Court of Appeal for Ontario

Date: 2019-12-18 Docket: C64734

Judges: Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Rui Alberto Cordeiro-Calouro Appellant

Counsel

For the Appellant: Alan D. Gold and Alex I. Palamarek

For the Respondent: Alexander Alvaro and Jennifer Trehearne

Heard: December 11, 2019

On Appeal

On appeal from the convictions entered by Justice Dale Parayeski of the Superior Court of Justice on September 14, 2017, and from the sentence imposed on February 12, 2018.

Reasons for Decision

A. Overview

[1] Rui Alberto Cordeiro-Calouro appeals his conviction on two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm. The appellant also seeks leave to appeal the sentence of 18 months concurrent on the two counts of dangerous driving causing death and the sentence of 15 months on the one count of dangerous driving causing bodily harm. Finally, the appellant seeks to adduce fresh evidence regarding his proficiency in the English language.

[2] At the conclusion of the hearing, we allowed the appeal and ordered a new trial with reasons to follow. We now provide those reasons.

[3] As we shall detail below, the trial judge refused to grant the appellant an adjournment on the date scheduled for his trial. This decision began a series of events that led to the appellant not receiving a fair trial.

B. Analysis

[4] The appellant had had difficulty retaining counsel. He had two lawyers prior to trial, both of whom ceased to act for him for different reasons. Consequently, the appellant's trial date had been marked "with or without counsel". On the trial date, new counsel appeared for the appellant. This counsel had appeared on prior occasions to advise the court that the appellant, who had financial constraints, was trying to amass the necessary funds to retain him. Counsel said that he was now prepared to go on the record, that there would be a re-election to judge alone, that this, together with other concessions, would reduce the length of trial from three weeks to five days, and that the appellant would waive any s. 11(b) issues arising from the delay. All of this, however, was premised on the appellant being granted a four-week adjournment so that counsel could properly prepare for the trial.

[5] This was the second adjournment of his trial that had been sought by the appellant. Crown counsel opposed the adjournment citing, among other reasons, that he was not available to do the trial four weeks later. The trial judge was understandably concerned about delay. It had been five years since the events giving rise to the charges. The trial judge offered the appellant's counsel a two-week adjournment, but counsel said that would be an inadequate amount of time for him to properly prepare, including preparing the defence expert witness. Despite the fact that the adjournment sought was relatively short, that there was a s. 11(b) waiver, and the seriousness and complexity of the charges, the trial judge then refused the adjournment and ordered the trial to proceed with the appellant unrepresented.

[6] When an accused person requests an adjournment of his trial on the date set for trial so that he can have counsel represent him, the trial judge is faced with two conflicting interests: the accused's right to counsel, including counsel of choice, and the avoidance of delay. The resulting challenge is aptly expressed by Gillese J.A. in R. v. Hazout, 199 C.C.C. (3d) 474 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 412, [2005] S.C.C.A. No. 501, at para. 31:

When an accused person requests an adjournment of his or her trial on the date set for trial, the trial judge is required to balance two rights. The first is the accused's constitutional right to be represented by counsel including, when possible, counsel of choice. This is a fundamental right vigorously guarded by the court. The second is the trial judge's right to control the trial process, a right that includes a wide discretion to grant and refuse adjournments. An appellate court should only interfere with a trial judge's balancing of these rights if the refusal of an adjournment deprives an accused of a fair trial or the appearance of a fair trial. [citations omitted]

[7] In this case, the denial of the adjournment deprived the appellant of a fair trial. It opened the door to various errors in the manner in which this legally-complex trial was conducted that contributed to its unfairness.

[8] After the trial judge ordered the trial to proceed, he told the appellant to review the two banker's boxes of disclosure. The evidence shows that the appellant cannot read or write. If this fact were not clear to the trial judge at the commencement of the trial, even though the appellant so advised him, the trial judge certainly became aware of it by the second day of the trial after the counsel, who had asked for the adjournment but been refused, took it upon himself to write to the trial judge and advise him, both of the fact that the appellant could not read or write, and that English was not the appellant's first language. Notwithstanding this knowledge, the trial judge failed to take any steps to address the obvious problems that these facts would pose for the fair conduct of the proceedings. For example, the trial judge never asked the appellant whether he needed an interpreter. Instead, the trial judge's reaction to counsel's letter was to describe it as "presumptuous" and "offensive".

[9] As matters unfolded, the decision on whether the offences would be proven turned, to a large degree, on the expert evidence. Fortunately, the appellant had an expert witness to respond to the Crown's expert because one of his former lawyers had retained that expert. The defence expert was present to assist the appellant when the Crown's expert gave his evidence. After the Crown's expert completed his examination in chief, an issue arose as to how the cross-examination was going to take place because the appellant could not read his expert's proposed questions for the Crown's expert. In response to this issue, the trial judge directed the defence expert to conduct the cross-examination of the Crown's expert, even though the defence expert pointed out that he was not a "jurist". Indeed, the defence expert was not sure what questions he was allowed to ask.

[10] There was no proper legal basis for the trial judge to instruct the defence expert to undertake the cross-examination of the Crown's expert. If the trial judge was concerned that the appellant was not able to properly conduct the cross-examination of the Crown's expert, as he should have been, then he ought to have considered whether it was necessary to appoint amicus for that purpose. The trial judge also appears to have forgotten the fundamental principle that experts are supposed to be non-partisan: R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 67. It is hard to see how the defence expert could be expected to uphold his duty to be non-partisan once he was placed in the position of having to become the advocate for the appellant through cross-examination of the Crown's expert.

[11] These errors occurred in the context of a trial that involved a legally complex issue of causation. The facts in this case were that the appellant was driving at a high rate of speed on a country road. He came over a hill to find another car coming in the other direction. The driver of the other car was impaired, and his car was over the centre line. The resulting collision caused the death of two people in the oncoming vehicle and serious injuries to one of the passengers in the appellant's vehicle. The Crown's expert, while acknowledging that the collision would not have occurred had the other car not been over the centre line, also opined that, if the appellant had been travelling at a lower rate of speed, he would have had time to swerve and avoid the collision. The defence expert disagreed with the opinion of the Crown's expert.

[12] It is not clear that the Crown's expert was entitled to give that latter opinion evidence. However, even if he was, the cross-examination of the expert, on that opinion, was of significant importance to the ultimate conclusion.

C. Conclusion

[13] For these reasons, the appeal was allowed. The conduct of this trial was anything but fair to the appellant. We would add that we are troubled by the failure of Crown counsel to intervene to ensure that the obvious problems with the manner in which the trial was proceeding were identified and corrected. On that point, we note that "[t]he Crown is not an ordinary litigant. As a minister of justice, the Crown's undivided loyalty is to the proper administration of justice": R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 49.

[14] We ordered a new trial. In light of that conclusion, we do not reach the sentence appeal nor are we required to decide the appellant's fresh evidence application.

[15] Before concluding, we would add that the counsel, who wrote to the trial judge to draw his attention to the deficiencies from which the appellant suffered in terms of being unrepresented, is to be commended for taking the step that he did. His actions were in the best spirit of the conduct of members of the Bar and were in the interests of justice.

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

"P. Lauwers J.A."

"I.V.B. Nordheimer J.A."