WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: November 25, 2015

Court File No.: Halton 545/13

Between:

Her Majesty the Queen

— and —

R.J.A.

Before: Justice L.M. Baldwin

Heard on: May 27, 2014; August 19, 2014; October 3, 2014; October 24, 2014; November 27, 2014; January 9, 2015; February 27, 2015; March 27, 2015; April 8, 2015; May 11, 2015; May 27, 2015; June 10, 2015; July 8, 2015; November 17, 2015

Reasons for Judgment released on: November 25, 2015

Counsel

K. Frew — counsel for the Crown on May 26, 2014 (Day 1 of trial evidence)

N. Chiera — counsel for the Crown on November 17, 2015 (Day 2 of trial evidence)

L. Kwok — counsel for the defendant R.A. on May 26, 2014 (Day 1 of trial evidence)

R.A. — on his own behalf on November 17, 2015 (Day 2 of trial evidence)

BALDWIN J.:

Charges and Verdict

[1] R.A. is charged that between the 1st day of January, 2013 and the 31st day of January, 2013 he did commit a sexual assault on E.M. in Burlington contrary to s. 271 of the Criminal Code. And further that during the same time period and at the same place, he did for a sexual purpose touch E.M., a person under the age of 16 years, with his hand, contrary to s. 151 of the Criminal Code.

[2] On November 17, 2015, I found Mr. A. not guilty on both counts.

[3] Given the circumstances of this case, I further found that his rights as guaranteed by s. 7 of the Charter of Rights and Freedoms had been violated as this trial became an abuse of process and denied him fundamental justice due to the actions of the Crown.

[4] I also found that his right to have his trial heard within a reasonable time as guaranteed by s. 11(b) of the Charter of Rights and Freedoms had been violated due to the actions of the state which involved the prosecuting Crowns and Legal Aid Ontario.

[5] These are my reasons for those findings.

Trial Evidence

[6] At the end of these proceedings two witnesses testified: E.M. for the Crown and Mr. A. representing himself.

[7] E.M.'s testimony was heard on May 27, 2014. She was 16 years of age at that time and testified via CCTV. She adopted her video-taped statement to police given February 13, 2013. It was admitted as evidence pursuant to s. 715.1 of the Criminal Code.

Summary of E.M.'s Testimony

[8] E.M. was 15 years of age when the event alleged occurred.

[9] It took place at her step-father's apartment where he lived on Warwick Court in Burlington with his two adult nephews, R.A. and D.

[10] R.A., born […], 1991, was 22 years of age and turned 23 years of age during the month of January 2013. D. was 25 years old at the time.

[11] E.M.'s mother and R.A.'s uncle had been in an intimate relationship and had 2 young children.

[12] E.M. also had a younger brother J. (aged 11 years) from another union. There is reference in the evidence to E.M. also having an older brother.

[13] E.M.'s mother and R.A.'s uncle had separated 2 years prior to January 2013. Her mother had moved in briefly with her 4 children for some period during the month of January 2013. They discussed getting back together. That did not happen.

[14] In February, just days before she gave her statement to the police, E.M.'s mother and her children moved from Burlington to Stoney Creek. E.M. told the officer that she lived in a house with 4 adults and 7 children.

[15] She had to change high schools in the middle of grade 10 and she had not made any new friends at the new school. It was a difficult time for E.M. She had lived in Burlington her whole life.

[16] In January, when they were staying at the Warwick apartment, E.M. did not have a bedroom. She slept on the couch in the living room.

[17] She testified that she did not like staying there because it made her uncomfortable.

[18] On the night of the allegation, she had wanted to stay at her friend C.'s house, but her mother would not drive her there. E.M. could not remember what night this was. She does remember that it was a school night.

[19] It was around the second week of January at 4:00 in the morning when she woke up to "like someone touching me inappropriately". (video statement – Exhibit #2 - p. 13):

And I was like too scared to look right away so I like pretended to be sleeping and rolled over slowly. Opened my eyes at the last second to see who it was and I saw like, I couldn't see the face, but like I saw like the hair and like the clothes that he was wearing. And he like jumped off the couch as soon as I moved and around the corner. And then like a minute later, my cousin came out and he was in shorts and a black shirt like I saw the person jump off the couch…and he (the accused) said that he heard a big bang and if he could sit out there with me for a little bit. And I'm a really light sleeper so I would of heard the big bang and I didn't hear anything and the house was really quiet…and he was the only one awake and he's the only one that has long hair in that house.

[20] The accused sat on the couch for a bit. He smoked a couple of cigarettes and went back to his bedroom.

[21] Before he went back to bed he tickled her stomach over her hoody sweat shirt with one of his hands "which was really unusual for him to do". (p. 23)

[22] E.M. stated that she was almost asleep when she felt someone start to touch her bum trying to go in between her legs over her pyjama pants. The fingers were moving back and forth.

[23] In her trial evidence, E.M. testified that the touching on her bum was for 20 to 30 seconds before she started to turn her head around. (Transcript p. 38)

[24] She agreed with Mr. Kwok's suggestion that she was in a semi-conscious state and was groggy mentally at the time. (p. 26)

[25] Her eyes were half closed and she caught a 2 second glimpse of the person who passed by her head when she saw the hair and the clothes. (pp. 32, 36, 37)

[26] She saw the accused come around the corner one to two minutes later wearing the same clothes. (p. 38)

[27] He asked her if he could sit on the couch. She said yes and he sat there for 10 minutes smoking cigarettes. When he tickled her stomach for 30 seconds to a minute, neither of them said anything. (p. 46)

[28] E.M. testified that the accused used one hand to tickle her. She agreed with Mr. Kwok's suggestion that it was like how a parent would tickle their child to make them giggle or laugh. (p. 47)

[29] E.M. testified that she did not know where her 11-year-old brother J. was that night.

Summary of the Testimony of R.A. (Heard on November 17, 2015)

[30] Mr. A. testified that E.M.'s allegations are 100% false. He did not touch or tickle E.M. at any time.

[31] He does wake up every night because of his asthma. He does smoke cigarettes in the middle of the night.

[32] He does recall a night in either December 2012 or January 2013 before his birthday on January 16th, when he woke up in the middle of the night and had a cigarette at the back door of the apartment. E.M. was sitting up on the couch at the time. He did not know if she was sleeping or not. The television and the lights of the apartment were on. He put his smoke out in the ashtray that was in front of the couch. He said 'have a good night to E.M.' and went back to bed.

[33] J. was sleeping on a cot in the living room at the time. His brother D. was in his own bedroom. His uncle, E.M.'s mother and their two little children were in the 3rd bedroom.

W.D. Analysis

[34] The Crown submitted that they have proven this case beyond a reasonable doubt and asked the Court to register findings of guilt. The Crown submitted that I should prefer the evidence of the complainant over that of the accused in this case.

[35] The test in R. v. W.(D), [1991] S.C.J. No 26 (S.C.C.) states as follows:

• if I believe the evidence of the accused I must find him not guilty;
• if I do not believe some or all of his testimony, if it leaves me with a reasonable doubt, I must find him not guilty;
• if I do not know whom to believe, it means that I have a reasonable doubt, and I must find him not guilty;
• if his testimony does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept as credible and true I am not satisfied beyond a reasonable doubt of his guilt, I must find him not guilty.

[36] An accused person in a criminal case is presumed innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything, including a motive for a complainant to fabricate allegations to the police. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely, it is nearly impossible to prove anything with absolute certainty, and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard…falls much closer to absolute certainty than to proof on a balance of probabilities." (See R. v. Starr, [2000] No. 40 (S.C.C.) at para 242.)

[37] This is a tough standard and it is for very good reason. As Cory J. said in R. v. Lifchus, [1997] S.C.J. No. 77 (S.C.C.) at para 13:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt…is one of the principle safeguards which seeks to ensure that no innocent person is convicted.

[38] There is absolutely no reason for me to give more weight to the complainant's evidence over that of the accused in this case.

[39] This was a very weak case for the Crown. (See Footnote #1)

[40] On the complainant's own evidence she half opened her eyes for a split second in a semi-conscious and foggy state and caught a glimpse of someone with long hair wearing boxer shorts and a dark shirt moving behind her. She did not see the person's face.

[41] Because the accused entered the room one to two minutes later and smoked some cigarettes, she believes it was him that touched her. She believes she was touched by him because he was the only person with long hair and he was wearing boxers and a dark shirt.

[42] First of all, I am not satisfied beyond a reasonable doubt that E.M. was touched by anyone as she alleges. Her description of the events is vague and dream-like.

[43] Her failure to recall where 11-year-old J. was sleeping at the time was concerning.

[44] According to the accused, J. was sleeping on a cot beside the couch. It was clear from his evidence, and I have no reason to reject it, that this small apartment was full to the maximum with 8 people sleeping in it at the time.

[45] I have no doubt that E.M. was troubled and, in her words, uncomfortable sleeping there. She had no bedroom and no privacy. Her home life was in upheaval and her life was about to change with a move to another house with more people she did not know and away from her friends. She had a lot of reasons to feel scared and insecure.

[46] The accused gave a straightforward, consistent account and denied touching E.M.

[47] In his evidence he tried to provide reasons why E.M. had fabricated these allegations. As an unrepresented accused, I assisted him by advising him that he was not required to do so.

[48] For these reasons, on November 17th, 2015, I determined that the Crown had failed to meet their onus of proof and findings of not guilty were entered on the Information before the Court.

Section 7 Charter Breach for Abuse of Process

[49] At the end of giving his narrative of events in-Chief, representing himself, Mr. A. testified as to the great hardship these proceedings have caused him, emotionally, financially and in every way. One of his last statements was 'I have been screwed in this case because of my inability to get a lawyer'.

[50] Due to the fact that he had appeared on 14 occasions covering the time period from May 27, 2014 through to November 17, 2015 (17 months), I assisted him as an unrepresented accused and advised the Crown that the accused had put s.7 of the Charter in play. I filed as Exhibit #7 the transcripts of all of the accused's appearance since May 27, 2014, and invited the Crown again to please read them.

History of These Proceedings

[51] March 6, 2013 - The accused's first appearance in the set date court was on March 6, 2013. Mr. A. was given initial Crown disclosure and he stated his intention to apply for Legal Aid immediately.

[52] April 3, 2013 - On the 2nd appearance on April 3, 2013, Mr. Kwok was present as retained counsel and filed a designation. He asked for an adjournment to May 1st to review initial disclosure.

[53] May 1, 2013 - On the 3rd appearance on May 1st, 2013, an agent appeared for Mr. Kwok and stated they had just signed the undertaking and picked up the complainant's DVD statement. The matter was adjourned to May 29, 2013, for counsel to review it.

[54] May 29, 2013 – An agent appeared for Mr. Kwok who had a brief resolution meeting with the Crown that day. Both Crown and Defence agreed to adjourn the matter to June 24, 2013, for a Judicial Pre-Trial.

[55] June 24, 2013 – The JPT before Justice LeDressay began and was adjourned at the request of both Counsel to July 15, 2013.

[56] July 15, 2013 – Both Crown and Defence requested more time to discuss matters since the JPT held on June 24th. The matter was adjourned for a continuing JPT to August 12, 2013.

[57] August 12, 2013 – The Crown states that they wished an opportunity to speak with the complainant. The JPT was adjourned to September 26, 2013.

[58] September 26, 2013 - The Formal JPT Form was completed by Justice LeDressay and signed by Crown Counsel (Mr. Chiera), Mr. Kwok and Justice LeDressay.

[59] In those notes, it was agreed that there will be one witness for the Crown and that the Crown is not tendering the accused's statement to the police.

[60] It was agreed that there will be 0 to 1 witness for the defence.

[61] It was agreed that this will be a WD analysis case, with no voir dires, evidentiary rulings or Charter Applications.

[62] On the court record Mr. Kwok stated that there will be only one witness for the Crown and "that the Crown is not going to be eliciting Mr. A.'s statement for any purposes and as a result of that, that would remove the need for a Charter Application…it's a straight W.D. analysis."

[63] Justice LeDressay asked if either counsel have any other issues that they think should be noted on the JPT Form. Mr. Kwok stated "No". Mr. Chiera for the Crown stated "No".

[64] Justice LeDressay again confirmed with counsel that it was a one- to two- witness case with no Applications whatsoever.

[65] Justice LeDressay then asked each counsel to review the Form for accuracy and sign it.

[66] Both counsel signed the Form and they were given a copy of it for their records.

[67] The one day trial set for May 27, 2014 was confirmed.

Undertakings on the Judicial Pre-Trial Form

[68] Above the signatures of both counsel and the Judge appears the following, which has been in existence here in Halton since this formal JPT Form was launched in May of 2012:

CONSEQUENCES FOR UNDER-ESTIMATING THE TOTAL TRIAL/PRELIMINARY HEARING TIME-ESTIMATE BY COUNSEL

Counsel undertake to advise the Trial Coordinator, as soon as possible, if anything at the JPT changes before the proceeding commences.

If either party changes positions taken on the JPT Form, they must provide written notice to the other party and the Trial Coordinator, together with any notices required by the Rules of the OCJ, CEA, CCC or Courts of Justice Act.

If counsel have not indicated on the JPT Form that an Application will be brought, or have changed their position in regard to an Application without giving proper notice, and seek to bring the Application on the Trial/PH, the Application may not be heard.

Statements to the Court on May 27, 2014

[69] Before arraignment, I said to both counsel, "And I have the Judicial Pre-Trial notes. Trial time estimate is one day.

[70] Ms. Frew, who appeared for the Crown answered "Yes". Mr. Kwok representing the accused answered "Yes, that's correct. Thank you." (Transcript p. 1)

[71] Before arraignment of the accused, Mr. Kwok stated that following:

We've been really able to focus it down to it's a he said/she said allegation, You Honour, where it's one witness, the complainant for the Crown and then, ultimately Mr. A. on behalf of the Defence. There's going to be, what I understand, no other witnesses for this particular trial. And as a result of that, we've been also able to narrow it down even further in terms of Mr. A.'s statement to the police. I understand the Crown is not tendering Mr. A.'s statement to the police in the Crown's case and is not relying on Mr. A.'s statement even for the purpose of cross-examination, is not doing so…it's a straight W.D. analysis. (p. 3)

[72] After the arraignment, Ms. Frew stated that "Mr. Kwok has fairly put in the situation we're in" with respect to the issues. (p. 7)

[73] At the end of the day, the trial was put over for continuation to August 19, 2014, with counsel estimating half a day to complete the matter.

Proceedings on August 19, 2014

[74] On this appearance, Mr. Kwok filed a Notice of Application to be Removed as Counsel of Record, together with a supporting Affidavit of his articling student, Mr. Satinder Brar.

[75] This Application states that on June 6 and 26, 2014, Crown Counsel sent a letter to Mr. Kwok's office formally advising of their intention to change their earlier pre-trial position and indicated their desire to tender Mr. A.'s statement to the police for the purpose of cross-examination.

[76] That on July 2, 2014, Mr. Kwok responded to Crown Counsel with a letter advising that his position remained the same, namely, an expectation that Crown Counsel would be continually bound by their earlier pre-trial position and not be permitted to rely on Mr. A.'s statement for any purposes.

[77] It is stated that Crown Counsel's position as taken at the JPT removed the need to bring a section 10(b) Charter application at trial and that position resulted in the Defence agreeing to a trial time estimate of one day.

[78] That Mr. Kwok spoke with Crown Counsel on August 6, 2014, who again advised it was the Crown's position to tender Mr. A.'s statement for cross-examination.

[79] That Mr. Kwok met with Mr. A. on August 14, 2014, to discuss this issue and, as a result of this meeting, there is now a breakdown in the solicitor-client relationship.

[80] That the significant issues that have arisen between Mr. A. and Mr. Kwok as a result of the above noted events required Mr. Kwok to withdraw as counsel and be removed from the record pursuant to rule 2.09(7) of the Rules of Professional Conduct.

[81] Ms. Frew responded to the Application as follows:

"Mr. Kwok has outlined his understanding of what he understood to be the pre-trial discussions, the judicial pre-trial, and you have Justice LeDressay's notes. Clearly the Crown's understanding was something different, and that'll be a matter of an Application later on, if new counsel choose to bring it, about what use was to be made of this statement. But certainly there was a misunderstanding on some part by both parties, and prior to trial commencing, Mr. Kwok and I actually had discussions about this exact issue. So when he says it was only after trial, that's not entirely accurate. But as I said, I don't think that we need to get into that for the purposes of the Application to remove counsel of record. The Crown is not going to be opposing this Application given the breakdown in solicitor-client relationship. However, we will not be conceding any other issues aside from that, and should new counsel wish to bring any Application, we will respond accordingly. But I want it clear, on the record, we're not conceding anything in terms of any delay or what use to be made of anything, aside from removing Mr. Kwok as counsel of record." (Transcript pp. 3, 4)

[82] Mr. Kwok was removed as counsel of record on consent.

[83] The matter was adjourned to October 3, 2014, for Mr. A. to retain new counsel. It was expected that this process would not take long.

[84] As the record clearly reflects, the process took an enormous amount of time and finally failed altogether which resulted in Mr. A. appearing for his final day of trial on November 17, 2015, representing himself.

[85] October 3, 2014 appearance - Mr. A. stated that he applied to Legal Aid 9 days ago and has spoken to a few lawyers. He expected that in 3 weeks he would have new counsel retained. The matter was put over to October 24, 2014, with the expectation that the continuing trial date(s) could be set.

[86] October 24, 2014 appearance - Mr. A. provided a letter from counsel Mitchell Chernovsky stating that he was in the process of being retained as new counsel. He was in the process of getting all the disclosure in this case.

[87] I asked Crown counsel Ms. Frew how many dates were now required to complete this trial.

[88] Ms. Frew replied as follows:

"It's going to require a conversation with counsel, Mr. Chernovsky, once he's retained. Because it will depend on whether or not he requires a voir dire or a 10(b) – depending on that for the statement, so presumably not more than, but I think that would be a maximum of two days more. And that's assuming the worst." (p. 4)

[89] Mr. A. stated that he really wished to get this trial over with and that it was very stressful for his life.

[90] The matter was adjourned to November 27, 2014, to set new date(s) with new counsel.

[91] November 2, 2014 appearance - Mr. A. stated that he had driven to Toronto and met with Mitchell Chernovsky. There has been a mix-up with Legal Aid and they are now saying that it will be 7 more days to get the Certificate to his new lawyer. Mr. A. brought another letter from Mr. Chernovsky stating that he is still waiting for all of the disclosure.

[92] The matter was adjourned to January 9th, 2015, to set the continuing trial date(s).

[93] January 9, 2015 appearance – Mr. A. stated that he received an e-mail from Legal Aid saying that he had to re-apply because his living and employment situation had changed and the process would take between four to six weeks.

[94] Mr. A. stated that before this, it was not a matter of applying for Legal Aid, it was switching the Legal Aid certificate over from Mr. Kwok to Mr. Chernovsky.

[95] Mr. A. asked for an adjournment of up to six weeks so he could get his Legal Aid certificate switched over to new counsel.

[96] Mr. A. again stated that he wants to get this trial over and done with.

[97] The matter was adjourned to February 27, 2015, with the expectation the continuing trial date(s) would be set.

[98] February 27, 2015 appearance - Mr. A. stated that Legal Aid is requesting more financial information from his wife and about his dependants. He has been told that it will take 3 more weeks to get his Legal Aid certificate switched over from Mr. Kwok to Mr. Chernovsky.

[99] Mr. A. stated that he has been making calls every week to get this all sorted out. "I'm trying to get a lawyer. I need a lawyer. So the last case scenario is me representing myself, and I do not want to do that." (p. 3)

[100] The matter was adjourned to March 27, 2015, with the expectation that trial continuation date(s) would be set with new counsel.

[101] March 27, 2015 appearance - Mr. A. stated that Legal Aid has not processed his application yet. He has tried to contact them about this but is not getting any answers. Mr. Chernovsky still has not received the Legal Aid certificate he had with Mr. Kwok. He has left messages with both counsel and they have not been returned.

[102] At this point I decided that Mr. A. required the assistance of Duty Counsel because clearly he was having great difficulty in getting Legal Aid to switch his certificate from one counsel to another.

[103] As we do not have any Duty Counsel in the Burlington Courthouse, I adjourned the matter to the Milton Courthouse where Mr. A. could get that assistance.

THE COURT: And we're going to get Duty Counsel to help you out with this. Okay? You're sort of lost in a system over there.

MR. A.: It's unbelievable. I honestly feel like the entire world's working against me right now.

THE COURT: Well, I'm – okay – well, we're not.

[104] The matter was adjourned to April 8, 2015.

[105] April 8, 2015 appearance – (This was before Justice Forsyth that day in the Milton Duty Court) Duty Counsel advised that Legal Aid had informed him that in 10 days everything should be in order from their point of view. The matter was adjourned to May 11, 2015.

[106] May 11, 2015 appearance – Mr. A. has spoken to Duty Counsel Ms. Butany who advised that Legal Aid has no record of his application and she has sent everything he has previously sent to them again today.

THE COURT: Well, this is really starting to get ridiculous…Well I guess I do not have any choice but to ask to bring you back again Mr. A., which will be the most appearances anybody has ever made, to try to get a Legal Aid certificate changed from one lawyer to another, in any case I've been involved with.

[107] Mr. A. agreed that the situation was getting ridiculous. He stated that he has a job and all these appearances are costing him a "ridiculous amount of money". He also stated that he has 4 children.

[108] Mr. A. apologized for again being so emotional in court. I told him that I understood.

[109] The matter was adjourned to May 27, 2015.

[110] May 27, 2015 appearance - Mr. A. stated that now Legal Aid wants his Canadian Government tax assessment for his business and that he sent that today and was told that they required two weeks to determine his Legal Aid eligibility.

[111] The matter was adjourned to June 10, 2015.

[112] June 10, 2015 appearance – Mr. A. stated that Legal Aid told him today that everything has gone through and they say he makes too much money to have free Legal Aid so he has to make monthly payments even though he has four children. He can now contact his new lawyer and hopes that he will attend with him next time to set the continuation date(s).

[113] After more frustration was expressed by me and Mr. A. with respect to the year-and-a-half delay to get his Legal Aid certificate switched to new counsel, the matter was adjourned to July 8, 2015, and marked pre-emptory to set trial continuation date(s).

[114] "MR. A.: The 8th is perfect. I only have three jobs that day."

[115] July 8, 2015 appearance – This appearance started out looking promising but quickly disintegrated into another disastrous court appearance for Mr. A. and the Court.

[116] It started with defence counsel Brendon Neil appearing as agent for counsel Ms. Lawson. Mr. Neil advised that Ms. Lawson was not yet retained but has been talking to Mr. A. about putting her name on the Legal Aid certificate. Ms. Lawson had already ordered disclosure and wished the matter to return on July 22, 2015.

[117] Ms. Ward, appearing for the Crown, stated that the matter was marked pre-emptory to set a date today; she believed it was for a continuing pre-trial.

[118] I advised all concerned that we were in the middle of Mr. A.'s trial.

[119] Mr. Neil asked that the matter be stood down so he could communicate with Ms. Lawson as he did not think she understood that this was for trial continuation.

[120] Mr. Neil returned after speaking to Ms. Lawson and stated:

The shock and awe, if I can express it, is what came back from that conversation…Mr. A. does have a valid Legal Aid (certificate) as of right now…as of this morning…named to Ms. Lawson. She has not acknowledged that certificate yet…she believed that the matter had not proceeded to trial yet, that it was…still at a judicial pre-trial stage…Ms. Lawson is not prepared to take this matter on mid-trial…so in terms of my role, I guess as Ms. Lawson's agent, it's kind of over…so I guess I stand aside and leave it to Mr. A. at this point. (pp. 4, 5)

[121] I then advised Mr. A. that he needed to retain another lawyer who understands that we are mid-trial.

[122] Mr. A. asked if any of the defence lawyers present in the courtroom could represent him with his Legal Aid certificate. None of the lawyers said that they would.

[123] Mr. A. addressed me then as follows:

I need this to be over and done with as soon as possible. I plan on getting married in the winter and going away. That's not going to happen any time soon, is it? Like this is putting a whole lot …I can't even coach my son's soccer team…how frustrating this is. I have three boys…I've done everything in my power… (pp. 6, 7)

[124] I then held the matter down for Mr. A., with Mr. Neil's assistance as a friend of the Court, to obtain a date from the trial coordinator for a trial continuation marked as to 'continue with or without counsel'.

[125] I set the trial time for one day.

[126] The matter returned later in the day with Mr. Neil advising that things had become more complex and that Legal Aid was now contemplating cancelling the certificate.

[127] "It seems their thought process is that if the matter is mid-trial, they would not have accepted a change in solicitor." (p. 10)

[128] Mr. A. stated:

I've just been told to represent myself after going through all of this…And I will be representing myself because I'm not doing this anymore…It's ruining my life. Not even just the accusation. Having to come here, having to deal with this, is adding stress to my life that I do not need. Like, this is killing me, actually. Like I throw up every single time I come here. I already have a problem with that, as it is. And I'm dealing with this even more…I'm trying not to show emotion because I know it does not help in a case like this, especially anger emotion. So I'm almost done. (pp. 11,12)

[129] Mr. Neil then recommended that Mr. A. appeal his denial of a Legal Aid certificate to the Area Committee.

[130] Ms. Ward then stated that she needed to speak to Ms. Frew about possible other witnesses for the Crown and the issue of the accused's statement to the police.

[131] After speaking to Ms. Frew, Ms. Ward advised that the complainant was still in cross-examination and that a s. 486 counsel was required; there were disclosure witnesses to be called, and the officer in charge (with respect to the accused's statement to police). The Crown stated that 2 days was now required to complete the trial.

[132] Duty Counsel (Mr. Gibson) assisted Mr. A. at this point and indicated that there would be no more defence questions put to the complainant (which means that there is no requirement for a s. 486 counsel). He understood that the Crown was not calling any other witnesses. Mr. A. intends to testify. (p. 17)

[133] Ms. Ward stated that she would not have the complainant subpoenaed then for the trial continuation.

[134] I set the matter for a one-day trial continuation/completion to November 17, 2015.

Trial Proceedings on November 17, 2015

[135] Mr. A. was present and representing himself.

[136] Mr. Chiera was the Crown. The same Crown who had signed the JPT notes.

[137] Mr. Chiera stated that the Crown was not going to attempt to voir dire the statement of the accused to the police. The Crown was not calling any further evidence and they rested their case.

[138] Mr. A. took the stand and gave his testimony as set out above.

[139] Mr. A. was found not guilty of both charges as set out above.

Abuse of Process – Denial of Fundamental Trial Fairness – Actions of the State

[140] This trial fell off the rails when the Crown Attorneys in this case failed to comply with their written undertaking given to the Court at the Judicial Pre-Trial.

[141] The notes are clear and unambiguous. The Crown was not seeking to tender the accused's statement to the police and this would be a one witness case for the Crown.

[142] All of this was repeated on the record during the signing of the formal JPT Form.

[143] These undertakings were stated to be accurate at the outset of trial by Ms. Frew.

[144] After the first day of trial the Crown changed its mind and decided that they were going to adduce the accused's statement for purposes of cross-examination.

[145] No notice was given to the trial coordinator that there had been a change of position. There was no request on their part for a mid-trial JPT to sort out their so-called confusion on the matter. There was no Notice of Application to me as the trial Judge to make a ruling in this regard; a ruling I offered to make on August 19, 2014, when Mr. Kwok applied to be removed as counsel of record. It should be of no surprise to anyone at this point that the Application to change their stated and written undertakings mid-trial would have been refused.

[146] During final submissions on the s.7 Charter Application, the Crown stated that there had been "confusion" with respect to the Crown using Mr. A.'s statement for purposes of cross-examination; that discussions had taken place in court hallways between counsel on this issue.

[147] It was necessary for me to remind the Crown that, as an officer of the court and a Minister of Justice, discussions in hallways do not trump undertakings given to the Court, nor do they trump statements made in open court at the outset of trial. I fail to see any confusion here. What I do see is various Crowns changing positions without regard for what the implications will be on an accused's person's ability to make full answer and defence and on the Court's ability to accurately set trial time.

[148] Further, Rule 4.2(3) of the Rules of the Ontario Court of Justice states that:

At the pre-trial, it is required that the parties have authority to make decisions on

(a) disclosure;

(b) applications, including Charter applications, that the parties will bring at trial;

(c) the number of witnesses each party intends to call at the preliminary hearing or trial;

(d) any admissions the parties are willing to make;

(e) any legal issues that the parties anticipate may arise in the proceeding;

(f) an estimate of the time needed to complete the proceeding; and

(g) resolution of the matter, if appropriate.

[149] These rules came into effect on July 1st, 2012. These rules were not complied with in this case.

[150] It is concerning enough that the Crown's actions led to the breakdown of the solicitor-client relationship in this case, but that was exponentially increased when the Crown, 17 months after the trial first began, then capriciously stated that they were not going to attempt to adduce the accused's statement to the police and that was the case for the Crown.

[151] The Crown's actions in this case have caused great hardship to the accused person, financially, emotionally, and socially. He has not been able to function properly in the community or with his family as a result. The prejudice he has suffered as a result of the Crown's flip-flopping positions was enormous.

[152] However, the failure to comply with signed undertakings to the Court, statements placed on the record when the JPT process was being completed, statements made at the outset of trial to the Court, failing to comply with the Rules of the Ontario Court of Justice, and failure to act as officers of the court and Ministers of Justice, does not end the abuse of process analysis in this case.

The Failure of Legal Aid Ontario

[153] It is apparent from the chronology of events detailed above that Mr. A. had secured a Legal Aid certificate and retained counsel on the second appearance before the court (April 13, 2013).

[154] For reasons that were never made clear, Mr. A. was required to re-apply to Legal Aid after Mr. Kwok was removed as counsel of record mid-trial (August 10, 2014).

[155] Between August 19, 2014 and July 8, 2015, Mr. A. made repeated diligent efforts to obtain a Legal Aid certificate for counsel to represent him on the trial continuation date.

[156] On July 8, 2015, Mr. A. was advised that Legal Aid was cancelling his certificate all together and he was forced to represent himself.

[157] Clearly, another part of the justice system failed which resulted in Mr. A. representing himself on these serious charges.

[158] This failure contributed to an enormous delay in contemplating this trial.

[159] Alternatively, these charges are stayed as an abuse of process.

Section 11(b) Analysis

[160] I have reviewed every step of these tortured proceedings as noted above.

[161] Mr. A.'s matter was addressed in court 22 times, starting with his first appearance on March 6, 2013, and ending with his last appearance on November 17, 2015.

[162] Mr. A. and his counsel set a trial date for one day at the completion of a formal JPT on September 26, 2013.

[163] I started the trial on May 27, 2014, and could not complete it until November 17, 2015, because of the actions of the prosecuting Crowns and the failures of Legal Aid Ontario.

[164] The approximately 17 months of delay is not justified on any standard.

[165] Alternatively, these charges are stayed for unreasonable delay.

Released: November 25, 2015

Signed: "Justice Lesley M. Baldwin"

Footnote

[1] At the outset of the police statement, Detective Constable Clayton tells the complainant that she wants her to tell the truth. At the same time, the Officer says "there is no consequence for anything". (p. 4) This was not a KGB statement. There was no mention of the importance of telling the truth or possible consequences for not telling the truth. It is bad practice for an investigating officer to tell a complainant at the outset of their statement that there is no consequence for anything. Not telling the truth to a police officer who is investigating a criminal offence based on an untrue statement to the police, is grounds for that person to be charged with the criminal offence of Public Mischief. Accordingly, I give the complainant's statement to police less weight because of this misleading statement to the complainant by the police at the outset of this investigation.