Court of Appeal for Ontario

Date: 2022-06-22 Docket: C68890 Judges: Miller, Trotter and Zarnett JJ.A.

Between: Her Majesty the Queen, Respondent and Jesse Breese, Appellant

Counsel: Jesse Breese, acting in person Paul J.I. Alexander, appearing as duty counsel Philippe Cowle, for the respondent

Heard: February 9, 2022 by video conference

On appeal from the convictions entered on October 16, 2020 by Justice Sean F. Dunphy of the Superior Court of Justice, with reasons at R. v. Breese, 2020 ONSC 6272.

Reasons for Decision

[1] The appellant, who self-represented at trial, was convicted of various offences arising out of an armed bank robbery. He was sentenced to 5 years and 9 months of incarceration. The sole issue at trial was identity; specifically, whether the appellant was one of three bank robbers – the one who fired a handgun into the floor to frighten the bank’s employees and customers into compliance. The case against the appellant rested largely on his identification by a co-accused who had pleaded guilty and was awaiting sentencing.

[2] The appellant, assisted by duty counsel on appeal, appealed his conviction on the basis that the trial judge made two errors: (1) in failing to instruct himself on the key witness’s motive to lie; and (2) in relying on the appellant’s uncompleted testimony to confirm the other witness’s evidence against him. After the oral hearing of the appeal, Mr. Alexander agreed to accept a limited s. 684 retainer to provide the court with written submissions on two questions. We are grateful to Mr. Alexander – and to Mr. Cowle, who provided written submissions on behalf of the Crown – for providing this assistance to the court.

[3] The questions put to counsel were:

(1) What duty was owed by the trial judge to explain to the self-represented accused in the circumstances the use that could be made of his evidence if he refused to be cross-examined further; and

(2) Whether, if the accused were told that the trial judge would not use, or would put little weight, on the accused’s testimony given the accused’s refusal to continue to participate in the cross-examination, the trial judge was precluded from relying on the accused’s testimony for all purposes.

[4] For the reasons that follow, we agree that the appeal against conviction should be allowed, on the basis that the trial judge erred in using the appellant’s evidence against him having led the appellant to believe that none of his testimony would be used in the trial judge’s deliberations. The trial judge’s advice to the appellant – who was unrepresented and facing very serious charges – conceivably influenced his decision not to resume his testimony as well as his closing submissions, and jeopardized the fairness of the trial.

The Appellant's Cross-Examination

[5] The appellant testified in his defence. He stated that he did not commit the robbery. This was the entirety of his evidence in chief, which exposed him to cross‑examination. Amicus advised the court that the appellant had refused assistance with his evidence in chief, but was content that she ask him questions on re-examination and provide closing submissions.

[6] On cross-examination, the appellant was initially asked about a prior offence to which he had pleaded guilty. He responded with a lengthy and not always comprehensible statement about threats he had received that led to him pleading guilty, assaults to which he had been subjected in prison which had resulted in partial blindness, and further threats to further blind him. The appellant was asked if he knew Nathan Hunter, who had pled guilty to his participation in the robbery and whose evidence as to the appellant’s participation in the robbery was the cornerstone of the Crown’s case against the appellant. The appellant testified that he knew Hunter, but that Hunter had lied in his testimony about how they knew each other.

[7] The appellant was asked to identify himself in some video footage, which he did. He was then asked to identify Shaquwone Rose. He refused:

Q. And the person sitting down when you're looking directly at the still image, the timestamp is 14:58. This person's in a jean jacket. That's Shaquwone Rose, right?

A. I already explained to you the circumstances that I've been living in. And once again, you're causing me great duress. I just made you aware of the circumstances I've been living in and you're trying to extenuate them and worsen them for me. And it's making me feel as though you're helping them threaten me.

Q. Okay. So if I understand what you're saying, you're not going to answer that question....

A. I feel threatened by your questions and it's causing a state of duress.

Q. All right. Well I'm going to suggest to you sir that that's Shaquwone Rose. Do you agree or disagree?

A. I can't continue.

[8] At this juncture, the trial judge instructed the appellant to answer the questions put to him. The appellant became verbally combative with the trial judge. The special constable intervened to have the appellant sit down. The appellant demanded he be returned to the cells. The trial judge cautioned the appellant that “this is what contempt of court looks like”, before finally ordering the appellant returned to the cells and adjourning court to the next day.

[9] On resuming court the next day, the trial judge explained to the appellant that he could not choose which questions to answer. He set out two potential consequences of refusing to answer: (1) a separate trial for contempt of court; and (2) the implications for his testimony in the current trial. With respect to the immediate consequences for the trial for bank robbery, the trial judge explained:

[Y]ou must understand that your testimony, which will have essentially not been tested under cross‑examination, is not going to be entitled to receive any significant weight in this trial. So, if you are expecting that somehow testifying and then answering no questions advances your case it does not. I can’t give any material weight to testimony where the witness has refused to cooperate by allowing himself to be cross-examined. So that is counterproductive from your point of view. It doesn’t help you. It hinders you because I can’t give any material weight to what you’ve told me.

[10] The trial judge then asked the appellant whether he would answer the Crown’s questions. The appellant replied that “nothing has changed from where we left yesterday.”

[11] In the ensuing colloquy with amicus, the trial judge stated that it would be futile to continue the cross-examination, and

the end result of that is I can attach, effectively no value or no material value to anything he said because it hasn’t been tested. I haven’t had that opportunity to have him explain himself and be tested on those explanations. So based on that it seems to me the sensible way forward is to move forward. I’ve explained to him the consequences. He understands that much that I can’t attach any value to his sworn statements, few though they may be, because of his refusal to participate in cross-examination.

[12] At that point the defence case was closed and the trial proceeded to closing submissions.

Reasons for Judgment

[13] In his reasons for judgment, the trial judge held that because the appellant had refused to complete the cross-examination, his denial of guilt was entitled to no weight. The trial judge did, however, rely on the appellant’s testimony in cross‑examination that he knew Nathan Hunter in order to confirm Hunter’s evidence that the appellant participated in the bank robbery. This evidence from the appellant’s cross-examination was used by the trial judge to convict the appellant.

The Appeal

[14] Mr. Alexander advanced two grounds of appeal: (1) that the trial judge erred by failing to instruct himself on the key witness’s motivation to lie; and (2) that the trial judge erred in using the appellant’s testimony against him, after stating that he would not use it.

[15] With respect to the first ground of appeal, we do not agree that the trial judge made any error. The trial judge was alive to the issues with the witness’s credibility, and resolved them, finding the witness to be worthy of belief.

[16] With respect to the second ground of appeal, we are persuaded that it was reasonable for the appellant – a self-represented accused – to have concluded from the trial judge’s statements during the trial that the appellant’s testimony on cross-examination would not be used for any purpose, including the purpose of establishing his guilt. Of course, the trial judge would have been entitled to use the appellant’s evidence exactly as he did given the appellant’s refusal to continue in the cross-examination, had he not made the statements that he did. The problem only arose once the trial judge had told the appellant – both directly and in his exchange with amicus and the trial Crown – that he would not use the appellant’s testimony.

[17] The Crown on appeal argues that the appellant was not prejudiced in any way by these statements by the trial judge. The appellant had, in the Crown’s submission, already made up his mind that he would not answer any more questions on cross-examination before the trial judge’s most explicit statement that he would not use the appellant’s testimony. The appellant had made an explicit refusal on October 13 and demanded to be returned to the cells. On the resumption of the trial the next day, the trial judge again asked the appellant if he would refuse to answer questions. He replied that nothing had changed. The trial judge then discussed with amicus and the Crown how to proceed in light of this decision. The appellant’s decision having been made, nothing the trial judge said thereafter impacted any step the appellant took in his defence.

[18] We do not agree that the appellant was not prejudiced.

[19] The trial judge was in a difficult position. An accused who elects to give evidence is not entitled to discontinue cross-examination and have his statements simply expunged from the record. In most circumstances, a trial judge faced with an accused who refuses to answer questions on cross-examination is justified in refusing to give any weight to exculpatory evidence while simultaneously relying on evidence given prior to the refusal that supports a finding of guilt.

[20] The complicating factor in this case is that the trial judge made statements that the appellant reasonably understood to mean that because the appellant had refused to answer any more questions under cross-examination, none of the appellant’s evidence would be used in the trial judge’s deliberations. This was the position the appellant understood to be operative at the time he made his closing submission. That this was the appellant’s understanding is clear from his eruption during the trial Crown’s closing submission (in which the Crown argued that the appellant’s testimony corroborated Mr. Hunter’s) to object that “the judge said that would not be taken into account.” No one then or later corrected the appellant, or addressed his objection in any way.

[21] Had the appellant understood his actual position, he may have done things differently. As unlikely as it would appear from his comments at trial, he may have, prior to the closing of his case, reconsidered his position and continued the cross‑examination. He may have addressed the Crown’s submission on the use of his evidence as corroborative of Mr. Hunter’s in his closing submissions. The appellant, or amicus, may have made other submissions in closing. We do not know. In these circumstances, it was unfair for the trial judge to have used the appellant’s statements in finding the appellant guilty of the offences.

[22] The appellant raised a litany of other grounds of appeal in his notice of appeal, some of which he advanced himself in the oral hearing before us. It is sufficient to state that we found none of them persuasive.

Disposition

[23] The appeal is allowed, the convictions are quashed, and a new trial ordered.

“B.W. Miller J.A.”

“Gary Trotter J.A.”

“B. Zarnett J.A.”