Court File and Parties

Court File No.: Scarborough 10003753

Date: 2012-03-23

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Clinton McQueen

Before: Justice S.E. Marin

Heard on: March 19, 2012

Reasons for Judgment on the Motion to Re-open released on: March 23, 2012

Counsel:

Peter Fraser, for the Crown

Michael Strathman, for the accused Clinton McQueen

S.E. MARIN J.:

[1] Introduction

[1] After a judge alone trial, I found Mr. McQueen guilty of the summary offence of assault causing bodily harm. Mr. McQueen was self-represented for most of his trial. I revoked Mr. McQueen's bail and remanded him to custody pending sentencing. On the sentencing date, Mr. McQueen brought an application through his new lawyer to re-open the trial on the grounds that trial fairness requires such an exceptional remedy.

Background

[2] The allegations in this case are relatively simple. Melisa Wice and Mr. McQueen were at their apartment on the Danforth with Frank Scott, Ms. Wice's ex-partner. All three drank copious amounts of beer over the afternoon of April 2, 2010. Mr. Scott left at one point and returned very intoxicated. Ms. Wice believed he had gone to smoke crack because he was an addict. Mr. Scott became increasingly belligerent and obnoxious. Both Ms. Wice and Mr. McQueen were angry with him and repeatedly asked him to leave. Mr. Scott did not leave. Ms. Wice testified that Mr. McQueen snapped, grabbed a hammer and struck Mr. Scott twice on the head. Ms. Wice disarmed Mr. McQueen and her neighbour, Martin Walters, took the hammer from her and placed it inside his trailer. Mr. Scott and Mr. McQueen wrestled briefly on the lawn. Ultimately, Mr. Scott wandered off, bleeding heavily from two cuts to his head that he later had sutured at the hospital. Mr. McQueen was arrested. He had a cut over his eye and his eye was swollen. Police recovered the hammer from a neighbour's trailer.

[3] As might be expected, there is a dynamic between the parties that underlies these events. Ms. Wice had been intimate with both men. She testified that both romantic relationships were over although she continued to share an apartment with Mr. McQueen.

[4] By the time of trial on September 30, 2011, police could not find Mr. Scott. The Crown indicated that despite the absence of the complainant, the prosecution would proceed. The Crown would rely on the evidence of Ms. Wice and Mr. Walters to prove its case. Both were present and prepared to testify. Mr. McQueen was represented by experienced defence counsel at the outset of the trial. I was advised that counsel had reached an agreement that a voir dire would not be necessary in relation to Mr. McQueen's statement to police and Mr. Scott's medical records could simply be filed without calling the physician who prepared them. It was anticipated that these concessions would shorten the trial. Ms. Wice was called as the first witness. After the cross-examination of Ms. Wice was completed, Mr. McQueen discharged his lawyer. The trial could not continue because Mr. McQueen asked for and was given time to retain a new lawyer. For a period in excess of three months, Mr. McQueen tried without success to persuade Legal Aid to approve a change in his solicitor. Ultimately, Mr. McQueen chose to continue his trial, representing himself.

[5] On the first continuation date, January 12, 2012, I explained trial procedures to Mr. McQueen. Matters that had been the subject of agreement between counsel when the trial began were revisited, including the voluntariness of Mr. McQueen's statement to police upon his arrest, the need to call the officer who seized the hammer from Mr. Walters' trailer and the introduction of Mr. Scott's medical records. Mr. McQueen applied for an adjournment to recall Ms. Wice for further cross-examination. Mr. McQueen said that his lawyer had failed to properly question Ms. Wice about her use of drugs and alcohol; her animus towards Mr. McQueen; and Mr. Scott's propensity for violence. Mr. McQueen was advised that if he placed Mr. Scott's violent character in issue, the Crown could lead evidence of Mr. McQueen's propensity for violence whether he testified at his trial or not. Mr. McQueen said that he was not going to testify. He was given the opportunity to speak with duty counsel about these issues and about his decision to testify or not. Ultimately, at her request, experienced duty counsel was relieved of the responsibility of providing instruction to Mr. McQueen because of his contentious attitude and his clear distrust of the advice he was given. Mr. McQueen was adamant that he was not going to testify.

[6] I refused Mr. McQueen's application to recall Ms. Wice. The trial continued with the evidence of Constable McNevin, the officer who seized the hammer. The medical records were filed as a lettered exhibit, subject to proof of service of the notice under the Canada Evidence Act through an officer who was unavailable that day.

[7] Mr. Walters had not returned to court because of health issues. Mr. McQueen wanted to hear from him. The trial was adjourned to permit the Crown to re-subpoena Mr. Walters and to secure the attendance of the missing officer. Police were also tasked with the duty of continuing to look for Mr. Scott.

[8] When the trial resumed on February 10, 2012, police were still unable to locate Mr. Scott. Constable Kachur testified that he served the CEA notice on Mr. McQueen on the night of April 2, 2011 and Mr. Scott's medical records were filed as an exhibit.

[9] I was advised that Mr. Walters was unable to re-attend court because of a chronic medical condition. Mr. McQueen took the position that if he could not have a further adjournment to obtain Mr. Walters' attendance at court then he wanted Mr. Walters' statement to police to be filed in evidence. Efforts were made to contact Mr. Walters to see when he would be well enough to come to court. These efforts were futile. In these circumstances, the Crown agreed to file Mr. Walters' statement to police, as it was recorded in Constable Kachur's note book.

[10] Mr. McQueen did not testify.

[11] I heard the submissions of the Crown and Mr. McQueen. The only account of the events was provided by Ms. Wice. I found that she was a credible and reliable witness and that her testimony was corroborated in parts by the statement of Mr. Walters and the medical records describing two lacerations on the front and back of Mr. Scott's head. Based on her evidence, I found Mr. McQueen guilty. His criminal record was placed before me and the Crown indicated that he would be seeking a custodial sentence. Mr. McQueen requested an adjournment to retain counsel to assist him at his sentencing hearing. The Crown asked that Mr. McQueen's bail be revoked and that he be remanded to custody if sentencing was to be delayed. After a hearing, I revoked Mr. McQueen's bail. When he returned for sentencing, he was represented by Mr. Strathman.

[12] In anticipation of sentencing, Mr. Strathman brought a Stinchcombe motion for disclosure of all police occurrence reports related to Ms. Wice and Mr. Scott. Mr. McQueen wanted to review these materials before deciding whether to testify, should he receive leave to re-open the trial. The Crown initially resisted this application, taking the position that the reports were third party records subject to an O'Connor application. Before the motion could be heard, counsel resolved their differences and five occurrence reports were disclosed to the defence. These reports involve allegations of domestic violence by Mr. Scott when he was involved with Ms. Wice over the period of 2005 to 2008. Two of these allegations resulted in Mr. Scott's convictions for assault and assault with a weapon in 2006 and 2007, respectively. Having reviewed those materials, Mr. Strathman advises that Mr. McQueen will testify if permitted to re-open his case.

Analysis

[13] The law respecting the re-opening of a case was recently reviewed by Justice Trotter in R. v. Drysdale. In that case, the defence was permitted to re-open the trial after a finding of guilt on the basis that new evidence touching on the issue of identity came to the attention of both parties only at the sentencing hearing. Identity had been the sole issue at trial. The trial judge had rejected the defendant's evidence about the description of his clothing and its disposal. The new evidence, a DVD of events at the police station, corroborated the defendant's description of his clothing. The defence had not asked for disclosure of the DVD and the significance of the images on the DVD was not appreciated until it was produced at the time of sentencing to rebut an allegation of police brutality.

[14] Justice Trotter found that there had been a "regrettable and serious lack of diligence" in pursuing disclosure. He made a finding that the failure of the defence to ask for disclosure of the DVD was not a tactical decision. In addition, he held that the DVD evidence was relevant and it could reasonably have affected his decision to convict as it corroborated the defendant's testimony in a crucial respect. He concluded that a failure of due diligence could not be permitted to impede a fair or just result and he permitted the defence to re-open its case. Then he declared a mistrial because his judgment turned on a clear finding that the defendant was not a credible witness.

[15] Justice Trotter referred to the case of R. v. Kowall as setting forth the test for exercising the discretion to re-open. In that case, the Ontario Court of Appeal stated as follows:

The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward, 86 C.C.C. (3d) 193. However, once the trial judge has convicted the accused, a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. It seems to have been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for the admissibility of fresh evidence on appeal laid down in Palmer v. The Queen, 50 C.C.C. (2d) 193, at p. 205 (S.C.C.) (see R. v. Mysko, 2 Sask. R. 342 (C.A.).) That test is as follows:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases …;

(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief; and

(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[16] The Court in Kowall also stated that "[i]n addition to the Palmer criteria, a trial judge must consider whether the application to re-open is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial." The same Court in R. v. Arabia noted that "it is well-settled that the authority to declare a mistrial should only be exercised in the clearest of cases."

[17] It is clear that following a finding of guilt, the power to re-open should only be exercised in exceptional circumstances. The discretion to re-open must be exercised cautiously but from the perspective of trial fairness.

[18] I approach this case with those principles in mind.

[19] The defence contends that this case is comparable on its facts to the Drysdale case. The police occurrence reports that were obtained post-conviction provide details of the inter-relationship of Mr. McQueen, Mr. Scott and Ms. Wice. This information should have been used to undermine the reliability or credibility of Ms. Wice's account of the events. In addition, Ms. Wice should have been cross-examined about being the complainant in an allegation of violence involving Mr. McQueen to establish an animus on her part against Mr. McQueen. Mr. Strathman argues that there was a lack of due diligence in this case comparable to that in the Drysdale case. However, in his submission, the evidence here is also of a comparable quality to that in the Drysdale case - highly relevant, credible and reasonably capable of affecting the outcome of the trial since credibility is the key issue.

[20] Mr. Strathman contends that the failure to obtain these materials and use them in a more fulsome way in the cross-examination of Ms. Wice was not the result of a competent tactical decision by counsel. In his submission, the evidence should have been obtained as part of trial preparation and should have informed any decision respecting issues of propensity for violence or Mr. McQueen's decision to testify.

[21] In terms of trial fairness, Mr. Strathman relies heavily on the fact that Mr. McQueen was self-represented because Legal Aid would not permit him to change solicitors and he lacked sufficient resources to privately retain counsel. In the result, Mr. McQueen made decisions that perhaps he might not have made had he had the benefit of legal advice. One of those decisions was the decision not to testify. Mr. Strathman advises that Mr. McQueen would like to testify now and place in evidence the exculpatory statement he made spontaneously to police upon arrest. The defence argues that this statement, and I infer, his testimony, would raise the defence of self-defence under sections 34(1) and/or 41(1) of the Criminal Code.

[22] The Crown takes the position that the application to re-open is nothing more than an attempt to reverse tactical decisions made at trial that did not work out as Mr. McQueen might have wished. Mr. Fraser submits that the new evidence is not relevant to the defence strategy that was employed at the outset of the case and which was continued by Mr. McQueen when he decided not to testify. The Crown argues that it was a tactical decision to focus on the testimonial strength of Ms. Wice as a witness rather than raise self-defence and Mr. Scott's violent character. The latter approach might have exposed Mr. McQueen to the risk that evidence of his propensity for violence would be led by the prosecution.

[23] In support of his position, Mr. Fraser points to the cross-examination of Ms. Wice. He says that it was conducted with competence and purpose. The questioning skilfully avoided answers that might refer to Mr. Scott's propensity for violence, an approach that is consistent with an informed decision by Mr. McQueen not to testify. The cross-examination was directed to Ms. Wice's testimonial reliability, particularly the influence of alcohol and marijuana on her ability to observe, recall and recount events with accuracy. Viewed this way, there was nothing coy or misleading about Ms. Wice's testimony. The new evidence, while relevant to Mr. Scott's propensity for violence, is not relevant to the issues as framed by the defence. Finally, the decision not to place Mr. Scott's character in issue was an informed one because the defence had disclosure of both Mr. Scott's record and Mr. McQueen's record.

[24] I have carefully considered the submissions of counsel and the relevant law. In my view, Mr. McQueen's application to re-open must be dismissed as a colourable effort to revisit a trial strategy that proved to be unsuccessful.

[25] This was a relatively simple case that turned on the credibility of one key witness, Ms. Wice. I have carefully reviewed a transcript of Ms. Wice's testimony. Mr. McQueen was represented by experienced counsel when she testified on the first day of trial. I am satisfied that the scope of the cross-examination was deliberately focused on Mr. Scott's substance abuse rather than his propensity for violence. Mr. Scott has a criminal record that is mainly for offences involving alcohol, drugs and property. Of his ten convictions, only the most recent two are for violence and these involved Ms. Wice. Had the defence raised the issue of Mr. Scott's violent interaction with Ms. Wice, the Crown could have led evidence about Mr. McQueen's propensity for violence. Mr. McQueen has a record for offences of violence that had to raise concerns when trial strategy was formulated. The manner in which the cross-examination was conducted competently addressed those concerns and ensured that the prosecution could not lead evidence of Mr. McQueen's propensity for violence.

[26] The five occurrence reports alleging violence by Mr. Scott towards Ms. Wice have little if any relevance given the strategy adopted at trial. Had Ms. Wice been cross-examined on these earlier matters, Mr. McQueen's propensity for violence would become an issue. I am advised that Mr. McQueen's previous lawyer knew that Ms. Wice was the complainant in charges in 2010 involving Mr. McQueen. This was not an area that was pursued in cross-examination. If a decision had been made that Mr. McQueen would not testify, this is not surprising. In addition, it adds little to her evidence respecting animus toward either man, in my view. It was clear to me that Ms. Wice's relationship with Mr. Scott was a turbulent one given his addiction issues. Ms. Wice was clear about how angry his drunken belligerence was making her on the day of this event and that it had been the cause of their break-up in the past. Her animus towards Mr. Scott was evident. I did not detect any animus towards Mr. McQueen.

[27] Apart from how to approach the evidence of Ms. Wice, the most important tactical decision to be made was whether or not to testify. Throughout the trial, Mr. McQueen was clear that he was not going to testify. Counsel did not put a self-defence theory to Ms. Wice in cross-examination. This is consistent with a finding that the tactical decision of not testifying was one that Mr. McQueen had made with the assistance of counsel.

[28] Mr. McQueen was given every opportunity to retain new counsel after the breakdown in his relationship with his former lawyer. He was provided with new disclosure when it became apparent that he was having difficulties obtaining complete disclosure from his previous counsel. He was provided with a transcript of the first day's evidence quickly and at no cost to him so that he might take it to any lawyer he consulted. I endeavoured to give him instructions regarding the conduct of a trial and I attempted to facilitate the provision of free legal advice through duty counsel. That advice was to be directed to the admissibility of Mr. McQueen's statement to the police and the decision whether or not to testify. Mr. McQueen's own conduct precluded him from receiving that advice. There is no evidence from Mr. McQueen on this application to indicate that he did not understand the decisions he had to make at trial and the consequences of those decisions, specifically the decision not to testify.

[29] In summary, I find that the scope of the cross-examination was limited as a result of a tactical decision to ensure that Mr. Scott's violent character was not placed in issue, potentially eliciting evidence of Mr. McQueen's propensity for violence. This was a reasonable strategy to adopt, given the criminal records of both men and the ability to mount an attack on Ms. Wice's credibility based on her intoxication. The new evidence contained in the five occurrence reports indicates that Mr. Scott is a jealous man who is prone to commit acts of domestic violence when intoxicated. This information loses relevance once a tactical decision is made not to raise Mr. Scott's violent character. Once that decision has been made, the information in the occurrence reports does little to inform the decision to testify. In these circumstances, I do not find that the admission of the evidence could affect the outcome of the trial. This finding distinguishes the reasoning and the outcome in this case from that in the Drysdale case.

[30] The admission of Mr. McQueen's spontaneous exculpatory statement upon arrest is contingent on his testifying. He now expresses a desire to do so. In my view, this is nothing more than an attempt to reverse an earlier tactical decision that did not work out to his expected advantage. I note that even if the statement is admissible, it is not substantive evidence of its truth. At its highest, it may be relevant to Mr. McQueen's credibility as circumstantial evidence bearing on guilt or innocence.

[31] Finally, I appreciate that Mr. McQueen was self-represented throughout most of his trial and I accept that he made tactical decisions that might have been made differently with the benefit of hindsight and legal advice. These courts are facing an increasing number of self-represented defendants as the availability of Legal Aid becomes more restrictive in response to economic pressures. Trials have become longer and more difficult as self-represented defendants often require instruction in the legal process. However, there is no constitutional right to representation by counsel and the failure to have state-funded counsel does not make this trial fundamentally unfair. Mr. Strathman referred to the possibility of a Rowbotham application but I view that as over-reaching in the circumstances of this case. This is also not a complex case where the appointment of amicus curiae would have been appropriate.

[32] Trial fairness does not require that a self-represented defendant make the best decisions about trial strategy. It does require that Mr. McQueen make an informed decision about whether or not he should testify. There is no evidence to suggest that he did not know his options in this regard and there is evidence supporting an inference that he made this important decision with the assistance of experienced counsel. He now wants to change that decision. If Mr. McQueen was to be permitted to re-open in the circumstances of this case, the integrity of the administration of justice and the enhanced need for finality would be compromised.

[33] The application to re-open is denied.

Released: March 23, 2012

Signed: Justice S.E. Marin