COURT OF APPEAL FOR ONTARIO DATE: 20231109 DOCKET: C62696

Simmons, Paciocco and Zarnett JJ.A.

BETWEEN

His Majesty the King Respondent

and

Frank Marrone Appellant

Counsel: Mark C. Halfyard, for the appellant Bari Crackower and Sam Weinstock, for the respondent

Heard: February 7, 2023

On appeal from the conviction entered on June 20, 2016 by Justice Gerald E. Taylor of the Superior Court of Justice, sitting without a jury.

Zarnett J.A.:

I. OVERVIEW

[1] In November 2012, the appellant was arrested and charged with possession, for the purpose of trafficking, of 17.07 grams of powder cocaine. The powder cocaine that formed the subject of this charge was seized by police during a search of the appellant’s residence and had a street value of about $1,700. The appellant was also charged with possession of proceeds of crime ($370 that was found on his person at the time of his arrest), and possession of marijuana that was also found when his residence was searched.

[2] In May 2015, about two and one-half years after his arrest, the appellant’s trial commenced. The appellant pled guilty to the marijuana charge, and not guilty to the others.

[3] On the first day of trial, an issue arose about a report of an expert witness for the Crown. This issue came to occupy the next three trial days and led to a failed mistrial application, the discharge by the appellant of his original defence counsel, and an adjournment to permit new counsel to be retained. The trial resumed in June of 2016, with the appellant represented by new counsel, and continued to conclusion. The appellant was acquitted on the proceeds of crime count and convicted of possession of cocaine for the purpose of trafficking. The trial judge imposed a sentence on that count of 10 months imprisonment, followed by 12 months probation, and made certain ancillary orders. [1]

[4] The appellant raises three grounds of appeal from the possession for the purpose of trafficking conviction, which I describe and then discuss in a sequence convenient for analytical purposes.

[5] First, the appellant argues the verdict reached was unreasonable. He submits that the Crown’s proof of essential elements of the offence was based on circumstantial evidence which did not support guilt as the only reasonable inference. He therefore argues that the guilty verdict should be set aside, and an acquittal substituted.

[6] This ground of appeal must be determined on the evidence as it finally unfolded at the trial, regardless of who was representing the appellant when the evidence was led. For the reasons below, I conclude the verdict was not unreasonable and reject this ground of appeal.

[7] Second, based on fresh evidence, the appellant argues that the verdict cannot stand because his original defence counsel had a conflict of interest. After being retained by the appellant, she represented Jonathan Simpson, whom the police arrested when he arrived at the appellant’s residence shortly after the appellant’s arrest. Although the charges against Simpson involved oxycodone tablets that he had with him when he was arrested - not cocaine - and were resolved long before the appellant’s trial, the appellant argues that Simpson was his roommate at the residence where the cocaine was found and therefore an alternate suspect on the possession of cocaine for the purpose of trafficking charge. According to the appellant’s submission, original defence counsel could not pursue the alternate suspect defence, or had to “soft-peddle” it, because Simpson had been her client. Thus, he submits, a miscarriage of justice occurred.

[8] I would admit the fresh evidence but would reject this ground of appeal. The appellant asked original defence counsel to represent Simpson. On the appellant’s own evidence, he did not tell her anything that would make Simpson an alternate suspect or enable her to conclude that Simpson and the appellant had conflicting interests. The appellant deliberately did not tell her that Simpson lived at the residence or was his roommate. Moreover, the appellant was not deprived of the opportunity to put forward the alternate suspect defence. Original defence counsel was discharged (for reasons unrelated to Simpson) before the Crown’s case was completed and the appellant, with new counsel untainted by any relationship with Simpson, had the opportunity to, and did, lead evidence that Simpson lived at the residence and dealt drugs there. New counsel made the argument that there was an alternative exculpatory inference arising from this evidence, namely, that the cocaine was Simpson’s, not the appellant’s.

[9] The appellant’s third ground of appeal is that the trial judge erred in not recusing himself and granting a mistrial when requested to do so during the Crown’s case. Although actual bias is not suggested, the appellant argues that a reasonable apprehension of bias arose from the way the trial judge responded to, and commented on, positions taken by original defence counsel about the Crown’s expert’s report. This ground of appeal requires careful examination of the exchanges between the trial judge and counsel, and other comments of the trial judge, on a matter that dominated several days of trial.

[10] Prior to trial, the Crown served an expert’s report. Although the possession for the purpose of trafficking charge involved powder cocaine, the report contained certain references to crack cocaine, and its ultimate paragraph stated: “It is my opinion that the crack cocaine found in the residence of [the appellant] is consistent with possession of cocaine for the purpose of trafficking” (emphasis added). Counsel did not discuss, prior to trial, the significance of the report’s references to crack cocaine, and on the morning of the first day of trial original defence counsel told Crown counsel that she conceded the contents of the report and thus the expertise of its author with respect to its contents. After the expert began to testify later that day, original defence counsel took the position that because of the report’s conclusion about, and other references to, crack cocaine (not powder cocaine), it did not constitute compliance with the disclosure obligations imposed by s. 657.3(3)(b) of the Criminal Code if the Crown intended the expert to testify about powder cocaine. Crown counsel took the position that the report, although “more crack heavy than… powder cocaine heavy”, was still sufficient.

[11] In the course of exchanges with counsel and rulings the trial judge made following the emergence of that issue, the trial judge repeatedly characterized original defence counsel’s conduct from the time of the preliminary hearing through to the opening of the trial as a less than forthright − in effect a dishonest − attempt to intentionally lull the Crown into a false sense of security about the expert’s evidence, and then to somehow take advantage of that. This was not only unjustified on the record, it was not an assertion that the Crown had advanced. Moreover, the trial judge repeatedly expressed the view that references in the expert’s report that counsel relied on for her position were an obvious mistake by the expert, without the Crown having made that suggestion and before the trial judge himself elicited that explanation from the expert. As well, the trial judge asserted that original defence counsel had misled him about the contents of the report, and in so doing characterized advocacy for a position in favour of the appellant as intentional wrongdoing.

[12] Criticism of counsel is not automatically, or even easily, equated with an appearance of bias against the client. But a reasonable apprehension of bias may arise when a judge makes criticisms of one side’s counsel in a way that a reasonable observer would perceive to be a predisposition to the other side or as the judge stepping into the arena instead of acting as a neutral arbiter.

[13] While I emphasize that actual bias is not shown or even suggested, I reluctantly conclude that the trial lost the fundamental appearance of fairness it required and therefore this ground of appeal must succeed. Since the existence of a reasonable apprehension of bias taints the entire proceeding, and is not cured by the correctness of the ultimate result, there is no alternative other than to order a new trial [2].

II. ANALYSIS

(1) The Unreasonable Verdict Ground of Appeal

(a) Factual Background

[14] Based on information of a confidential informant, police formed a theory that the appellant was dealing drugs from his rural residence in Hamilton. They conducted surveillance of his residence over two days in November 2012, and observed a number of vehicles stop there for short visits. On the first day, within one hour, three vehicles attended for periods of 30 seconds to 5 minutes. On the second day of the surveillance, police observed nine vehicles attend for short periods of time, all in a 90-minute period. Each attendance involved someone getting out of the vehicle, going into the residence, and then leaving.

[15] Although none of the vehicles were stopped to determine if drug deals occurred, one of the police officers testified that based on his experience as a drug investigator, the pattern of visits to the residence was “consistent with [the] ins and outs of those purchasing illegal substances”.

[16] On the second day of the surveillance, just after the observation of the nine vehicles, the appellant was arrested when he came outside to answer a knock on the residence door by an undercover police officer. At the time, he was the only person at the residence.

[17] Shortly after the appellant’s arrest, a white Cadillac (which one of the officers believed was a vehicle that had been observed the previous day at the residence) pulled into the driveway. The driver, Jonathan Simpson, got out of the car and entered the residence. He was also arrested, and police uncovered a number of illicit pills on his person.

[18] A search warrant for the appellant’s residence was executed. Officers located various items on top of the kitchen stove including ripped plastic bags, playing cards with cocaine residue, a cell phone, and a can of brake parts cleaner with a false bottom containing 17.07 grams of powder cocaine (also referred to as “cocaine hydrochloride”). Above the stove, a digital weigh scale with cocaine residue was located. Documents in the appellant’s name were found in a cupboard and on the stove top. A starter pistol with ammunition was found on the refrigerator, blank ammunition was found in the living room, and a small quantity of marijuana was located elsewhere in the house.

[19] It was admitted at trial (by original defence counsel) that the non-drug items located in the search (including the scale and playing cards which had cocaine residue) belonged to the appellant.

[20] A police officer testified that he believed the items located on and above the stove were a packaging station, an “area where you would set up to package cocaine, or drugs, where you could weigh it out, measure it out, put it into what packaging you wanted to put it into”.

[21] Det. Lafleur (to whose reports and evidence I will return on the third ground of appeal) was qualified to provide expert opinion evidence. She opined in her oral testimony that the quantity − 17.07 grams of powder cocaine − indicated it was for trafficking, not for personal use. In her opinion, some of the other items found in the search were also consistent with drug trafficking, such as the scale and the playing cards that could be used to cut powder cocaine into lines. She also described how a starter pistol is used in the drug trade as an imitation weapon. She testified that the short visits by multiple cars leading up to the appellant’s arrest were indicative of drug trafficking as was the $370 found on the appellant when he was arrested.

[22] The appellant testified that he and Simpson were roommates − they both lived in the residence, and both had keys to it. The appellant denied he was in possession of the cocaine found hidden in the brake parts cleaner can in the kitchen of the house. He denied using the kitchen regularly, as he always ate out. He admitted to possessing the marijuana that was found elsewhere in the residence. He denied the non-drug paraphernalia found in the search was his. He agreed that his personal documents were located in the kitchen during the search, but said he believed they were kept in a cupboard, not on the stove where the police said they found them. He testified that the $370 he had with him when arrested was from his employment at an auto repair shop, where he was paid in cash.

[23] The defence also called Tomek Gorka as a witness. He testified that he had previously purchased cocaine from Simpson at the residence. He had known the appellant for about two years before his arrest but had never purchased drugs from him or known him to sell drugs.

(b) The Trial Judgment

[24] The trial judge did not believe the appellant’s evidence and found it did not raise a reasonable doubt. The trial judge found that the cocaine and drug paraphernalia − the scale, the playing cards, and the plastic bag − were in plain view in the kitchen, although the cocaine was secreted in the brake parts cleaner can. The multiple short visits to the house were consistent with drug trafficking. He rejected the appellant’s denial that the scale and playing cards with cocaine residue were his, as this assertion contradicted an admission given by his original defence counsel, and there was no evidence the admission was made without instructions. He noted that Simpson had only arrived at the residence after the appellant was arrested. Although he did not believe Gorka’s evidence, he concluded that it was “possible” Gorka attended the residence to purchase cocaine from Simpson but “that does not mean that [the appellant] also did not traffic in cocaine from that location.” He therefore convicted the appellant of possession of cocaine for the purpose of trafficking. As the appellant had pled guilty to possession of marijuana, he was also convicted of that count.

[25] Although the trial judge was satisfied the $370 found in the appellant’s pocket when he was arrested was probably proceeds from the sale of cocaine, there was evidence that he was employed and being paid in cash, and therefore it was possible that the cash was derived from employment. He therefore found the appellant not guilty of the proceeds of crime count.

(c) Discussion

[26] A verdict is reasonable if it is one that a properly instructed trier of fact acting judicially could reasonably have rendered. To determine whether this has occurred, an “appellate court [is entitled] to re-examine and to some extent reweigh and consider the effect of the evidence … in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55 (citations omitted).

[27] In a circumstantial case, the trier of fact is required to consider other plausible theories and reasonable possibilities inconsistent with guilt, provided they are “based on logic and experience applied to the evidence or the absence of evidence, not on speculation”. But the Crown does not need to negative every possible conjecture which “might be consistent with the innocence of the accused”: Villaroman, at para. 37.

[28] The appellant argues that the verdict was unreasonable for two basic reasons.

[29] First, the drugs were not in plain view, but well concealed in a fake bottom of a can (that was in plain view). There was insufficient evidence to conclude that the appellant had knowledge and control over the hidden contents. Second, Simpson lived at the house and the trial judge accepted the possibility that others might have purchased cocaine from him at the appellant’s residence. Accordingly, another reasonable inference was that the drugs found concealed belonged exclusively to Mr. Simpson.

[30] I do not accept these arguments. An assertion of unreasonable verdict is not an invitation for an appellate court to simply retry the case. The evidence is reviewed “to determine not whether the appellate court would have convicted the appellant, but whether a reasonable trier of fact properly instructed and acting judicially could have convicted”: R. v. Mars, (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 3.

[31] The drawing of inferences from circumstantial evidence, and the evaluation of whether there is a reasonable inference other than guilt, are quintessentially fact-finding endeavours. In my view, the evidence was such that a reasonable trier of fact could find guilt to be the only reasonable conclusion on all the evidence.

[32] The frequent short duration visits were, on the evidence, consistent with and indicative of drug trafficking. The only person in the residence when nine such visits took place on the day of the appellant’s arrest was the appellant. The non-drug paraphernalia that was located in plain sight was consistent with a packaging station. These included playing cards and a weigh scale, both of which had cocaine residue and were found in the kitchen of his residence in the same vicinity as the can that contained the cocaine. The appellant admitted through original defence counsel that these items were his and the trial judge was entitled to reject his later recantation. The expert evidence was that the quantity of cocaine in the can was consistent with trafficking. The trial judge was entitled to draw the inference that the appellant was involved in trafficking cocaine from his residence and had knowledge and control over the cocaine in the can.

[33] The trial judge considered the evidence about Simpson. It was for the trial judge to decide whether it gave rise to a reasonable alternative inference inconsistent with the appellant’s guilt. He found that it did not. I see no reversible error in that finding.

(2) The Conflict of Interest Ground of Appeal

(a) The Fresh Evidence

[34] The appellant seeks the admission of fresh evidence relating to the conflict of interest issue. That evidence consists of affidavits of the appellant and original defence counsel, and transcripts of their cross-examinations.

[35] Where an allegation is made that trial counsel’s representation resulted in a miscarriage of justice “the interests of justice will generally require that this court receive otherwise admissible evidence relevant to that claim”: R. v. Widdifield (1995), 25 O.R. (3d) 161 (C.A.), at pp. 169-170; R. v. McDonald, 2022 ONCA 574, 416 C.C.C. (3d) 66, at para. 43.

[36] The interests of justice require the admission of the fresh evidence in this case. The respondent consents to its admission.

[37] The fresh evidence shows that original defence counsel began acting for the appellant shortly after his arrest in 2012. The appellant later asked her if she would help Simpson, who he said was his friend. Knowing that Simpson was arrested after he arrived at the appellant’s home and found to be in possession of drugs and a large amount of cash, she accepted a retainer in March 2013 to act for Simpson. She negotiated, on Simpson’s behalf, a plea of guilty and a sentence (a discharge). Her retainer for Simpson was completed in about October 2013. She then continued to act for the appellant through to the mid-point of his trial in May 2015.

(b) Discussion

[38] The appellant frames the complaint this way:

The Appellant submits that Simpson was a logical, alternative suspect for the drugs located in the house, which was ultimately the Appellant’s defence, after discharging trial counsel mid-trial and retaining a different lawyer to complete his trial.

Trial counsel should not have acted for both Simpson and the Appellant, without specific disclosure of the conflict and obtaining a waiver from both clients. She was in a conflict of interest. That conflict materially impacted the Appellant’s defence. Trial counsel’s representation of Simpson created a miscarriage of justice and thus necessitates a new trial.

[39] Where an allegation of conflict of interest is raised on appeal, the appellant is required to demonstrate two things: (i) that trial counsel was in an actual conflict of interest; and (ii) that the conflict impaired trial counsel’s representation, in the sense that counsel’s representation was, in fact, adversely affected. The latter question is judged by what happened, not what might have happened. The Court will find that a miscarriage of justice occurred only if both branches of this test are met: R. v. W.W., (1995), 25 O.R. (3d) 161 (C.A.), at p. 173; R. v. Faudar, 2021 ONCA 226, 403 C.C.C. (3d) 43, at paras. 59-61.

[40] In my view, neither branch of the test is made out.

[41] Simpson was charged with possession of oxycodone tablets, not with possession of any drugs found, or of the type found, in the residence. Original defence counsel explained that she accepted the retainer from Simpson believing there was no conflict because:

1. The appellant told her that the cocaine in the residence belonged to the appellant;
2. The appellant told her that he lived alone and this was confirmed by the disclosure;
3. Simpson was described by the appellant as a friend who happened to show up when the police were searching the residence and was not implicated in the search.

[42] The appellant disputes the contention that he told original defence counsel that the cocaine in the residence belonged to him. He does admit that he knew the defence advanced on his behalf by original defence counsel would be that the drugs were his but possessed for personal use. I need not, however, determine whether he went so far as to tell counsel the cocaine belonged to him, for the reasons below.

[43] Even on the appellant’s evidence, he never told original defence counsel that Simpson lived in the residence, was his roommate, or that the drugs found in the residence were Simpson’s. He attested that he withheld this information from original defence counsel intentionally because he wanted to protect Simpson, who had children. Only after original defence counsel was discharged mid-trial and new counsel was retained did he tell new counsel that Simpson was his roommate and that the cocaine belonged to Simpson.

[44] In my view, without information from the appellant that Simpson resided at the residence, or that the drugs were his, there was nothing that would have alerted original defence counsel to the existence of the alleged conflict because there was nothing to alert her that Simpson was a logical alternative suspect.

[45] In any event, I am not satisfied that, looking at what actually happened, there was any impairment of the manner in which the appellant was represented by counsel. The test is not what might have happened if the appellant told original defence counsel that Simpson was his roommate and that the drugs were his. The fact is that he did share this with new counsel after she was retained. At that point the Crown had not completed its case. There was a one-year period that passed before the trial continued. When it did, (i) the appellant testified that Simpson was his roommate, but he did not know what he did with his time; (ii) the defence called Gorka to testify that Simpson dealt drugs from the residence; and (iii) new counsel made the alternative suspect argument.

[46] Accordingly, no miscarriage of justice has been demonstrated. Original defence counsel did not “soft-peddle”, due to a conflict, any defence that she should reasonably have known about while she was acting for the appellant, and the defence was advanced by new counsel who was untainted by any relationship with Simpson.

(3) The Reasonable Apprehension of Bias Ground of Appeal

(a) Introduction

[47] Prior to trial, the Crown served an expert report of Det. Lafleur. On the morning of the first day of trial, original defence counsel gave a “concession” to Crown counsel about that report. The Crown called Det. Lafleur as a witness later that day. Early in her evidence, original defence counsel advanced a position about that report and its implications for her evidence. This led to certain exchanges between the trial judge and counsel, the delivery of a second report, further exchanges, a ruling about whether to adjourn the trial to allow time to prepare for cross-examination, a failed mistrial motion, the discharge of original defence counsel, and an adjournment to retain new counsel. I describe those events in more detail below, after first setting the procedural context.

(b) The Procedural Context for the Expert Report Issue

[48] Since the Crown intended to call expert evidence from Det. Lafleur, s. 657.3(3)(b) of the Code required it to deliver, within a reasonable period before trial, a copy of her report, or if no report was prepared, a summary of the opinion anticipated to be given by her and the grounds on which she based it. Although the Code does not specify what the report is required to disclose, a reasonable reading of the provision suggests that it cannot be less than what must be disclosed if there is no report (a summary of the opinion anticipated to be given by the expert, and the grounds on which it is based).

[49] If the requirements of s. 657.3(3)(b) of the Code are not met, s. 657.3(4) provides that the court, if requested, is to grant specific relief. That relief is an adjournment to allow time to prepare for cross-examination of the expert (although the length of the adjournment is not specified), ordering compliance with the requirement for a report or summary, and ordering witnesses to be recalled to give testimony related to that of the expert witness unless the court considers it inappropriate to do so.

[50] Sections 657.3(3) and (4) provide:

(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses,

(a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by

(i) the name of the proposed witness,

(ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and

(iii) a statement of the qualifications of the proposed witness as an expert;

(b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party or parties

(i) a copy of the report, if any, prepared by the proposed witness for the case, and

(ii) if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; and

(c) in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b).

(4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party,

(a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness;

(b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b); and

(c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony, unless the court considers it inappropriate to do so.

(c) The Exchanges and The Rulings

(i) Det. Lafleur’s First Report

[51] In August 2013, the Crown provided original defence counsel with a report (the “first report”) of Det. Lafleur. Although it was the subject of much debate before the trial judge, who was ultimately given a copy of it, the first report was not made an exhibit (lettered or numbered) at trial and it was not part of the appeal record. We are reliant for its contents on the descriptions of it in the trial record.

(ii) The Issue Arises on the First Day of Trial

[52] On the first day of trial, original defence counsel told Crown counsel that she “conceded the contents” of the first report. Later that day, Crown counsel called Det. Lafleur as a witness. At the outset of her examination, Crown counsel stated that he believed “the defence is conceding Ms. Lafleur is an expert”. Original defence counsel responded: “it is inherent in the fact that I conceded the contents of the report that she would be [an] expert.”

[53] After Det. Lafleur was asked some introductory questions, the trial judge asked for clarification of her area of expertise. Crown counsel submitted the area of expertise was “cocaine prices, cocaine uses, the difference between simple possession of cocaine and possession for the purpose of trafficking, indicia of use, and indicia of trafficking”.

[54] Original defence counsel was asked if she agreed. She said she did only in part. She then advanced what was her fundamental point. The first report expressed an opinion about crack cocaine, not powder cocaine. She stated that in:

[V]arious areas of [the first report] … [t]here is no reference to anything above and beyond crack cocaine. There is no explanation with respect to, for example, rate of consumption of cocaine hydrochloride. So I’m not content that this officer gives any testimony as pertains to cocaine hydrochloride, which is the subject of this trial, because there is nothing in [the first report] that speaks to it. I can be even more precise if Your Honour needs that. I’m specifically speaking of rates of consumption … affects of cocaine … street value, all [of] which form the basis for conclusion and opinion.

[55] The trial judge asked original defence counsel if the Crown had been alerted to a position that she did not concede the witness’ expertise in the field of powder cocaine. She responded that they had not had that discussion, explaining that “[t]here is nothing in her expert report that suggests she has an opinion about it…”.

[56] The trial judge enquired about whether the issue was raised at a pre-trial conference. The pre-trial conference form indicated that admissibility of intended Crown expert evidence would be contested by the defence on the basis that the witness was not an expert.

[57] Original defence counsel offered an explanation of her concession and the position about the first report. She stated that she had “only conceded the contents of the [the first report this] morning”, which she followed by saying the Crown should be aware of its contents.

[58] Crown counsel responded by stating that defence counsel’s position was “at the same time ... this expert is an expert and also that she’s not…”. He proposed simply proceeding with a voir dire to qualify the expert “as we would have if she hadn’t conceded”. Original defence counsel replied that “if she is qualified by this honourable court to testify with respect to cocaine hydrochloride, she can’t simply give viva voce evidence in the absence of an expert report which requires 30 days notice”.

[59] Crown counsel then stated that the first report had many references to cocaine as well as crack cocaine, therefore he was “not sure she’s accurate about that”, that the first report was provided some time ago, and that original defence counsel “can’t be surprised by what’s going to be said”. To this, original defence counsel responded that it was “the Crown’s case to prove. It’s not up to the defence to call the Crown Attorney and say, ‘Hey, by the way, your expert report does not include the substance which is the subject of this litigation’. I have conceded the contents of this specific report … [which] does not speak to, nor is there any conclusion or opinion of this officer with respect to the issue of possession for the purpose of trafficking in cocaine hydrochloride, which is powder cocaine”. She rejected the suggestion that she should not be surprised, stating she was entitled to rely on what the first report contained. She went on to indicate that she was content for the Crown to provide the first report to the trial judge, reiterating that “there is nothing in the report that speaks to … possession for the purpose of trafficking in cocaine powder, which is very distinct from coke, crack cocaine. So I’m conceding the contents of this report. In fact, my submission is he [Crown counsel] does not have evidence to present to you.”

[60] The entire discussion above took place without the trial judge having been provided with the first report. When court resumed after a break, discussion about the first report continued, again without the trial judge having a copy of it. Crown counsel acknowledged that “it’s certainly true that the report is more crack heavy than cocaine heavy, powder cocaine heavy”, but he maintained that it was sufficient to “permit the other parties to inform themselves about that area of expertise”. Original defence counsel re-iterated that the “entire conclusion is about crack cocaine. There’s no, there’s nothing in this report about powder cocaine…”.

[61] Eventually, the trial judge clarified the issue as one of original defence counsel taking the position that the Crown was attempting to elicit evidence from the witness that was not contained in the first report, in violation of s. 657.3(3) of the Code. He asked if the Crown could have a new report ready for the next day, going on to say to that he was not trying to “tell anybody what to do” as the Crown may be of the view that the first report is satisfactory, but reminding the Crown that it was faced with an argument that it was proposing to lead evidence that was not covered by the first report. Crown counsel observed that there would likely be a request for an adjournment upon the delivery of a new report, to which the trial judge responded that he did not want to adjourn the trial and the length of any requested adjournment would be up to him. Crown counsel expressed hesitation about whether he could have a new report by the next day or whether he would have to find someone else to prepare a report. After the trial judge pointed out that Det. Lafleur was “sitting right here” and had been described by the Crown as an expert in “cocaine generally”, he asked why another expert would be needed. After speaking to Det. Lafleur, Crown counsel indicated a new report would be ready the next day.

(iii) The Issue Develops on the Second Day of Trial

[62] At the opening of the second day of trial, Crown counsel advised the trial judge that he had served a new expert report of Det. Lafleur (the “new report”), and that the defence would be requesting an adjournment. When asked how different the new report was from the first report, Crown counsel stated it was “[n]ot a whole lot different” but went on to say that “[t]here were many references to crack cocaine in the original report, which had been clarified…”. Original defence counsel disagreed, stating that, in contrast to the new report, there “was nothing in the [first report] that opines or concludes anything about cocaine hydrochloride”.

[63] The trial judge asked to see both reports, as he was being told different things about their content. Original defence counsel offered up the page of the first report that had its conclusion, indicating that she was prepared to provide the whole report but did not have a clean copy with her at the time. The trial judge was critical of counsel for saying that she was prepared to provide the whole report but just offering up one page, and brushed aside her statements that it was the Crown who had created the problem and who was not answering the question about the differences in the reports.

[64] The trial judge stated:

No. In all fairness, we are here because you chose to play cute, and you chose to take the position … without telling anyone that you were keeping your fingers crossed behind your back saying, ‘I concede the expertise of the witness, and I have no issue about the contents of the report … and only because I posed the question [about the witness’ area of expertise] does it come out that that’s not your position at all.

[65] The trial judge went on to say that original defence counsel had told Crown counsel that he did not have to worry about qualifying his expert, that she conceded she’s an expert, only to then “find out that you have a little subtle position with respect to her expertise. That’s why we’re here”.

[66] Original defence counsel maintained that there was nothing subtle about the difference between crack cocaine and powder cocaine, and that the first report only opined about crack cocaine.

[67] The trial judge was given both reports, and a discussion ensued between original defence counsel and the trial judge about the first report. Original defence counsel drew the trial judge’s attention to the ultimate conclusion on page 16 of the first report: “It is my opinion that the crack cocaine found in the residence of [the appellant] is consistent with possession of cocaine for the purpose of trafficking.” The trial judge responded that this was “[c]learly a mistake” because original defence counsel knew the expert was dealing with what was found at the appellant’s residence, and the evidence was that it was powder cocaine.

[68] Original defence counsel pointed out the differences between crack and powder cocaine, including some she had elicited in the examination of prior witnesses. She returned to the absence of any opinion about powder cocaine in the first report and asserted that such an opinion was provided for the first time in the new report that she had just received. She asked for time to review the new report with an expert, saying she had three she could approach, but did not believe that could be accomplished that afternoon.

[69] The trial judge responded by saying:

Well, look, you chose to play the game the way you did … [a]nd keep your cards very close to your vest … chose to rely on an obvious mistake in a report where the word ‘crack’ was inserted in front of the word, ‘cocaine’ when you know it’s a case about powdered cocaine. You live by the sword, you die by the sword. You must have been aware of the possibility that what has happen[ed] … would happen … The mistake would be corrected, and I would expect that a responsible counsel, if they wanted to review a report, such as this, would already have done so and say, ‘Look, it’s obvious that there’s just a mistake but I’m going to try and trick the Crown and lull the Crown into a false sense of security, but if I’m not allowed to do that, what’s your opinion if you take out the word, ‘crack’ from in front of the [word] ‘cocaine’ in the conclusion?’…or you would have made arrangements to have somebody available on short notice to allow you to consult that person.

[70] When original defence counsel referred to the burden on the Crown to provide an expert report dealing with powder cocaine, the trial judge expressed the view that the Crown had done that in the first report, suggesting that original defence counsel was focussing on one word [crack] in one paragraph of the first report as opposed to considering the “entire contents of the report”. He pointed to the first page of the first report that stated: “Noted item C: 17.07 grams of powdered cocaine in the false bottom of a can located on the top of the stove” and asked how it could be that that was not a reference to what was seized from the appellant’s residence.

[71] Original defence counsel responded by pointing out a number of other places in the first report where crack cocaine was referred to, including the discussion of the “Rate of Consumption” (which only addressed crack cocaine), “Effects of Cocaine” (in which the expert referred only to her conversations with crack cocaine users), “Street Value” (which was discussed under a heading “Crack Cocaine”), and “Quantity” in which the expert said “[t]ypically, I would only expect to find a crack cocaine user”, as well as the ultimate conclusion which was about crack cocaine. She also referred to the expert in one place of the first report having described the quantity of drugs seized as 22 grams, not 17.07. She argued that this “isn’t about taking advantage of her accident[al]ly using the word, “crack” in her final conclusion … all throughout this [first] report, she’s opining about the rate of consumption, the pricing, and her experience when speaking to users of crack cocaine, and she refers repeatedly to the use of crack cocaine, which is not the subject of this trial….Now her new report is tailored to speak to the rate of consumption, the pricing, and her opinion about powder.”

[72] The trial judge observed that sometimes the word cocaine was used in the first report without a modifier. He referred to the following sequence of statements − “it is my opinion that the accused is in possession of cocaine for the purpose of trafficking” followed later by “I only expect to find a crack cocaine user to have possession of a small quantity of drugs” followed later by “in this case over 17.[0]7 grams of cocaine was located in the [appellant’s] residence”. He expressed the view that since the drugs seized from the appellant’s residence were powder cocaine, the unmodified references to cocaine in the first report were to powder cocaine despite the fact the expert said “crack” cocaine in her final conclusion and elsewhere in her report.

[73] The trial judge asked original defence counsel what she was requesting and she responded that she wanted a 30 day adjournment, relying on s. 657.3(3) of the Code, so that she could secure an expert, which she had not done because there had not previously been the need. The trial judge asked the Crown to call Det. Lafleur, indicating he would rule on the adjournment request after her examination-in-chief.

[74] After Crown counsel examined Det. Lafleur about her qualifications, original defence counsel declined to cross-examine her on that topic “on today’s date”. The trial judge qualified Det. Lafleur as an expert in the field of cocaine prices, uses, packaging, difference between use and trafficking of cocaine and indicia of trafficking in cocaine.

[75] Crown counsel then elicited Det. Lafleur’s opinions on a number of matters including: an average user of powder cocaine would use up to 3.5 grams in a day; a person with possession of 17.07 grams of powder cocaine is indicative of trafficking, not personal use; baggies and plastic wrapping are types of packaging used for small amounts of powder cocaine; playing cards found close to powder cocaine could be used to cut it; the value of 17.07 grams of powder cocaine was $1,700; and a starter pistol, weigh scale and frequent short visits by motor vehicles to the residence where powder cocaine was found were indicative of trafficking.

[76] Crown counsel did not ask Det. Lafleur anything about her first report. After Crown counsel completed his questions, the trial judge asked Det. Lafleur about it. Specifically, he asked her why she concluded that “the crack cocaine found in the residence of [the appellant] is consistent with possession of cocaine for the purpose of trafficking.” Det. Lafleur responded that it was an error, that crack cocaine and powder cocaine were different, that it “could have been a cut and paste error”. She also stated that her references in the first report to 22 grams, and to the typical amount a crack cocaine user would possess, were also errors. Although she said she noted the errors after “reading it over”, she was not questioned on when that occurred.

[77] The trial judge then heard submissions about the defence request to adjourn to consult an expert to cross-examine. The thrust of original defence counsel’s submission was that the first report did not comply with s. 657.3(3) of the Code and the new report was just received, necessitating time to consult an expert. Original defence counsel responded to the trial judge’s question about why she did not consult an expert on the basis that the reference in the first report to crack cocaine might be a mistake by saying that it would have been difficult to convince Legal Aid to provide funding to obtain expert input on an opinion that had not been given by speculating that its absence was a mistake.

[78] The trial judge was critical of original defence counsel’s submission that the court should be concerned about why the Crown did not realize their report was inaccurate. He responded: “Maybe because you told them they didn’t have anything to worry about. You conceded the expertise of the expert … the content of the report”. And he was critical of her submission that because the first report opined about crack cocaine “it had nothing to do with what was before the court, which is my job”. He responded: “Would you stop saying it had nothing to do with the case before the court. It had a couple of little obvious errors, but you decided to play the game and hope you could catch the Crown with his proverbial pants down. It was clear and obvious that the report was speaking to the 17.07 grams of powdered cocaine that were seized…”.

[79] The trial judge went on to describe the submission that original defence counsel had made the previous day, on the basis of which he gave the Crown an opportunity to deliver a new report, as a “misrepresentation”. Original defence counsel sought to clarify that she had submitted that the conclusion in the first report had nothing to do with powder cocaine, but the trial judge insisted she had said “the report has nothing to do with powdered cocaine” (emphasis added). He later added that she had said the first report “did not speak to anything about powdered cocaine.” The trial judge also said that original defence counsel knew, from the minute she saw the reference to crack cocaine in the conclusion of the first report, that “it was a mistake”.

[80] After hearing from the Crown in opposition to any adjournment, the trial judge granted an adjournment of effectively one day. In his reasons, he stated that while the first report did make reference to crack cocaine, a review of the entirety of that report made it clear that Det. Lafleur would be giving her opinion concerning the purpose of possession of 17.07 grams of powder cocaine found in the appellant’s residence. He said that defence counsel had seized on the word “crack” in the conclusion of the first report, that it was clear and obvious this was a careless error on the part of Det. Lafleur, and that it was unreasonable for defence counsel to rely on it.

[81] The trial judge stated that while he did not excuse the Crown for not detecting “this obvious error”, he noted that original defence counsel conceded the purpose of the possession for the preliminary inquiry, represented at the pre-trial that the only expert witness issue was whether the expert could be qualified, and then conceded expertise and the content of the first report “sometime in advance of trial”. He then stated: “I conclude that these were conscious decisions made in the hope that the errors contained in [Det.] Lafleur’s report would not be detected until it was too late”.

(iv) The Third Day of Trial —The Mistrial Motion

[82] When the trial resumed after the one-day adjournment, original defence counsel moved for a mistrial, asserting there was a reasonable apprehension of bias on the part of the trial judge. She relied on the trial judge’s statements that she had misled the court, lulled the Crown, “played cute” (which she said could be construed as a “gender specific remark”), and failed to interview a witness.

[83] The trial judge dismissed the motion. To address the complaint about his statement that original defence counsel had misled the court, which he considered to be at the heart of the motion, he referred to two parts of the first report that he said referenced powder cocaine expressly (one referring to the 17.07 grams seized at the appellant’s residence, and another which he called, without detail, an entire section dealing with cocaine hydrochloride). He then stated that throughout the report the author distinguished between crack cocaine and cocaine, and expressed the view that any unmodified reference to cocaine was to cocaine hydrochloride. He then referred to certain parts of the report about drug paraphernalia and the manner of consumption that mentioned both crack cocaine and powder cocaine. He referred to page 13 of the report that contained an opinion that the appellant was in possession of cocaine for the purpose of trafficking and a reference to a quantity of 17.07 grams of cocaine on the same page, concluding those references must be to powder cocaine.

[84] He then referred to parts of the first report that described the cocaine that was seized as crack cocaine, stated that it did so erroneously, and said the ultimate conclusion in the last sentence of the first report was the “most egregious example of that error.” He did not refer to any of the other parts of the first report that original defence counsel had cited as indicating that the conclusions about rates of consumption, the pricing, and the author’s experience when speaking to users, were only about crack cocaine. He did not refer to the Crown’s concessions that the first report was “more crack heavy than…powder cocaine heavy”, or that it contained “many references to crack”. He repeated his conclusion, in limiting an adjournment to one day, that the reference in the first report to crack cocaine was a clear and obvious error.

[85] The trial judge concluded on the misrepresentation issue by saying “I will leave it to another court to decide if I was in error in stating that [original defence counsel] misled the court when she stated that there was no reference [in the first report] to cocaine hydrochloride.”

[86] He then briefly addressed the other grounds. He said that the comment about lulling was based on his surprise that original defence counsel would admit the first report and the qualifications of the expert rather than stating from the outset that the expert was not qualified and the content of the report inadmissible. He said his use of the word “cute” was a “colloquial term” referring to “someone attempting to secure a tactical advantage by being less than forthright”. And he said he remained of the view that original defence counsel should have sought to interview Det. Lafleur or consulted an expert in advance of trial because “it must have been contemplated as a possibility that the trial judge would allow the expert to testify notwithstanding alleged deficiencies in the [first] report.”

[87] Finally, the trial judge rejected the proposition that criticism of counsel was evidence of bias against the client, and said it was not suggested he was biased toward the appellant.

[88] After that ruling, the trial judge adjourned the matter to the following day to allow original defence counsel to get instructions.

(v) The Fourth Day of Trial — Discharge of Counsel and Adjournment

[89] When the matter returned to court the following day, defence counsel brought a motion to be removed as counsel of record as she had been discharged by the appellant. New defence counsel appeared. She indicated that: (i) she had been retained to request an adjournment, and (ii) if one were granted she expected to be retained to continue the trial. The trial judge asked the appellant if he was ready to continue with his trial. The appellant reiterated his request for an adjournment that had been made by his new counsel:

MR. MARRONE: I would like to have a fair trial, so I would like an adjournment.

THE COURT: You'd like a fair trial.

MR. MARRONE: Yes.

THE COURT: Are you suggesting that you haven't had a fair trial?

MR. MARRONE: I have no idea what's going on. I'm so confused with this situation.

THE COURT: Well, you must have an idea what's going on, you just fired your lawyer.

MR. MARRONE: Yeah. You've made me feel that she wasn't doing it proper maybe and I don't know if she's fair, if she's going to be treated fair towards me, for me, with you. I mean, you're not treating her fair and then maybe I'm not going to get that fair treatment because she’s not going to get fair treatment, and then maybe you're not going to give me fair treatment. I don't know.

[90] The appellant, through new defence counsel, provided a waiver of any argument based on delay during the term of the adjournment. The trial judge adjourned the trial, which resumed over a year later.

(d) Legal Principles

[91] Where the issue is reasonable apprehension of bias, an appellate court reviews the matter anew. No deference is owed to the lower court’s determination: R. v. G. (P.), 2017 ONCA 315, 138 O.R. (3d) 343, at paras. 20-25.

[92] It is a fundamental right of a party to a judicial proceeding that the judge is, and appears, impartial. Bias is the inverse of impartiality. It “denotes a state of mind that is in some way predisposed to a particular result or that is closed with respect to issues”. When bias is found to be present in a judicial proceeding it taints it completely and is not cured by the correctness of the ultimate result. Actual bias need not be shown (and is here not suggested). But a trial will be rendered unfair if the words or actions of the trial judge give rise to a reasonable apprehension of bias to the informed and reasonable observer: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 81, 94, 100, and 105.

[93] The test to determine whether a reasonable apprehension of bias is present is this: would a reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could decide the case fairly: Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21.

[94] The test is stringent, as judges are presumed to be impartial. "There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption": R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59; R. v. S., at para. 117.

[95] As this court stated in R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at para. 85:

When assessing whether the actions of a trial judge display a reasonable apprehension of bias, the conduct of the trial judge must be viewed in context. In R. v. Stewart, [1991] O.J. No. 81, 62 C.C.C. (3d) 289 (C.A.), appeal quashed, [1991] S.C.C.A. No. 110, Doherty J.A. said, at p. 320 C.C.C.: “It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettable and of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness.”

[96] Not all comments by a trial judge, even if troubling in some respects, can or should be equated with bias: R. v. S., at para. 100. This point is especially germane when it is comments about counsel that form the basis for the allegation of bias. Criticism of counsel is not simply equated with bias against the client. As Trotter J. (as he then was) noted, comments must be judged from the standpoint of what they say about whether the judge was disposed to decide fairly between the parties, not whether the judge was unimpressed by counsel: R. v. Czerniak, 2010 ONSC 5067, 259 C.C.C. (3d) 353, at para. 17.

(e) Discussion

[97] The issue that arose from the first report had two aspects. Did it comply with the requirements of s. 657.3(3) by providing a summary of the opinion that Det. Lafleur was anticipated to give, and the grounds for that opinion? And if it did not, what relief under s. 657.3(4) was the trial judge to grant?

[98] The question is not whether the trial judge decided either aspect of the issue correctly. It is whether his dealing with the issue gave rise to a reasonable apprehension of bias. While dealing with the issue, three characterizations of original defence counsel advanced by the trial judge came to dominate the discourse as well as his adjournment and mistrial rulings. These characterizations, analyzed below, lead to the conclusion that the trial lost the appearance of fairness.

(i) Accusations of Lulling

[99] The judge made a number of comments which can be conveniently summarized as accusing original defence counsel of “lulling” the Crown to feel secure or confident in a position about the expert evidence in order to obtain an unfair tactical advantage - with “lulling” connoting deceptive or less than forthright conduct.

[100] The trial judge said to original defence counsel: “you chose to play cute, and you chose to take the position … without telling anyone that you were keeping your fingers crossed behind your back saying, ‘I concede the expertise of the witness, and I have no issue about the contents of the report…”. He accused her of following a strategy premised on “Look, it’s obvious that there’s just a mistake but I’m going to try to trick the Crown and lull the Crown into a false sense of security…”. He stated that the Crown’s failure to notice and correct deficiencies in the first report was “Maybe because you told them they didn’t have anything to worry about. You conceded the expertise of the expert … the content of the report … you decided to play the game and hope you could catch the Crown with his proverbial pants down.” He explained his choice of words – “playing cute” − as intended to describe “someone attempting to secure a tactical advantage by being less than forthright”. Referring to the position taken by original defence counsel at the preliminary inquiry, the description of the expert issue at the pre-trial, as well as the concession on the first day of trial, he said that they were consciously designed to prevent the Crown from discovering any deficiencies in the first report until it was “too late”.

[101] It would be one thing if the trial judge made these comments as an adjudication of an assertion made by the alleged victim of the lulling, the Crown. But the accusation of lulling was not made by the Crown. It came solely from the trial judge.

[102] The Crown never asserted that the position of the defence at the preliminary hearing, or the description of the issue relating to expert evidence at the pre-trial conference, had anything to do with the way the first report read, or the failure to detect anything in it that needed correcting before trial. It was the trial judge, on his own, who inquired about these matters. He was told that for the preliminary hearing, the purpose of possession had been conceded. There was no suggestion that this concession went beyond the preliminary hearing, or in any way affected what the Crown would need to prove at trial or its obligations concerning the expert evidence it would call. The pre-trial conference form said that the admissibility of expert evidence would be opposed on the basis of the expertise of the expert.

[103] Nor did the Crown ever assert that it had been lulled, or that it could have been, by original defence counsel’s concession at the beginning of trial. The concession about the first report and of its author’s expertise, according to original defence counsel and not contradicted by the Crown, was given on the morning of the first day of trial. The position of original defence counsel that the first report opined and concluded on crack cocaine, not powder cocaine, and that there was an implication or consequence that flowed from that, came later that same day.

[104] It is difficult to see how the Crown could have been “lulled” by the concession, in light of the relatively short time that elapsed between when the concession was given and when original defence counsel’s fuller position was advanced.

[105] Crown counsel pointed to the length of time original defence counsel had had the first report, suggested it gave adequate notice given the issues in the case, suggested there should be no surprise about what Det. Lafleur would say, and pointed out a seeming inconsistency between the concession at the opening of trial and the position that the first report was deficient. But Crown counsel never indicated that he had taken, or refrained from taking, any steps because he had received a concession in the morning and only learned of original defence counsel’s more “subtle” position (to adopt the trial judge’s term) later in the day. Crown counsel never filed, or indicated that he wanted to file, the first report as evidence on the basis of the concession, let alone as the only evidence from Det. Lafleur, so the concession could not have limited the evidence he was trying to elicit. After receiving the concession, he called Det. Lafleur to testify, intending to elicit her opinions in that way. When he learned of original defence counsel’s complete position about the first report − that it did not express a conclusion on powder cocaine − he did not suggest he had been prejudiced. He proposed to simply proceed as though no concession had been given.

[106] Nor is it clear how original defence counsel’s strategy could have been designed to “lull” the Crown “until it was too late”. The trial judge’s question about the scope of Det. Lafleur’s expertise led to original defence counsel’s fuller position being elucidated. But the same would no doubt have occurred shortly afterward as original defence counsel would have had to object if Det. Lafleur expressed an opinion about powder cocaine. The issue about whether the first report complied with s. 657.3(3) in that eventuality would have similarly crystallized. If non-compliance were found, it would not be “too late” in the sense of the Crown somehow losing the ability to lead its expert evidence. The remedies in s. 657.3(4) of the Code for non-compliance (adjournment, further report, recalling witnesses) do not include evidentiary exclusion: R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577, at paras. 145-46.

[107] In short, the trial judge made an unjustified finding that original defence counsel had intentionally lulled, or was attempting to lull, the Crown into a false sense of security about the evidence of Det. Lafleur until it was “too late” to fix any problem. And he made the finding without any argument or suggestion by the Crown to that effect.

(ii) Seizing Upon an Obvious Mistake

[108] Similar concerns apply to the trial judge’s statement, on the second day of trial, that the reference or references to crack cocaine in the first report were “[c]learly a mistake” – that is, not only a mistake but one that was known to original defence counsel. He repeated the conclusion as he criticized her decision not to get expert input:

“… and I would expect that a responsible counsel, if they wanted to review a report, such as this, would already have done so and say, ‘Look, it’s obvious that there’s just a mistake but I’m going to try and trick the Crown and lull the Crown into a false sense of security, but if I’m not allowed to do that, what’s your opinion if you take out the word, ‘crack’ from in front of the road [sic] ‘cocaine’ in the conclusion’ … [o]r you would have made arrangements to have somebody available on short notice to allow you to consult that person”.

[109] When defence counsel advanced the position, on the first day of trial, that the first report expressed a conclusion about crack cocaine, not powder cocaine, Crown counsel did not make the argument that this was a mistake. To be sure, he initially took the position that the first report had references to powder cocaine as well as crack cocaine such that defence counsel “can’t be surprised” by what’s going to be said. He later said that the first report was “more crack heavy than … powder cocaine heavy” yet argued it was still sufficient for opinion evidence to be led about powder cocaine. But he never said the crack cocaine references were included by mistake. And when the trial judge offered the opportunity to provide a new report, Crown counsel expressed some hesitation as to whether one could be delivered the next day or whether he would have to find another expert, not that there was simply an obvious mistake that could not be relied on. Crown counsel delivered a new report − he did not choose to rest on the first report.

[110] When Det. Lafleur testified, the Crown did not seek to elicit a “mistake” explanation about the first report from the expert. She was asked no questions by the Crown about why the first report read as it did. The trial judge himself asked questions of Det. Lafleur about why the first report made certain references to crack cocaine, and she responded that they were a mistake, but only after the trial judge had expressed his own conclusion that the references were an obvious mistake [3].

[111] In his adjournment ruling, the trial judge referred to the defence having seized on the word “crack” in the conclusion of the first report when it was “clear and obvious” that this was a “careless error” on the part of Det. Lafleur and it was unreasonable for the defence to seek to rely on it. He was entitled to make the finding that the reference to crack cocaine was an error on the basis of Det. Lafleur’s evidence. But, problematically, it was a conclusion he already expressed before he heard that evidence.

[112] In summary, the trial judge, on his own, determined the crack cocaine references were a mistake, without the Crown having offered that explanation, and before the expert had even given that explanation.

[113] The trial judge then attributed knowledge that the references were a mistake to original defence counsel, over her protestations. Although he sometimes expressed himself objectively – that the errors were obvious and it was unreasonable to rely on them – he went further, attributing subjective knowledge of the mistaken nature of the references to her. In his adjournment ruling he described her strategy as having involved “conscious decisions made in the hope that the errors … would not be detected until it was too late”.

[114] In my view, the trial judge should not have commented on defence counsel’s subjective belief. The Crown’s responsibility, under s. 657.3(3)(b) of the Code was to deliver a report that disclosed Det. Lafleur’s anticipated opinion and the grounds for it. The first report either complied or it did not, a matter that is determined independently of the subjective belief of counsel who received it. If it complied, no remedy under s. 657.3(4) was appropriate. If it did not comply, it is not a precondition to seeking a remedy under s. 657.3(4) of the Code that a party or its counsel be subjectively surprised by the non-compliance. That does not mean that the existence of obvious errors in a report are not relevant to the issue of compliance, or to the remedy to be given. But those are objective questions - judged from the perspective of what would be obvious to a reasonable counsel in the circumstances. Subjective views are irrelevant.

(iii) Misrepresentation to the Court

[115] Finally, the trial judge’s conclusion that original defence counsel misrepresented the contents of the first report on the first day of trial, and misled the court, was an unjustified characterization of advocacy.

[116] When the trial judge told original defence counsel of his view that she had misled him by saying there was nothing in the first report about powder cocaine, she said she had been speaking of the opinion and conclusion. The trial judge rejected that, but in my view he ought not to have done so.

[117] The initial submission of original defence counsel about the first report made the targeted submission that it dealt with crack cocaine in “various areas” and in specific parts that “form the basis for conclusion and opinion”. She said that in:

[V]arious areas of [the first report] ... [t]here is no reference to anything above and beyond crack cocaine. There is no explanation with respect to, for example, rate of consumption of cocaine hydrochloride. So I’m not content that this officer gives any testimony as pertains to cocaine hydrochloride, which is the subject of this trial, because there is nothing in [the first report] that speaks to it. I can be even more precise if Your Honour needs that. I’m specifically speaking of rates of consumption…affects of cocaine…street value, all [of] which forms the basis for conclusion and opinion. [Emphasis added.]

[118] Although original defence counsel did at times (for example in the above quoted passage) say things like “there is no reference to anything above and beyond crack cocaine” and “there is nothing in the expert report that speaks to [powder cocaine]”, those statements, read in context, were references to the “various areas” of the first report she was contending were material to the opinion and conclusion, which she went on to more precisely delineate.

[119] Similarly, when Crown counsel referred to the first report being “more crack heavy than … powder cocaine heavy” but still sufficient, original defence counsel responded that the “entire conclusion is about crack cocaine. There’s no, there’s nothing in this report about powder cocaine” (emphasis added). The more expansive second statement must be read in light of the first. Section 657.3(3) of the Code requires a report that describes the opinion − the conclusion − that the expert is going to give and the grounds for it. Since the argument was about whether the first report was sufficient compliance with that section, it makes sense to view the parties’ advocacy as pertaining to that issue.

[120] The trial judge, upon receiving the first report, was free to ultimately disagree with original defence counsel’s interpretation and the significance of what was said about both types of cocaine, including the significance of where in the report references to either were made. But advancing an interpretation that is rejected is different than making an intentional misrepresentation. On the first day of trial, the trial judge allowed the debate about the first report to take place without insisting that it be put before him. Given that service of the report was the Crown’s responsibility, the Crown ought to have been required to provide the trial judge with the report immediately so that the issue of whether the Crown was in compliance with its obligations under s. 657.3(3) could be evaluated. Original defence counsel indicated on the first day that she wanted the report put before the trial judge. This makes it even more unlikely that she was engaged in intentional factual misrepresentation of its contents.

(f) Conclusion on Reasonable Apprehension of Bias

[121] The critical question is not whether counsel was fairly criticized or fairly treated, but whether the criticisms were advanced in a way that gave rise to a reasonable apprehension that the trial judge was predisposed to one side. In my view, they were. The issue that arose from the first report occupied considerable trial time. The trial judge made repeated comments that original defence counsel was acting in a dishonest way toward the Crown and had misled the court. He adopted positions that were not advanced by the Crown, and drew conclusions of fact before there was an evidentiary basis. Although there was no actual bias, the trial lost the appearance of fairness.

III. CONCLUSION

[122] I would allow the appeal from the possession for the purpose of trafficking conviction and direct a new trial.

Released: November 9, 2023 “J.S.” “B. Zarnett J.A.” “I agree. Janet Simmons J.A.” “I agree. David M. Paciocco J.A.”

[1] The appellant was convicted, and received a one-day concurrent sentence, on the possession of marijuana count.

[2] The supplementary notice of appeal referred to a sentence appeal. No submissions were made about sentence, and in light of the disposition of the conviction appeal it is unnecessary to address it.

[3] The Crown, in opposing the adjournment request, referred to Det. Lafleur’s evidence of mistake.