Court File and Parties

COURT FILE NO.: CR-19-30000007-00AP DATE: 20191202 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – KARSHI HASANOV Appellant

Counsel: H. Song, for the Respondent B. Weingarten, for the Appellant

HEARD: November 22, 2019.

Reasons for Judgment

On appeal from the convictions entered on December 24, 2018 by the Honourable Justice L. Feldman of the Ontario Court of Justice.

SCHRECK J.:

[1] Trials involving unrepresented accused are increasingly common in Ontario, particularly in summary conviction matters. These matters burden the criminal justice system in several ways. Trials can be delayed and take far longer than they otherwise would. Trials are lengthened because accused persons have little understanding of the relevant law or procedural or evidentiary rules. Disclosure problems which would have been resolved prior to trial only become apparent once the trial is underway. Admissions of non-contentious facts are not made or, if they are, cannot be accepted by the court. In some cases, the Crown must bring an application to have counsel appointed pursuant to s. 486.3 of the Criminal Code for the limited purpose of cross-examining a complainant.

[2] Such proceedings also create added responsibilities for the trial judge who, in addition to his or her other duties, must provide sufficient assistance to the accused to ensure a fair trial. While the trial judge must do his or her best to ensure that the accused has sufficient knowledge of the relevant law, the rules or evidence and the trial process, at the same time he or she must maintain a position of impartiality and cannot be seen as being the accused’s advocate. Where the trial judge errs in undertaking this difficult task, the result is a further burden on the system in the form of a retrial.

[3] Whether such a retrial is required is the issue in this appeal. The appellant, Karshi Hasanov, was charged with having the care or control of a vehicle while impaired (Count 1) and refusing to provide a breath sample (Count 2). He was not represented by counsel at his trial. The trial judge was clearly concerned about the appellant’s lack of representation and took steps to assist him in several respects. However, the appellant submits that the assistance provided by the trial judge was insufficient because he never explained the essential elements of the offences the appellant was charged with. The respondent submits that no explanation of the essential elements was required in the circumstances of this case and that the assistance provided was adequate.

[4] At the conclusion of the hearing, I allowed the appeal with reasons to follow. These are those reasons. In my view, while an explanation of the essential elements of the offences is not required in all cases involving an unrepresented accused, such explanations are always advisable. In cases where the essential elements involve evidentiary shortcuts or a reverse onus, as they did in this case, an explanation of them will almost always be necessary to ensure a fair trial.

I. Evidence

A. Impaired Care and Control

[5] On May 26, 2016, a police officer, Cst. Taafe, came across the appellant sitting in the driver’s seat of a vehicle parked at the side of a road. The car was running and the brake lights were activated. Upon speaking to the appellant, Cst. Taafe noted an odour of alcohol and observed the appellant to have glossy eyes and slurred speech. The appellant admitting to having had one beer.

[6] As a result of her observations, Cst. Taafe decided to arrest the appellant for “impaired with care and control”. She walked the appellant to her police cruiser and noticed that he was unsteady on his feet. Once he was in the back of police cruiser, he fell asleep. When Cst. Taafe woke him up, he was argumentative.

B. Refusing to Provide Breath Sample

[7] The appellant was taken to the police station and a demand was made that he provide breath samples into an approved instrument. According to the breath technician, Cst. Sanders, the appellant deliberately blew around the mouthpiece in order to avoid providing a sample. After several failed attempts, he refused to keep trying and was arrested for refusing to provide a sample. The appellant made no mention of having chest pains or any difficulty breathing.

C. Defence Evidence

[8] The appellant did not testify. He called one witness, Dr. Satiender Sharma, a respirologist, who was qualified to give opinion evidence. Dr. Sharma testified that he tested the appellant’s pulmonary function in 2018. The test results combined with the appellant’s self-reported history led Dr. Sharma to conclude that the appellant likely had significant problems with forced exhalation. He demonstrated symptoms of diaphragmatic spasms, which often result in chest pain and shortness of breath.

[9] In cross-examination, Dr. Sharma acknowledged that he had no practical experience with breath testing instruments and was not aware of how much breath was required to provide a suitable sample.

II. Analysis

A. Overview of Applicable Legal Principles

[10] The scope of a trial judge’s obligation to assist an unrepresented accused was described by Watt J.A. in R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at paras. 110-112:

Where an accused is self-represented, a trial judge has a duty to ensure that the accused has a fair trial. To fulfill this duty, the trial judge must provide guidance to the accused to the extent the circumstances of the case and accused may require. Within reason, the trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him as the trial unfolds in such a way that the defence is brought out with its full force and effect: R. v. Chemama, 2016 ONCA 579, 351 O.A.C. 381, at para. 13; R. v. Tran (2001), 2001 5555 (ON CA), 156 C.C.C. (3d) 1 (Ont. C.A.), at para. 22; R. v. McGibbon (1988), 1988 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.), at p. 347.

The duty owed by trial judges to self-represented litigants is circumscribed by a standard of reasonableness. The trial judge is not, and must not become, counsel for the accused. The judge is not entitled, indeed prohibited, from providing the assistance of the kind counsel would furnish when retained to do so: Chemama, at para. 14; R. v. Taubler (1987), 20 O.A.C. 64 (C.A.), at para. 30; R. v. Turlon (1989), 1989 7206 (ON CA), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 191; McGibbon, at p. 349. A standard of reasonableness accommodates a range of options to ensure the necessary degree of assistance and eschews a single exclusive response.

The onus on the trial judge to assist the self-represented accused is a heavy one. This characterization means that it is not enough that the verdict at the end of the trial is or appears correct. What matters is whether the trial has been fair to the self-represented accused: Tran, at para. 31; R. v. Dimmock (1996), 1996 2292 (BC CA), 47 C.R. (4th) 120 (B.C. C.A.), at para. 20.

[11] Depending on the circumstances, the trial judge may be required to “explain the relevant law in the case and its implications, before the self-represented person makes critical choices”: Canadian Judicial Council, “Statement of Principles on Self-Represented Litigants and Accused Persons” (2006), at p. 7 (endorsed in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4); R. v. Tran (2001), 2001 5555 (ON CA), 55 O.R. (3d) 161 (C.A.), at para. 33. Ultimately, the question to be determined is whether the trial was fair. Not every breach of a trial judge’s obligation to a self-represented accused will result in a miscarriage of justice: R. v. Forrester, 2019 ONCA 255, 375 C.C.C. (3d) 279, at paras. 17-18.

[12] Although the “relevant law” will vary with each case, the essential elements of the offences will always be relevant. While there is no requirement in every case for a trial judge to explain the essential elements of the offences to an unrepresented accused, it will almost always be advisable to do so: R. v. Phillips, 2003 ABCA 4, 320 A.R. 172, at paras. 16-20, 48, aff’d 2003 SCC 57, [2003] 2 S.C.R. 623; R. v. Moghaddam, 2006 BCCA 136, 206 C.C.C. (3d) 497, at para. 49; R. v. Brier, 2015 ONSC 1770, 331 C.R.R. (2d) 146, at para. 35; R. v. Brienza, 2019 ONSC 5402, at para. 26. The issue here is whether such an explanation was necessary to ensure a fair trial in the circumstances of this case.

B. The Overall Conduct of the Trial

[13] The trial judge was clearly troubled that the appellant was unrepresented. At one point during the trial, he said:

This man probably would have preferred to have counsel but was unable to fund counsel and, of course, Legal Aid certainly has washed its hand of drinking and driving offences, even though they’re one of the hardest of offences to defend. It’s really the theatre of the absurd, in that regard.

During the appellant’s closing submissions, the trial judge remarked “This is an example of why people need counsel in these cases.”

[14] As the respondent points out, the trial judge made a significant effort to assist the appellant during the trial. He ensured that the appellant had obtained and reviewed the disclosure and had a pen and paper with which to take notes during the trial. He gave the appellant an adjournment so that he could secure the attendance of an expert witness. When the appellant attempted to rely on the contents of a letter written by his physician, the trial judge explained to him that he needed to call evidence and suggested that he call a respirologist rather than a general practitioner. On more than one occasion, he explained to the appellant that it was his choice whether to testify or call evidence.

[15] Unfortunately, what the trial judge did not do is explain the essential elements of the offences to the appellant. For reasons I will develop, there were two reasons why such an explanation was required to ensure a fair trial in this case. First, neither of the offences the appellant was charged with were straightforward. One allowed the Crown to rely on an evidentiary shortcut while the other contained a reverse onus. Second, the record in this case, including the questions asked by the appellant in cross-examination and his closing submissions, made it clear that he misunderstood the law.

C. The Offences

(i) Care or Control While Impaired

[16] The appellant was charged with having the care or control of a motor vehicle while impaired, contrary to what was then s. 253(1)(a) of the Criminal Code. Section 253(1)(a) has since been replaced by s. 320.14(1)(a) by An Act to Amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21. While the new section does not distinguish between operating a vehicle and having care or control of it, s. 320.11 has defined “operate” as including having care or control. While the Crown is required to prove the essential element of care or control, in doing so it may and in this case did rely on the evidentiary shortcut created by the presumption in s. 258(1)(a) of the Criminal Code, which at the time of the appellant’s trial read as follows:

258.(1) In any proceedings … in respect of an offence committed under section 253… ,

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operate a motor vehicle …, the accused shall be deemed to have had the care or control of the vehicle … unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle … in motion….”

[17] In this case, there was no issue that the appellant was in the driver’s seat of the vehicle when he was first encountered by Cst. Taafe. Absent evidence to the contrary, the appellant was therefore deemed to be in care or control of the vehicle. However, there are several reasons to doubt that the appellant understood that the Crown was not required to prove that he had been in care or control or, more specifically, that he had actually been driving.

[18] On at least two occasions during the trial, the trial judge referred to the charge against the appellant as “driving impaired” or “drinking and driving.”

[19] The appellant’s cross-examination of Cst. Taafe suggested that he thought it significant that the officer had not seen him driving:

Q. How did you see me driving?

A. The radio call came in via a witness. I didn’t see the car in motion. I saw the engine running, brake lights activated and the car wasn’t in motion when I arrived on scene.

Q. So you didn’t see me driving, right?

A. That’s correct.

THE APPELLANT: That’s all.

The appellant then ended his cross-examination.

[20] After the close of the defence case, the appellant inquired whether there would be evidence that he had been driving:

THE COURT: Okay, thank you, so you’re closing your case now; that’s all the evidence you have?

THE APPELLANT: And I also need the evidence of the person who saw me driving. It’s all saying I – I heard from somebody; police never saw me driving. He saw me sick sitting in the car.

THE COURT: Well, the – it’s for the Crown to call that witness or for you to call that witness. The Crown didn’t call that witness.

THE APPELLANT: So there’s no witness of telling me I was driving.

THE COURT: All right, thank you.

[21] Despite the appellant’s cross-examination of the officer and his questions about whether a witness saw him driving, he was never told that the Crown did not need to prove that he had been driving and that unless he could rebut the presumption, he would be deemed to be in care or control of the vehicle. In fact, the trial judge suggested otherwise in the course of explaining to him that it was his decision whether to testify:

There’s also the question of whether you testify. That’s entirely up to you. You’re not obliged to. The Crown has to prove the essential elements of the offence beyond a reasonable doubt. And right to the end of the evidence the onus is on the Crown to prove its case. That’s standard. [Emphasis added].

[22] The appellant’s misapprehension of the law became even clearer during his submissions. It was then that the trial judge advised him for the first time of the presumption in s. 258(1)(a):

THE APPELLANT: Yeah, okay. Why I’m not guilty of because, first of all, I was not driving; second of all, I put the – my car on emergency, waiting for somebody to come –

THE COURT: I have to stop you; I have to stop you there. Whether or not you were driving, the law provides that if you were in the driver’s seat and the car was running, then you can be charged with a defence [sic] called “having care or control of your vehicle while having too much alcohol in your system.”

[23] Ultimately, the trial judge appears to have relied on the presumption in convicting the appellant. During his reasons for judgment, he stated:

The defendant was in the vehicle, parked on a public thoroughfare with the engine running and the brakes lights engaged. That satisfies the essential elements of care and control.

(ii) Refusing to Provide a Breath Sample

[24] The appellant was charged with refusing to comply with a breath demand contrary to s. 254(5) of the Criminal Code, which provided as follows:

254. (5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

It is now well established that the burden of establishing a reasonable excuse is on the accused, who must do so on a balance of probabilities: R. v. Goleski, 2014 BCCA 80, 307 C.C.C. (3d) 1, aff’d 2015 SCC 6, [2015] 1 S.C.R. 399.

[25] It is clear from the appellant’s decision to call Dr. Sharma that his defence in this case was that he had a reasonable excuse in the form of a medical condition that affected his ability to provide a sample. Dr. Sharma’s opinion, however, was based in part on information he had received from the appellant, who did not testify.

[26] As noted above, in explaining to the appellant that it was his choice whether to testify, the trial judge told him that “right to the end of the evidence the onus is on the Crown to prove its case.” Once again, this was not entirely accurate. With respect to the issue of whether the appellant had a reasonable excuse, the onus was on him.

[27] It appears from the appellant’s closing submissions that he did not understand the consequences of his decision not to testify:

THE APPELLANT: No, on the – Your Honour, I was – I was taken by police when I was having the chest pain. He saw, he saw –

THE COURT: You’re giving me evidence now.

THE APPELLANT: Mm-hmmm.

THE COURT: You’re just giving me evidence. You got to stop doing that. What are your submissions about whether I should – whether the Crown has proven its case beyond a reasonable doubt? Don’t – don’t give me evidence now. You’ve made a choice not to go to the witness box.

THE APPEELLANT: So I cannot defend myself?

THE COURT: You want to – you’re giving evidence to me from you – where your chair is. You didn’t go into the witness box to give evidence, be subject to cross-examination. I’ve explained to you a couple of times it was up to you if you wanted to give evidence. You can’t just tell me your story now in your submissions.

While the trial judge did explain to the appellant that it was his decision whether to testify, this was the first time the distinction between evidence and submissions was explained to him. The difference between evidence and argument may not be clear to an unrepresented accused. In my view, it is advisable for trial judges to explain it: R. v. Mahadeo, 2014 ONSC 1327, 304 C.R.R. (2d) 307, at para. 25; Brier, at para. 24; Platnick v. Bent, 2016 ONSC 7474, 369 C.R.R. (2d) 243, at para. 14.

D. Effect of the Omissions

[28] As noted earlier, while the scope of a trial judge’s obligation to assist an unrepresented accused varies with each case, “the trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him as the trial unfolds in such a way that the defence is brought out with its full force and effect”: Richards, at 110. In many if not most cases, this will require the trial judge to “explain the relevant law … before the self-represented person makes critical choices”: Statement of Principles, at p. 7 (emphasis added).

[29] A meaningful decision about whether to call evidence and, if so, what evidence to call will almost always require an unrepresented accused to have a full understanding about what must be proven in the case and by whom. The appellant did not have that knowledge. He did not know that the Crown was not required to prove that he had been driving, that he was required to establish that he did not occupy the driver’s seat of his vehicle for the purpose of setting it in motion, and that he bore the onus of establishing a reasonable excuse for his refusal to provide a breath sample. In my view, the appellant could not have a fair trial without an understanding of these basic principles.

E. Applicability of the Curative Proviso

[30] The respondent invokes the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, which applies to summary conviction appeals by virtue of s. 822(1). In the respondent’s submission, the evidence against the appellant was overwhelming and any errors committed by the trial judge were minor in nature and could not have affected the verdict.

[31] The proviso cannot be applied in this case. An appellate court can allow an appeal against conviction in three circumstances: (1) where the verdict is unreasonable (s. 686(1)(a)(i)); (2) where there has been a wrong decision on question of law (s. 686(1)(a)(ii)); or (3) where there was a miscarriage of justice (s. 686(1)(a)(iii)). A failure to provide adequate assistance to an unrepresented accused results in an unfair trial and constitutes a miscarriage of justice within the meaning of s. 686(1)(a)(iii): Forrester, at para. 17. The proviso in s. 686(1)(b)(iii) can only be applied to “any ground mentioned in subparagraph (a)(ii)”, that is, a ground involving an error of law.

[32] A trial’s fairness must be distinguished from the correctness of the result. Where the trial was unfair, the correctness of the result does not matter and the proviso cannot be applied: Richards, at para. 125; R. v. Breton, 2018 ONCA 753, 366 C.C.C. (3d) 281, at para.14.

F. The Refusal to Provide a Breath Sample Count

[33] The trial judge stayed the refusal charge without giving reasons for doing so. He was not applying the rule against multiple convictions as the impaired care or control count had distinct elements: R. v. Schilbe (1976), 1976 1443 (ON CA), 30 C.C.C. (2d) 113 (Ont. C.A.). Rather, it appears that he entered the stay out of sympathy for the appellant. In my view, it is appropriate in these circumstances to treat this as a conditional stay and order a new trial on this count: R. v. Terlicki, 1983 ABCA 87, 42 A.R. 87, aff’d 1985 16 (SCC), [1985] 2 S.C.R. 483.

III. Disposition

[34] The appeal is allowed, the conviction with respect to Count 1 is set aside, the stay with respect to Count 2 is dissolved and a new trial is ordered on both counts.

Justice P.A. Schreck Released: December 2, 2019.