house. On the morning of July 26, 2014 they had an argument. Ms. Gonzalez testified that Mr. Bakhash glanced at a knife and threatened to kill her if she took the children back to Mexico with her. He then grabbed her by the face. He pushed her down to the floor. He stepped on her foot. She cut her foot in the process. She called the police who arrived and took a statement from her. Photographs showed that the cut was minor. She did not seek medical attention.

[4] Mr. Bakhash also testified that he and Ms. Gonzalez fought over money on the morning of July 26, 2014. He denied threatening her, denied pushing her to the floor, and denied stepping on her foot. He said that she actually struck him. They argued and then he went to work.

[5] The trial process itself was not nearly as straightforward. Ms. Gonzalez testified in chief and was cross-examined on February 3, 2015. She immediately testified about the nature of their relationship. She described fights over the children, attempts to use money to blackmail her, and holding immigration status over her head. He called her many names, including a whore and a parasite. She further testified that he promised to sponsor her immigration to Canada but never did. They also argued about money. She described, in some detail, the assault and threat on the morning of July 26.

[6] Mr. Bakhash represented himself. Court-appointed counsel, Mr. Starer, cross-examined Ms. Gonzalez. Pursuant to s. 486.3(3) of the Criminal Code a judge may, on application, appoint counsel to cross-examine a complainant rather than permit an unrepresented person to do so. The appointment is mandatory for certain offences, primarily sexual ones: s. 485.3(2) of the Criminal Code. The appointment is also mandatory for witnesses under the age of 18. The appointment is discretionary for other offences and where the witnesses are over the age of 18.

[7] Mr. Starer cross-examined Ms. Gonzalez in detail about the assault, as one might expect. He also cross-examined in some detail about the nature of their relationship. He asked about their arguments, their email exchanges (some of which were quite nasty), and their fights about money. Mr. Starer also cross-examined her about a police report in 2010. Ms. Gonzalez had apparently contacted police. She had alleged that Mr. Bakhash assaulted her then as well. She subsequently recanted that allegation. Mr. Starer cross-examined her about it. He suggested she had lied in the initial complaint. She denied it. The Crown closed its case.

[8] On February 12, 2015 the trial resumed. Mr. Bakhash wished to cross-examine the two police officers. They were the officers who attended on July 26 2014. The Crown agreed to make them available. Mr. Bakhash then said this:

MR. BAKHASH: … I couldn’t ask questions to Ms. Gonzalez, Mr., my lawyer, the cross-examine, he didn’t have the knowledge of, he hasn’t heard anything about this, look at the disclosure or background. So he was, his questioning was not like, very, can I say appropriate? He didn’t actually deduce anything what he was supposed to do because he was only there to cross-examine her so yeah, I would like to question both…

[9] The following conversation ensued:

THE COURT: … I basically hear you now complaining about the services of Mr. Starer. First of all, at least in my experience, I thought he did an excellent cross-examination. He certainly, based on the questions that I heard, seemed very well prepared and furthermore, I know that on more than one occasion I watched him consult with you during the cross-examination and he was obviously liaising with you for the purpose of that cross-examination. So I think the record should reflect that.

MR. BAKHASH: Yes, he did a very good job for what he heard on that but because lots of information was entered I from the past and lots of the background which is, wasn’t in – so he wasn’t able to actually understand why, you know, what kind of question he would ask on those things.

THE COURT: Well, all right, so that is something that I don’t think I can deal with because I cannot go into solicitor-client privilege…

[10] Mr. Bakhash then questioned one of the police officers. There was no cross-examination. There was some discussion about the photograph of Ms. Gonzalez’s injury. Mr. Bakhash then took the stand.

[11] Mr. Bakhash testified at length about the nature of his relationship with Ms. Gonzalez. He made multiple allegations about her. He alleged that she had made many unfounded allegations against him. She withheld access to their children. There was an incident about his daughter’s dog. She falsely complained to the police that he had threatened to throw her off the balcony of their first apartment. He alleged that she had slapped him.

[12] Mr. Bakhash produced a 2013 email where Ms. Gonzalez threatened to tell the authorities that he wanted to place a bomb in the United States unless he gave her money. The trial judge pointed out that the email should have been put to Ms. Gonzalez. Court-appointed counsel had the email. It was in the disclosure material. The email stated:

Paki bastard, I will tell Canada’s government you want to kill me and throw a bomb in the U.S.A. if you don’t stop.

[13] The trial continued with Mr. Bakhash’s testimony on March 5, 2015. He had more documents that had not been put to Ms. Gonzalez. Mr. Bakhash also started to testify about threats that Ms. Gonzalez had supposedly made to kill their children.

[14] At that point the trial judge stopped the proceedings and pointed out that none of that had been put to Ms. Gonzalez. Mr. Bakhash mentioned that he and Mr. Starer, the court-appointed counsel, had had only one short meeting. The trial judge then noted that if there were to be a Scopelitti application then the Crown should re-call Ms. Gonzalez. A Scopelitti application refers to an application by an accused person to call evidence of a victim’s propensity for violence: R. v. Scopelitti (1981), 63 C.C.C. (3d) 481 (Ont.C.A.). The trial judge was concerned that failure to re-call Ms. Gonzalez would affect the fairness of the trial. She explained why:

THE COURT … I can’t make credibility findings when the other witness hasn’t had a chance to comment on the evidence that you’re giving…

[15] The trial continued on March 5. Mr. Starer appeared. He agreed that he and Mr. Bakhash had only one meeting. He said that Mr. Bakhash had raised the issue of emails but didn’t have copies. He noted that the case-law somewhat limited the role of court-appointed counsel under s. 486.2(3) of the Criminal Code. He also said this:

MR. STARER: … in terms of how far afield Mr. Bakhash went, but even in my discussion, Mr. Bakhash is extremely detailed, he gave very, very many incidents going back a long range of time. I would probably say that I followed a more traditional role and cherry-picked certain things that I thought were relevant, things that I thought weren’t relevant… this is the first time that I’ve – maybe knock wood – that I’ve found myself in this kind of situation where an accused has gone really far afield. I suspect this probably required more preparation. Given what I’m taking from Mr. Bakhash, a heck of a lot more preparation.

[16] Mr. Bakhash argued through Mr. Starer that a mistrial should be declared. The Crown was opposed. After considering the question, the trial judge decided against declaring a mistrial.

[17] The trial resumed on April 30, 2015. Mr. Starer attended. Mr. Bakhash indicated on the record areas of re-cross-examination he wanted to pursue. The trial judge made it clear that she would not permit him to go into areas that Mr. Starer had already dealt with.

[18] After a lengthy discussion, however, she asked Mr. Starer to assist him with narrowing his questions and his focus. The Crown then made two police officers available for Mr. Bakhash to question.

[19] The trial continued on May 12, 2015. Mr. Starer attended again. There was a lengthy and detailed set of submissions regarding the areas of cross-examination that Mr. Bakhash wanted to explore. That required Mr. Bakhash to disclose many of the things that he wanted to put to Ms. Gonzalez. Mr. Starer made submissions. Mr. Bakhash sometimes intervened. Mr. Bakhash essentially wanted to explore, in detail, the history of his relationship with Ms. Gonzalez, her parenting, and their disagreements about money.

[20] The trial judge then made a ruling. She treated it as an application by the defence to either re-open the cross-examination of Ms. Gonzalez (in the midst of the accused’s evidence in-chief) or grant a mistrial. She noted that she had stopped the examination in chief because there had been an apparent violation of the “Rule” in Browne v. Dunn. She further noted that Mr. Bakhash raised four issues in his evidence that would raise a Scopelitti defence but were not put to Ms. Gonzalez: A letter in 2010 where Ms. Gonzalez assaulted him; a punch to him and her sister in Mexico; threats to him when he recovered from surgery; threats by her to kill their children if she did not give him money. The trial judge noted that Mr. Bakhash had raised additional issues that he wanted permission to cross-examine on, but that she had trouble understanding what they were. I have reviewed the transcript. I agree with the trial judge. It is difficult to understand what, exactly, Mr. Bakhash wanted to explore other than a generalized complaint about Ms. Gonzalez’s allegedly bad behaviour and terrible parenting. Ultimately the trial judge identified ten areas where he wished to re-cross-examine Ms. Gonzalez.

[21] The trial judge then found, relying on R. v. Haywood (1993), 86 C.C.C. (3d) 193 (Ont.C.A.) that it was appropriate to permit the defence to re-open. She found that Mr. Bakhash was genuinely unaware of the requirements of Browne v. Dunn. Judicial economy at that point required that the trial continue. She decided against a mistrial. The trial judge instructed herself that she could evaluate the credibility of the witnesses based on the admissible evidence before her, rather than the inadmissible information she had received in submissions. She permitted Mr. Starer to re-open the cross-examination.

[22] The trial then resumed on June 2, 2015. Mr. Starer cross-examined Ms. Gonzalez again. Mr. Bakhash then resumed his evidence on June 3, 2015. The parties made submissions on June 9, 2015. On June 10, 2015 the trial judge delivered her reasons for judgment. She rejected Mr. Bakhash’s evidence. She found it did not leave her in a state of reasonable doubt. She accepted Ms. Gonzalez’s evidence, notwithstanding that she identified numerous problems with her testimony. She found Mr. Bakhash guilty.

ANALYSIS

[23] Ms. Langille, counsel for Mr. Bakhash, raises the following issues;

(a) Did Mr. Bakhash receive a fair trial? (b) Did the trial judge interfere with the solicitor-client relationship?

[24] Ms. Langille initially also argued that the trial judge also failed to consider a defence of consent but abandoned that argument during her submissions.

[25] Ms. Langille also argued that the trial judge used inadmissible bad conduct evidence to convict Mr. Bakhash. As I believe that a new trial must be ordered on the basis that the appearance of fairness was compromised it is unnecessary for me consider that issue.

Did Mr. Bakhash receive a fair trial?

[26] Crown counsel argues that the trial judge’s management did not compromise the appearance of fairness. Indeed, the trial judge bent over backwards to ensure a fair trial to the accused. She made allowance for the fact that he was self represented and tried to assist him. She gave wide latitude to s. 486 counsel to cross-examine the complainant a second time. She essentially allowed a “re-do” on more favourable terms.

[27] All of the points made by Crown counsel are valid. The transcript reveals a trial judge who is indeed went far out of her way to assist the accused. Unfortunately, I must disagree. With the greatest of respect to the trial judge, who was admirably conscientious, she exceeded her role. Her laudable efforts at trial management compromised the appearance of fairness.

[28] 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 (Ont.C.A.) 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.

[29] A trial judge is required to ensure that an unrepresented accused person has a fair trial and guide him or her throughout the process so that the defence can be brought out with its full force and effect: R. v. Chamama, 2016 ONCA 579. In that case, Brown J.A. noted:

When an accused is not represented by counsel at trial, the trial judge has a duty to ensure the defendant has a fair trial and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect… How far the trial judge should go in assisting the accused is a matter of discretion, varying with each trial and depending upon the sophistication of the accused, the seriousness of the offence, the nature of the defence, and many other factors individual to each case. [citations omitted]

[30] A trial judge must strike a balance between his or her duty to help the accused and actually conducting the defence: R. v. Mahadeo, 2014 ONSC 1327 at para. 24. In any event, whether the trial judge improperly intervened is something that must be determined on the whole of the evidence. A trial judge has an inherent authority to control the process of the court: R. v. Churchill, 2016 NLCA 29; Cheppewas of Mnijaning First Nations v. Chiefs of Ontario, 2010 ONCA 47 at para. 231. As long as the appearance of fairness of the trial has not been compromised, an appellate court should be loath to intervene, even if that court may have managed the trial differently.

[31] What a judge may not do is step down from the bench and assume the role of counsel: Stucky, at para. 61; Brouillard, at para. 12. Thus, a judge may ask questions of a witness in three situations: to call a witness to order and clear up ambiguities; to explore an area that has been left vague; or to put questions to a witness that were omitted by counsel but required to bring out a relevant area: Stucky, at para. 64 quoting Martin J.A. in Valley. In Valley, Martin J.A. noted types of interventions that have resulted in new trials:

• Questioning an accused or a defence witness to such an extent or in a manner which conveys the impression that the trial judge has placed the authority of his or her office on the side of the prosecution and conveys the impression that the trial judge disbelieves the accused or the witness;
• Interventions which have effectively made it impossible for defence counsel to perform his or her duty in advancing the defence; and
• Interventions which effectively preclude the accused from telling his or her story in his or her own way.

[32] Of course, the list is not limited and these are but examples: Stucky, at para. 65.

[33] 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.

[34] None of the trial judge’s options were attractive. She could have sent counsel and Mr. Bakhash away to discuss the re-cross; she could simply have heard submissions on the areas that Mr. Starer wanted to pursue and then recalled the witness; or she could have declared a mistrial. She ultimately pursued a middle course. She spent more than two days of court time essentially vetting the areas of cross-examination that court-appointed counsel would be permitted to explore. She examined officer’s notes. She examined videos of Ms. Gonzalez’s statements to the police, emails and other documents that had not been put into evidence in order to determine whether they could be used to impeach her credibility. The trial judge went through all the areas of inconsistencies that were to be put to the complainant. She created a list consisting of each individual inconsistency, and the transcript reference or video reference that was to be put to the complainant.

[35] Ordinarily, there is no obligation on defence counsel to obtain evidentiary rulings prior to calling evidence. Crown counsel must sometimes do so, such as, for example, with similar fact evidence. There are rare situations where defence counsel must do so, such as in third party suspect applications: R. v. Grandinetti, 2005 SCC 5 at para. 48. A Scopelitti application is another example. Those examples are very rare, however.

[36] In my respectful view, the trial judge’s actions usurped the function of defence counsel. It was irrelevant whether defence counsel was court-appointed defence counsel and did not (as I explore in the next section) have a solicitor-client relationship with the accused. The trial judge essentially forced the defence to reveal its strategy and tactics and subject them to judicial approval. That crossed the line and created an appearance of unfairness. The only remedy where there has been an appearance of unfairness is a new trial: Brouillard, at para. 14.

(b) Did the trial judge interfere with the solicitor-client relationship?

[37] Ms. Langille argues that the trial judge’s manner of proceeding placed the interests of Mr. Bakhash and his counsel at odds. She argues on his behalf that he was forced to criticize his counsel on the record. It also, she argues, effectively forced him to waive solicitor-client privilege. That too rendered the trial unfair.

[38] I disagree that counsel appointed pursuant to s. 486.3 of the Criminal Code has a solicitor-client relationship with the accused. A court appointed lawyer still, however, has duties towards the accused. Among those duties is the duty of confidentiality. The trial judge’s interventions had the unfortunate effect of having the relationship between the court-appointed lawyer and the accused played out in open court. That undermined the duty of confidentiality that even a court-appointed lawyer must comply with in order to perform his or her role.

[39] Section 486.3 contemplates the appointment of counsel to cross-examine a complainant or witness where the accused is self-represented. There are three circumstances under which counsel can be appointed. Under s. 486.3(1), where a complainant or witness is under 18 years old the judge shall appoint counsel to cross-examine where the Crown or the witness makes an application. There is no discretion except where the judge is of the opinion that the proper administration of justice requires that the accused personally conduct the cross-examination. Under s. 486.3(2) where the offences are under s. 264, s. 271, s. 272, or s. 273 of the Criminal Code (criminal harassment and sexual offences) the judge shall appoint counsel to cross-examine the victim where the Crown (or the victim) makes an application. Again, there is no discretion except where the judge is of the opinion that the proper administration of justice requires that the accused personally conduct the cross-examination. Under s. 486.3(3), in any case the judge may appoint counsel to cross-examine where the Crown or the witness makes an application.

[40] Although the trial judge seemed to accept that Mr. Starer was in a solicitor-client relationship with Mr. Bakhash, she recognized that there were limits to his authority. That appears to have been one of the factors leading her to assist him.

[41] There is conflicting authority from this Court on the point. In R. v. Faulkner, 2013 ONSC 2373, my colleague Code J. heard a pre-Jordan motion under s. 11(b) of the Charter. The preliminary inquiry judge appointed counsel pursuant to s. 486.3 of the Criminal Code. Court-appointed counsel had to consult with the accused. That required a certain amount of delay. The nature of the relationship between the accused and court-appointed counsel was relevant to the characterization of that delay.

Code J. found that a solicitor-client relationship existed between a court-appointed lawyer and an accused. He determined that a solicitor-client relationship is implicit in the function and terms of the Criminal Code. He observed at para. 35:

The terms of s. 486.3, when an appointment is made, are that "the accused shall not personally cross-examine the witness" and the court "shall appoint counsel to conduct the cross-examination". In other words, the cross-examination that the accused would otherwise be entitled to conduct is to be conducted by the appointed counsel. This would not be feasible without a full solicitor and client relationship as the appointed counsel needs to meet with and interview the accused, review Crown disclosure and any proposed defence evidence, and come to an understanding with the accused as to the theory of the defence. Only then can counsel prepare a useful cross-examination of the complainant.

[42] In R. v. Thornton, 2014 ONSC 6688 my colleague Gray J. came to the opposite conclusion. Mr. Thornton was charged with assault and breach of probation. The allegation was that he had touched two young girls on the wrist in the course of an insistent campaign to provide information. Counsel was appointed under s. 486.3(3). He refused to advance Mr. Thornton’s theory of the case in the cross-examination.

[43] Gray J. found that a solicitor-client relationship does not exist between the accused and court-appointed counsel. There is no mutually consensual relationship, there is no retainer, and the accused may have no input into the identity of the appointed counsel. Moreover, the appointment would undermine the accused’s fundamental right to counsel of choice, or to no counsel: R. v. Vescio, [1949] S.C.R. 139; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 at para. 51. Court-appointed counsel’s refusal to pursue a line of inquiry that was not improper deprived Mr. Thornton of the right to make full answer and defence.

[44] In R. v. Imona Russel, 2011 ONCA 303 the Court of Appeal decided that the Superior Court has the power to set the fees of an amicus. In a tantalizing footnote the Court stated:

Section 486.3 of the Criminal Code provides that in certain proceedings the accused shall not personally cross-examine certain witnesses. In such cases, the trial judge is to appoint counsel to conduct the cross-examination. The Criminal Code does not spell out counsel's duties and whether the counsel acts as retained counsel or more akin to amicus.

[45] The Supreme Court of Canada overturned Imona Russel in Ontario v. Criminal Lawyers’ Association of Ontario, supra. In doing so, the Court made some observations about the inherent tension where counsel is appointed as amicus but is also required to defend an accused person. While not strictly on point, the following comments are helpful:

… there is an inherent tension between the duties of an amicus who is asked to represent the interests of the accused, especially where counsel is taking instructions, as in Imona Russel and Whalen, and the separate obligations of the amicus to the court. This creates a potential conflict if the amicus' obligations to the court require legal submissions that are not favourable to the accused or are contrary to the accused's wishes. Further, the privilege that would be afforded to communications between the accused and the amicus is muddied when the amicus' client is in fact the trial judge.

Thus, it seems to me that this current practice of appointing amici as defence counsel blurs the traditional roles of the trial judge, the Crown Attorney as a local minister of justice and counsel for the defence. Further, the use of amici to assist a trial judge in fulfilling her duty to assist an unrepresented accused might result in a trial judge doing something indirectly that she cannot do directly. While trial judges are obliged to assist unrepresented litigants, they are not permitted to give them strategic advice. Where an amicus is assigned and is instructed to take on a solicitor-client role, as in Imona Russel and Whalen, the court's lawyer takes on a role that the court is precluded from taking.

[46] There is tension between the interests of the accused and the duties of court-appointed counsel. This is one of the many areas where Parliament chose to balance competing rights and came up with a compromise: the right of a victim not to be further victimized, especially in sexual assault cases (where an accused has great freedom to make allegations) must be balanced against the accused’s right to conduct his or her own defence. The right to cross-examination is certainly not unlimited: R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Seaboyer, [1991] 2 S.C.R. 577. The purpose of s. 486.3(1) is to “protect vulnerable witnesses, under the age of 18, from being intimidated by an accused during cross-examination”: R. v. C.G.M., 2015 ABCA 375. In contrast, a defence counsel is duty bound to fearlessly represent the interests of his or her client. A defence counsel has no competing duties save those to the law and to the administration of justice. A defence lawyer owes a duty of undivided loyalty to his or her client. A court-appointed lawyer is as much an amicus as he or she is a retained lawyer. In my respectful view a court-appointed lawyer does not have a solicitor-client relationship with an accused person.

[47] In this case, the Crown sought the appointment of Mr. Starer. Mr. Bakhash had not chosen him. He wanted to represent himself. He thought it was unfair that he could not conduct the cross-examination himself.

[48] Although defence counsel is never a mere mouthpiece for his or her client, instructions must be taken in critical areas. I agree with Gray J. that court-appointed counsel must put the defence theory to the witnesses, within proper reason of course: Thornton, supra.

[49] There are, however, some aspects of a solicitor-client relationship that are encompassed by an appointment under s. 486.3. The lawyer in reviewing disclosure is bound by the implied undertaking. The lawyer is required to conduct the cross-examination in a manner that advances the accused’s interests. Undoubtedly, as well, the lawyer is subject to the duty of confidentiality. As Code J. noted in Faulkner, supra (and notwithstanding my disagreement regarding the ultimate characterization of the relationship) a court-appointed lawyer needs some of the important characteristics of a fully retained defence lawyer to be able to do his or her job. Among those characteristics includes the ability to discuss strategy, tactics, and evidence in a confidential manner. In this case, the process adopted by the trial judge forced the defence to reveal its hand. It undermined the (admittedly unusual) relationship between the court-appointed lawyer and the accused. This too, regrettably, contributed to the appearance of an unfair trial. A new trial must be ordered on this ground as well.

DISPOSITION

[50] The appeal is allowed and a new trial is ordered. The Crown may take such steps as it deems necessary to bring Mr. Bakhash back before the courts.

R.F. Goldstein J.

Released: June 23, 2017

COURT FILE NO.: CR-15-30000058-00AP DATE: 20170623 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent – and – IMTIAZ BAKHASH Appellant REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL R.F. Goldstein J.