R. v. Steven Brier, 2015 ONSC 1770

COURT FILE NO.: CR-13-00000154-00AP

DATE: 20150319

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Steven Brier

BEFORE: Justice B. MacDougall

COUNSEL: Aaron Shachter, Counsel, for the Respondent

Angela Ruffo, Counsel, for the Appellant

HEARD: March 9, 2015

ENDORSEMENT

Background

[1] The Appellant was charged with possession of marijuana under section 4(1) of the Controlled Drugs and Substances Act, (under 30 grams) and resisting arrest by a peace officer engaged in the execution of his duty under Section 129(a) of the Criminal Code of Canada.

[2] The Appellant appeared for his trial without counsel and was found guilty on both counts by L. Chester J. He was sentenced to 30 days in jail to be served concurrently. The Appellant has served his sentence.

[3] The Appellant brings this appeal, appealing both his conviction and sentence.

[4] The Appellant sets out his ground of appeal in paragraph 22 of his counsel’s factum as follows:

The Appellant appeals against his convictions on the sole ground that the trial judge failed to provide the Appellant with the minimum level of assistance that is required to ensure a fair trial for a self-represented accused person. Because the trial judge failed to provide adequate assistance to the self-represented accused, the Appellant’s trial was unfair, resulting in a miscarriage of justice requiring appellate intervention under Section 686(1)(a)(iii) of the Canadian Criminal Code.

[5] Appellant’s counsel made reference to 5 areas where, in her submissions, counsel submits the minimal level of assistance was not provided and although agreeing that each one taken on its own, may not qualify as inadequate assistance, cumulatively in the circumstances, the result, she submits, was an unfair trial constituting a miscarriage of justice.

[6] The trial judge is not required to provide specific explanations at the opening of the trial when an accused person is unrepresented in order for the trial to be considered fair. Instead, that determination requires an evaluation of the trial judge’s actions in light of the facts and circumstances of the particular case, involving a careful and detailed examination of the complete trial record.

[7] The 5 areas outlined by Appellant’s counsel, are that the trial judge failed to:

(i) make the appropriate inquiries and referrals regarding access to legal representation, assistance and information;

(ii) adequately explain the trial procedure;

(iii) explain the elements of the offence;

(iv) consider whether the Appellant’s Charter rights had been violated and if so consider the exclusion of evidence under Section 24(2) of the Charter.

[8] I agree with Appellant’s counsel’s main submission that cumulatively, in the circumstances, the areas that were not addressed adequately by the trial judge resulted in an unfair trial for the Appellant and a miscarriage of justice. Accordingly, the Appellant’s conviction appeal is allowed for the reasons set out below.

[9] The Ontario Court of Appeal in Tran[1], referenced several judicial commentaries on the role the trial judge where the accused person is unrepresented by counsel.

[10] At Paragraph 22:

It is not an enviable task for a trial judge to conduct a criminal trial where the defendant is without counsel. Although an individual charged with an indictable offence is guaranteed the right to counsel by the combined effects of section7 and 11(d) of the Charter, there will be cases where, for various reasons, the defendant does not have a lawyer. When this occurs, the trial judge’s duty is to ensure that the defendant has a fair trial and to provide guidance to the defendant as the circumstances of the case may require. This duty was described by Griffiths J.A. in R. v. McGibbon[2]:

Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defense, and to guide him throughout the trial in such a way that his defense is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must be of necessity be a matter of discretion.

[11] At paragraph 24, the court quoted McEachern C.J.B.C., who adopted the words of the Court in Darlyn[3]:

There are two traditional common law rules which have become so firmly embedded in our judicial system that a conviction is very difficult to sustain on appeal if they are not observed. The first is that if the accused is without counsel, the court shall extend its helping hand to guide him throughout the trial in such a way that his defence, or any defence the proceedings may disclose, is brought out to the jury with its full force and effect. The second is, that it is not enough that the verdict in itself appears to be correct, if the course of the trial has been unfair to the accused. An accused is deemed to be innocent, it is in point to emphasize, not only he is found guilty, but until he is found guilty according to law [Emphasis added].

[12] I will now turn to the 5 areas raised by Appellant’s counsel.

(i) The trial judge did not make the appropriate inquiries and referrals regarding access to legal representation, assistance, and information.

[13] Prior to being arraigned, the trial judge spoke to the Appellant that he understood that the Appellant was representing himself and that he didn’t have a lawyer. The trial judge then stated:

The Court: Okay. So just before we start I’m just going to go over the procedure, okay. So if you brought a pen and paper with you?

The Appellant: No, sir.

[14] The trial judge then proceeded to give a very brief explanation of the trial procedure that consisted of a little over one page of transcript and concluded by the trial judge asking the question: So do you understand that procedure? The Appellant answered: Yes sir.

[15] The trial judge did not make any inquiries as to whether the Appellant was aware of the Legal Aid program or whether he had applied for Legal Aid. He did not inquire from Crown counsel, whether, if there was a conviction, would the Crown be seeking a jail term. Particularly on a conviction for resisting arrest, depending on the circumstances, often a jail term will be requested by the Crown. As it turned out, upon convicting the Appellant on both counts, Crown counsel did seek a jail term which was, as noted, imposed by the trial judge.

[16] The trial judge did not ask the Appellant whether he had received disclosure from the Crown.

[17] The other complicating factor regarding criminal procedure in these circumstance that would not be within the knowledge and skill level of the average relates to the police stop, the search of the Appellant’s vehicle and whether there were Charter issues to deal with on a voir dire. This issue is discussed further below. In addition, depending on whether the search was found to be lawful or not, regarding the resisting arrest charge, that could have a direct bearing on whether the Crown could prove that the police officer when arresting the Appellant was “engaged in the execution of his duty”.

[18] In Cold Lake First Nations v. Alberta[4], the Alberta Court of Appeal at paragraphs 24 and following that:

It is well established that a judge has a special duty to provide limited assistance to unrepresented parties. The extent of this duty depends on the totality of the circumstances, including the seriousness of the offence, the defences raised, and the sophistication of the unrepresented party. The judge's advice must be interactive, appropriate to the unrepresented party and to the surrounding circumstances of the case. Just how far a judge should go in guiding an unrepresented party is a matter of judicial discretion.

Examples of what a judge might be expected to provide guidance about include informing the party of his or her right to be represented by a lawyer, explaining that the assistance of a lawyer may be important to ensure that his or her defence is fully before the court, and ascertaining that the party does not wish to be represented by a lawyer. In the case before me, there was no inquiry by the trial judge.

[19] Appellant’s counsel made reference to the adoption by the Canadian Judicial Council’s “Statement of Principles on Self-represented Litigants and Accused Persons. [Adopted by the Canadian Judicial Council, September 2006]

[20] This Statement of Principles recognizes that “Self-represented persons are generally uninformed about their rights and what the consequences of choosing the options available to them… They may not have the knowledge or skills to participate actively and effectively in their own litigation.”

[21] An early indication of the lack of preparation of the Appellant was when he was asked if he brought a pen and paper before the trial judge commenced going over the procedure and he answered, “no”, yet the record does not indicate whether anyone provided the Appellant with a pen and paper. Further in the transcript after the defendant was arraigned, the trial judge instructed the Appellant:

… And, as I said, pay attention to the evidence and make a note of what questions should you want to ask any of the witnesses.

[22] I recognize that a trial judge is not required to provide specific explanations at the opening of the trial when accused is unrepresented in order for the trial to be considered fair. Instead, that determination requires an evaluation of the trial judge’s actions in light of the facts and circumstances of the particular case, involving a careful and detailed examination of the complete trial record.

[23] In the circumstances in this case, I find that the brief explanation given by the trial judge was inadequate to a significant degree.

ii) the trial judge did not adequately explain the trial procedure.

[24] Although as noted above, the trial judge did provide a brief explanation of the trial procedure, I agree with Appellant’s counsel’s submissions that the trial judge did not adequately explain:

(a) explain the purpose of cross-examination of a witness and how to conduct it;

(b) the Appellant’s Charter rights and remedies available to him if they were engaged;

(c) the Appellant’s right to object to evidence that was irrelevant or inadmissible opinion evidence;

(d) the Appellant’s risks and the factors to consider when deciding whether to testify including the Crown’s entitlement to inquire as to whether he had a criminal record and, if so, the Crown’s right to introduce particulars of the criminal record.

(e) the difference between evidence and argument and the right to make submissions at the end of the case, even if the Appellant chose not to testify.

[25] With respect to assisting the Appellant in determining whether or not he should testify the relevant portion of the transcript, in my view, illustrates the Appellant’s lack of understanding of the trial procedure:

The Court: …. The Crown’s closed its case, and this is the important part of your decision-making. You have to decide whether or not you want to give evidence and give me your side of the story. As I said earlier-and I want to emphasize it-in our system you are presumed innocent, you don’t have to testify but if you want me to hear your side and consider your side of the story you’ve got to get in the witness box and once you do that then you’re subject to cross-examination. So you want to give evidence, or do you have any questions about that?

The Appellant: Well, whatever.

The Court: Well, no it’s not whatever.

The Appellant: If you want me to go up, I’ll go up there, yeah.

The Court: No it’s not my-I tried to emphasize you have the right to…

The Appellant: Okay I’ll go up there.

The Court: All right. You want me to hear your side of the story, then do you?

The Appellant: Yes.

The Court: All right. Well you have to come up here, then, please. Come up here, please.

[26] In my view, this exchange shows a lack of understanding and sophistication of the Appellant. This exchange should have prompted the trial judge to go into greater detail about the factors the Appellant should consider as to whether he should testify. The trial judge also had the opportunity at this point to advise the Appellant that even if he chose not to testify, he still had the right to make submissions before the trial judge made a decision in the case.

[27] In the circumstances of this case, the trial judge’s brief “Trial Procedure Explanation” fell below the minimal level required.

(iii) the trial judge did not explain the elements of the offence.

[28] Again, in itself, the fact that the trial judge did not explain the elements of the offence does not automatically result in an unfair trial however, it is another factor to consider.

[29] Without discussing the issues in the case in detail as the case is to be retried, I only comment that the issue of “possession” of the marijuana in the circumstances of this case was somewhat unusual.

[30] There would have been some merit in this case that after calling on the Crown to make an opening address, the trial judge would have been informed of factors in the case that required an explanation to the unrepresented accused of the elements of the offences that the Crown would have to prove. That would likely have had at least the potential to assist the accused person in his cross-examination of the police officer and, if he chose to testify, have some idea of what facts would be relevant.

[31] Although the trial judge did explain that the Crown would have to prove that the accused did both have knowledge and possession of the illegal substance found in his vehicle, there was no further explanation of the essential ingredients of the “resist arrest” charge. In other words, as previously noted, if the arrest turned out to be unlawful, that would likely be fatal to a conviction on that count.

[32] In reviewing the transcript, a major part of the concern of the Appellant was questioning why he was stopped by the police when there was no indication of any traffic violation.

[33] At the conclusion of the plaintiff’s cross examination, the trial judge asked the Crown to present the Crown’s submissions first. When those concluded the trial judge asked the Appellant “what he wanted to tell him in his submissions” without giving him any guidance as to what might be relevant with respect to the evidence and to the two counts regarding what the Crown would have to prove.

[34] It is obvious, in reviewing the transcript of the Appellant’s submissions, that they were rambling comments, mainly on irrelevant matters. The Appellant did not really understand the legal issues involved with respect to the charges he was facing.

[35] By understanding what the Crown must prove, an unrepresented accused person may better comprehend the issues and may develop a more logical framework for defending the case. See: R v Phillips[5], and R v Moghaddam[6].

[36] I find it in the circumstances of this case the trial judge should have extended further efforts to assist the defendant in presenting his defense.

(iv) the trial judge did not consider whether the Appellant’s Charter rights had been violated requiring a exclusion of evidence under S.24 (2).

[37] In Tran[7], the Ontario Court of Appeal, at paragraph 27, observed that it is incumbent on a trial judge to inquire into any possible infringement of the defendant’s Charter rights, particularly in proceedings involving a self-represented litigant who is unfamiliar with the law.

[38] Crown counsel on the appeal (not trial counsel) did acknowledge that there was a potential Charter issue that arose from the grounds to arrest the Appellant and subsequent search of the vehicle pursuant to sections 8 and 9 of the Charter.

[39] The Crown in his submissions and the trial judge in his ruling did address the issues of whether the police officer had grounds to arrest the Appellant and search his vehicle in the context of whether the Crown had proven the count of resisting a lawful arrest. The trial judge did find that the arresting officer’s conduct in regards to the arrest and search of the Appellant’s vehicle was lawful.

[40] Particularly with respect to this Charter issues in this case, the concern here is not whether the trial judge was correct in law but the fairness of the procedure to the unrepresented accused person.

(v) the trial judge failed to perform at the gatekeeper function regarding the admissibility of evidence.

[41] Appellant’s counsel submits that although courts have accepted numerous areas of police officer expertise specifically relating to narcotics, opinion evidence is only admissible when the police officers are properly qualified to give such evidence. The arresting officer testified about the identity of particles he observed in the Appellant’s vehicle as marijuana and gave estimation as to the weight of the marijuana that was seized from the vehicle.

[42] The officer gave no evidence of any specific training regarding the identification of illegal narcotics. He admitted that in the particles that he was describing could be “tobacco or small sections of marijuana”. It was arguable that this answer demonstrated that he was not qualified to give opinion evidence regarding the nature of the substances seized.

[43] Although the trial judge was entitled to consider the officer’s evidence on the detection of the odour of marijuana, an issue arose, as identified by the trial judge, of whether the acknowledged small amount of marijuana that was found by the officer in the Appellant’s vehicle could provide a defence of de minimus. In that context, the opinion of the officer, as to the amount of marijuana found mixed with tobacco became an important issue. There was no evidence elicited from the police officer for the trial judge to consider as to whether the officer had the “expertise” from his training and experience to give an opinion as to the amount of marihuana given that the officer testified that the marihuana was mixed with tobacco.

Summary

[44] In evaluating the trial judge’s actions in light of the facts and circumstances of this case, I find that the trial judge’s lack of guidance and assistance compromised the unrepresented accused’s ability to properly bring out his defence resulting in an unfair trial.

[45] As the appeal is granted on the Appellant’s appeal of his conviction the matter will be sent back for a new trial.

[46] As the Appellant had served his sentence and the appeal is granted for a new trial, then the Appellant’s appeal of his sentence is moot and the determination of whether the appeal of the sentence should be granted is not necessary.

MacDougall, J.

Date: March 19, 2015

[1] 2001 5555 (ON CA), [2001]O.J. No. 3056 (Ont. C.A.)

[2] (1998) 1988 149 (ON CA), 45 CCC (3d) 334 (Ont. C.A.)

[3] [1946] B.D.J. No. 94 (B.C. C.A.)

[4] 2012 ABCA 36, 2012 A.B. C.A. 36 ()

[5] 2003 ABCA 4, 2003 A.B. C. A. 4 (Alta C.A.)

[6] See note 1

[7] See note 2