Court File and Parties

Court File No.: CR-14-700000426-0000 Date: 2016-05-04 Superior Court of Justice - Ontario

Re: R. v. Michael

Before: E.M. Morgan J.

Counsel: Jessica Smith Joy, for the Crown Dean F. Embry, for the Defendant

Heard: Application in writing

Endorsement – Mistrial Application

[1] This is an application by the defense for a declaration of mistrial resulting from a mid-trial falling out between the accused, John Michael, and his former counsel, Uma Kancharla.

[2] Mr. Embry, who is new counsel for the defense, and Ms. Smith Joy, for the Crown, have both agreed that this application should be adjudicated on the basis of written submissions alone. There has been a significant lapse of time since the trial adjourned, and both sides are anxious to have the matter determined expeditiously.

[3] Mr. Michael is charged with assault and threatening in relation to an incident that occurred aboard a TTC vehicle in November 2012. He is alleged to have accosted one passenger and brandished a firearm in a threatening fashion to a number of others. The trial commenced on Monday, January 5, 2015, and was scheduled for three to four days without a jury. The Crown and the defense have each completed their case, and only final submissions remain in the trial. The Crown’s evidence included four civilian witnesses and three police officers, while the defense evidence included the testimony of Mr. Michael.

[4] The first two days of trial proceeded without incident. At the outset of the third day of trial, Ms. Kancharla made an application under section 672.11 of the Criminal Code for a psychiatric assessment of Mr. Michael with a view to determining his fitness to stand trial. That application was heard by me and dismissed on January 7, 2015: R v Michael, 2015 ONSC 148.

[5] It was obvious during the assessment application that Mr. Michael did not agree with the tact taken by Ms. Kancharla. Ms. Kancharla said so as part of her submissions, and Mr. Michael testified to that effect as well. Ms. Kancharla was of the view that she was obliged to raise the question of fitness regardless of Mr. Michael’s instructions, as she has an overriding duty to the court. She revealed some minimal details of her conversations with Mr. Michael in order to convey to the court the gist of her concerns.

[6] During the section 672.11 application, Mr. Michael took the witness stand and testified that he thought his own counsel was working against him. Ms. Kancharla asked a couple of short, carefully phrased questions in order for Mr. Michael to express his views to the court. He responded:

She’s supposed to be – normally, lawyers are supposed to be on the defendant’s side, but this hasn’t totally been the case with me and Ms. Uma Kancharla. It has been almost totally wreck out of the way. As she’s been ordering me, commanding me, and instructing me to do things that are against my will.

[4] After listening to Mr. Michael testify, Ms. Smith Joy submitted that Mr. Michael appeared to fully understand the nature or object of the proceedings and the possible consequences of the proceedings. Ms. Kancharla more or less agreed with that position, indicating that the real problem was with Mr. Michael’s inability to communicate with her as counsel.

[7] Ms. Kancharla was of the view that Mr. Michael suffers from a form of paranoia, and that he is under the mistaken impression that she has somehow aligned herself with the Crown rather than with his interests. She indicated that she was having difficulty giving Mr. Michael advice and acting on his instructions which were at times contrary to her better judgment. She did not spell out what advice or what instructions she meant.

[5] It must be acknowledged that Ms. Kancharla found herself in quandary. Professor Allan Manson has described this as a classic form of ethical dilemma:

At some stage, a suspicion about mental disability may cause the lawyer to question, or even disregard, instructions from the accused. The conflict between the lawyer’s personal conclusions and the accused’s instructions represents the classic conflict between duties which allows for no simple answer: Allan S. Manson, “Observations from an Ethical Perspective on Fitness, Insanity and Confidentiality” (1982) 27 McGill LJ 196, 217.

[6] In the result, I found that Mr. Michael at least met the test of “limited cognitive ability” that the Court of Appeal in R v Taylor (1992), 77 CCC (3d) 551 pronounced as the standard for fitness for trial. That does not mean, however, that Ms. Kancharla did not have a serious concern about her client’s mental state. In concluding that he was fit for trial, I alluded to the fact that “the presence of delusions does not vitiate the accused’s fitness to stand trial unless the delusion distorts the accused’s rudimentary understanding of the judicial process”: Taylor, at para 44.

[7] Having concluded that Mr. Michael exhibited signs of mental illness, Ms. Kancharla had a hard time relying on either Mr. Michael or on her own judgment in determining how to proceed. As the Court of Appeal put it in R v Gibbons (1946), 86 CCC 20, 22, “I find it difficult to conceive how counsel for the accused could properly receive instructions from the accused as to a defence of insanity, if that insanity still persisted at the time of the trial.” Although this is not a case where a defense of insanity is in issue, the point is the same; counsel who thinks that her client may be unfit cannot reliably act on the client’s instructions when it comes to determining the question of his fitness. She therefore properly put the question to the court in the form of a section 672.11 application.

[8] Following my ruling dismissing the application, Ms. Kancharla indicated that she intended to remove herself from the record as defense counsel. At the same time, Mr. Michael indicated that he wished to continue the trial. I adjourned court for the day, and encouraged the two of them to discuss the matter among themselves. I indicated that court would resume the following morning for either the continuation of the trial or for a formal application by Ms. Kancharla to get off the record, if that was what she wished to do.

[9] The following morning court reconvened, and no application was brought. Ms. Kancharla and Mr. Michael confirmed that they were ready to proceed with the trial, and so the Crown continued its case and called its final witness. Ms. Kancharla conducted her cross-examination of the witness. She gave no indication that she was approaching the case in any way other than as a focused and competent defense counsel with instructions from her client to test the Crown’s evidence to the fullest extent.

[10] After the Crown closed its case, Mr. Michael testified in his own defense. During cross-examination by Crown counsel, Mr. Michael indicated that he did not feel well and that he had now changed his mind from the previous day and wanted to go for a fitness assessment. He also indicated that he was having stomach troubles which were making him feel ill. Ms. Smith Joy brought her cross-examination to an end, and with that the defense closed its case.

[11] The court then adjourned until after the lunch break, when final submissions were to commence. The trial never resumed, however, as Mr. Michael did not return to court that afternoon. I issued a bench warrant and adjourned the matter until Mr. Michael could be located. It took a number of months before Mr. Michael returned to court.

[12] As I indicated in my ruling on the section 672.11 application, it was obvious that Mr. Michael and Ms. Kancharla were not getting along particularly well. Quoting Taylor, at para 45, I observed at the time that, “[t]he fact that a person’s mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.” In other words, I was aware that the application had been a source of disagreement between Mr. Michael and Ms. Kancharla, but, as I said in my endorsement, I saw “no reason to medicalize the problems that Mr. Michael is having with his counsel.”

[13] Mr. Embry, who has taken over from Ms. Kancharla, now submits that Ms. Kancharla prejudiced Mr. Michael’s defense by bringing the fitness application and by disclosing privileged information during the course of that application. He says that once this occurred, it was unfair to continue the trial. He further submits that Ms. Kancharla should have withdrawn from the record, and that her having not done so is cause for a mistrial.

[14] As indicated above, I have no doubt that Ms. Kancharla had a genuine concern for Mr. Michael’s mental state. Her application was in line with the reasoning in R v Szostak, [2012] OJ No 3330, at para 70, where the Court of Appeal stated, “If, as I believe to be the case here, counsel has a good faith basis for doubting his client’s fitness to stand trial, he is entitled to raise that issue with the court.” The court is then expected to conduct a hearing into the matter in order to ascertain whether there is legal merit to counsel’s concern. Needless to say, in order to do that, the judge hearing the application must in some way be advised what the concern is.

[15] Mr. Michael did not want to pursue the application or see a need for it to be made. Accordingly, it could not be expected that on his own he would advise the court what concern gave rise to the application. It was up to Ms. Kancharla to articulate the concern; otherwise, the court would have been left with nothing more than her bald statement that there is reason to have Mr. Michael assessed, and Mr. Michael’s bald denial. Somehow or other, the grounds for the application had to be put before the court.

[16] Ms. Kancharla’s concern, of course, was that Mr. Michael had, as she put it, “a distorted view” of her as his counsel. She stated that she thought Mr. Michael was “imminently paranoid.” She went on to say that “some of that paranoia seems to suggest that I am working with the police.” She also indicated that she could not “articulate further without going into solicitor-client privilege”.

[17] It is apparent that Ms. Kancharla was conscious of the need to balance her duties to the court with her obligations in respect of solicitor-client privilege. She accordingly conveyed her concerns in as minimal a way as possible in order to avoid disclosing anything substantive about the defense. She revealed nothing about the defense strategy, or about any particular approach to the case she had discussed with her client, or any factual or other information that her client had communicated to her, or any advice she had communicated to him.

[18] Except for a one-sentence and entirely necessary insight into what prompted her concern about Mr. Michael’s psychological state, Ms. Kancharla revealed nothing to the court. Likewise, in Mr. Michael’s own testimony he expressed that he thought his lawyer was not sufficiently on his side, but revealed no details of his actual conversations with her.

[19] In his written submissions, Mr. Embry contends that since Ms. Kancharla took a position contrary to Mr. Michael in bringing the fitness application, Mr. Michael was effectively deprived of counsel. He further submits that section 672.24 of the Criminal Code provides that where fitness for trial is in issue the Court shall order that the accused be represented by counsel, and that in view of this section the trial proceeded in a prohibited fashion. Mr. Embry provides no authority for the proposition that this course of action contravened the Criminal Code and thereby undermined Mr. Michael’s chance for a fair trial, but he posits this conclusion as a matter of logic drawn from the application of section 672.24 to the circumstance at hand. As Mr. Embry puts it, “In this case the Applicant was in the even worse position of having to defence [sic] his fitness without counsel against his counsel” [emphasis in the original].

[20] I do not agree with this interpretation of section 672.24. When the question of an accused’s mental capacity arises, counsel is entitled to supersede the client’s instructions in fulfillment of her obligation to the court. In Regina v Talbot (1977), 38 CCC (2d) 560, Galligan J. confronted just such a situation, and opined, at para 3: “I indicated earlier this morning that it was my opinion that [defense counsel’s] decision is a reasonable and rational one whether I agree with it or not, it was one that was quite open to him to take and I respect his decision.” I would say the same of Ms. Kancharla’s decision here.

[21] Although I ultimately ruled against her on the application, Ms. Kancharla took a “reasonable and rational” decision and properly fulfilled her duty as counsel. Section 672.24 of the Criminal Code did not require that in doing so she immediately resign and appoint new counsel for Mr. Michael. What section 672.24 addresses is the need to ensure that the section 672.11 application is brought by responsible counsel and not by a self-represented accused who might not be objective about his own state of mind. Counsel are expected to make a reasonable and rational assessment of the need for the application before bringing it.

[22] Mr. Michael’s rights were well protected during the fitness application by his counsel’s minimalist approach to the information conveyed to the court. Indeed, in my ruling I ultimately agreed with him that it was unnecessary to have his fitness assessed. There was no prejudicial impact on the trial resulting from the section 672.11 application. When court reconvened the next day, he chose to proceed with Ms. Kancharla as his counsel.

[23] The Court of Appeal has advised that, “the declaration of a mistrial like the declaration of a stay, should be granted only as a last resort, in the clearest of cases…” R v Toutissani, 2007 ONCA 773, [2007] OJ No 4364, at para 9. Given the way the matter unfolded, this is far from the clearest of cases for a mistrial. There was nothing substantial in the way of privileged information revealed to the court beyond the bare minimum required to lay the foundation for the application under section 672.11, which was entirely proper. Further, there was no undermining of Mr. Michael’s right to counsel or his right to a fair trial as his counsel was careful to keep the inquiry focused and to proceed with a vigorous defense once the ruling on the application was announced.

[24] Finally, Mr. Embry submits that the fact that Mr. Michael did not return to court on the final day of the trial suggests that problems continued between himself and Mr. Kancharla even after the section 672.11 ruling. With respect, however, there is no basis on which I can draw that conclusion. It would be nothing more than conjecture if I were to do so. Mr. Michael has not indicated the reason for his failure to attend back at court. As trial judge, I would not want to conclude that a person who simply disappears in the middle of trial is presumed, without more, to have a problem that entitles him to a declaration of mistrial. To put the matter delicately, that would not be a formula for increasing the efficiency of justice.

[25] In her submissions, Ms. Smith Joy reminds the court that this trial relates to events that transpired in November 2012. It entailed four civilian witnesses who attended at court and testified. The public at large is entitled to know that criminal matters are being decided in a timely matter, on their merits. Most importantly, Mr. Michael has continuously indicated that he is anxious for the matter to proceed so that he can have finality.

[26] In view of the fact that there has been no breach of solicitor-client privilege and no procedural unfairness to Mr. Michael, there has been no miscarriage of justice.

[27] The application for a declaration of mistrial is therefore dismissed.

Morgan J. Date: May 4, 2016