Court File and Parties

Court File No.: Region of Durham: 998 14 21450 Date: 2015-04-16 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Frank Ram

Before: Justice J. De Filippis

Heard on: October 22, December 5 & December 10, 2014; March 31 & April 1, 2015

Reasons for Ruling on Mistrial released on: April 16, 2015

Counsel:

• Ms. M. Allen for the Crown
• Mr. E. Guiste for the Defendant

De Filippis, J.

Introduction

[1] A judge commencing a trial knows little or nothing about the case and relies on counsel to present evidence and submissions. This essential aspect of our adversarial system means it is inappropriate, not to mention difficult, for the judge to second guess the conduct of counsel during the trial. In fact, a good judge will keep an open mind and a closed mouth until it is time for a ruling or verdict. The judge should do so even where, as here, counsel too often appeared unprepared. Appearances can be deceiving and premature comments by the judge can undermine a client's confidence in counsel. In this case, my ongoing concern about the conduct of Defence counsel crystallized at the end of the trial and shed new light back onto it. From this perspective, I concluded that a mistrial must be declared because of the failure of Defence counsel to discharge his duties to the client and the Court. To explain this it will be necessary to quote at some length from the transcript of proceedings.

[2] The Defendant was charged with assaulting his wife. She testified that he tried to forcibly remove her from the home and threw her to the floor when she resisted. She complained of sore toes and a bruised knee. I also heard from her brother and sister who claimed the defendant admitted using physical force during an argument. The Defendant agreed with the contextual evidence provided by the complainant and testified about his version of events. This is a straightforward and routine case. It involves important, but common, issues of credibility and reliability and a final determination whether the Crown has met its burden of proof. That is not how the proceedings unfolded.

[3] This ruling is not about attaining perfection. I would never describe myself as such and do not expect it of others. I appreciate the challenges inherent in the litigation process and that mistakes will inevitably occur. What I do demand is a minimum level of competence. That Mr. Guiste failed to meet this standard is demonstrated by a fair reading of the trial as a whole; it is not one incident, but the cumulative effect. This record includes an incomplete motion to stay proceedings, a confusing request for records, repetitious, irrelevant, and meaningless questions, inattentiveness to the evidence, incivility, and inadequate review of the disclosure material. A dispute about the latter resulted in a baseless allegation of prosecutorial misconduct. That these matters reflect inadequate preparation for trial was illuminated by counsel's unwillingness or inability to answer clear and simple questions put to him by me during submissions and closing his case before all Defence witnesses had been called. Taken together, these incidents persuade me that Mr. Guiste provided ineffective assistance to his client.

Incomplete Motion

[4] The Defence filed a motion to stay the proceedings. I came to understand that the motion was grounded in the assertion that the police officers involved were not qualified domestic violence investigators and had been negligent in their investigation. The negligence is based on the fact that before laying charges they did not obtain the defendant's version of events or interview the couple's daughter. This 12 year old suffers from Cystic Fibrosis and was "doing her therapy" in the kitchen during the events in question.

MR. GUISTE: Yes. I just wanted to say a few words before we embarked on the trial proper, Your Honour. I served and filed a notice of motion, which you should have before you....it's my intention simply to proceed with the trial proper, and I believe from the trial you will get evidence with respect to the issues that I raise here, and hopefully at the end of the day we can make further submissions in support of that, if it's supported by the evidence, if not then it would be on the substantive trial. That's the intention.

THE COURT: Any comments, Ms. Allan?

MS. ALLAN: Well, Your Honour, looking at the notice of motion, it's the Crown's submission it doesn't disclose any specific allegation of abuse of process. There's nothing that's supporting any sort of allegation of a abuse of process. There's some general comments on page 2, but there is nothing to support the allegation. . . .There's no way for the Crown to respond to that. I don't know what that is referring to.

THE COURT: I don't quarrel with much of what you say, and I have read both the application and the Crown's response. At this stage I don't see any basis upon which I would be justified in staying proceedings. Defence counsel is now telling me he would like to, in effect, reserve the argument to the end of the trial. I'll hear him at the end of the trial. If he raises issues that you feel you did not get a chance to respond to in terms of calling evidence then I would grant you the appropriate remedy at that point.

MS. ALLAN: Thank you.

Confusing Request for Records

[5] Defence counsel sought disclosure of the Durham Regional Police Service Domestic Violence Manual. This request was framed as necessary to the stay application and as possibly relevant to trial issues. Counsel added that he might need to hear from two police officers about these matters. I stated I would hear the stay motion after a verdict and suggested that the Defence request for the police policy was subject to the third party records procedure. Later, Defence counsel had a subpoena issued to the Chief of Police commanding him to produce the "Durham Region Police Service Domestic Violence Policy, etc, & file Re Frank Ram.":

THE COURT: Okay, thank you. All right. So now, there's these documents are the subject of a subpoena to the chief of police by defence counsel, the chief of police has returned, or somebody on his behalf, has returned a sealed envelope saying, "Here's what you've subpoenaed, we take the position these are third party records, we'd like to have standing on that." I think they're right, but I'll hear counsel on the matter. I propose to do that once we finish the crown's case because it is an aid of a stay application.

MR. GUISTE: Okay, but the difficulty I'm having is you have suggested that it is a third party record, that I have to bring a separate and distinct and discrete application for.

THE COURT: The case is O'Connor, as you know, and it deals with third party records. O'Connor sets out a test as to what are third party records and in what circumstances those records should be disclosed, and that's the process that I want to engage in. The police have properly responded to the subpoena by sending the documents requested to the court. They've sealed them because it's their position – they may be right, they may be wrong. It's their position that these are third party records. I think they are correct, but I'll hear you on that, and if I'm correct that these are properly third party records we will then deal with the O'Connor test. Do you have to bring written notice of that? As far as I'm concerned, no. I'll hear from Ms. Allan on that point if she feels otherwise. You both know the law, it's an old case. I intend to engage in the O'Connor test.

MR. GUISTE: I understood that they wanted standing to participate.

THE COURT: Yes. If it's a third party records application, they have standing, and before – as part of that process, I will invite counsel for the police – I'll do it through Ms. Allan's office – to send counsel here if they want. They're entitled to counsel.

MR. GUISTE: I just had a little difficulty with it because, as I understood, those cases dealt with people that were actually removed from the prosecution of the case and had the prosecuting police service in a....

THE COURT: Well, the police service isn't prosecuting the case, Ms. Allan is.

MR. GUISTE: Well, no, they're involved. They're agents of the crown.

THE COURT: No, they're not.

MR. GUISTE: I think that's pretty well recognized.

THE COURT: No, that's not recognized at all. That's not our system. The police are not agents of the crown. In fact, the police in Ontario and the crown's office are distinct entities.

MR. GUISTE: My recollection was that the Supreme Court of Canada said in I believe that famous abuse-of-process case, they did characterize them as agents of the crown.

THE COURT: They're not agents of the crown attorney's office. The police investigate, the crown attorney's office prosecutes. The material in the possession of the police is deemed to be in the possession of the crown if it's Stinchcombe material, but that does not apply to what are third party records. The police have all sorts of records that are not Stinchcombe records. Those records can be subpoenaed and brought to a court if the O'Connor test is met, and on that application the police, like the custodian of any documents that are the subject of a third party records application, are entitled to counsel, are entitled to standing, and I'll hear them.

MR. GUISTE: I think we're on the same wavelength. What I'm saying is that it would seem to me that we need to thoroughly exhaust and adjudicate this discrete issue of the admissibility of that domestic violence policy and whether, in fact, I will have it when I cross-examine my defence witnesses who I expect to be the officers and whether they complied with it.

THE COURT: Well, without my leave, you're not going to cross-examine your own witnesses. That's point number one.

MR. GUISTE: Well, not cross-examine them. I mean examine them. Like, I've called them, so examine them.

[6] The Durham Regional Police Service later responded to the subpoena by producing its records with respect to Frank Ram, but not the policy. Defence counsel stated he was not interested in his client's records but offered no reason why he had requested them. He also failed to explain what he meant by inserting "etc." in the subpoena. The Crown undertook to make inquiries about the policy.

Potential Defence Witnesses

[7] The time set aside for this trial proved to be insufficient. I discussed the need for additional trial dates with counsel and asked about the remaining witnesses. In this regard, Defence counsel had previously told me he would call his client:

MS. ALLAN: Crown has two additional witnesses.

THE COURT: And the defence has one, at least, I've heard of. Is there any more than one?

MR. GUISTE: There may be.

THE COURT: I don't need to know who they are but I need to know that so that I can set...

MR. GUISTE: Okay. The defence may have as much as three witnesses.

THE COURT: Okay. So how much time do the two of you think we'll need?

MR. GUISTE: Another two days.

[8] These potential witnesses were identified as Sgt. Derusha and P.C. Goldenberg. These officers were said to be needed for the stay motion and, perhaps, on the trial proper.

Repetitious Questions

[9] The complainant and defendant met over 20 years ago. The complainant testified that she had had a strained relationship with her family after marrying the defendant. In cross-examination, Defence counsel suggested the family disapproval of the marriage was due to their racist attitude, as the complainant is white and the defendant is dark skinned. The complainant stated her parents did not approve of the marriage but resisted the claim that racism was the cause. Defense counsel also suggested that a recent rapprochement between the complainant and her family was relevant to her assault allegation and to the statements given by her siblings to police:

Q. ...So, I understand that you felt very isolated during your relationship with Frank because your family had pretty much abandoned you because you married him.

THE COURT: I think she's answered that several times.

MR. GUISTE: Well, now, I didn't get at that clearly.

THE COURT: Are we going to get to the allegations at some point?

MR. GUISTE: Patience is a virtue.

Q. All right. And so you would agree then that the taking of the picture was because your brother suggested that?

A. My brother suggested it....

THE COURT: You don't need to repeat it again.

A. Okay.

THE COURT: That nail's been hammered right through the floor. Yes, that is what she's saying.

MR. GUISTE: Well, thank you very much, Your Honour. All right.

Q. Do you agree with that? Did we get it right?

THE COURT: You don't need to answer that. The point's been made several times and understood by me. Her brother suggested she take a photo of any....

MR. GUISTE: Well, I don't want a situation where it's not, you know.

THE COURT: It is crystal clear to me. I've been hit over the head with it. Her brother suggested she take a photo of any bruises. She did that.

MR. GUISTE: All right.

Q. And do you have a good memory or a bad memory? How is your memory overall?

A. I think it's perfectly normal.

Q. And so you don't - is it your evidence, under oath, that you don't recall ever having conversations with Mr. Ram about the racist views of your family towards him?

A. All I've ever said to Frank is that my family didn't like him. That's - that's all. Beyond that I can't - I can't give any other opinion.......

THE COURT: Mr. Guiste, you've established, and the witness has clearly admitted that her family didn't approve of the marriage. We'll move on.

MR. GUISTE: Q. And isn't it true that the majority of the time during your relationship with Mr. Ram you were, in fact, isolated from the rest of your family?

THE COURT: She has answered that. She has answered that several times.

MR. GUISTE: I don't believe we have, Your Honour.

THE COURT: She has made it very clear that her family was distant from her, and that was in part due to the disapproval of the marriage with your client. I'd like to move on now.

MR. GUISTE: Well, I think the use of the word isolated is somewhat a different characterization.

THE COURT: It could be, but it's of no interest to me. I'd like to move on.

MR. GUISTE: You're not interested in the truth?

THE COURT: I'm not interested in that distinction, no.

MR. GUISTE: And relevant evidence.

THE COURT: I'm not interested in that question and I'm telling you to move on.

MR. GUISTE: All right.

Q. Okay, so can you just give me a sense of how long was the span of your lack of relationship with the members of your family?

THE COURT: You don't need to answer that. Move on, please.

Irrelevant Questions

MR. GUISTE: Q. So, as I understand your evidence and I just wanna get it clearly, that you're suggesting that he would want you and would try to physically keep you walking with him, as opposed to you just being faster than him and you getting annoyed and calling him names because he wasn't able to keep up with you?

THE COURT: I don't know what part of that five part question you want her to answer, but let me interrupt the answer, whatever it now may be to ask you to move onto something that's relevant. She has indicated that in 21 years of marriage she walked with her husband a handful of times and I'm hard pressed to understand what the relevance of that may be to the fact that on April the 18th of this year your client is alleged to have assaulted her.

MR. GUISTE: Well, the relevance is with respect to the abuse that she has described, the evidence will come out that there has been abuse from her as well - emotional abuse, etcetera, and that's what I'm trying to develop.

THE COURT: And if that's true, what would the relevance of that be to the allegation of assault?

MR. GUISTE: Pardon?

THE COURT: If it's true what would the relevance be to the allegation of assault?

MR. GUISTE: Well, it gives some context to the narrative and to the context with respect to which you are supposed to assess all of the evidence.

THE COURT: I appreciate that, and you have the opportunity to pursue that. I think that that's only fair because the Crown had the opportunity to put in some narrative, but we're talking about a handful of times in 21 years of marriage.

Q. Now, you told us some evidence about you left your mom and sisters and you got your own apartment?

A. Yes, I did.

Q. And the timeframe that that took place, I'm going to suggest to you, was in and around '93, '94 you had your own apartment?

THE COURT: 1993?

MR. GUISTE: Yes.

THE COURT: I'm going to - I have to ask, what's the relevance?

MR. GUISTE: Pardon?

THE COURT: What's the relevance?

MR. GUISTE: Your Honour, it's relevance with respect to the relationship, the nature of the relationship between the parties and an event that happened in and around that time that I feel...

THE COURT: You say there's something in 1993...

MR. GUISTE: Yes, Your Honour.

THE COURT: ...that explains what I have to decide on an allegation in 2014?

MR. GUISTE: I would ask you, Sir, to be very patient.

THE COURT: I've been extraordinarily patient.

Meaningless Questions

Q. Well, Madam, Mr. Ram has a totally different story to tell in terms of his evidence and that - that type of incident never occurred. Can you give us a sense. Are you...

THE COURT: Sorry, was that a question?

MR. GUISTE: No, no, no, I'm just...

THE COURT: Well then, please, your role is to ask questions.

MR. GUISTE: Yes.

MR. GUISTE: Q. So, Ms. Willems, on April 16th you have no recollection, but assuming Mr. Ram picked you up at 8:00 p.m. at work, the two of you were okay?

MS. ALLAN: I'm sorry, Your Honour.

THE COURT: I don't know how she can answer this question.

MS. ALLAN: She can't.

THE COURT: She doesn't know if the defendant picked her up on that day and so your question is although you can't remember, if he did pick you up that day, were the two of you okay? How can she answer that question?

MR. GUISTE: Well, very easily, Your Honour. It is simply a question. She says she can't remember. He may or he may not have picked her up.

A. THE COURT: Yes, she doesn't know.

MR. GUISTE: All right. So, if he did pick you up, it seems to me reasonable that they were getting on okay.

THE COURT: I don't think that follows at all, but if that's your submission at the end of the day then that's fine.

MR. GUISTE: All right. Okay.

Inattentiveness to the Evidence

[10] On several occasions, Defence counsel misstated evidence in putting it to a witness. This did not appear to me to be deliberate. Rather, it seemed counsel was not paying attention to the answers given to his questions.

Q. All right. So, you, at that time, it's your evidence that you had never interacted with your sister, your mother and Frank?

MS. ALLAN: Your Honour, that's not what she said.

MR. GUISTE: Well, I'm asking her a follow up. Is that her evidence?

THE COURT: Well, no, but you're [sic] follow up intended to encapsulate her answer and as this happened more than once, Mr. Guiste, you've encapsulated it unfairly and incorrectly. She said that she doesn't recall a function in her basement apartment in 1993, 21 years ago. And the follow up question is, "So, you've never interacted with your parents?" The problem with that is first of all that wasn't her evidence and secondly I don't know what you mean by interacted and I don't know what the witness could possibly think you mean by interacted.

MR. GUISTE: Mmhmm.

THE COURT: So, I'm just going to suggest you get to the point you're trying to make.

MR. GUISTE: All right.

[11] The defendant and complainant have two children – a boy and a girl. As already noted, one has Cystic Fibrosis:

Q. She has Cystic Fibrosis which required you to provide treatment to her at certain times of the day?

A. Twice a day.

Q. All right, and once of those was in around the evening time?

A. Yes, it is.

Q. And wasn't your job somewhat problematic with discharging that duty?

A. Why would you say that?

Q. I'm asking you.

A. No, I don't think so, because the responsibility fell on Frank and myself and it wasn't – are you basically saying that Frank had mentioned to you basically that it is only my responsibility to maintain and look after Shakira's health at that time that we lived in our house?

MR. GUISTE: Your Honour, I'm not on trial here. Could you caution the witness? She's asking me questions.

THE COURT: She's asking for clarification.

...WITNESSES LEAVE THE COURTROOM

THE COURT: Yes, go ahead. Okay, so what is it that you want to ask the witness? You want to ask her what the parents said about what?

MR. GUISTE: Yes. The manner of her testimony was such that she indicated and acknowledged that there was an animus from her parents with respect to Mr. Ram.

THE COURT: Actually she didn't say that, but it may amount to the same thing. She actually said there was no animus but that the family didn't like the defendant and didn't know him. That, to me, might mean an animus but she didn't say that.

MR. GUISTE: Me too.

THE COURT: Yes, but she did not say that. She resisted that. Anyway, go ahead.

MR. GUISTE: And in addition she went on to say and acknowledge that they kept themselves away during the relationship for the most part, and even with the children, and when asked, "Well, why was that?" she indicated in part it was the dislike for him but she also was about to say and go on to say that they had said things, and it was clear to me that they had said things about him that she disagreed with and felt strongly about.

THE COURT: If that's what she said, and you can clarify that when she comes back, that is if what she says is her parents had said something to her about your client that question is proper. It's relevant because her brother and her sister are going to be testifying and they may have been - their world view and their perception of this allegation may have been shaped by their parents' dislike of your client.

MR. GUISTE: Mmhmm.

THE COURT: No problem there.

MR. GUISTE: Exactly.

THE COURT: If what she says is, no, they didn't get me upset because of what they said about my husband. They upset me because of what they said about me, then those matters, it seems to me, are private and don't need to be delved into in this matter.

MR. GUISTE: Mmhmm. Well, the only difficulty, Your Honour, is that it seems to me, from my recollection, and I haven't checked the verbatim transcript, but it seemed to me that the questioning that went on subsequently, not from myself, seems to have steered her or could have steered her in a manner as to back off from what she was gonna tell me.

THE COURT: Well, ask the question and clarify it, and if what - I did not understand her to be saying that her parents upset her because of what they said about your client. I understood her to say it was with respect to something else. If I'm wrong, and...

MR. GUISTE: Mmhmm.

THE COURT: ...it was about your client, then I think that's a proper question...

MR. GUISTE: Yeah.

THE COURT: ...and you're entitled to pursue that. If not, then I think we should...

MR. GUISTE: Yeah. The difficulty I have, Your Honour, is that you can appreciate the litigation is like there are missed opportunities in litigation. This witness, it's like a boxing match. If you give a guy a good upper cut and you see that he staggered you want to come down with the right cross. You could potentially knock him out. In a litigation battle she was about to embark and tell me precisely what her parents had told her but then we stopped, there was some questioning and there was a point blank question to her which in my view suggested to her that it had nothing to do with her husband.

Incivility

[12] A good advocate must sometimes use blunt language but gratuitous sarcasm and demeaning comments undermine effective advocacy. Mr. Guiste made a flippant remark about Crown counsel. A previous bizarre incident may provide the context:

MR. GUISTE: Are you okay with us making – I guess we could do it after and return this to you, but we'll make it an exhibit.

THE COURT: We'll make a copy. You can show it to her and then Madam Clerk will make a copy and we'll return that to the crown and make it an exhibit if you want, all right?

MR. GUISTE: Okay, thank you.

MS. ALLAN: If it's relevant.

MR. GUISTE: If it's relevant.

MS. ALLAN: Why did you kick my chair? Oh my goodness.

THE COURT: Okay. All right, here we go.

MR. GUISTE: I didn't kick your chair, Madam. If I did, my foot might have hit it accidentally. I'm sorry.

MS. ALLAN: Wow.

[13] I did not see or hear anything to suggest Defence counsel kicked opposing counsel's chair. I accept Ms Allen's statement that he did. I also accept Mr. Guiste's statement that if he did, it was not intentional. It is regrettable that this issue surfaced at all. In the circumstances, Ms Allen should have assumed it was an accident and said nothing. In any event, this exchange followed soon after:

Q. Now, you've said that on an occasion, you took the liberty of telling us, that you felt that your husband had been in breach of his release condition, is that right?.....

Q. All right. So the police made you aware of the release?

A. I got a copy.

Q. You got a copy of this? All right.

MS. ALLAN: Can I see first, please, what you're going to show to the witness? Your Honour?

THE COURT: Yes.

MR. GUISTE: Absolutely. Her Majesty satisfied?

THE COURT: That's an inappropriate comment, Mr. Guiste. Please refrain from doing that.

MR. GUISTE: Apologies to the court, Your Honour. If you felt offended by that, I'm deeply sorry.

THE COURT: Well, it's just inappropriate. The standard procedure is for counsel to provide a potential exhibit to opposing counsel before putting it to the witness in case there are objections.

MR. GUISTE: No, no, I knew that. I just asked her if she was satisfied...

[14] The foregoing sarcasm might be forgiven as having been made in the heat of the moment following an allegation he had kicked at the Crown. However, Defence counsel also made unnecessary demeaning comments about a witness (i.e. the complainant):

Q. All right. And isn't it true that good Mr. Ram got you a gift and a card for your birthday?

A. I don't recall that, no.

Q. You don't remember that?

A. No, I don't.

Q. Well, we're gonna hear from him, and his evidence will be very clear - you keep it in your little mind that...

THE COURT: No, no, no. No, no. No, no. You will not...

MR. GUISTE: Oh, I'm sorry.

THE COURT: You should be.

MR. GUISTE: I should not have said that.

THE COURT: You should be.

MR. GUISTE: Yeah.

THE COURT: Yes, thank you.

Q. All right. Now, during those six hours did you use your phone?

A. No, I didn't.

Q. No telephone calls, received or made?

A. No.

Q. No conversations with Mommy and Daddy?

THE COURT: Mom and Dad, please.

MR. GUISTE: Mom and Dad.

THE COURT: Yes. She's an adult, she's not a child, Mr. Guiste, please.

MR. GUISTE: Okay. Sorry.

Inadequate Review of Disclosure Material

[15] On several occasions during cross-examination of the complainant, there were significant pauses as Mr. Guiste appeared to read his brief. I wondered if he was sufficiently familiar with the disclosure material. At the very least, it is clear that on one occasion he had not properly reviewed certain disclosure and was not aware he possessed a related statement given by the witness to police:

MR. GUISTE: Yeah. Your Honour, I'm just wondering if I can have an indulgence because when I listen to this it's very hard to hear it outside there. If I could play it here during the lunch hour I'm able to hear the audio. I'm wondering if I can stay here so I can do that………

THE COURT: Well, why wouldn't you have arranged for that before today?

MR. GUISTE: Pardon?

THE COURT: Why would you not have arranged for that?

MR. GUISTE: Well, I tried to do my best but you know, I thought that, okay, if they have a system I'd be able to at least hear it. If I could hear it I could work more constructively with it, but.... I was trying in the Tim Horton's to listen to it, it's very, very difficult. I would say that in the circumstances I would request an adjournment for a transcript because it's...

THE COURT: Are you saying that you've come to trial today without having listened to that video?

MR. GUISTE: I've listened to the video but what I'm saying is, in terms - it's a long - it's a long video.

MS. ALLAN: If it assists, I can confirm that defence counsel received both the notebook entry notes of Constable Goldenberg as well as the general occurrence narrative initial report which covers off that first part, as he's described it, of the interview. It's four pages. It was provided May the 2nd, 2014, and he's also received the synopsis of the videotaped interview of Ms. Willems as well as the supplementary report of Constable Goldenberg which then does a summary of both interviews, and he received all of those.

MR. GUISTE: Well, Your Honour, I cannot confirm that I've received all of those. As I've indicated, I was pursuing this line of cross-examination because with my knowledge of the file, I don't have those things. So I'd like an opportunity to see whether I do.

THE COURT: All right then.

MR. GUISTE: Thank you for the indulgence, Your Honour. During the break I had the opportunity to review the disclosure that has been provided to me and so as to give legal legitimacy to this trial ongoing, my friend has indicated that she provided me with disclosure. I have a disk that's dated 30 April 14. I'll pass that up.

THE COURT: Well...

MS. ALLAN: Why?

THE COURT: ...what do you want me to do with it?

MR. GUISTE: Well, if you hear my submissions, you'll understand. My friend has made a very, very serious attack with respect to my integrity and the disclosure and the fairness of this trial. I want to show the court what has been provided to me so that that could be assessed.

THE COURT: I didn't hear the crown attack your integrity, I heard....

MR. GUISTE: You didn't?

THE COURT: No, I did not. I heard the crown put on the record what she understands was disclosed to you. I don't see that as an attack on your integrity.

MR. GUISTE: All right.

THE COURT: So anyway, but go ahead.

MR. GUISTE: Well, that's not a fact. I want to....

THE COURT: Well, no, but that's fine. You're entitled to respond to that, but I don't see it as an attack on your integrity.

MR. GUISTE: Well, it is an attack on my integrity because I indicated, she has given some testimony as to what happened, the crown has said, "Oh, you have a summary of the officer's notes with respect that", et cetera, et cetera...

THE COURT: Right, yes.

MR. GUISTE: ...and it doesn't appear to be – but we'll hear from the officer, so...

THE COURT: Fair enough.

MR. GUISTE: ...hopefully....

THE COURT: Okay. In any event, yes, what did you want to tell me?

MR. GUISTE: Pardon?

THE COURT: What do you want to tell me?

MR. GUISTE: The disclosure that I have is a DVD dated 30 April 14. This DVD contains a picture, we had dealt with that, the E-mail in September of supposed injuries that were caused in April that was disclosed in September. This other DVD contains the videotaped statement which was done on a date...

THE COURT: Right.

MR. GUISTE: ...and we've already dealt with that. The other DVD which is in here has a copy of the sworn, what is it called?, KGB witness statement taken under oath which is dated and is in here as well as a document dated April 28th which is a synopsis for a guilty plea that bears Goldenberg's name, but I do not have notes of an interview from this – with this witness of that date. So we'll get that out when we hear from Mr. Goldenberg.

THE COURT: All right. Okay. All right then.

Inappropriate Allegation of Prosecutorial Misconduct

[16] The aforementioned discussion about what had been disclosed to Defence counsel resulted in an unseemly incident that confirmed Mr. Guiste was not aware of all that had been disclosed to him and in which he implied the Crown had tampered with disclosure. Lawyers are officers of the court and have duties towards each other. As such, it is a serious matter to suggest opposing counsel has acted dishonorably. Where necessary, the claim should be made fearlessly - but, there must also be a credible basis for it. In this case, there was no such foundation:

MR. GUISTE: ...I just wanted to raise a few concerns. Do you recall that at one point I indicated to you I had some concerns with the disclosure and I wanted to pass up three disks to you and you said....

THE COURT: Oh, yes, yes, yes. Right.

MR. GUISTE: And you indicated, "Why would you want to do that?, such a crazy thing", and I said, "All right, fine." But in any event, over the course of the lunch I had....

THE COURT: I hope I didn't say it was a crazy thing, but in any event....

MR. GUISTE: Sometimes crazy is crazy as crazy is. I have some discussions with my friend and I indicated to her, the disk that I had had a synopsis from Officer Goldenberg and an interview summary. As you're well aware, when one officer interviews the complainant and it's audiotaped, there's usually an officer inside the control room who's making notes of the event. So I have the notes, I had the notes, of that officer on the disk that was provided to me. In addition to that, there was some other summary-type notes with respect to an Officer Barefoot or Proudfoot that did the arrest, et cetera, et cetera. Over the course of lunch, when we broke my friend said, "Oh well, can I have your disk and I will see whether there's an issue with it?", and not thinking anything I said, "Okay", and I told my client that. He says, "Why would you do that, you're probably going to get back another disk." I said, "Well, I don't – I'm very innocent, I don't think – why? Why would somebody do that?" But in any event, a disk has been provided to me. I now see that this disk seems to have information that wasn't on the other disk, all right. I'm not sure what turns on it, but it has information that has come up in the cross and will likely, I guess, be determined at the end of the trial and I guess at the end we'll see what can be made of it, but my concern was I don't know why on Earth I decided to give my friend my copy of my disk and what that would solve because we had already discussed it and I told her I had reviewed the disk, I'm very familiar with disks, I knew what was on my disk. So I thought I should bring that....

THE COURT: Okay.

MS. ALLAN: To respond, Your Honour, because the question of whether he had sufficient disclosure, all of the disclosure, arose I offered to take his disk over the lunch break and take a look at it and see what was on it because, as I saw him scrolling through on his laptop I saw the reports that he said were missing. So I took his disk, I opened it. There is one document on that disk which is protected and cannot be changed and it includes all the initial disclosure which does include the two reports that he claimed were missing, the report of Constable Goldenberg from April the 28th and the report April the 30th, both times where he interviewed the complainant. It's all part of one document that is protected, that cannot be altered, and the disk that was provided to me is the disk that was provided back to him and in fact is initialed by the crown who originally did that who was not me. It's still initialed by that same person, it's Ms. Green. It's still Ms. Green, it's the same disk and this is just yet another fake issue in a long line of them that are being brought before the court to delay this process. So he has received it, he already had it, I could see it on his laptop screen when he showed it to me and the suggestion that I changed the disk or did anything to it is highly offensive and completely inappropriate and is an outright lie.

MR. GUISTE: Your Honour, if I may, you heard my submissions. I said I provided the disk to her. I had reviewed the disk, okay, and those documents – there is one particular document that I see there. I don't see anything – that's why I had asked to pass it up to you, but at the end of the – I don't know what she did with it, I'm not asserting. All I'm saying is I had looked at the disk, I saw that it had a synopsis for a guilty plea prepared by Officer Goldenberg and it had a copy of the notes taken by the, I guess, observer officer who was making notes while she was giving her statement and those were the two things, with respect. Now I see that there's an additional narrative or document by Officer Goldenberg. Clearly that was a document that, I had reviewed, I never saw that at all. If she's trying to tell me that somehow it was there and I didn't see it, I think that's unlikely, but I think we can move on. I've said what I had to say, I should have kept my disk, I shouldn't have allowed it to go out of my possession, but it did. I don't know what happened to it. I'm not suggesting anybody did anything. We could all be mistaken, who knows, but all I'm saying is when I reviewed that disk it had the synopsis and it had the summary from the other officer that was writing notes.

THE COURT: When I applied to be a judge I remember one of the questions being asked was designed to test my ability to be courteous and patient and it was impressed upon me the importance of that, and I must have given a good answer because I was appointed, and I guess this case is, 15 years later, testing me. As I made reference to this morning, I'm being tested.

This is a case in which the allegation is that a man who got into an argument with his wife picked her up and threw her, tried to throw her, out the door. If that's proven beyond a reasonable doubt I will deal with that, but nobody will suggest, and I do – no disrespect to anybody by saying this, nobody will suggest that this is a capital case or that the facts of this case are going to be noticed or remarked upon by anybody other than the parties. I remind everybody of that.

I don't for a moment believe Ms. Allan would tamper with the disclosure materials. She felt the need to respond and I didn't prohibit her from doing so, but there was no need for her to respond. She's an officer of the court and I don't think for a moment she would tamper with disclosure, tamper with a disk, and she tells me that she opened it and she found the material on there that the defence said was missing and I accept that, without question. Mr. Guiste is also an officer of the court and he tells me that it was not on there when he looked at it, and I accept that. He's not going to lie to me. And so what obviously happened is the material was on there and Mr. Guiste, for whatever reason, didn't see it. And so that's the basis upon which I'm going to proceed. If, in his review later today or before December 10th, defence counsel thinks that some important question that he would have asked was not asked because he hadn't reviewed that document, he'll let me know that and we'll see where we go. Let's call the witness then.

MR. GUISTE: Yeah. So at the end of the day, I think – I didn't raise it as a way of stalling anything. I did examine Ms. – the complainant. It does appear that there's some information there that's sort of not consistent with what she said and I couldn't have put it to her because I didn't have this disk, but she gave her evidence on it and I think she was quite clear in-chief and in cross, and there are some issues there that – I don't even think I needed to, but there are some things there that are a little different. But at the end of the day, I would like an opportunity to take my disk and to have it examined and to look at it again in my – you know, I don't see that there's an issue here. You say that my friend, the crown, says it was on there. I may have been mistaken. It's possible.

THE COURT: When you got it back from the crown you were told it was there, you see for the first time it was there. The difficulty, if I may say so, and I think I must say so, the difficulty is you drew that to my attention and you did it in such a way which could lead the reasonable person to conclude that Ms. Allan had tampered with the disk.

MR. GUISTE: I have no evidence of that.

THE COURT: No, and that's why one does need to be careful in saying those things, and I've made it clear that I don't accept that, and I've made it clear that I do accept you were being truthful as well. I'm now hearing you saying you withdraw any suggestion that Ms. Allan did something inappropriate...

MR. GUISTE: I cannot know if she did or not.

THE COURT: ...and I'd like to now move on.

MR. GUISTE: All I know is when I looked at my disk.....

MR. O'DRISCOLL: The record should reflect, my name is O'Driscoll, initial G. I'm the Crown Attorney for this region. If there's any witness, the record can reflect that the VWAP person, who was in the body of the courtroom accompanied by a civilian who I don't know, they've left the court, so the only people in the courtroom are counsel, the accused and the court staff.

Ms. Allan has advised me over the last five to ten minutes of certain aspects of the proceedings that have taken place today, this afternoon, and as I understand to be the case comments made by counsel that were and are a direct attack upon the integrity and the conduct of crown counsel in respect of these proceedings, Your Honour. I take those very seriously. I trust that this court does. I have every confidence that this court does.

MR. GUISTE: Your Honour, I wanted to respond to some of the matters that was raised by Ms. O'Driscoll. You'll recall that when I raised the issue, I wish to say, it was never my intent to say that I had any information that my friend, the crown, had tampered with it or that I had seen her tamper with it. I have no knowledge about that, and I said so. What my indication was, that when I reviewed the disk I did not see that further information from Detective Goldenberg and I was looking for it. It's quite possible, and I have conceded that upon your questioning and in open court. It's quite possible that when I looked for it the first time, sometimes on these disks you press the "going down" button and it sometimes will jump up to the start or whatever. So it's possible, through some mechanical mishap or whatever, I didn't have access to that actual document. Subsequently, I did.

So at the end of the day, I want my friend, the crown, to feel quite assured that I am not making any allegation of impropriety against her and I recognize that indeed it is a serious allegation to make. The point about making an allegation that is unfounded, Your Honour will recall that when I tried to access that document I could not, and indeed, when I cross-examined the witness there was information there that I could have put to her, which I pointed out, but I couldn't access it so I had no knowledge of it, right? So what I found was on my examination of the disk, I did recognize, hey, it is there.

It is quite possible. I have no knowledge, and I'm not imputing that my friend would have deliberately done that. That would be totally wrong for me to say that. I don't – that is not what I was saying. What I was saying was that when I tried to access the disk I couldn't access that particular document. Subsequently, it appears that I was able to access it. Mistakes occur and it is abundantly clear, as Your Honour has pointed out, it is there.

So I understand Mr. O'Driscoll's concern as the Crown Attorney, he has a duty to come here and to look into the matter, but again, I think I can assure him that there was no intent on my part to disparage, to discredit my friend, to impugn her integrity, the integrity of the Office the Attorney General or the Ministry of the Attorney General, and that if that was understood that I am sincerely sorry about that, and that was not my intent. My intent was simply to convey to the court concerns I had about disclosure because it appeared I could not access that document and my friend, out of concern, asked me to pass the disk over to her over the lunch period because I had conveyed to her, I think she can confirm, that I couldn't access it. I think she can confirm that because we had oral discussions between ourselves about it. So I said, "Okay, maybe you might be able to do better than me", and she came back in the afternoon and I asked her, "Were you able to remedy it?" She says, yes, she found it. So I put it in and I found it. So any impropriety is fully and 100 percent retracted, Mr. O'Driscoll, and the court and my friend, the prosecuting crown attorney.

THE COURT: Let me just – I don't want to repeat anything. There's been again a retraction of any suggestion of impropriety and a complete apology by defence counsel coupled with an explanation by defence counsel that he did not know that material was on his disk originally. He need not give that explanation. I have told him that I accept his word as an officer of the court that he didn't see it. I found as a fact that it had to be there and he just overlooked because I don't accept any suggestion that Ms. Allan would do the serious thing that was raised, and I just want to conclude on that point. The man has apologized, I am not going to go behind that, but I have to say this to in part justify why Ms. Allan became upset.

We're lawyers and judges, we deal in words. That is our craft. We know that words are important and words have to be used carefully, and words were not used carefully here. Although I don't have it verbatim, what Mr. Guiste said was something like this, "Your Honour, I have to raise an issue with you. My client told me I shouldn't have done this. I gave my disk to the crown and now it's come back and there's material on there that wasn't there before."

Invoking his client's opinion in the matter was, in my view, most unnecessary and most regrettable and rather insulting, and I am not casting any aspersions on the defendant by saying that. I'm simply saying, counsel should not have repeated it. The reasonable implication from those words is that Ms. Allan had tampered with the disk and that's the way I took it.

And so the man has retracted it unconditionally, he has apologized, but I do say again that it was a careless use of words and I trust counsel will be more careful in future.

I'd like to proceed with the trial.

The End of the Trial

[17] After the Crown closed its case, the defendant testified. His testimony in chief was resumed several months later on March 31, 2015. The trial was set to continue the next day as well. At the resumption of the trial, at the invitation of Defence counsel, I reviewed my notes of his client's previous testimony. Counsel completed his examination and the defendant was cross-examined.

[18] As noted at the outset of these reasons, the complainant alleged that she sustained minor injuries when the defendant forcibly tried to remove her from the home. This happened as she was on her hands and knees cleaning the floor, a mess she claimed he had made. Their daughter was in the kitchen at the time. In examination in chief, the defendant stated that the complainant said to their daughter, in reference to him, "I'm going to make his life a miserable fucking hell". He said he "picked her up from the kitchen floor and walked her to the front door". He opened the front door but the complainant kicked it shut. The defendant testified that he wanted to return to main part of home but she was standing in the way so he "tried to move her by putting hands on her shoulders and she fell back".

[19] In cross-examination, the defendant described the complainant as an 'irrational screaming woman who did not go willingly to the door'. When asked if he had used force he said "I lifted her by the waist". In response to further questions he said, that: "I walked behind her…she did not go willingly and was cursing….I made her go to the front door…I used my body to lead her to the front door".

[20] After the Defendant completed his testimony, I asked Mr. Guiste if he had further evidence to call. When he replied, "the officers", I asked "is that on the stay [motion]". He answered, "not necessarily". I told him I did not understand his answer and explained (again) that I would not rule on the stay application until after the verdict and only in the event of a finding of guilt. As already indicated, early in the trial, Defence counsel said he required the evidence of Sgt. Derusha and P.C. Goldenberg for the stay motion and, perhaps, for the trial proper. Mr. Guiste stated he had no further evidence to call and closed his case.

[21] Having regard to the evidence that had just been given by the defendant, I invited submissions from Mr. Guiste about whether, on his client's version of events, he had admitted to an assault. He responded by requesting an adjournment beyond the next day to review to the complete testimony of his client as well as that of the complainant. I told him to ignore rest of case for the time being and answer my question. Counsel stated that "fairness requires" the adjournment and there was a "need for jurisprudence". I declined the request for an adjournment beyond the next day and the court closed in the early afternoon.

[22] The following morning, April 1, 2014 began with Mr. Guiste stating, "I had the benefit last night of reviewing my notes, and the record, and these proceedings, and there are a few matters I wish to raise." He then described how he had previously subpoenaed records from the police service and asked for the attendance of two police officers for the two-fold purpose of raising certain issues at trial and pursuing an application to stay proceedings for an abuse of process. He also pointed out that the police service had not complied with the subpoena. The following exchange then occurred:

THE COURT: Can I see Exhibit A, Madam Clerk? Right, thanks. The subpoena attached to Exhibit A requests that the Durham Regional Police Service bring the Domestic Violence Policy, etcetera, and their ... I'll quote it directly, "To bring Durham Region Police Service Domestic Violence Policy etc & file Re Frank Ram." I opened the package. It contained occurrence reports regarding Frank Ram and you indicated you didn't want those anymore. That's what's in here.

MR. GUISTE: I never asked for them.

THE COURT: I'll read it again. The subpoena issued by you asks for "Durham Region Police Service Domestic Violence Policy etc & file Re Frank Ram." This contains occurrence reports involving Frank Ram, the police file on Frank Ram. That's what you asked for. That's what was delivered. You said you didn't want it.

MR. GUISTE: It has nothing to do with this case.

THE COURT: That may be so, Mr. Guiste. That may well be so. You indicated earlier, or suggested that the police, in this envelope, did not respond to the subpoena. In part, they did not, because the Domestic Violence Policy is not in here. They did respond to the other part of your request, because of their file with respect to your client, and then you later said you didn't want it. That's what's in here. That's all I'm saying.

MR. GUISTE: Well, Your Honour, I think that when you read my factum and the application record, I think that it was very clear. You'll recall that I had indicated to the court that I wanted to hear from the two officers, Goldenberg and Sergeant Derusha, and it was indicated to me at one point -we had some discussions about calling Officer Goldenberg, because he was here, out of turn, and my friend wouldn't do that, and we had what I would describe as some friction with respect to my wish to call the officers and then make a determination as to whether or not I would call my client.

You were of the view that I should call my client now, and I resisted as much as I could, but the tenor of your voice, and your direction was such that I figured, okay, well, if he wants to hear from the client ... I had indicated my reluctance. I wanted to hear from the officers, and if you look at my factum, I indicate that there are issues of credibility and reliability.

THE COURT: Mr. Guiste, I'm going to interrupt you there. Why did you close your case yesterday?

MR. GUISTE: Pardon?

THE COURT: You seem to have a hearing problem, so I'll speak a little louder and slower. Why did you close your case yesterday?

MR. GUISTE: Well, I think, Your Honour, I think the tenor of the trial was such that I was confused, and when I reviewed my notes, I saw that this issue with respect to the disclosure was still outstanding, and I had serious concerns with respect to the credibility of the complainant, and what she told the police, et cetera, et cetera, and I look ---

THE COURT: Mr. Guiste, I'm going to ask you again. Why did you close your case yesterday if you had not completed calling the evidence that you wished?

MR. GUISTE: Well, I think I did that inadvertently, Your Honour.

THE COURT: Mr. Guiste, we began ---

MR. GUISTE: Because I didn't realize – one second. I didn't realize that these issues were unresolved, and when I looked at my notes, it dawned on me.

THE COURT: It's your job, Mr. Guiste, to know your case, to know what outstanding issues there are, and to know what evidence remains to be called. You will recall that yesterday we began the proceedings in a manner that I have never encountered in 15 years of judging. We began by counsel for the defendant standing up and saying, "Your Honour, could you tell me what the evidence of my client was on the last day?" That astonishing statement was allowed to pass by me and I read you my notes. You did not know what testimony your client, not a fringe player in this proceeding, the defendant in this proceeding, had testified to the day previously.

Now you're telling me that you closed your case without completing the evidence that you now say you need to call, and now you're asking me, I assume, to re-open the defence because you were confused. Is this what you're now telling me?

MR. GUISTE: Your Honour, I first want to address your first point. Yesterday, I asked you to assist me in terms of specifics. I was concerned about repetition. I did have in my notes what I had accomplished with the client and my notes clearly indicated that I didn't get into the incident of the 18th, that I had background information, and I asked for some assistance, because I didn't want to be repetitive, and that's what I did.

Now, after the adjournment yesterday, it dawned on me that there was a suggestion that ---

THE COURT: Sorry, you haven't answered me. Mr. Guiste, I have to tell you, respectfully, I have reason to be troubled by the explanation you've just given as to why you wanted your client's – why you wanted me to tell you what your client had testified to next day. You did not say that you were concerned with repetition. At least, I don't recall that.

MR. GUISTE: I did say that.

THE COURT: The record will ... I stand to be corrected. But, in any event, you haven't answered the last part of my question, which is, are you now telling me that you didn't – that you closed your case because you were confused? Is that what you're telling me?

MR. GUISTE: Your Honour, I'm saying that having looked at the materials and the issues that I raised, it has become clear to me that there were outstanding issues with respect to the complainant's credibility and the reliability of the evidence, which I raised in the O'Connor application which you asked me to bring, and, accordingly, you will recall that I had a great deal of resistance in calling Mr. Ram to the stand, because it was my intention to, in fact, call the officers.

THE COURT: And why did you not do that yesterday?

MR. GUISTE: Pardon?

THE COURT: I will say it again loudly and slowly. I'm sorry if you have a hearing problem. So do I. I don't mean to make light of it, but it seems like I constantly have to repeat myself. I'll do it again. Why did you not call the officers yesterday? One was here.

MR. GUISTE: I did see Officer Derusha here and you indicated that, and seemed to give a direction that that evidence would be relevant to the abuse of process, and after reflecting on it, it's not only relevant to the abuse of process, it's also relevant to the issue of the reliability of the information they received, the inconsistencies that were there.

THE COURT: I think, Mr. Guiste, that there is much argument that could be made that their evidence is irrelevant to those issues, but I haven't heard argument on that. I simply put that out there. If that is the case, however, why did you close your case? Why did you not call the sergeant? I asked you, "Is that the case for the defense?" "Yes." I then went onto other issues and asked you what I thought was a simple question. You wanted an adjournment of several days, or weeks to consider it. I denied that. I gave you until today. Now rather than dealing with that issue, you are telling me about these additional issues. So, I'm going to ask you again, why did you not call Sergeant Derusha? Why did you close your case?

MR. GUISTE: Well, I ---

THE COURT: And what are you asking me to do now? Three questions.

MR. GUISTE: Well, I guess I may have been inadvertent in that after I looked at my notes, it became clear to me that there were serious issues that were raised in the application, and the application was not adjudicated, and it wasn't my intention that that application was to be dealing solely with the abuse of process. I wanted to be able to deal with, if you look at my factum, the inconsistencies and the unreliability of the evidence and to put that case forward.

So, the other thing that I was not aware of, Exhibit Number 6, it appears that something has been produced. It was totally not known to me that – I don't know what's in it, because it's not opened.

THE COURT: Mr. Guiste, I told you what's in it. I wrote to you.

MR. GUISTE: Yes, you're saying – yeah, yeah.

THE COURT: I wrote to you what's in it.

MR. GUISTE: Pardon?

THE COURT: May I have the item, please? Would you hand it up to Madam Clerk, please?

MR. GUISTE: I haven't seen it, Your Honour.

THE COURT: On January 7, I wrote to you and to Ms. Allan, and I indicated that what is contained in the envelope is the following, "Durham Regional Police Directive – Domestic Violence Occurrences – LE-01-024," which I understand – I have not checked myself – is a document that can be obtained online. That is what is in here. I've told you that in writing several months ago. Why are you now telling me you don't know what's in here?

MR. GUISTE: Your Honour, you're saying that it's a document that could be obtained online?

THE COURT: Never mind that. I may be wrong. Just answer my question.

MR. GUISTE: Okay. Well ---

THE COURT: Why are you now telling me that you don't know what's in here when I told you what's in here?

MR. GUISTE: Okay, I know what that letter says. It says what it says. However, what I have been seeking is the Durham Region Police Services Domestic Violence Policy.

THE COURT: Mr. Guiste, could you answer my question?

MR. GUISTE: Yes.

THE COURT: Why did you just say now that you do not know what is in this envelope? Could you answer that question, in light of the fact that on January 7th, I told you what was in it? Could you answer that question, please?

MR. GUISTE: Well, Your Honour, it says what's in it, and I guess I misspoke. What I am seeking is not the LE – not the document, which I have. I saw somewhere in our correspondence where the Crown has indicated that I have that Policy. Each Police Service, as I understand it, they have their own Domestic Violence Policy, and that is the document that I have been seeking.

THE COURT: Are you ready today to address me on the issue that I raised yesterday?

MR. GUISTE: Which is the ...? The submissions?

THE COURT: Yes.

MR. GUISTE: Well, Your Honour, I think that in light of the issues that I have raised, I think my submissions would not be as fulsome and address all the material points that I think would need to be addressed, because I believe that I would like to hear from the officers to bring out the information and the inconsistencies, which I've highlighted in my factum with respect to the third party application. I think those things are important to a determination of the factual findings that you addressed. For example, you said, well, should I – can I not make a finding of fact that this constitutes an assault? In my respectful submission, I think a finding of fact on that point needs to consider all of the evidence, the inconsistencies, the reliability issues in terms of a determination on that point.

MR. GUISTE: No, I don't have any intention of doing that, but the issue with respect to the disclosure of that Policy is, in my respectful submission, very important, and I wanted an opportunity to examine Officers Derusha and Goldenberg with respect to the steps they took. I have even, in fact, suggested to my friend that we could possibly do some of the facts that I wanted to glean from them by way of admission.

THE COURT: That won't be necessary. I've never encountered a case like this. Today counsel has used words like, "I misspoke, I'm confused, it was inadvertent." This follows on the heels of yesterday when he asked me to tell him what his client had testified to on the previous date. That follows from an allegation that the Crown had committed a fraud upon the court in downloading onto his disk an important piece of disclosure, that it was obvious the defense had simply missed. That follows upon a litany of other issues in this case where I have wondered silently, and yesterday allowed [sic], whether defence counsel was being foolish, or acting foolish, or simply trying to provoke me.

I've come to the conclusion that I have no confidence in the ability of this lawyer to represent this client. I've wondered about that off and on during the trial. His comments today have crystallized that. In my view, I have no alternative but to declare a mistrial in this case. I intend to write written Reasons to explain that. I intend to send those Reasons to the Chief Justice of this court in accordance with our protocol with a request that she refer Mr. Guiste to the Law Society. I'm going to put this over for a period of time so that those Reasons can be delivered, and I'm going to ask the Crown to consider whether in all of the circumstances of this case justice would be best served by having the defendant enter into a peace bond on certain terms and conditions.

Result

[23] Throughout the proceedings, Defence counsel remained uncertain about what issues and witnesses were relevant to his case. Too often, in cross-examination of the complainant, he was careless in asking questions and inattentive to the answers given. On a few occasions, he was discourteous. His inappropriate allegation of prosecutorial misconduct confirms he failed to properly review his disclosure material. He closed his case prematurely and did not answer simple questions from the bench.

[24] The excerpts set out in this ruling fairly reflect how Mr. Guiste discharged his duties and show that Mr. Ram did not receive effective assistance from his counsel.

[25] This case is an aberration. I have been a criminal court judge for 15 years. I am witness to the fact that what regularly happens is that Crown and Defence counsel work hard to successfully fulfill their responsibilities.

Released on: April 16, 2015

Signed: Justice J. De Filippis