CITATION: R. v. Brundia, 2007 ONCA 725
DATE: 20071022
DOCKET: C42366
COURT OF APPEAL FOR ONTARIO
ROSENBERG, SIMMONS and ARMSTRONG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
And
VITO BRUNDIA
Appellant
David E. Harris for the appellant
Peter W.S. Copeland for the intervenor
Greg Skerkowski for the respondent
Heard: May 7 and 10, 2007
On appeal from convictions entered by Justice Terrance P. O’Connor of the Superior Court of Justice sitting with a jury on May 28, 2004.
BY THE COURT:
[1] Following a jury trial before O’Connor J. in May 2004, the appellant was convicted of criminal harassment, attempting to obstruct justice and breach of recognizance and he was sentenced to eight months imprisonment. He appeals from the convictions.
[2] The charges arose from the appellant’s dealings with his former girlfriend. In 1999, the appellant was charged with two counts of threatening her. She did not attend court on the trial date, but a lawyer, Mr. Edward Sapiano, appeared on her behalf and confirmed that he had advised her that she was not required to attend the trial because she had not been subpoenaed. Mr. Sapiano also said that the complainant told him she was not afraid of the appellant and had not been influenced by him in deciding what to do. As the trial judge was not satisfied that police had made adequate efforts to subpoena the complainant, he refused to adjourn the trial and, as a result, the threatening charges were stayed.
[3] In late 2000, the complainant became friends with a Peel Regional Police officer, Adrian Adore. On March 1, 2001, the complainant called P.C. Adore after a confrontation between her and the appellant. According to P.C. Adore, he stopped the appellant while on uniform duty in a police cruiser and cautioned the appellant about his behaviour. According to the appellant, P.C. Adore forcibly removed him from his vehicle, detained him for at least forty-five minutes and searched him in public view. The appellant complained to the police. Following an internal investigation, P.C. Adore was disciplined for failing to keep proper notes of the stop, failing to report the stop and failing to have an officer dispatched who was not acquainted with the complainant.
[4] During the course of the internal investigation, the complainant (who by that time was P.C. Adore’s girlfriend) alleged that she did not attend the 1999 trial because the appellant threatened to harm her if she did. The complainant also alleged that the appellant had been harassing her over a period of almost three years. As the result of the complainant’s allegations, the charges in issue were laid on July 30, 2001.
[5] On November 4, 2003, defence counsel for the appellant, Mr. Howard Cohen, brought a motion in the Superior Court to adjourn the appellant’s upcoming trial date, or, in the alternative, to be removed as his counsel of record. The motion judge adjourned the trial, set a target trial date and stipulated that the new trial date was peremptory on the appellant with or without counsel. On the scheduled trial date, Mr. Cohen submitted (both in chambers and in court) that, as a result of the November 4, 2003 endorsement, he was not on the record as counsel for the appellant. The trial judge agreed and the appellant proceeded to trial unrepresented.
[6] The appellant raises four main issues on appeal:
i) did the trial judge err in holding that Mr. Cohen was not on the record as counsel for the appellant, in failing to adjourn the trial or in depriving the appellant of his right to be present at his trial;
ii) did the trial judge err in failing to adequately assist the appellant in relation to the issue of whether Mr. Sapiano’s evidence was barred by solicitor-client privilege;
iii) did the trial judge err in his instructions to the jury concerning what Mr. Sapiano said in court on August 27, 1999;
iv) did the trial judge err in failing to exclude P.C. Adore’s evidence of certain statements made by the appellant on March 1, 2001 based on breaches of the appellant’s ss. 9 and 10(b) Charter rights?
[7] In relation to the first ground of appeal, the appellant submits that in addition to the trial judge’s errors, Mr. Cohen’s representations to the trial judge constituted ineffective assistance of counsel. The appellant seeks to introduce fresh evidence on appeal in relation to his ineffective assistance claim and also in relation to the second ground of appeal.
[8] The Crown acknowledges that, in accordance with R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at 43-44 (Ont. C.A.), fresh evidence may be received in relation to the ineffective assistance claim.
[9] For the reasons that follow, we would allow the appeal and order a new trial based on the first ground of appeal. In the circumstances, it is unnecessary that we address the remaining grounds of appeal.
II. Background
i) Mr. Cohen’s initial involvement with the appellant’s case
[10] The appellant was charged with the offences at issue in July 2001. Mr. Peter Derry acted as his counsel at the preliminary hearing and on his first several appearances in the Superior Court. On May 13, 2003, Mr. Derry obtained an order removing him as counsel of record. According to a letter sent by Mr. Cohen to the Crown’s office, the appellant retained Mr. Cohen to act on his behalf around May 21, 2003.
[11] After being retained, Mr. Cohen attended court and took other steps on the appellant’s behalf on several occasions. On July 28, 2003, Mr. Cohen represented the appellant at a judicial pre-trial. On August 1, 2003 he applied for and obtained an adjournment of the first trial date to September 15, 2003. Subsequently, he attended court when the September 15, 2003 trial date was adjourned to December 8, 2003 because of outstanding disclosure. On September 15, 2003, he appeared on a bail review to obtain a variation of the appellant’s recognizance.
[12] As the result of these attendances, there is no dispute that prior to the November 4, 2003 application Mr. Cohen was counsel of record for the appellant.
ii) The abuse of process application
[13] On August 28, 2003, Mr. Cohen delivered an application seeking an order staying the charges as an abuse of process, or in the alternative, an order severing the criminal harassment and breach of recognizance charges from the remaining charges. An associate of Mr. Cohen, Ms. Lessard, filed an affidavit in support of the application in which she set out a chronology of the following events: the circumstances and disposition of the 1999 charges; P.C. Adore’s March 1, 2001 stop of the appellant; the appellant’s complaint against P.C. Adore and the fact that an investigation was conducted and these charges laid as the result of the appellant’s complaint. A copy of the appellant’s complaint to the police was attached as an exhibit to Ms. Lessard’s affidavit. Ms. Lessard also stated:
It is [the appellant’s] firm belief that, as a result of the allegations made by him against Const. Adore and the subsequent investigation, the charges which are before the Court were laid by Peel Regional Police and prosecuted by the Crown and it is also [the appellant’s] firm belief that, the continued prosecution of the charges before the court is an abuse of process of the court, in that the laying of the new charges are oppressive and unfair, and were spearheaded by an improper motive.
[14] Although the application was delivered, Mr. Cohen was unable to comply with a direction from the court to deliver a factum by November 1, 2003 and it does not appear that further steps were taken in relation to the application.
iii) The November 4, 2003 application
[15] On November 4, 2003, Mr. Cohen applied on behalf of the appellant for an adjournment of the December 8, 2003 trial date or, in the alternative, for an order removing himself as counsel of record. The grounds for the application were that the appellant had experienced a serious financial setback and that he had agreed with Mr. Cohen that if he was unable to fulfill his ongoing retainer arrangements in a timely way, he would not oppose an application by Mr. Cohen to be removed from the record.
[16] However, in paragraph 8 of the appellant’s supporting affidavit, the appellant stated that Mr. Cohen was willing to remain as counsel of record if an adjournment was granted. Further, in paragraph 9 of his affidavit, the appellant claimed that he did not feel he could present his position fully without the assistance of counsel because of the complexity of the case.
[17] During the course of his submissions on November 4, 2003, Mr. Cohen advised the motion judge several times that he wished to remain on the record. Further, he said that there were three factors that would make it difficult for the appellant to represent himself. First, there was a pending abuse of process motion that was legally complex. Second, the allegations spanned a significant time frame. Third, the complainant was the appellant’s former girlfriend/fiancée, which raised the potential for problems during cross-examination.
[18] Mr. Cohen said that the reason for the application was “fully financial, there is no other reasons for this situation as it presently is.” In addition, he specifically stated that he would like to remain as counsel of record and suggested that a term be fashioned so that the appellant would be compelled to proceed on the new trial date.
[19] Although the Crown vigorously opposed the adjournment request, the trial judge granted the adjournment “peremptory on the accused with or without counsel” and set a target trial date of May 17, 2004 so that the Crown could confirm the availability of its witnesses. The target trial date was confirmed on December 5, 2003.
iv) Difficulties in the solicitor-client relationship
[20] In an affidavit filed in response to the allegation of ineffective assistance of counsel, Mr. Cohen indicates that when he took over the case “the developing defence theory … was that there was a potential abuse of process as a result of a police and civilian witness conspiracy to cover up the actions of Constable Adore towards [the appellant].” Mr. Cohen says that “[f]rom the outset, [the appellant] insisted that he had made a surreptitious videotape of Const. Adore’s traffic stop”. Mr. Cohen refers to numerous letters in which he asked the appellant for the videotape and later advised the appellant that the tape was essential to proceeding with an abuse of process motion.
[21] Ultimately, Mr. Cohen formed a suspicion that there was no videotape and that the appellant was “bluffing” him. In addition, the correspondence from Mr. Cohen to the appellant demonstrates that the appellant missed numerous meetings, often did not respond to attempts by Mr. Cohen to contact him, did not comply with a number of requests to sign a revised retainer agreement and avoided Mr. Cohen’s requests for the videotape.
[22] Portions of a letter dated September 16, 2003 from Mr. Cohen to the appellant illustrate Mr. Cohen’s position:
On May 21, 2003, we confirmed … that you would release the tape to me at some point so that I might view it. In my June 3, 2003 letter to you … I alerted you to the fact that we “reserve our right to decline the retainer at trial if we cannot satisfy ourselves that we are in an advantageous position to put forward a defence at trial”. On July 23, 2003, I wrote again with respect to production of the tape to us…
When I arrived in Court on Monday, September 15th, and you had in your possession what appeared to be a videocassette box, I asked for it to be given to me. You told me “You can’t have it”. I then realized that you had been misleading us all along in order to maintain control of the tape and, presumably, provide it to us at your discretion once the trial commenced. This, of course, created a fundamental conflict. The issue became whether, as an officer of the court, I could confidently articulate your position to the court based on the existing set of circumstances.
When I indicated to you that matters had developed to the point of a serious conflict between solicitor and client, you pointedly reminded me that “you’re on the record”. … I cannot be put in the position of making representations to the Court or challenging witnesses and making allegations of untruthfulness, unless I have taken reasonable precautions to ensure the veracity of those representations. In this case, of course, we had hoped to maximize our flexibility, and viewing the tape would have allowed me to make suggestions to witnesses that I would not be able to make unless I thereby obligated you to give evidence to challenge the Crown’s case.
[23] On November 5, 2003, Mr. Cohen wrote to the appellant and said it was urgent that the appellant provide him with the videotape so that he could complete the factum for the abuse of process motion and potentially “talk the Crown out of pressing forward with the prosecution.” Mr. Cohen also “urge[d] [the appellant] in the strongest of terms” to provide an additional retainer. Since Mr. Cohen had not heard from the appellant as of November 21, 2003, he suggested to the Crown that the matter be adjourned to December 5, 2003.
[24] On November 27, 2003, Mr. Cohen wrote to the appellant again and said that he had lost confidence in their ability to maintain “a functioning solicitor-client relationship,” and that if they could not resolve their differences they needed to “come to an agreement on a formula for disengagement.”
[25] The appellant responded by letter dated December 1, 2003. He expressed frustration at Mr. Cohen’s statement that he had lost confidence in the relationship and reiterated that he was not in funds at that point. He suggested that the next course of action should be a civil action rather than finalizing the abuse of process motion and asked Mr. Cohen to decide whether he intended to remain on the record or not. He said:
Therefore, if it is your intention to be removed as solicitor on record, kindly advi[s]e the Crown of your position and inform [the Crown] that it is my intention to act as my own counsel.
[26] Mr. Cohen wrote back on December 2, 2003 and said his loss of confidence was “directly connected to the nonsense over the provision of the videotape.” He said the tape was a necessary precondition to putting pressure on the Crown to have the charges withdrawn and to a civil suit. He concluded:
If the tape doesn’t exist, which I suspect is the case, it would be a better course of action to tell me that, as opposed to essentially involving yourself in a process of attempting to “bluff” your own counsel.
You are required in Court on December 5, 2003. We need to resolve our differences prior to that date.
[27] The appellant attended court on his own on December 5, 2003 to confirm the May 17, 2004 trial date. On January 29, 2004, Mr. Cohen wrote to the appellant to remind him that they were to meet prior to Christmas “to agree on a move-forward timetable, or otherwise.”
[28] Mr. Cohen wrote the appellant again on February 18, 2004 and February 23, 2004. In response to Mr. Cohen’s letter of February 18, 2004, the appellant said that he thought he had come up with about half of the necessary funds. The appellant also stated, “Worse case scenario, I will act as my own counsel. So tell that to [the Crown].”
[29] In his February 23, 2004 letter, Mr. Cohen indicated he was unable to determine from their recent correspondence and telephone conversations whether the appellant wished to proceed with the abuse of process motion and said that he would call later in the week “to determine whether or not we can move forward together in your defence.”
[30] On May 6, 2004, the appellant received a telephone call from Mr. Cohen’s assistant advising him that Mr. Cohen had asked her to call and give him the Crown’s telephone number. The appellant and Mr. Cohen met on May 10, 2004. On May 11, 2004, Mr. Cohen provided the appellant with the disclosure relating to the case.
v) Mr. Cohen’s February 9, 2004 letter to the Crown
[31] On February 9, 2004, Mr. Cohen wrote to the Crown to see if the Crown agreed with Mr. Cohen’s position that as a result of the November 4, 2003 endorsement, he was no longer counsel of record:
I have not heard from you recently. This matter is scheduled to proceed with or without counsel, and, as such, I take the position that I am not on the record, although I am trying to move forward with Mr. Brundia. Please let me know if my understanding of my obligations accords with yours.
There is no indication in the record that there was a written response to this letter.
vi) The events of May 17, 2004
[32] In accordance with the local practice in Brampton, this matter was scheduled for a pre-trial on May 17, 2004. Following the May 6, 2004 telephone call from Mr. Cohen’s assistant, the appellant spoke to and eventually retained another lawyer, Ms. Carol Anne Matthews, to apply for an adjournment of the May 17, 2004 trial date. Ms. Matthews attended the pre-trial on May 17, 2004 in chambers. According to Ms. Matthews, upon being advised of her request and after reviewing the endorsements on the indictment, the pre-trial judge requested that Mr. Cohen attend the next day “to clarify the situation.”
vii) The events of May 18, 2004
[33] Mr. Cohen attended court as directed on May 18, 2004 and, along with the Crown, met with the trial judge in chambers. When the matter was spoken to in court, Mr. Cohen indicated that he brought a motion to be removed as counsel of record on November 4, 2003 and that the appellant was ordered to proceed with or without counsel. The trial judge said he agreed with Mr. Cohen’s position that he was not counsel of record. The following is an excerpt from the exchange that took place in court:
The Court: I will advise [the appellant] that we’ve had a brief session in chambers about preliminary matters … and I put to Mr. Cohen as to whether he is the counsel of record or not and he has some comments to make for the record in that regard.
Mr. Cohen: November the 4th, 2003, was a return date for a notice of application that I brought pursuant to [the appellant’s] instructions … for me to remove myself from the record and also to – well, the grounds of the application were that the applicant accused has experienced a series of financial setbacks and is unable to retain counsel of choice to conduct the trial of this matter commencing December the 8th, 200[3]. And some corollary relief.
So, as a result of that application, Justice Dawson ordered on November the 4th, 2003, that the matter was to proceed this week, was peremptory to [the appellant] with or without counsel…
The Court: Having heard what you said and having reviewed the record, I agree. You’re not on the record as his counsel.
III. Analysis
i) Did the trial judge err in holding that Mr. Cohen was not on the record as counsel for the appellant, in failing to adjourn the trial or in depriving the appellant of his right to be present at his trial?
[34] The Crown submits that Mr. Cohen was not counsel of record on the trial date because the November 4, 2003 endorsement gave him the option of removing himself from the record at any time. In the alternative, the Crown submits that even if Mr. Cohen was on the record on the trial date, it was inevitable that Mr. Cohen would have been removed as counsel of record on that day because of a breakdown in the solicitor-client relationship. In either case, the Crown contends that the appellant was not deprived improperly of the right to be represented by counsel.
[35] We do not accept these submissions. In our view, Mr. Cohen was on the record on the trial date and it is unlikely that he would have been successful in removing himself from the record had he applied that day. Accordingly, we accept the appellant’s submission that his right to representation by counsel was breached and that a new trial is required.
[36] In order to properly interpret the November 4, 2003 endorsement, it is necessary to consider it in the context of the application and submissions that were made. The November 4, 2003 application was made about one month prior to the third trial date that had been set in this matter, December 8, 2003. Not surprisingly, the Crown was opposed to the adjournment.
[37] As already noted, the November 4, 2003 application was primarily an application for an adjournment of the trial—the request to remove Mr. Cohen as counsel of record was a request for alternative relief. In his affidavit filed in support of the application, the appellant deposed that Mr. Cohen was willing to remain as counsel of record if an adjournment was granted. Mr. Cohen confirmed that position in his submissions to the motion judge. After noting that the cause of the situation was “fully financial,” Mr. Cohen said:
My submission is that I’d like to obtain an adjournment and remain as counsel of record, and perhaps fashion some sort of term whereby [the appellant] would be perhaps compelled to proceed on a new trial date, which should give us the opportunity to put this thing together in a way that’s functional for myself included. [Emphasis added.]
[38] Further, when asked what length of an adjournment he was seeking, Mr. Cohen said: “I would say five months should be sufficient, based on what [the appellant] and I have discussed are his capabilities.”
[39] Viewed in this context, in our opinion, the motion judge did exactly what Mr. Cohen asked: he granted a five-month adjournment of the trial date, he did not make an order removing Mr. Cohen as counsel of record, and he fashioned a term making it clear that the appellant would be required to proceed on the new trial date, whether Mr. Cohen remained as his counsel at that time or not.
[40] In this regard, we consider it noteworthy that neither the Crown nor Mr. Cohen asked the motion judge to make it a term of any adjournment that Mr. Cohen be removed as the appellant’s counsel of record. Accordingly, in order to interpret the November 4, 2003 endorsement as removing Mr. Cohen as counsel of record, it would be necessary to conclude that the motion judge made that order essentially of his own motion and without giving Mr. Cohen a chance to respond. In our view, this does not make sense. What does make sense is that the motion judge wished to ensure that the appellant would be required to proceed on the next trial date even if Mr. Cohen was later removed as his counsel of record. Accordingly, he made it clear that the new trial date was peremptory on the appellant with or without counsel.
[41] Mr. Cohen’s statements to the trial judge in court on May 18, 2004 are unfortunate. He mischaracterized the November 4, 2003 application as an application to remove himself as counsel of record when, in fact, that was an alternative claim for relief. In the light of this inaccurate submission, it is not surprising that the trial judge drew the conclusion he did. However, the trial judge should have asked the appellant for submissions before making that determination.
[42] We see no merit in the Crown’s submission that the November 4, 2003 endorsement gave Mr. Cohen the option of removing himself from the record at some point in the future. On a plain reading of the November 4, 2003 endorsement, it does not say that. For the reasons set out above, we interpret the November 4, 2003 endorsement as meaning that the trial date was adjourned and that the appellant would be required to proceed on the new trial date even if Mr. Cohen was later removed as counsel of record.
[43] Further, in our view, it does not make sense that the motion judge would make an order giving counsel the option of removing himself from the record at some future date, particularly without a term requiring him to advise all parties and the court of his decision in writing. Without such a term, the court and the Crown would have been left in a state of ignorance concerning whom to contact about the case.
[44] More importantly, unless new counsel goes on the record, removal from the record in Ontario requires a court order[^1] and the making of such an order involves the exercise of judicial discretion based on the presenting circumstances. While there may have been no dispute on November 4, 2003 that Mr. Cohen should be removed from the record if the December 8, 2003 trial date remained in place, that does not imply that there would be no dispute that such an order would be appropriate on some future date when circumstances may have changed. Given this factor, we see no merit in the suggestion that the motion judge in this case intended to make an order that would apply in unknown future circumstances.
[45] Turning to the question of whether Mr. Cohen could have obtained an order removing him from the record on May 18, 2004, we conclude that it is likely that he could not. There are two bases on which Mr. Cohen might have applied for an order removing him as counsel of record: i) financial reasons, and ii) a breakdown in the solicitor-client relationship.
[46] In our opinion, it was too late for Mr. Cohen to obtain an order removing him from the record for financial reasons. In R. v. Clement (2002), 166 C.C.C. (3d) 219 at para. 16 (Ont. C.A.), this court, relying on rule 2.09(5) of the Rules of Professional Conduct of the Law Society of Upper Canada, said: “As a general rule, where a lawyer has agreed to act in a criminal matter and the trial is about to start, counsel is expected to remain on the record whether or not his client is able to pay his fees.” Rule 2.09(5) of the Rules of Professional Conduct provides:
Where a lawyer has agreed to act in a criminal case and where the date set for trial is not far enough removed to enable the client to obtain another lawyer or to enable another lawyer to prepare adequately for trial and an adjournment of the trial date cannot be obtained without adversely affecting the client’s interests, the lawyer who agreed to act may not withdraw because of non-payment of fees.
[47] Further, rule 25.02 of the Criminal Proceedings Rules states that notice of an application for removal must be brought “as soon as is reasonably practicable and sufficiently in advance of the scheduled date of trial.” Although this is a procedural rule, it demonstrates the underlying policy rationale against lawyers withdrawing at a point that may be harmful to their clients’ interests.
[48] In this case, while it is undoubtedly true that the appellant was aware that he had not paid Mr. Cohen and therefore that Mr. Cohen may have been unwilling to act, it was Mr. Cohen’s responsibility to bring the issue to a head in sufficient time to allow the appellant to obtain alternate counsel or to prepare to represent himself. In our view, Mr. Cohen failed to give the appellant timely notice of either the fact that he no longer considered himself counsel of record, or that he intended to apply to be removed from the record.
[49] On the evidence before us, the first notice the appellant received that Mr. Cohen would not be appearing for trial on May 17, 2004 was the May 6, 2004 telephone call from Mr. Cohen’s assistant. In this regard, Mr. Cohen suggested in cross-examination that he gave the appellant notice that he was no longer counsel of record as a result of the November 4, 2003 endorsement by way of a letter dated December 2, 2003 advising the appellant that he (the appellant) had to attend court on December 5, 2003. We reject this suggestion. If Mr. Cohen intended to take the position with the appellant that he was no longer on the record as a result of the November 4, 2003 endorsement, he should have said so explicitly and in writing.
[50] Moreover, in our opinion, it is clear from Mr. Cohen’s February 9, 2004 letter to the Crown that he had at least some concerns about the meaning of the November 4, 2003 endorsement. In these circumstances, even if Mr. Cohen had taken a clear position with the appellant that he was no longer on the record, it was incumbent on Mr. Cohen, at a minimum, to advise the appellant that there could be uncertainty about the issue. The better course would have been to apply for an order expressly removing himself as counsel of record.
[51] In the absence of such steps, in our view, Mr. Cohen waited too long to give the appellant notice of his intention not to appear as counsel at trial and the trial date was simply too late to bring an application to have himself removed for financial reasons. The matter was marked peremptory with or without counsel and May 17, 2004 was the fourth trial date. In these circumstances, there was no realistic prospect of an adjournment to obtain alternate counsel. While it is true that the appellant expressed on at least two occasions his willingness to act for himself, he was entitled to more than eleven days notice that Mr. Cohen did not intend to appear on his behalf, and he was entitled to receive the disclosure package more than five days prior to trial.
[52] In reaching these conclusions, we recognize that the appellant was a difficult client who did not fully fund Mr. Cohen’s retainer and who may have been avoiding Mr. Cohen for that reason. However, as we have said, it was Mr. Cohen’s obligation as counsel of record to take steps to bring the situation to a head. In our view, he was not entitled to wait until the eve of trial to advise the appellant that, in his view, he was no longer on the record, nor was he entitled to wait until the trial date to apply for an order removing him as counsel of record because his fees remained unpaid.
[53] Further, we are not persuaded that the record demonstrates a breakdown in the solicitor-client relationship such that an order removing Mr. Cohen as counsel of record would have been granted. The Crown submits that the circumstances surrounding the appellant’s failure to produce the videotape relating to the traffic stop would have justified such an order. We disagree.
[54] Mr. Cohen asked the appellant for the videotape to support the appellant’s application for a stay of proceedings based on an abuse of process. However, even assuming that the videotape existed and supported the appellant’s description of the traffic stop, it is not clear how that evidence would have given rise to a viable claim for a stay. In that regard, Mr. Cohen seemed to acknowledge on his cross-examination that the abuse of process motion had little prospect of success, but rather was undertaken for tactical reasons:
Q. If the tape depicted what it was supposed to depict, what you heard it was going to depict, did you have a realistic chance of winning the abuse of process motion?
A. I had the beginnings of it … But, that is really all we had, was the ability to start down that road …
Q. And, [the appellant] also testified that you said that it was not likely that the abuse of process motion would be successful, but that it was being brought for tactical reasons, to paraphrase.
A. I – it sounds like the type of thing I would say, knowing what the law in Canada is, and knowing that a stay for all charges would be a fantastic result in light of all the potential evidence that could be called, assuming that he had a tape that depicted what he said was on the tape. But, I, of course, attempted to use – when I saw that we were proceeding down the bluff side of it, I was trying to hold it together for him.
[55] In these circumstances, we do not see how failure to produce the videotape could give rise to a breakdown in the solicitor-client relationship in and of itself.
[56] Further, although the videotape issue had been brewing for some time as of the November 4, 2003 adjournment request, Mr. Cohen expressly advised the court on that date that the basis for the application was “fully financial” and that there was no other reason for the application. While it is clear that at least by December 2, 2003, Mr. Cohen suspected that the appellant was “bluffing” him about the existence of the videotape, Mr. Cohen did not advise the appellant that he could no longer represent him as a result. On the contrary, Mr. Cohen continued to urge the appellant to contact him so that they could work things out. Similarly, in suggesting that the appellant would be better off to tell him if there was no videotape, Mr. Cohen did not either say or imply that he could no longer represent the appellant if that were the case.
[57] Considering the record as a whole, it appears that without the videotape, at worst, Mr. Cohen may have been unable to proceed with a motion that he considered had questionable merit. Apart from that, we are not persuaded that there is any clear indication in the record that the solicitor-client relationship was affected by the appellant’s failure to produce the videotape. While the issue of whether counsel should be removed from the record is a matter of discretion, in light of the foregoing circumstances, we consider it unlikely that Mr. Cohen would have been successful had he brought a motion on May 18, 2004 to be removed as counsel of record.
[58] Given that the appellant was required to represent himself at trial even though he had counsel of record, we conclude that his right to be represented by counsel was violated and that a new trial is required. Like R. v. McCallen (1999), 131 C.C.C. (3d) 518 (Ont. C.A.), this is not a case where the appellant must demonstrate actual prejudice in order to obtain an order for a new trial. Rather, a new trial is required “to protect and vindicate the right that has been breached and to ensure the perception of fairness of the proceeding”: McCallen at paras. 86-87, referring to R. v. Tran (1994), 92 C.C.C. (3d) 218 (S.C.C.).
IV. Disposition
[59] Based on the foregoing reasons, the appeal is allowed, the convictions are set aside and a new trial is ordered.
RELEASED: October 22, 2007 “JS”
“M. Rosenberg J.A.”
“Janet Simmons J.A.”
“Robert P. Armstrong J.A.”
[^1]: See, for example, R. v. Downey, [2002] O.J. No. 1524 (S.C.J.), in which the point is made at para. 83 that counsel appearing before the court owe duties to the court apart from duties owed to a client, the profession or the public. Thus, counsel is “obligated to the court to continue to [appear before the court] unless, after notice to the client, the court permits counsel to withdraw for cause or by reason of the client’s termination of the relationship”: R. v. Downey, at para. 84, citing R. v. C.(D.D.) (1996), 1996 ABCA 303, 110 C.C.C. (3d) 323 at 327 (Alta. C.A.).