Court File and Parties

COURT FILE NO.: CR-22-644-AP DATE: 2023-09-25

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HIS MAJESTY THE KING R. Dorsman, for the Crown Attorney Respondent

- and -

OMER STRICKLAND R. Sahota, for the Appellant Appellant

HEARD: September 21, 2023

A.J. Goodman J.:

Reasons for Judgment

(On Appeal from the Honourable Justice M. Agro)

[1] This is an appeal brought by the appellant against conviction and sentence imposed on December 14, 2022 by Agro J. of the Ontario Court of Justice at Hamilton, Ontario.

[2] Following a multi-day trial that occurred on April 28 and 29, 2022, the appellant, Omer Strickland (“Strickland”), was convicted of one count of assault causing bodily harm. The appellant was self-represented throughout the trial but retained counsel for the sentencing hearing. He was sentenced to six months incarceration with a period of probation and restitution.

[3] In the Notice of Appeal, the appellant raises two grounds of appeal. He appeals his conviction on the basis that the trial judge failed to provide sufficient assistance to the appellant as a self-represented accused. Second, the appeal against sentence is premised on the assertion that the trial judge failed to impose a fit sentence in all of the circumstances.

[4] For the following reasons, the appeal is dismissed.

Evidence at Trial

[5] According to the appellant:

On September 13, 2020 at approximately 11:15 a.m., police received a call from a civilian witness, Mr. John Webb, that a younger gentleman had thrown an older gentleman to the ground at the Fortinos parking lot at 125 Wilson St. West, Hamilton.

Mr. Webb was exiting a parking lot across from the Fortinos when he observed the younger gentleman, the Appellant, and the older gentleman, Mr. Alfred Moulden, arguing from their vehicles on Wilson St. West prior to the assault.

Mr. Webb never identified the younger gentleman as the Appellant but described him as in his forties to fifties with a husky build, approximately six feet tall with broad shoulders being a white male with dark hair. One of Mr. Webb’s family members recorded the license plate of the Appellant’s vehicle which the younger gentleman exited before approaching Mr. Moulden.

PC Harineer Sandhu confirmed that the license plate recorded by one of Mr. Webb’s family members belonged to the Appellant and that he detained the Appellant at the Fortinos following the assault. The trial judge determined that the Appellant fit the description provided by Mr. Webb.

Mr. Webb followed the vehicles into the Fortinos’ parking lot and observed them park. He saw Mr. Moulden park his vehicle and head towards the entrance of the Fortinos. He observed the Appellant approach Mr. Moulden, grab him by the shirt around the collar area, tussle a little, and throw him to the ground with brute force. Mr. Webb confirmed that there was no action taken by Mr. Moulden before he was grabbed. Mr. Webb also described that the Appellant kicked Mr. Moulden a couple of times on the ground.

Mr. Moulden could not recall the details of the assault and denied that there was any incident, or provocation prior to the assault. Mr. Moulden did not remember the physical interaction at all and testified that he was approached from behind.

Mr. Moulden suffered bodily harm that consisted of: a brain bleed, suturing to one ear, memory loss of the incident, trouble sleeping and intermittent headaches.

Finally, the Appellant made three utterances and statements to police and the 911 operator that were determined to be voluntary. The first utterance was, “It was a road rage incident. We pulled in. He got out.” The second statement was, “What I did was stupid and wrong. I was provoked. It wouldn’t have happened if he didn’t do what he did but it doesn’t justify it”. The third statement was “I should have known better. I lost my cool. I threw him on the ground.”

[6] The Crown accepts the facts as outlined by the appellant but adds the following:

Immediately after the assault, Mr. STRICKLAND called 911. He identified himself and told the dispatcher that “I just got into a road rage thing and I hit somebody”, that “he could be really hurt”, and that the police could “come and arrest me” at his friend’s house. Officer Sandhu attended the address provided and arrested Mr. STRICKLAND while he was still on the phone with the dispatcher.

Positions of the Parties

[7] The appellant submits that he received truly little assistance from the trial judge beyond a cursory overview of the trial process at the outset. The trial judge advised the appellant that she would only offer would be “very, very limited” assistance to him throughout the trial.

[8] The appellant submits that contrary to the trial judge’s stated position, a trial judge’s onus to assist a self-represented accused is a heavy one. The appellant contends that it is a long-standing principle in Canadian law that when an accused represents themselves, the trial judge is required within reason to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. The scope of this duty depends on the particular circumstances of the case, but as the Court of Appeal for Ontario noted in R. v. Tran, 2001 ONCA 5555, [2001] O.J. No. 3056, the minimum level of assistance that is required in order to ensure a fair trial includes raising any “genuine issue” as to the admissibility of evidence, including Charter issues; ensuring that expert witnesses are properly qualified; explaining the right to testify and call defence evidence, the right not to testify or call evidence and some of the risks inherent in either course; explaining the course of evidence at a criminal trial, including examination-in-chief, cross-examination, objections, and closing arguments.

[9] The appellant says that despite numerous instances in which it was clear the appellant was unsophisticated and did not understand the trial process, the trial judge did not provide adequate assistance, and thus fell well short of the duty with respect to a self-represented accused. For example, the trial judge failed to warn the appellant about questioning the witnesses in the first-person, thereby identifying himself as Mr. Moulden’s assailant. It was not until well into the midst of the cross-examination of Mr. Webb that the trial judge addressed the appellant’s questioning in the first person and indicated that it could be used to identify him. No caution was provided prior to the questioning and no plain language explanation was given. Compounding this error was the trial judge’s apparent accession to the Crown attorney’s argument that the appellant had admitted to being the assailant through his questioning.

[10] Further, the appellant was not advised of why the witness was permitted to refer to a prior statement or 911 call, or that he would be allowed to use those documents to refresh his memory. At the outset of Mr. Webb’s testimony, no efforts were made by the trial judge or Crown attorney to determine when the statement was made or how it was recorded, although the trial judge did eventually ask when the statement was made. The appellant was not consulted on the procedure for the use of the statement or the 911 transcript. The meaning or the implications of Mr. Webb referring to his prior statements and 911 call transcript were never explained to the appellant.

[11] The trial judge also repeatedly interrupted the appellant and appeared more concerned with the phrasing and form of his questioning versus the substantive goals of his cross-examination. The trial judge seemed unwilling to assist the appellant in phrasing the question in an appropriate manner to assist him in confronting Mr. Webb with a potentially contradictory statement.

[12] Beyond failing to provide sufficient explanation of trial procedures in advance, another, and perhaps the most glaring failure of the trial judge in her duty was a failure to adequately explain admissibility procedures for evidence, or explain avenues for admissibility of evidence.

[13] The trial judge further erred at the close of the Crown’s case by not sufficiently warning the appellant about the case against him. While the trial judge did explain the right to testify, call defence evidence and the right not to testify or call evidence, she failed to explain the risks inherent in either course. The trial judge then compounded the error by asking the appellant to make submissions first, despite not calling any evidence during the trial. After the Crown’s closing submissions, no offer was made to the appellant to respond.

[14] The Crown attorney responds that the conviction appeal has no merit and that the sentence was fit. [1]

Legal Principles

[15] Pursuant to s. 686(1)(a) of the Criminal Code, appellate courts can set aside a verdict when (a) the verdict is unreasonable or cannot be supported by the evidence; (b) there was a wrong decision of law; or (c) on any ground where there was a miscarriage of justice. It is settled law that when considering an unreasonable verdict or an error in the trial judge’s overall assessment of the evidence, deference must be afforded. An appellate court is not entitled to re-try the case and substitute its view of the evidence.

[16] The trial judge is required to explain the essential elements of the offence and, depending on the circumstances, explain the relevant law and its implications, before the self-represented person makes critical choices in their defence. R. v. Hasanov, 2019 ONSC 6959 at paras 11 to 12. Ultimately the requirement of a judge to assist a self-represented accused is to ensure he receives a fair trial. Where a trial judge does not give a self-represented accused the help they need, the trial is unfair.

[17] The law with regards to palpable and overriding error was summarized by the Court of Appeal for Ontario in R. v. T. (D.), 2014 ONCA 44, 305 C.C.C. (3d) 526, as follows:

An appellate court may only intervene in a trial judge's credibility analysis if that analysis is the subject of a palpable and overriding error. In Waxman v. Waxman [citation omitted] this court described the palpable and overriding error standard:

The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear: [citation omitted]. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: [citation omitted].

Application of the Legal Principles to this Case

The trial judge failed to provide sufficient assistance to the self-represented accused:

[18] When assessing the adequacy of assistance at the appellate stage, the focus of the inquiry should not be on whether or not discrete breaches of this obligation occurred, but whether cumulatively, the errors led to a miscarriage of justice. When assessing the cumulative effect of these errors, a reviewing court should take into account all the circumstances of the case.

[19] It is not disputed that trial judges have a duty to provide self-represented accused sufficient assistance to ensure a fair trial. An appellate court may intervene based on a trial judge’s failure to fulfill that duty only if the reviewing court finds that the accused’s trial was unfair. This is a demanding standard, as McLachlin J. observed in R. v. Harrer, 1995 SCC 70, [1995] 3 SCR 562, at p. 45.

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.

[20] A trial judge’s assistance to a self-represented accused must be considered in light of the trial judge’s other duties, including ensuring that the trial is fair to all parties and is conducted efficiently.

[21] As Watt J.A. held in R. v. Richards, 2017 ONCA 424 at para. 111, the trial judge’s assistance is also necessarily limited by their judicial role:

The duty owed by trial judges to self-represented litigants is circumscribed by a standard of reasonableness. The trial judge is not, and must not become, counsel for the accused. The judge is not entitled, indeed prohibited, from providing the assistance of the kind counsel would furnish when retained to do so. A standard of reasonableness accommodates a range of options to ensure the necessary degree of assistance and eschews a single exclusive response.

[22] Not every breach of a trial judge’s obligation to guide a self-represented accused will result in a miscarriage of justice. A proper review requires a careful and detailed examination of the complete trial record. There is no prescribed list of required utterances – the need for judicial assistance “varies depending on the crime, the facts, the defences raised and the accused’s sophistication”: R. v. Phillips, 2003 ABCA 4, at para. 26; See R. v. J.V., 2007 ONCA 194 at para. 27.

[23] The appellant argues that the trial judge did not sufficiently protect his fair trial interests. The record of extensive efforts on the part of the trial judge to assist the appellant throughout the trial suggests otherwise.

[24] The trial judge took many steps to ensure that the trial was conducted in a manner that was fair to the appellant, including: Ensuring at the outset that the appellant had received disclosure and had reviewed “everything […] that was in the disclosure”; Summarizing the charge against the appellant, the Crown’s burden of proof, and the fact that the appellant benefited from the presumption of innocence. Outlining the essential elements of the charge; Explaining the difference between testimony in-chief and cross-examination, as well as the purpose of cross-examination – to “test whether there is sufficient evidence to prove each of the essential elements beyond a reasonable doubt”; Cautioning that witnesses’ answers in cross-examination “will be evidence that I consider and if it’s helpful to the Crown, so be it. If it’s helpful to you, so be it.”; Reminding the appellant that he could choose whether to call evidence and whether to testify himself and re-emphasizing the presumption of innocence; Highlighting the opportunity to provide closing arguments at the end of the trial;. Explaining the “middle ground” conviction of simple assault if the trial judge was “satisfied that there was an assault, but there was not bodily harm”; Ensuring that the appellant understood everything she had explained, and affording him an opportunity to ask questions before the trial proper began; Cautioning the appellant after he began to repeatedly identify himself as a party to the assault when cross-examining the eyewitness; Explaining the process for cross-examining on a prior inconsistent statement after the appellant began doing so with both the eyewitness and the victim; Questioning the arresting officer to satisfy herself that s. 8 of the Charter was not in issue regarding the arresting officer’s search of the appellant; and reiterating at the close of the Crown’s case that the appellant could call his own evidence, that he “need not testify, but if you choose to do so, you may” and that the Crown would have an opportunity to cross-examine him if he did testify.

[25] I agree with the Crown attorney that the appellant, for his part, conducted his defence with relative sophistication. He had the wherewithal to use a self-produced Google maps photo to cross-examine the eyewitness on the parking arrangements of the appellant and the victim – raising an available inference that the victim approached him first by walking in his “general direction”. He employed a 911 call to cross-examine on a prior inconsistent statement, raising an inference that the witness did not see the appellant kick the victim as he testified. He recognized and challenged potential hearsay evidence in prior accounts of the victim’s recollection of the attack and his own injuries. He requested a voluntariness voir dire regarding his statements to Officer Sandhu and to oppose their admissibility on the basis that “I was under duress, I was crying, I was having a […] panic attack.”

[26] The appellant was aware that it was important for him to discredit Mr. Webb and Mr. Mourden’s version of events. Through his cross-examination, he attempted to portray Mr. Moulden as the instigator in the physical confrontation. Although the appellant did not perform as effectively as counsel on his behalf perhaps could have, his opportunity to make full answer and defence was not impaired.

[27] Further, I am not persuaded by the appellant’s argument about instances where he specifies five areas in which the trial judge’s assistance fell short. This includes questioning the eyewitness in the first person or by not providing any caution in that regard sooner.

[28] Contrary to the appellant’s assertions, the trial judge did not have such a duty to provide any sort of caution, to the extent that the intervention the trial judge ought to provide approaches the kind of strategic advice that would typically be in the purview of counsel. Further, the appellant’s complaint overlooks the fact that his cross-examination of Mr. Webb was the court’s introduction to the appellant’s defence. The trial judge did not know what evidence pertaining to identity had been disclosed, nor if the appellant was conceding the issue. A trial judge cannot be expected to discern the trial strategy that would be in the appellant’s best interests and to advise on that at the outset. Once the trial judge made the decision to intervene, she urged the appellant to consider the issue of identity:

[29] In any event, there is no indication that the appellant’s initial use of the first-person had any impact. Following the trial judge’s intervention, the appellant refrained from using the first-person. The Crown was put to their burden of proof on the issue of identity and the trial judge made no reference to the appellant’s use of the first-person in her judgment.

[30] Mr. Moulden testified that his injuries following the assault included “a bleed on the brain,” a cut on his ear requiring stitches, headaches and difficulty sleeping. The Crown tendered medical reports from two CT scans conducted on Mr. Moulden shortly after the assault. The reports confirmed the presence of a “subdural hematoma. In her reasons for judgment, the trial judge found the bodily harm consisted of “a brain bleed and suturing to one ear, some memory loss of the facts that led up to the injuries he suffered, and some long-term injuries that include some trouble sleeping and intermittent headaches.”

[31] The appellant complains that the trial judge, faced with the appellant’s flagging cross-examination, ought to have explained the test for admitting expert evidence and offered an adjournment of the trial for the appellant to hire an expert to challenge the CT reports. This argument on appeal misconstrues the argument advanced at trial. The transcript contains no indication that the appellant wished to challenge the veracity of the reports, only that he did not appreciate the fact that a “subdural hematoma” was a brain bleed. It is not clear what trial unfairness could have been cured, if at all, by the trial judge granting an adjournment for the appellant to obtain a medical expert.

[32] The appellant attempted to cross-examine Mr. Moulden on a newspaper article for which Mr. Moulden had provided a statement. The newspaper article contained three paragraphs that became the focus of the appellant’s cross-examination. The appellant appears to have identified the fact that Mr. Moulden’s statements in the article contained accounts from other witnesses. However, the appellant’s strategy was foiled by the fact that: (1) Mr. Moulden testified he had no memory of the assault after parking his car; and (2) the Crown did not elicit any evidence Mr. Moulden ‘pieced together’ from other witnesses. As the trial Crown aptly put it: “the Crown doesn’t need hearsay evidence.”

[33] The newspaper article was clearly irrelevant. In fact, the trial judge later re-addressed the matter and further explained to the appellant why the line of questioning was not helpful to him. It seems to me that the trial judge had fulfilled her obligation to ensure the trial does not become mired in irrelevant evidence and that the rules of evidence are applied fairly to both parties: See R. v. Forrester, 2019 ONCA 255 at para. 15.

[34] Finally, the Crown conducted a voluntariness voir dire for three statements the appellant provided to PC Sandhu. The appellant complains that the trial judge did not properly explain the purpose and process of the voluntariness voir dire. I reject this argument. Leaving aside for the moment that it was the appellant who raised the voir dire issue, the trial judge’s repeated explanation of the purpose and process of the voluntariness voir dire and her related comments regarding the process was entirely appropriate.

[35] While the trial judge invited the appellant to provide closing arguments in advance of the Crown, given the unfolding of the trial, this approach was not fatal to the process and did not inure any prejudice.

[36] In this relatively uncomplicated trial, the trial judge provided the appellant with as much guidance as was possible within the confines of her judicial role. The trial judge provided a fulsome oral ruling admitting all three statements. There is no indication that the trial judge’s handling of this issue rendered the trial unfair.

[37] Overall, I must disagree with the appellant’s characterization of a judge’s obligations and the breadth of assistance to be afforded a self-represented accused, especially in this case. Frankly, it is not clear how the trial judge could have provided any further guidance to the appellant without falling into the impermissible role of legal advisor or advocate.

[38] In sum, the trial judge conducted herself properly and provided instructions and appropriate assistance to the self-represented accused within the confines of her judicial role. The trial judge delivered detailed reasons as to why she found the appellant guilty of the charge and ensured he received a fair trial.

[39] The appeal against conviction is dismissed.

The Sentence Appeal

[40] The appellant submits that the trial judge erred during sentencing by primarily addressing the principles of denunciation and deterrence while improperly minimizing the appellant's rehabilitative potential, lack of prior criminal record and remorse. The trial judge did not sufficiently consider restraint and parity in sentencing the appellant to a reformatory sentence. The appellant argues that given his lack of any prior criminal antecedents, his age, his remorse and his rehabilitative potential, the sentence imposed was not a fit one. A conditional sentence was available and appropriate in his circumstances and would sufficiently address the need for deterrence and denunciation.

[41] It is trite law that sentencing is a highly individualized, discretionary task. An appellate court may interfere with a sentence only if the sentencing judge committed an error in principle, or imposed a sentence that is demonstrably unfit. This standard of review recognizes the advantageous position that sentencing judges occupy in the constellation of factors relating both to the individual before the court and to the gravity of the offences.

[42] A broad spectrum of sentences have been imposed for the offence of assault causing bodily harm. This diversity reflects the wide range of assaultive conduct that is potentially captured by the offence. Where a specific sentence falls within that broad spectrum depends on the facts of the particular case.

[43] As the trial judge noted, the aggravating factors in this case – specifically the degree of violence the appellant displayed, the lasting injuries he inflicted, and the vulnerability of the victim – distinguish this case from situations where non-custodial sentences have been imposed. This aligns with the guidance provided by the Court of Appeal that six to eight months’ custody represents the “low end of the appropriate range” for cases of assault causing bodily harm that cause “serious and longstanding injuries”: R. v. Huh, 2015 ONCA 356 at para. 15. As Doherty J.A. held in R. v. Thurairajah, 2008 ONCA 91 at para. 41: “the objectives of denunciation and general deterrence gain prominence” in cases involving serious crimes of violence – even in cases involving first time offenders.

[44] I am not persuaded that the appellant has met the “very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence”: R. v. Lacasse, 2015 SCC 64, at para. 52. The sentence imposed by the trial judge was not “demonstrably unfit”, “clearly unreasonable”, “clearly excessive or inadequate”, or a “substantial and marked departure.

[45] While I may not have necessarily imposed a similar sentence in this particular case, I am not persuaded that it was an unreasonable departure from the principle of proportionality or outside of the appropriate range for similar offences and offenders.

[46] The learned trial judge is owed deference and the appellant has failed to demonstrate that the jurist committed overriding and palpable error.

[47] I would dismiss the sentence appeal on this basis.

Conclusion

[48] For all of the aforementioned reasons, the appeal is dismissed.

[49] The appellant is directed to surrender himself into custody at the Hamilton-Wentworth Detention Centre within 48 hours of release of this decision in order to serve any remaining portion of his custodial sentence. A warrant for his arrest may issue, if required.

A.J. Goodman, J.

Released: September 25, 2023

[1] With appreciation, I adopt much of the Crown attorney’s factum in these reasons.