WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Graham, 2014 ONCA 566

DATE: 20140729

DOCKET: M43406 and M43566 (C50624)

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Respondent

(Respondent on appeal)

and

Dale Graham

Respondent/Applicant

(Appellant on appeal)

Dale Graham, appellant in person

Jill Copeland, amicus curiae

Alison Wheeler, for the Crown

Heard: March 25, 2014

On motion by the Crown for directions and on application by the appellant for an order pursuant to s. 683(3) of the Criminal Code of Canada for the examination or cross-examination of a witness.

By the Court:

[1] There are two matters before the court:

(1) a motion for directions by the Crown regarding an ineffective assistance of counsel claim sought to be advanced by the appellant, Dale Graham, on his pending conviction appeal in this court; and

(2) an application by the appellant for an order pursuant to s. 683(3) of the Criminal Code, R.S.C. 1985, c. C-46 for the examination or cross-examination of his former trial counsel in aid of his proposed ineffective assistance claim.

Background

[2] The background to these matters is somewhat complicated. In brief, it may be summarized as follows.

[3] The appellant, Dale Graham, was charged with 16 counts relating to child pornography. On September 26, 2008, following a trial by judge alone, he was convicted of one count of making child pornography, one count of accessing child pornography, one count of voyeurism, and three counts of possession of child pornography. His conviction for voyeurism was stayed in accordance with R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. On June 4, 2009, the appellant was sentenced to a total effective sentence of four years and one-month’s imprisonment.

[4] The appellant appealed his convictions and sentence. On June 16, 2011, this court heard his sentence appeal and reduced his sentence to three years and two months’ imprisonment, to reflect enhanced credit for pre-trial custody. The appellant has now been released from custody. His conviction appeal is outstanding.

[5] The appellant is self-represented on his conviction appeal and does not wish to have counsel appointed on his behalf. Prior to his release from custody, he was assisted by counsel from the Queen’s Correctional Law Project. After the appellant’s release, amicus curiaeassisted him with aspects of his conviction appeal, as described below.

[6] The full transcripts from the appellant’s trial and his pre-trial conferences are now available for the purpose of the appellant’s conviction appeal.

[7] In his Notice of Appeal, the appellant raises several grounds, including the alleged ineffective assistance of his trial counsel. By an order dated October 4, 2011, Rosenberg J.A. (In Chambers), appointed amicus to assist the appellant on some of the grounds he seeks to advance, excluding his ineffective assistance of counsel ground. Subsequently, pursuant to a pilot project then in progress at this court, the Crown agreed that the scope of amicus’ appointment should be extended to provide the appellant with an opinion concerning his ineffective assistance claim. Amicus has provided that opinion to the appellant.

[8] The appellant swore three affidavits in support of his ineffective assistance claim. He seeks to introduce these affidavits as fresh evidence on his appeal.

[9] As part of his ineffective assistance claim, the appellant applied for an order pursuant to s. 683(1)(b) of the Criminal Code for the examination of various witnesses before a judge of this court or a special examiner. The appellant did not name his former trial counsel as one of the proposed witnesses to be examined, apparently because he was then unaware that his trial counsel could be so included.

[10] Extensive submissions were received from the appellant, amicus and the Crown on the appellant’s s. 683(1)(b) application. The application was heard by a panel of this court on October 11, 2013 and was dismissed on October 30, 2013 on the ground that it did not meet the test under s. 683(1)(b) of the Criminal Code for the requested order: R. v. Graham, 2013 ONCA 652.

[11] The appellant now applies under s. 683(3) of the Criminal Code for an order permitting him to examine or cross-examine his former trial counsel. The court has been informed that, throughout, his former trial counsel has been prepared to voluntarily submit to examination or cross-examination, as necessary, without the necessity of a court order.

[12] The appellant’s conviction appeal was first scheduled for argument before this court on December 5, 2013. Following submissions by both parties and amicus on that date, on the request of the appellant and with the consent of the Crown and amicus, the appeal was adjourned to be rescheduled for argument as soon as possible after the determination of the Crown’s motion for directions. In its endorsement dated December 5, 2013, the court confirmed various steps that the parties agreed to undertake in order to permit argument of the Crown’s motion before this panel on March 25, 2014.

[13] After the December 5, 2013 attendance, the appellant’s former trial counsel sought to file submissions with the court outlining his position regarding aspects of the appellant’s application. His submissions, together with the appellant’s responding submissions (delivered with the assistance of amicus) were filed on consent. The court has considered these submissions as part of the materials relevant to the matters now before the court.

The Protocol

[14] Effective May 1, 2000, this court introduced a procedural protocol regarding allegations of incompetence of trial counsel in criminal cases (the “Protocol”). The Protocol provides for various procedural steps to be taken, many by the Crown, when an appellant seeks to raise an ineffective assistance claim in support of an appeal to this court. These steps include the involvement of a case management judge of this court, the potential filing of an affidavit from trial counsel in response to the appellant’s allegation of ineffective assistance, the facilitation by the Crown in filing such an affidavit, and the possible examination or cross-examination of trial counsel.

[15] In this case, for the reasons described below, a full fresh evidence process as envisaged under the Protocol has not yet been undertaken. Specifically, the Crown has not sought an affidavit from the appellant’s trial counsel responding to the appellant’s allegation of ineffective assistance at trial, nor has it sought to cross-examine the appellant on his affidavits.

[16] However, both the Crown and amicus have made inquiries of and have corresponded with the appellant’s former trial counsel. Copies of that correspondence have been provided to the appellant. In addition, the court was informed that the appellant has had access to his former trial counsel’s file and to the Crown’s pre-trial disclosure.

Parties’ Positions

[17] The Crown takes the position that: 1) the appellant’s ineffective assistance of counsel claim is without merit and, as a result, a full fresh evidence process in respect of this ground of appeal, as contemplated by the Protocol, is not only unjustified, but would also be a waste of time and resources; 2) in the circumstances, the appellant should be required to establish, as a preliminary, threshold matter, that this ground has a reasonable prospect of success before being allowed to advance it on appeal; 3) whether by means of this court’s power to control its own process and/or by application of the leave requirement under s. 675(1)(a)(iii) of the Criminal Code, this court should make a preliminary determination whether the appellant has demonstrated sufficient potential merit to his ineffective assistance claim so as to justify full compliance with the Protocol (including obtaining a responding affidavit from the appellant’s former trial counsel and conducting a cross-examination on that affidavit); and 4) the appellant’s application for the examination or cross-examination of his former trial counsel should be dismissed.

[18] For his part, the appellant argues that his ineffective assistance claim should be allowed to proceed and that he should be permitted to examine or cross-examine his former trial counsel in support of that claim.

[19] Amicus submits that the Crown’s motion for directions should be dismissed. She contends that the Crown’s request for a threshold determination of the merits of the appellant’s ineffective assistance claim should be rejected: 1) as inappropriate, because it is difficult on a preliminary motion to consider the claim in the context of the full trial record; 2) as inefficient, since, as in most cases, other grounds advanced by the appellant will still require a full hearing on the merits before a panel of this court; and 3) because, in many cases, the lack of a response from trial counsel to an ineffective assistance claim in a criminal appeal will result in unfairness to the accused/appellant and corresponding injustice to the appellate process due to an incomplete record on the ineffective assistance issue.

Discussion

(1) Crown’s Motion for Directions

[20] We turn first to the Crown’s motion for directions.

[21] The Crown seeks an order that the full application of the Protocol is neither appropriate nor warranted in the circumstances of this case. As we understand Crown counsel’s submissions, the Crown invites this court to revisit the general application of the Protocol, to recognize a procedure for the Crown to obtain relief from the obligation to fully comply with the Protocol in a proper case, and to grant such relief in this case.

[22] In our view, it is unnecessary to revisit the general application of the Protocol in addressing the case-specific issues raised by the Crown.

[23] The Protocol sets out procedural guidelines to be followed in any criminal appeal to this court where the appellant proposes to advance an ineffective assistance claim. The provisions of the Protocol are not cast in stone. Neither are they intended to be rigidly applied in all instances where an ineffective assistance claim is proposed as a ground of appeal. The flexibility of the procedural rules set out under the Protocol, on a case-by-case basis, is specifically confirmed by paragraph 19 of the Protocol, which reads in part as follows:

Judicial Variations of Procedural Rules: This Protocol outlines the Rules that generally govern the procedure to be followed with respect to any appeal before the Court of Appeal for Ontario where the appellant proposes to allege that his or her counsel at trial conducted him or herself in a manner that amounted to professional incompetence or otherwise contributed to a miscarriage of justice. Where a party is of the view, however, that the circumstances of the individual case are such that one or more of the Rules outlined in this Protocol should not apply, that party may bring an application, upon notice to the opposing party, to the case management Judge for an order making any necessary modification to the Rules of the Protocol. [Emphasis added.]

[24] In addition, paragraph 18 of the Protocol states:

Compliance with Procedural Rules: Where a party is having difficulty securing compliance with any of the Rules of the Protocol, the party at any time may seek a conference call with the case management Judge to address the issue.

[25] Thus, the Protocol explicitly contemplates that some of its procedural rules may not be appropriate or necessary in all cases. Further, any party may seek specific relief from strict adherence to the Protocol on an application to the involved case management judge of this court.

[26] The Protocol is of great assistance to this court in adjudicating ineffective assistance claims on appeal. The Protocol seeks to ensure procedural fairness to appellants, involved trial counsel, and the Crown in respect of such claims. Thus, compliance with the Protocol advances the administration of justice. The Crown does not suggest otherwise.

[27] That said, where the Crown is of the view that adherence to the entire process set out under the Protocol is neither necessary nor advisable in a given case, as in this case, it is open to the Crown to apply to the applicable case management judge of this court for relief from this obligation.[^1] In effect, this is what the Crown did in this case. At the end of the day, it remains for the Crown to determine the nature of its response to an appellant’s – including a self-represented appellant’s – appeal to this court.

[28] The merits of an appellant’s ineffective assistance claim on appeal and of the Crown’s response to such a claim are matters to be determined by the panel hearing the appeal. It is not for this panel of this court, on a motion for directions in a single appeal, to change the established practice of the court: see for example, R. v. R.(R.), 2008 ONCA 497, 90 O.R. (3d) 641 (Ont. C.A.), at para. 40.

[29] The critical issue is to ensure that sufficient evidence is placed before the court in respect of an ineffective assistance claim so as to permit the proper adjudication of the claim and to ensure fairness to all parties, including the trial counsel whose assistance at trial is impugned by an appellant. In some cases, these objectives will be met without full compliance with the Protocol.

[30] In this case, we conclude that it is both unnecessary and inappropriate to make a preliminary determination on the merits of the appellant’s proposed ineffective assistance claim.

[31] The record before us establishes that the appellant’s ineffective assistance claim has been particularized, trial counsel has been notified of the fact and details of that claim, inquiries have been made of him concerning the claim, and the nature and result of those inquires have been communicated to the appellant. Further, the basis for the Crown’s opposition to further compliance with the Protocol has been fully disclosed to the appellant and to the court.

[32] In these circumstances, it cannot be said that the Protocol has been ignored, that its purposes have been undermined, or that the appellant’s ability to advance his ineffective assistance claim has been frustrated or impeded. The Crown, as it may elect, is therefore at liberty to decline to follow the full fresh evidence process contemplated by the Protocol, subject to any further order as may be made by the panel hearing the appeal.

[33] In our opinion, no criticism of the Crown’s election in this case, once made, is warranted. The Crown has made a proper and good faith attempt to seek judicial consideration and variation of the procedural rules set out under the Protocol in the particular circumstances of this case, as is permitted by the Protocol.

[34] The Crown’s motion for directions is therefore allowed in part, to the extent set out in these reasons.

(2) Appellant’s Section 683(3) Application

[35] Section 683(3) of the Criminal Code states:

A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of the court, but no costs shall be allowed to the appellant or respondent on the hearing and determination of an appeal or on any proceedings preliminary or incidental thereto.

[36] In addition, the Protocol provides for the examination of trial counsel. Paragraph 15 of the Protocol states in part:

The Examination of Trial Counsel: Whether or not an affidavit from trial counsel has been filed by any party in connection with the allegation that the conduct of trial counsel amounted to professional incompetence or otherwise contributed to a miscarriage of justice, if any party wishes to compel the appearance of trial counsel at an Office of the Special Examiner for purposes of: (a) cross-examining trial counsel on his or her affidavit; or (b) examining trial counsel, in the absence of an affidavit, upon the issue of his or her professional performance in connection with the case, any party may bring an application to the Court, on notice to trial counsel and the opposing party, for an order compelling the appearance of trial counsel for purposes of such examination. If the opposing party and trial counsel agree to the proposed order, the order may be made, on consent, without any court appearance.

[37] Usually, where a self-represented appellant wishes to examine or cross-examine his or her former trial counsel in aid of an ineffective assistance claim, the Crown seeks to have counsel appointed for this purpose or, where the appellant opposes such an appointment, to have amicus appointed to attend and participate in the examination or cross-examination.

[38] In this case, as we have said, the appellant is self-represented and does not wish to have counsel appointed on his behalf, either for the purpose of his appeal or for the purpose of examining or cross-examining his former trial counsel. He wishes to conduct the examination or cross-examination of his former trial counsel himself. Further, although amicus was instrumental in ensuring that a proper record in support of the appellant’s s. 683(3) application was placed before the court, her appointment does not extend to assisting the appellant with the merits of his ineffective assistance claim. The appellant opposes the appointment of amicus (or the expansion of amicus’s current appointment) to conduct any examination or cross-examination of his former trial counsel.

[39] Having considered the record, and having had the benefit of both written and oral submissions from the appellant as well as the Crown on the appellant’s s. 683(3) application, we are satisfied that the appellant’s application to examine or cross-examine his former trial counsel should be dismissed.

[40] The appellant’s affidavits and related application materials outline in considerable detail his complaints about the assistance of his former trial counsel and the proposed areas on which he wishes to examine or cross-examine his former trial counsel. The appellant’s complaints fall generally into four categories, as detailed in his affidavit sworn March 21, 2013 and his oral submissions. The appellant maintains that his former trial counsel allegedly failed:

(1) to follow his instructions regarding cross-examinations conducted at trial;

(2) to “effectively cross-examine a number of Crown witnesses”;

(3) to call a number of witnesses who the appellant asserts should have been called as defence witnesses; and

(4) to file documents on time.

[41] During oral argument, the appellant also maintained that his former trial counsel was “confused and argumentative” at trial and that he “failed to provide any defence at all” to the charges faced by the appellant.

[42] We have carefully considered the details of these complaints, as furnished by the appellant. Without commenting on the merits of his ineffective assistance claim, we are not persuaded on this record that the appellant has demonstrated any reasonable possibility that anything his former trial counsel might say on examination or cross-examination in respect of the appellant’s complaints would materially advance the appellant’s ineffective assistance claim.

[43] In particular, through the efforts of the Crown and amicus, the appellant knows what his former trial counsel has to say in response to the appellant’s allegations. We see no basis to conclude that examining or cross-examining his former trial counsel would add anything pertinent to the body of information now available to the appellant. To the contrary, in our view, the proposed questioning of his former trial counsel that the appellant wishes to undertake relates to peripheral and speculative matters.

[44] Further, in connection with the witnesses that the appellant says should have been called at trial, this court has already determined in its October 30, 2013 ruling, described above, that much of the evidence that the appellant submits might have been provided by the identified witnesses “would simply be irrelevant” or “redundant or mere speculation” given the undisputed fact that child pornography was found on the appellant’s computer. We note that with respect to at least one of these witnesses, the appellant is even uncertain as to the witness’ identity.

[45] Finally, given the availability of the full trial transcripts, the panel hearing the appeal is positioned to assess the comportment and conduct of the appellant’s former counsel at trial, and the nature of the defence advanced on the appellant’s behalf.

[46] We therefore conclude that the appellant’s affidavits, together with the full trial record and the record on this application, provide a basis on which the panel hearing the appeal may assess the appellant’s complaints about his former trial counsel. Should that panel determine that evidence from the appellant’s former trial counsel is required in order to fully and fairly evaluate the appellant’s ineffective assistance of counsel claim, that panel may provide such further direction or order as it considers appropriate in the interests of justice.

Disposition

[47] For the reasons given, the Crown’s motion for directions is allowed in part, in accordance with these reasons, and the appellant’s application to examine or cross-examine his former trial counsel is dismissed.

[48] We thank Crown counsel and amicus for their thorough and thoughtful submissions, which greatly assisted the court.

Released:

“DW” “E.A. Cronk J.A.”

“JUL 29 2014” “David Watt J.A.”

“K. van Rensburg J.A.”

[^1]: Given the particular history of this case, the Crown’s motion here was brought at the outset of the scheduled appeal hearing. In future, we anticipate that similar Crown motions, if any, will be brought before the involved case management judge of this court well in advance of any scheduled appeal hearing date.