CITATION: R. v. Roberts, 2017 ONSC 5366

COURT FILE NO.: CR-16-30000636

DATE: 20170911

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Coltt Roberts

BEFORE: E.M. Morgan J.

COUNSEL: James Dunda, for the Crown Coltt Roberts, in person

HEARD: June 7 and August 17, 2017

APPLICATION TO VACATE JUDGMENT / DECLARE A MISTRIAL

I. Background to the application

[1] On March 16, 2017, following a trial before me sitting as judge alone, I convicted Coltt Roberts of aggravated assault and breach of two probation orders requiring him to be on good behavior and to keep the peace. The charges related to an incident that occurred on June 20, 2016, in which Mark Irwin was badly injured. Mr. Irwin was visiting a friend, Odetta McKenzie, at the time and was found by Ms. McKenzie and her son, Kaivon McKenzie, bleeding on the living room floor of Ms. Mckenzie’s apartment.

[2] Mr. Roberts is the father of Ms. McKenzie’s younger son. The day of the incident was Father’s Day, and Mr. Roberts had spent time that day going on an outing with Ms. McKenzie and their mutual son.

[3] I found that the evidence established beyond a reasonable doubt that Mr. Roberts had entered Ms. McKenzie’s first floor apartment via the balcony that evening, and had beaten Mr. Irwin who was resting on the sofa in the living room. In coming to this conclusion, I relied on, among other things, the testimony of Kaivon McKenzie and Mr. Mark, and as well as DNA evidence collected from a hat found at the scene of the crime.

[4] I have not yet sentenced Mr. Roberts, and so am therefore still formally seized of the trial. He has now applied for a declaration of mistrial. In this application, Mr. Roberts alleges a number of breaches of Charter rights which he blames on the Crown, but most of which flow from what he describes as inadequate representation by his own counsel. Mr. Roberts is no longer represented by his trial lawyer, Ari Goldkind, and has brought this application as a self-represented party.

II. Grounds of the application

[5] Mr. Roberts contends that he did not receive certain disclosure and relevant information before or during the course of the trial, in violation of his rights under sections 7 and 11(d) of the Charter. Specifically, he submits that he should have received:

a) The youth criminal record of Kaivon McKenzie;

b) a copy of the certificate of analysis relating to the DNA evidence obtained from a hat left at the scene of Mr. Irwin’s assault;

c) proper notice that the Crown intended to rely on the DNA evidence at trial;

d) the location of surveillance cameras located above the balcony of Odetta McKenzie’s apartment;

e) video footage from the balcony of Ms. McKenzie’s apartment;

f) verification from the apartment building management that the cameras above Ms. McKenzie’s balcony were functioning at the time of the incident in question;

g) photographs confirming the existence of surveillance cameras above Odetta McKenzie’s apartment.

[6] Mr. Roberts argues that his rights to make full answer and defence to the charges were undermined by the failure of the Crown to make full and timely disclosure of these matters, and by the failure of his own counsel to ensure that such disclosure was made. Citing R v. Stinchocombe [1991] 2 SCR 326 and various provisions of the Criminal Code and the Canada Evidence Act, he submits that this breach of the Crown’s duty to disclose amounts to a violation of his Charter rights.

[7] Counsel for the Crown concedes that prior to sentencing, a judge who has tried a case without a jury is not functus officio, and can in the right circumstances vacate the finding of guilt: R. v. Lessard (1976), 1976 1417 (ON CA), 30 CCC (2d) 70 (Ont. CA). It is the Crown’s view, however, that the requisite criteria for re-opening a case have not been made out here.

[8] Specifically, the Crown argues that in order to establish that the circumstances of the case necessitate vacating the finding of guilt or declaring a mistrial, Mr. Roberts must demonstrate that new evidence has emerged capable of affecting the finding of guilt: R. v. Arabia, 2008 ONCA 565, at para 80. Crown counsel further argues that none of the matters identified by Mr. Roberts meet this high standard.

[9] In R. v. Kowall (1996), 1996 411 (ON CA), 108 CCC (3d) 481, at para 31, the Court of Appeal instructed that in a motion to re-open a trial, certain conditions must be established:

a) the evidence must not be such that by due diligence it could have been adduced by the defense at trial;

b) the evidence must bear upon a decisive or potentially decisive issue at trial;

c) the evidence must be credible – i.e. reasonably capable of belief; and

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

[10] Furthermore, it is the Crown’s view that the matters raised by Mr. Roberts are more appropriate for an appeal than for vacating the judgment and re-opening the trial at this stage. Specifically, counsel for the Crown makes reference to R. v. Graham, 2014 ONCA 566, where the Court of Appeal set out a carefully delineated protocol for gathering evidence and completing the appeal record where an accused person alleges ineffective representation by counsel. At para 14, the Court summarized the process as follows:

The Protocol provides for various procedural steps to be taken, many by the Crown, when an appellant seeks to raise an ineffective assistance claim in support of an appeal to this court. These steps include the involvement of a case management judge of this court, the potential filing of an affidavit from trial counsel in response to the appellant’s allegation of ineffective assistance, the facilitation by the Crown in filing such an affidavit, and the possible examination or cross-examination of trial counsel.

It is the Crown’s position that given the development of this protocol by the Court of Appeal, the proper stage for the inquiry raised by Mr. Roberts is the appellate stage. While Crown counsel acknowledges that there are rarified cases in which a trial judge has agreed to hear the kind of evidence that the Court of Appeal would hear following the Graham protocol, those are rare and extreme cases where a miscarriage of justice would otherwise ensue:

[11] The Crown submits that in the ordinary case, however, ineffective representation by counsel is a matter for appeal, not for re-opening a trial by the trial judge.

III. The specific allegations

[12] Mr. Roberts’ allegations about non-disclosure and trial unfairness can be grouped into three general categories: 1) Kaivon McKenzie’s youth record; 2) the security camera above Ms. McKenzie’s balcony; and 3) the DNA evidence from the hat at the crime scene. As will be seen, the first two contentions are readily answered by the Crown and so do not take Mr. Roberts’ case very far. The third contention, however, is sufficient to at the very least give one pause.

a) The youth record

[13] As indicated, Kaivon McKenzie was not the complainant in this case, but rather was a bystander who happened to witness the aftermath of the assault on Mr. Irwin. To put the matter in a nutshell, Mr. McKenzie’s testimony was important in two respects. In the first place, he was able to describe the ease with which one can climb up to his mother’s first floor balcony and enter the living room of the apartment. He testified that he and his friends frequently entered and left the apartment this way when they did not want to use the front door.

[14] In the second place, Mr. McKenzie testified that he was in his bedroom when he heard the sound of the assault on Mr. Irwin, and that he came out to the living room in time to see Mr. Roberts standing over Mr. Irwin who was lying injured on the floor. Since there was no one else present in the living room at the moment of the incident, Mr. McKenzie’s testimony was as close to an eye witness account as this otherwise circumstantial case presented.

[15] It is Mr. Roberts’ contention that his counsel should have had access to Kaivon McKenzie’s youth criminal record since the credibility of Mr. McKenzie’s testimony was at stake. In response, counsel for the Crown points out that there is no obligation to disclose the criminal record of a witness unless the defense requests this disclosure, and no such request was presented by the defense.

[16] While the Crown’s position may be accurate as a matter of law, without more it would also support Mr. Roberts’ underlying contention that he was not adequately represented by counsel. However, there is more. It turns out that indeed the defense did have knowledge of Mr. McKenzie’s criminal record. Crown counsel took me to the passage in the transcript of the preliminary inquiry where Mr. Goldkind, then representing Mr. Roberts, asked Mr. McKenzie about his youth criminal record, and Mr. McKenzie obligingly detailed his record for Mr. Goldkind. This, then, was followed up at trial, where Mr. Goldkind specifically cross-examined Mr. McKenzie about his criminal record. The evidence of a youth criminal record that came out in cross-examination was then used as the basis for submissions regarding Mr. McKenzie’s credibility.

[17] In other words, Mr. Roberts’ counsel did have the information that Mr. Roberts says he should have had. Indeed, at paragraph 17 of my judgment in this trial I made specific reference to the fact that Mr. McKenzie’s criminal antecedents had been made part of the record, but I nonetheless found him to be a credible witness.

[18] Mr. Roberts’ defense counsel may have obtained the information about Mr. McKenzie through cross-examining him at the preliminary inquiry and at trial rather than by means of Crown disclosure, but there is nothing improper about that. There is no unfairness or lack of disclosure in respect of Kaivon McKenzie’s youth criminal record, and no further disclosure of this record was necessary or would have changed any aspect of the trial.

b) The balcony security camera

[19] At the hearing of the present application, Mr. Roberts produced a photograph of Odetta McKenzie’s balcony showing what appears to be a security camera mounted above it. He explained that a friend of his had recently taken the photograph, and then asked rhetorically why he didn’t know about this security camera at the time of the trial.

[20] In response, counsel for the Crown points out that there was no non-disclosure on the Crown’s part. The photo that Mr. Roberts now has was not something that was in the Crown’s possession or that it could have provided to the defense in a disclosure package. It was taken by Mr. Roberts’ friend after the trial.

[21] Moreover, Crown counsel notes that there is no indication that the security camera was working at the time of the incident. He states that the Crown has not obtained any security video and is unaware of any that might exist. An inoperative security camera obviously provides no new evidence; it is not significant in and of itself. Accordingly, nothing the Crown or defense counsel could do with the camera would have changed the course of the trial if there is no security footage to be submitted as evidence.

[22] At the very end of the application hearing, Mr. Roberts asserted that indeed there is security footage, and that the Crown had used it prior to trial to try to get him to plead guilty. He offered nothing but this single, bald assertion to back up this contention.

[23] With all due respect, this seems like an unlikely scenario. Counsel for the Crown is adamant that there is no security video and never has been any security video in the Crown’s possession. I am inclined to believe him. It makes no sense to say that the Crown had some security video in its possession that was so damning of the accused’s conduct that it used the video as a means to get the accused to plead guilty, but then did not produce that video and submit it as evidence at trial. This strikes me as a last-ditch attempt by Mr. Roberts to make something out of nothing in regard to the security camera above Ms. McKenzie’s balcony.

[24] There is nothing to this entire point – it does not constitute non-disclosure by the Crown and does not reveal inadequate lawyering by the defense.

c) The DNA evidence

[25] At paragraph 19 of my judgment, I indicated that the police attended at Ms. McKenzie’s apartment along with an ambulance when she called emergency services after finding Mr. Irwin lying injured on her floor. I noted that in their investigation the police found “a large blood stain on the wooden floor near the sofa and a black fedora hat containing Mr. Roberts’ DNA dropped right next to the blood stain.”

[26] It was Mr. Robert’s contention at the hearing of the present application that the Crown did not adequately prove that the DNA found in the black hat belonged to him. In response, counsel for the Crown reminded the court that the DNA evidence was conceded by the defense and was made part of an Agreed Statement of Facts submitted at the outset of the trial. Crown counsel elaborated that the police had gotten a preliminary indication from their data base that DNA inside the hat might match Mr. Roberts, but they had never gone the further step of taking a sample of Mr. Roberts’ DNA and matching it to that found in the hat as Mr. Roberts, through his defense counsel, had negotiated an Agreed Statement of Facts in which the DNA match was admitted.

[27] Mr. Roberts then indicated in his reply that the document he signed was presented to him for the first time by his lawyer, Mr. Goldkind, just before the opening of trial, and that the significance of this document had not been adequately explained to him. He indicated that he now rejects the admission that the DNA belonged to him, and insists that the Crown should have been made to follow through with formal proof of any DNA match.

[28] As indicated earlier, this submission made by Mr. Roberts does give me pause. In the first place, I did to some extent rely, albeit in passing, on the DNA evidence in reaching the conclusion that it was Mr. Roberts that assaulted Mr. Irwin. I specifically pointed out in my reasons for judgment that the fedora containing this DNA was found lying on the floor next to the blood stain left by Mr. Irwin upon sustaining his injuries. Although there was also other evidence pointing to Mr. Roberts, including security camera footage from the hallway in front of Odetta McKenzie’s apartment door and Kaivon McKenzie’s testimony about finding Mr. Roberts in the living room standing next to the injured Mr. Irwin, the DNA evidence was taken into account as part of the overall package of evidence presented by the Crown.

[29] Moreover, if true, Mr. Roberts’ account of how he came to sign the Agreed Statement of Facts is troubling. Where a fact like a DNA match is consented to by an accused person, the consent should be fully informed. At trial, I admitted it into evidence based on its having been presented to me by Crown counsel as a matter specifically negotiated with defense counsel and by defense counsel as having been properly consented to by his client. If it turns out that the consent was not an informed, reliable consent, the Crown should have been put to the proof of the DNA evidence.

[30] Mr. Dunda, on behalf of the Crown, has referred me to the decision of the Ontario Court of Justice in R v Khan, 2015 ONCJ 182, where a trial judge in a position similar to my own – i.e. following conviction but prior to sentencing – learned that the accused had not been properly counseled by his lawyer on whether or not to testify on his own behalf. In Khan, the court found that the accused had been deprived by his own counsel of the opportunity to mount a fully informed defense to the charges he faced, and so declared a mistrial.

[31] The Crown, of course, opposes the application to have the present case declared a mistrial or the verdict vacated. With that in mind, I want to say that I very much appreciate Mr. Dunda drawing the Khan case to my attention despite its being adverse to the position that the Crown is taking. In doing so, he is acting in accordance with the high ethical standards of an officer of the court, and is fulfilling what the Supreme Court of Canada has called as the ‘minister of justice’ role of counsel for the prosecution: Boucher v. The Queen 1954 3 (SCC), [1955] SCR 16, 26. This approach to the prosecutorial task is to be commended.

[32] Having brought the case to my attention, the Crown nevertheless takes the position that Mr. Roberts’ situation is distinguishable from that in Khan. It is the Crown’s view that whatever the cogency of Mr. Roberts’ contentions about the adequacy of his counsel’s representation of him at trial, it is a matter to be determined on appeal and not by the trial judge on a pre-sentencing application.

[33] In making this point, Mr. Dunda relies on R v Kowall, supra, where the Court of Appeal indicated that an accused cannot use this type of procedure to reverse tactical decisions made by the defense at trial. As the Court put it, at para 40, “A trial is not some kind of preliminary inquiry allowing the parties to recast their case depending upon the reasons for judgment.”

[34] It is the Crown’s submission that there are two essential decisions that an accused must make in every criminal trial: a) how to plead, and b) whether to testify. If he or she was misinformed about the import of either of these fundamental matters, the resulting trial may be a miscarriage of justice and the result can be vacated by the trial judge prior to sentencing.

[35] Crown counsel goes on to submit that other decisions made by the defense are in the nature of tactical decisions, and an argument about ineffective representation by counsel that relates to such tactical decisions is better made to the Court of Appeal subsequent to sentencing. While conceding that the trial judge’s decision in this respect is discretionary, it is the Crown’s view that the power to vacate a trial decision or declare a mistrial should be exercised only in exceptional circumstances and in the clearest of cases”: R. v. J.A., 2015 ONCA 754, at para 24.

[36] In this respect, I agree with the Crown. The decision not to require formal proof of the DNA evidence was, under the circumstances, a tactical one. While significant, it is not in the same league as the decision whether or not to testify or how to plead. It was tangentially relevant to my ultimate decision, but was not front and centre like the accused’s decision not to take the witness stand in Khan.

[37] Perhaps more importantly, in Khan both the accused and his counsel provided sworn affidavit evidence to the court on the mistrial application. In an unusual turn of events, counsel for the accused supported the accused’s contention that he did not get to make the decision for himself as to whether to testify in his own defense. She specifically deposed in her affidavit that she made that decision for her client without consulting him or confirming that he agreed with it; indeed, it was clear to her that her client did not agree with her decision but she implemented it anyway: Khan, at paras 10-12. In the face of a sworn statement by defense counsel that she had conducted herself in such a way that the accused’s fundamental procedural rights were undermined, the trial judge had little choice but to vacate the judgment and declare a mistrial.

[38] There is no analogous evidence before the court here. In fact, there is no evidence before the court at all. Mr. Roberts made his application acting as his own counsel, and has asserted as a matter of argument what in his view transpired between himself and Mr. Goldkind. He did so in the absence of sworn testimony and without subjecting himself to cross-examination. I say this not as a criticism of a self-represented defendant, but rather simply to describe the way in which this issue has come up.

[39] Likewise, the court has not heard from Mr. Goldkind. I surmise that he has not been put on notice of the argument that his former client is making here. Again, I say this not by way of criticism, but simply to describe the circumstances of the application. In the result, however, I am not in the same position to exercise my discretion as was the trial judge in Khan. I will therefore decline to do so.

IV. Disposition

[40] In my view, Mr. Roberts’ contention with respect to his consent to the Agreed Statement of Facts is best left to an appellate stage. Mr. Roberts is still to be sentenced and may or may not decide whether to proceed with an appeal. Should he do so, he may need some assistance from Crown counsel in order to ensure that all of the relevant steps set out in R. v. Graham, supra, can be followed. Evidence may need to be taken by a special examiner, Mr. Goldkind may have to be notified, etc. I would request that the Crown do what it can to facilitate that process.

[41] The application to vacate the finding of guilt and declare a mistrial is hereby dismissed.

Date: September 11, 2017 ____________________________

Morgan J.