Court of Appeal for Ontario

Date: September 17, 2018 Docket: C64269

Judges: Hoy A.C.J.O., Watt J.A., and Then J. (ad hoc)

Between

Her Majesty the Queen Respondent

and

Marcel Breton Appellant

Counsel

Angela Ruffo and Daniel Santoro, for the appellant

James Sutton, for the respondent

Heard and Released Orally

September 13, 2018

Appeal Information

On appeal from the conviction entered on July 25, 2014 by Justice Terrence A. Platana of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Background and Convictions

[1] The appellant, who was self-represented, was convicted of 21 offences after a three-week trial on two indictments which were tried together by a judge of the Superior Court of Justice sitting without a jury.

[2] Among the offences of which the appellant was convicted were possession of cannabis; possession for the purpose of trafficking in cannabis, cocaine and ecstasy; six counts of possession of the proceeds of crime exceeding $5,000; possession of a prohibited weapon; seven counts of money laundering; and three counts of possession of proceeds of crime under $5,000.

[3] At the conclusion of the trial, the judge sentenced the appellant to a term of imprisonment of nine and one-half years.

Grounds of Appeal

[4] The appellant appeals his convictions. He says that a miscarriage of justice occurred because:

i. the trial judge refused to grant him an adjournment when the judge removed counsel then representing him on the morning of trial;

ii. the trial judge failed to provide the appellant with the level of assistance to which a self-represented litigant is entitled to ensure that the trial was fair; and

iii. the appellant was excluded twice from his trial, thus offending the statutory provisions of s. 650(1) of the Criminal Code and his constitutional entitlement.

Crown's Concession

[5] The respondent concedes that the appeal from conviction should be allowed, the convictions set aside and a new trial ordered on the indictments.

[6] The respondent's concession is grounded on the trial judge's failure to provide sufficient assistance to the self-represented appellant during the trial proceedings. It is upon that basis that we agree that a new trial is required. It is unnecessary for us to consider, and we do not consider nor decide, the other grounds advanced by the appellant.

Background to Self-Representation

[7] Some brief background is necessary to explain how it was that the appellant became self-represented and that the trial proceeded to its conclusion while he remained self-represented.

[8] From time to time over the nearly five year period from first appearance to sentencing the appellant was represented by counsel. Counsel, not always the same counsel, appeared at a bifurcated preliminary inquiry and discovery, various adjournments and pre-trial applications, as well as at sentencing.

[9] A pre-trial motion challenging the constitutionality of a search was scheduled for hearing shortly before the commencement of the formal portion of the trial. Shortly prior to the start of the pre-trial motion, trial counsel then acting on the appellant's behalf asked to be removed as counsel of record. Counsel said that the appellant had refused to provide instructions and that the relationship between solicitor and client had broken down. With some difficulty, the pre-trial applications proceeded with the appellant represented by that counsel.

[10] Several weeks later, the trial judge dismissed the pre-trial application challenging the constitutionality of the search and the admissibility of its proceeds. The same day trial counsel again sought his own removal as counsel of record on the basis of an irreparable breakdown in the solicitor-client relationship. The trial judge adjourned the application until the first day of trial. The application proceeded then and counsel was removed.

[11] Throughout the proceedings the trial judge made it clear that if trial counsel were removed, the trial would proceed as scheduled with the appellant unrepresented. In light of the lengthy history of the proceedings, the trial judge appears to have been of the view that the appellant was gaming the system.

[12] After defence counsel was removed, the trial judge adjourned briefly to permit the Crown to reorganize its case against the now self-represented appellant. When Crown counsel had done so, the appellant was arraigned, entered pleas of not guilty and the trial proceeded.

Legal Principles: Duty to Assist Self-Represented Accused

[13] It is well settled that where an accused is self-represented at trial, the presiding judge has a duty to ensure that the accused has a fair trial. To fulfill that duty, the trial judge must provide guidance to the accused to the extent that the circumstances of the case and those of the particular accused may require it. Within reason and without becoming counsel for the accused, 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. Richards, 2017 ONCA 424, at para. 110.

[14] No one gainsays that the onus on a trial judge to assist a self-represented accused is a heavy one. 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 for the self-represented accused: R. v. Tran (2001), 156 C.C.C. (3d) 1 (Ont. C.A.), at para. 22.

Charter Obligations

[15] The onus on a trial judge to assist a self-represented accused extends to an obligation to raise Charter issues on the judge's own motion, at the very least where there is admissible uncontradicted evidence of a relevant Charter breach. In those circumstances, the trial judge has an obligation to raise the issue; to invite submissions; and to enter into an inquiry into the infringement and its consequences: R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.), at p. 372; Richards, at para. 113. This onus remained despite the failure of prior counsel to advance this claim of Charter infringement as a discrete pre-trial application.

[16] In this case, as the respondent rightly acknowledges, questioning the appellant following his arrest, Charter advice and the implementation of his right to counsel, offended the "holding off" requirement of the implementation component of s. 10(b) of the Charter. The responses of the appellant formed part, but by no means the entirety, of the evidence supporting the Crown's theory that the appellant was in constructive possession of the contents of the garage. Yet neither the trial Crown nor the trial judge raised or otherwise alerted the appellant to this violation, or to the connection between it and the evidence located in the garage, and thus to the impact of the violation on the admissibility of that evidence.

Failure to Explain Essential Elements

[17] The appellant was charged with and on trial for several different offences. Possession of a controlled substance. Possession for the purpose of trafficking. Possession of a prohibited weapon. Possession of the proceeds of crime. Money laundering. Several of these offences have a number of constituent elements. Indeed, the trial judge himself sought additional assistance from the Crown in respect of the essential elements of some of these offences.

[18] It was incumbent on the trial judge to ensure that the appellant understood the essential elements of those offences that the Crown was required to prove in order to establish his guilt. The trial judge failed to provide that assistance.

Balancing Trial Management and Fairness

[19] There are no easy days in the trial of self-represented litigants. It is all the more so for self-represented litigants who appear to be playing the system, bent on delaying the day of reckoning until the 12th of never by various devices. Consistent with the mandate of R. v. Jordan, 2016 SCC 27 and R. v. Cody, 2017 SCC 31, it is essential that trial judges exercise their trial management powers to ensure that justice is not delayed. But in the case of self-represented accused, they must not lose sight of their well-established obligation to assist, lest justice be denied.

Disposition

[20] In this case, we are satisfied that the trial judge failed to provide the assistance required by the authorities necessary to ensure that this self-represented appellant had a fair trial. It is on this ground, and on this ground only, that we allow this appeal, quash these convictions and order a new trial on all counts of the indictments.

"Alexandra Hoy A.C.J.O."

"David Watt J.A."

"Edward Then J. (ad hoc)"