Court of Appeal for Ontario

DATE: 20220531 DOCKET: C69538

Doherty, Huscroft and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Mikail Moolla Appellant

Counsel: Mark C. Halfyard, for the appellant Kevin Rawluk, for the respondent

Heard: May 25, 2022

On appeal from the judgment of Justice Michael Code of the Superior Court of Justice, dated April 19, 2021, and reported at 2021 ONSC 2892.

Reasons for Decision

[1] The trial judge’s reasons provide a textbook application of the law, as laid down in R. v. Morrison (2019), 2019 SCC 15, 375 C.C.C. (3d) 153 (SCC), to the facts as found by the trial judge. The trial judge’s findings followed a thorough and exacting review of the evidence, including the appellant’s testimony. The trial judge identified several factors which led him to conclude the appellant’s evidence could not be believed and did not raise a reasonable doubt. His assessment of the appellant’s evidence is fully justified on the trial record.

[2] Counsel’s submissions focused not on the trial judge’s reasons, but on the manner in which the trial proceeded. He contends the trial was fundamentally unfair.

[3] The appellant could not be tried at the courthouse because of COVID-19 concerns. He was in custody pending his trial and was understandably anxious to proceed with his trial. Counsel agreed that the trial could proceed with the appellant participating remotely via Zoom from the correctional institution. The trial judge and counsel anticipated that the appellant would be provided with proper facilities at the correctional institution, including a place where he could observe and participate in the proceedings without undue outside distractions or interference.

[4] The arrangements at the correctional institution were far from ideal. The appellant was placed in a large room, which included laundry facilities. Correctional employees moved about in the immediate vicinity while court was in session and the appellant was trying to follow the proceedings, or testify on his own behalf.

[5] In addition to the traffic of correctional employees and loud noises, there were times when it was difficult for the trial judge to see or hear the appellant. The difficulties in hearing the appellant when he was testifying were caused, in part, by the seating arrangement provided by the correctional authorities for the appellant. He was on a small stool, and the microphone used by the appellant was located at a position on the equipment that made it difficult for the appellant to be heard when sitting up straight and looking into the camera.

[6] Counsel and the trial judge did their best to cope with the problems as they arose. It is fair to say the interruptions and distractions increased as the trial proceeded over approximately three days.

[7] The appellant submits that the distractions and interruptions during the Zoom hearing were so significant as to deprive him of his opportunity to fully participate in the trial and fairly present his defence to the charges. Alternatively, the appellant argues that the circumstances under which his trial was conducted so compromised the appearance of the fairness of the proceeding as to result in a miscarriage of justice, even if it cannot be said that those circumstances impaired the appellant’s ability to present a defence.

[8] The arrangements made for the appellant’s participation in the proceedings via Zoom left much to be desired. However, the appellant has not demonstrated that those failings impaired his ability to present his defence, or otherwise resulted in any unfairness to him.

[9] At the outset of the trial, counsel, on behalf of the appellant, agreed to proceed by way of a hearing over Zoom. When problems developed during the trial, counsel did not retreat from that agreement, request an adjournment or mistrial, or submit that the appellant’s right to a fair trial was in jeopardy. At no time did counsel suggest the difficulties being encountered in the conduct of the trial were of such magnitude as to compromise, either the appellant’s ability to present his defence, or the appearance of fairness in the proceedings. Those complaints only emerged on appeal after the trial judge had found the appellant guilty on the charges.

[10] The trial judge was alive to the difficulties encountered in the conduct of the proceedings. When the appellant was testifying, the trial judge was careful to afford the appellant a full opportunity to present his evidence. The trial judge even assumed a somewhat active role in questioning the appellant to ensure that he fully appreciated the defence evidence and the position being advanced.

[11] The appellant has not satisfied us that he was prevented in any way from advancing his defence. The trial judge’s reasons demonstrate a full appreciation of that defence. Any difficulties created in the presentation of the appellant’s defence did not render the trial unfair, or prevent the appellant from fully advancing his defence.

[12] The further question of whether the appearance of the fairness of the trial was so compromised as to result in a miscarriage of justice regardless of its impact on the appellant is resolved by considering how the proceeding would be viewed by the hypothetical reasonable, well-informed observer. That observer could well conclude that aspects of the appellant’s trial were unsatisfactory. However, we are not satisfied the reasonable observer would go on to conclude that the failings in the process reached the point at which the appearance of fairness was lost.

[13] In considering the impact on the appearance of fairness of the problems that arose in the conduct of this trial, we have regard to the following:

• the appellant was represented by competent counsel throughout. No objection was taken to the continuation of the proceedings;
• the trial judge was acutely aware of the unsatisfactory nature of some of the arrangements that had been made by the correctional authorities. He worked diligently to overcome any problems caused by those deficiencies; and
• the appellant was able to fully advance his defence through his own evidence and that defence was fairly and fully considered by the trial judge in his reasons.

[14] We are satisfied that, despite the difficulties encountered in the trial, the appearance of the fairness of the proceedings was maintained.

[15] The appeal is dismissed.

“Doherty J.A.”

“Grant Huscroft J.A.”

“J. George J.A.”