COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chemama, 2016 ONCA 579

DATE: 20160722

DOCKET: C49501

Feldman, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Erich Chemama

Appellant

Erich Chemama, in person by videolink

Daniel Santoro and Joshua Tong, appearing as amicus curiae

Greg Skerkowski, for the respondent

Heard: March 9, 2016

On appeal from the conviction entered on October 20, 2008 by Justice Bruno Cavion of the Ontario Court of Justice.

Brown J.A.:

I. OVERVIEW

[1] In 2008, the appellant, Erich Chemama, was convicted of counseling the complainant, Andria Pacheco, to commit the indictable offence of perjury and attempting to obstruct the course of justice by offering her money to change her testimony at one of his trials. His sentence of five years’ imprisonment was reduced on appeal to time served: 2009 ONCA 249.

[2] The appellant now appeals his conviction. The appellant was self-represented during much, but not all, of his trial. On appeal, the appellant chose not to make any submissions, but the court has received the benefit of very helpful submissions from amicus curiae.

[3] Amicus advances two reasons why the appellant’s conviction should be set aside. First, amicus submits the trial judge failed to provide the appellant with adequate assistance during the trial on five matters of fundamental importance to his defence. Second, amicus contends the trial judge erred in refusing to discharge appellant’s second counsel notwithstanding a complete break-down in the solicitor-client relationship. Both errors, amicus submits, resulted in an unfair trial.

[4] I would grant the appeal, set aside the conviction, and direct a new trial. Although I do not accept the submission that the trial judge failed to provide reasonable assistance to the appellant on the five matters identified by amicus, I do accept the trial judge erred in forcing counsel on an unwilling accused, resulting in an unfair trial.

II. CHRONOLOGY OF EVENTS

[5] The complainant had been a passenger in a car driven by the appellant when it was stopped by the police. The appellant was on bail at the time, with a house arrest condition. The appellant maintained he was on the way to the hospital, an exception to his house arrest condition. He was charged with failure to comply.

[6] According to the complainant, who was to be a Crown witness at the appellant’s trial on the failure to comply charge, prior to trial she received two phone calls from the appellant, and a third from the appellant and a female, offering her money to lie to the police about the purpose of the car trip.

[7] The appellant and his mother, Nicole Meyer, were charged with counselling the complainant to commit the indictable offence of perjury and wilfully attempting to obstruct the course of justice in a judicial proceeding by contacting the complainant and offering her money to change her testimony.

[8] At the trial on the subject charges, the appellant tried to advance the defence the call to the complainant never occurred because he was in custody at the time, the institution at which he was incarcerated only allowed inmates to make collect calls, and the complainant testified she did not accept collect calls.

[9] The Crown’s case consisted of three witnesses – the complainant, the officer-in-charge of the case, and an employee of Bell, whom the appellant had summonsed to testify about the workings of inmate phones at the particular jail.

[10] At the close of the Crown’s case, the trial judge acquitted the appellant’s mother on the basis of a reasonable doubt that the female voice heard by the complainant on one of the calls was that of Ms. Meyer.

[11] The appellant testified in his defence. The trial judge convicted the appellant.

[12] Notwithstanding the simple nature of the charges, the trial ran from July 4, 2007 until September 18, 2008, spread over 23 court days.

III. FIRST GROUND OF APPEAL: DID THE TRIAL JUDGE FAIL TO PROVIDE THE APPELLANT, WHEN HE WAS SELF-REPRESENTED, WITH ADEQUATE ASSISTANCE

A. The issue framed

[13] The legal principles applicable to this ground of appeal are not in dispute. 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: R. v. Tran (2001), 2001 5555 (ON CA), 55 O.R. (3d) 161 (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. 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:McGibbon, at p. 347; R. v. Darlyn, 1946 248 (BC CA), [1947] 3 D.L.R. 480 (B.C.C.A.), at p. 482; R. v. Parton, [1994] B.C.J. No. 2098 (S.C.), at para. 33.

[14] The extent of a trial judge’s duty to assist an unrepresented accused is circumscribed by what is reasonable. The duty “does not extend to his providing to the accused at each stage of his trial the kind of advice that counsel could be expected to provide if the accused were represented by counsel”: R. v. Turlon (1989) 70 C.R. (3d) 376 (Ont. C.A.), at p. 381; R. v. Tauber (1987), 20 O.A.C. 64 (C.A.), at p. 71.A judge is not required to become the advocate for the accused: McGibbon, at p. 349.

[15] Amicus acknowledges the trial judge made considerable efforts to be patient with a difficult litigant, but submits the trial judge failed to provide adequate assistance to the appellant on five matters, rendering the trial unfair.

[16] Before considering each matter, I accept the respondent’s submission that the appellant was a sophisticated self-represented litigant, familiar with court procedure and elements of the criminal law. The record also discloses that the appellant was an exceedingly difficult self-represented litigant: he relentlessly disrupted the trial; most of his interventions were irrelevant, repetitive, confrontational, abrasive, and argumentative; and he repeatedly challenged directions by the trial judge to keep focused on the issues in dispute.

[17] The transcripts also disclose the trial judge often bent over backwards to accommodate the appellant and allowed him very generous leeway on procedural matters. The trial judge granted the appellant a liberal number of recesses and adjournments to give him time to prepare submissions on the numerous applications he wished to bring.

B. Analysis

[18] Against that backdrop of extensive assistance given by the trial judge to the appellant, I now address each of the five matters for which amicus submits the trial judge failed to meet his duty to assist the appellant, rendering the trial unfair.

(1) Violation of s. 503 of the Criminal Code

[19] Amicus submits the trial judge failed to rule on the appellant’s application for a stay on the basis that he was not brought before a Justice of the Peace within 24 hours of his arrest contrary to s. 503 of the Criminal Code.

[20] At the time of his arrest on the subject charges, the appellant was in custody on other charges. He was arrested during a break in those other court proceedings. At the start of the trial on the subject charges, the appellant applied for a stay under s. 9 of the Canadian Charter of Rights and Freedoms on the basis that he was not brought before a Justice of the Peace within 24 hours of his arrest, contrary to s. 503 of the Criminal Code. The appellant renewed his request for a stay several times during the trial. The trial judge ultimately dismissed his application on February 1, 2008, but gave no reasons.

[21] The appellant suffered no unfairness from the trial judge’s failure to give reasons. Several months before the trial started, the appellant had applied to the Superior Court of Justice for a stay of proceedings on the basis of the s. 503 breach. A. Campbell J. dismissed the appellant’s application, without prejudice to the appellant’s right to renew it before the trial judge: R. v. Chemama, 2007 CarswellOnt 1508, 2007 7575 (S.C.), aff’d 2014 ONCA 220. He held, at para. 34:

However serious that violation [of s. 503] may have been, it led to no practical consequences against the accused because he was required to be in custody until Monday morning on the charges of breach bail recognizance. If s. 503 had been complied with it could have made no difference to the accused’s freedom because he was in lawful custody on other charges.

[22] Although it would have been preferable for the trial judge to have given brief reasons dismissing the appellant’s application, the lack of merit in the appellant’s argument already had been fully explained to him by the Superior Court of Justice.

(2) Applications for relief under s. 10 of the Charter

[23] Amicus submits the appellant brought applications for relief under ss. 10(a) and (b) of the Charter that the trial judge never inquired about or ruled on. I do not accept this submission.

[24] The appellant continuously brought applications before the trial judge, Charter and otherwise. On January 17, 2008, the trial judge directed the appellant to file written submissions on any remaining Charter motions he wished to bring and set a timetable for the submissions. On February 1, 2008, the trial judge dealt with the Charter applications for which the appellant had filed written submissions. Nothing was left outstanding.

(3) The appellant’s s. 11(b) application

[25] Amicus submits the trial judge failed to provide the appellant with adequate assistance on his s. 11(b) Charter application, including guidance on obtaining transcripts of past attendances in the matter. I disagree.

[26] When the trial judge set a final timetable for written submissions on Charter motions, the appellant complained about the cost of obtaining transcripts for his s. 11(b) motion. The trial judge stated he would allow the appellant to do what he wanted for his s. 11(b) motion.

[27] The record discloses the appellant knew transcripts were required on a s. 11(b) motion and knew how to order them. However, he did not want to incur the $3,500 cost. The appellant ended up filing on the motion “two stacks of documents almost a foot high each of them”. The trial judge noted that in his materials the appellant had indicated he had access to assistance from counsel and received advice on the motion. No unfairness resulted to the appellant from the trial judge’s approach to his s. 11(b) motion.

(4) The travel itinerary of the appellant’s mother

[28] Amicus submits the trial judge acted unfairly by prohibiting the appellant from introducing a document relevant to his defence theory and failed to instruct him on how to properly enter it as an exhibit. I do not accept this submission.

[29] During his cross-examination of the complainant and a witness from Bell, the appellant sought to introduce an electronic passenger itinerary receipt that the appellant contended showed his mother was out of Canada when the third telephone call to the complainant allegedly took place.

[30] The trial judge quite properly ruled the appellant could not prove the document through the complainant or the Bell employee because neither had any knowledge of it. Counsel for the co-accused suggested marking the document as a letter exhibit and allowing the appellant to prove it later, if he so chose. The trial judge adopted that approach.

[31] Several months later, just before the Crown closed its case, the Crown advised it wished to introduce an affidavit from Lufthansa stating the appellant’s mother had not been on the flight shown on the itinerary. The trial judge ruled the Crown could lead the evidence in reply if the appellant led evidence in his defence of a trip by his mother to Israel. The appellant did not raise the issue again. There the matter ended.

(5) Fitness hearing

[32] Amicus submits the trial judge demonstrated a lack of concern in assisting the appellant by failing to appoint counsel pursuant to s. 672.24 of the Criminal Code when the judge had reasonable grounds to believe the appellant was unfit. I do not accept this submission.

[33] On June 16, 2008, Day 15 of the trial, the appellant complained about the conditions in the Don Jail and told the judge he wanted to go to a hospital. As a result of his exchange with the appellant, the trial judge raised the issue of the appellant’s mental health. The Crown stated the appellant had previously attended the mental health court at the Old City Hall courthouse (the “102 Court”) and was found fit.

[34] The next trial day, June 18, the trial judge ordered a fitness assessment at CAMH. When the trial continued on July 4, the trial judge learned no assessment had taken place because the appellant, who was then out of custody, had failed to attend. The trial judge immediately remanded the appellant to 102 Court. The appellant demanded counsel, specifically citing s. 672.24 of the Criminal Code. The trial judge told him to raise the issue in 102 Court.

[35] When the trial reconvened later in the day, the trial judge was told the appellant had refused to undergo an assessment at 102 Court. The appellant had produced a letter apparently written by his new counsel, Donald Kirsh (who never went on the record), stating the assessment should not proceed until counsel was available some three weeks later.

[36] The trial judge thereupon instructed court staff to call the duty counsel’s office. The appellant said he had accused duty counsel of incompetence and they would not represent him. The trial judge then directed court staff to contact Mr. Kirsh and tell him to attend immediately at court. Staff tried to contact Mr. Kirsh, but could not get through to him.

[37] At that point, the appellant stated he did not have a mental health problem and had a doctor’s letter to that effect. The trial judge told the appellant he either would be remanded into custody for an assessment, or the appellant could meet with the psychiatrist who was present in court. The appellant chose to meet with the psychiatrist. Following the meeting, the psychiatrist testified the appellant was fit.

[38] Given the lengthy history of this simple trial, the appellant’s continual representations that certain counsel would appear to represent him yet none appeared, the appellant’s failure to attend the scheduled CAMH assessment, and the trial judge’s reasonable efforts to secure counsel for the appellant on the day of the assessment, I see no unfairness in the events as they transpired.

[39] Moreover, within two trial days of these events, Mr. James Morton came on the record as appellant’s counsel and confirmed that he had been able to communicate with and obtain initial instructions from the appellant, an indication of the appellant’s fitness. The fitness issue did not arise again during the trial.

Conclusion

[40] Having reviewed the trial transcripts, I conclude the trial judge fairly discharged his duty to provide assistance to the appellant on the five matters identified by amicus.

IV. SECOND GROUND OF APPEAL: DID THE TRIAL JUDGE ERR IN REQUIRING THE APPELLANT’S COUNSEL TO CONTINUE ON THE RECORD FOLLOWING HIS DISCHARGE BY THE APPELLANT?

A. The issue framed

[41] New counsel for the appellant, Mr. Morton, came on the record on Day 21 of the trial, July 25, 2008. After a further adjournment, the trial resumed on August 13, 2008. At that time, Mr. Morton informed the court the appellant had terminated his retainer and asked to be removed from the record. The trial judge refused that request, as well as a further request made by Mr. Morton the next trial day, in September.

[42] Amicus submits the trial judge erred in forcing Mr. Morton to continue as counsel. He should have discharged Mr. Morton and continued to treat the appellant as a self-represented accused. By failing to do so, the trial judge effectively excluded the appellant from the trial process, rendering the trial unfair.

[43] The respondent concedes the trial judge erred in law by refusing to allow Mr. Morton to withdraw. The respondent acknowledges that where a court forces counsel on an unwilling accused, the interference with the accused’s trial rights is so fundamental that generally an appeal court should not resort to the curative proviso in s. 686(1)(b)(iii) of the Criminal Code: R. v. Bowles and Danylak (1985), 1985 ABCA 185, 21 C.C.C. (3d) 540 (Alta. C.A.), at pp. 545-46. Finally, the respondent recognizes the Crown’s case at trial was not overwhelming. However, the respondent submits this court should resort to the curative proviso in the unique circumstances of this case because no substantial wrong or miscarriage of justice occurred by requiring Mr. Morton to continue to act as the appellant’s counsel – the appellant participated in his own defence, and he received a fair trial.

B. Chronology of events and the trial judge’s rulings

[44] Counsel appeared representing the appellant when the trial started on July 6, 2007, but requested an adjournment. When the trial resumed on October 9, 2007, counsel moved to get off the record because of a breakdown in the solicitor-client relationship. The appellant stated he wished to represent himself. The trial judge reluctantly granted counsel’s motion. The trial proceeded with the appellant acting for himself.

[45] On several subsequent occasions, the appellant sought adjournments by representing to the court that another counsel was acting for him in a prohibition application to the Superior Court of Justice to stop the trial and yet another counsel was prepared to act as trial counsel if a Rowbotham order was made. The trial judge granted several short adjournments, but finally declined to grant any more unless one of the counsel actually appeared to request an adjournment. None did.

[46] The Crown attempted to close its case on February 1, 2008, Day 9 of the trial, but the trial judge directed the complainant re-attend for further cross-examination. More adjournments ensued at the instance of the appellant. Finally, following the close of the Crown’s case on May 15 (Day 14), the trial judge invited the appellant to call a defence, if that was his intention. Over the course of several further trial days, the appellant stalled. Finally, on July 4 (Day 17), the trial judge gave the appellant one week to retain a lawyer; otherwise, he would have to proceed with his defence without counsel.

[47] When court resumed on July 11, the appellant advised he was in the process of retaining Mr. Morton. On July 25, Mr. Morton appeared, confirmed he had been retained, and went on the record. The trial was adjourned until July 29. On that date, Mr. Morton repeated that he was on the record, but he had been unable to talk to the appellant because he had been detained on other charges. A further adjournment was granted until August 13.

[48] On August 13, Mr. Morton appeared and told the trial judge the appellant had fired him some 10 days before. Mr. Morton asked to be removed from the record because of a breakdown in the solicitor-client relationship. Mr. Morton advised that if he was removed as counsel, the appellant wanted the trial judge to appoint Mr. Morton as amicus. Mr. Morton informed the court he was “unsure what assistance I could provide the court in a capacity other than as counsel.” The Crown took no position on Mr. Morton’s request.

[49] The trial judge refused to discharge Mr. Morton, holding that he did not feel discharging counsel was “appropriate at this part of the proceedings. The case will proceed. I think you’ll stay on board, counsel.” When Mr. Morton stated he would need transcripts of the complainant’s evidence to prepare, the court ordered them to be provided to Mr. Morton at no expense.

[50] On August 26, the appellant signed a “Termination and Discharge” document stating he did not wish Mr. Morton “to represent him in any criminal proceedings whatsoever and [he] declines to provide any further instructions of any sort…”

[51] When the trial resumed on September 17, Mr. Morton renewed his request to be removed from the record. He filed two affidavits describing events that had transpired since the last court date. The first affidavit attached the Termination and Discharge document. The second stated that on September 12, the appellant had removed, without authorization, certain files related to his proceedings from Mr. Morton’s law office, including all the documents concerning the trial on the subject charges. As Mr. Morton informed the trial judge, he no longer had the bulk of his trial file, including his notes and research. He only had the transcripts because they had been kept outside of his office. Mr. Morton emphasized there was “an extraordinary conflict” between the appellant and himself. He reported he had been unable to obtain instructions from the appellant about the defence, although he had developed certain arguments and provided Crown counsel with case law.

[52] When the trial judge inquired whether Mr. Morton might continue as amicus curiae, Mr. Morton declined, stating that in the circumstances he did not think “any connection is realistic or appropriate.” That position was understandable because the appellant had brought a motion seeking a mistrial alleging incompetence by Mr. Morton.

[53] The Crown consented to Mr. Morton’s removal from the record, stating it was “a clear situation where counsel should be removed.”

[54] The trial judge observed that most of the delays in the trial had resulted from the appellant’s insistence on having a lawyer, and he was “deeply, deeply reluctant to come back to a situation where Mr. Chemama has no lawyer.” He did not want to return “to the dynamics that we have had the past year with Mr. Chemama constantly making spurious comments, irrelevancies, and so on, when there is counsel here to guide and help his needs.” He adjourned the trial one day to consider the matter.

[55] When the trial resumed, the trial judge dismissed Mr. Morton’s motion. In his ruling, the trial judge stated he was “deeply conscious of the right of an accused to have counsel of his choice.” The trial judge disclosed that his inquiries to Legal Aid and duty counsel had resulted in Legal Aid advising “they will have nothing more to do with Mr. Chemama,” and duty counsel saying they “had been instructed not to appear, and not to assist [the appellant].” The trial judge then held:

Mr. Chemama, in order to seek a mis-trial, is raising allegations of incompetence, and so forth, against Mr. Morton. In my view, Mr. Chemama is using these tactics not because he wants counsel of his choice, but simply to abort these criminal procedures.

It is all a very transparent effort to derail the criminal prosecution. I will not let it happen. Mr. Chemama has a right to counsel of his choice. He does not have the right to manipulate the administration of justice so that an even greater injustice will occur.

[56] The trial judge held that if the appellant chose not to co-operate with Mr. Morton or refused to given him instructions, that was his choice. The trial judge expressed confidence that Mr. Morton’s professionalism would “allow him to transcend the relationship issues.”

[57] Following the ruling, the appellant told Mr. Morton he wanted to testify. Mr. Morton took him through a very open-ended examination-in-chief in which he was allowed to say whatever he wished to the court. The appellant did testify he was in custody at the time of the alleged calls to the complainant, so he could not have made them. Upon the conclusion of the appellant’s evidence, Mr. Morton made closing submissions, but he re-iterated he did not have instructions from the appellant.

C. Analysis

[58] An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court cannot interfere with this decision and cannot force counsel upon an unwilling accused: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 9; R. v. Amos, 2012 ONCA 334, at para. 19. In exceptional circumstances, the court may appoint an amicus curiae to assist the court where this is necessary to permit the successful and just adjudication of a particular proceeding: Cunningham, at para. 9; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 44.

[59] The respondent submits that although the trial judge erred in refusing to discharge Mr. Morton, no miscarriage of justice resulted because: the appellant was a sophisticated self-represented accused who understood the criminal trial process; the appellant had repeatedly delayed putting in a defence; Mr. Morton’s examination of the appellant enabled him to say whatever he wanted to say in his defence; and there was no reasonable possibility the appellant would have raised an argument during closing submissions by himself that had not previously been raised during the trial.

[60] I do not accept this submission. Through all the arguments following the closing of the Crown’s case about further adjournments and Mr. Morton’s role in the proceeding, something very important got lost – the main theory of the appellant’s defence.

[61] As early as the second day of the trial, before the appellant started his cross-examination of the complainant, he disclosed to the trial judge the thrust of his defence – he could not have made the alleged calls to the complainant because he was in jail at the time and was only able to make collect outgoing calls from the jail. On his cross-examination of the complainant, the appellant elicited admissions that the complainant did not accept collect calls and did not know whether the calls she had received were direct or collect. On his cross-examination of the officer-in-charge, the appellant elicited evidence that strongly suggested the appellant was in jail during the date range in the information when the calls allegedly were made – December 1-21, 2005.

[62] Amicus submits Mr. Morton did not address the appellant’s defence theory and the trial judge did not give the appellant an opportunity to deliver his own submissions. I accept this submission. In his closing submission, Mr. Morton focused on the frailty of voice identification evidence in order to raise a reasonable doubt. Mr. Morton did not advance the appellant’s defence theory that he could not have made the calls to the complainant because he was in jail at the time.

[63] In fairness to Mr. Morton, his working file for the trial, including his trial notes and research, had been removed from his office without permission. As well, as he emphasized several times to the trial judge, he had not been able to obtain instructions from the appellant about his defence. Although Mr. Morton faced challenging circumstances, he discharged the duties imposed on him by the trial judge in a highly professional manner. Mr. Morton acted in the finest traditions of the Bar.

[64] The trial judge had heard the appellant advance his defence theory of lack of opportunity as early as the complainant’s evidence, yet the trial judge made no reference to it whatsoever in his reasons convicting the appellant. The trial judge simply concluded: “[The complainant’s] answers rang true. In my view Mr. Chemama is outright lying when he denies the fateful phone call he made.” The trial judge failed to address the defence theory the appellant had been developing throughout the trial.

[65] Whatever frustrations the trial judge felt as a result of the appellant’s delay tactics and disruptive behavior, it was not open to him to impose counsel on the appellant over his objection, especially where counsel had only come to the file as it neared its end, had limited opportunity to come up to speed, and informed the court he had not been able to obtain instructions from the appellant about his defence.

[66] Whether, in those circumstances, appointment of amicus would have been appropriate was a call for the trial judge to make. Mr. Morton made it clear he would not want to act as amicus, and the trial judge had been rebuffed by Legal Aid and the duty counsel’s office in his effort to secure some legal assistance for the appellant.

[67] However, the alternative to discharging counsel was not the prospect envisioned by the trial judge when, during the course of submissions on Mr. Morton’s motion to step down, the trial judge queried: “My question is, assuming that [counsel is discharged], where do we go from here? More adjournments, and adjournments, and adjournments, is that what we are doing?” When Mr. Morton moved to get off the record, the trial had long passed the point where the trial judge was required to accommodate further adjournment requests by the appellant. By that point in time, the trial judge was entitled to require the appellant to present his own defence, if that was his election, adduce only relevant evidence in his defence, and limit his closing submissions to relevant matters. The trial judge possessed the necessary trial management powers to keep the appellant’s evidence and submissions within proper bounds and time limits. Trial judges are not powerless in the face of difficult self-represented accused, even ones like the appellant whose courtroom misconduct lies at an extreme end of the spectrum.

[68] Unfortunately, instead of calling on the appellant and managing the appellant’s presentation of his defence and closing submissions within firm, but reasonable, bounds and time limits, the trial judge adopted a course of proceeding that did not result in a fair trial for the appellant. The appellant’s theory of his defence was never put to the trial judge in closing, and the trial judge never referred to it in his reasons.

[69] Given that result of the procedure adopted by the trial judge, I conclude it is not open to apply the curative proviso in the circumstances of this case.

DISPOSITION

[70] For the reasons set out above, I would allow the appeal and set aside the appellant’s conviction. The appellant has served his sentence. I would direct a new trial, if the Crown decides to proceed.

Released: “KF” (July 22, 2016)

“David Brown J.A.”

“I agree K. Feldman J.A.”

“I agree Grant Huscroft J.A.”