Date: 20120216 Docket: 07/47 Citation: R. v. Ryan (D.

), 2012 NLCA 9
Restriction on Publication: Pursuant to subsection 110(1) of the Youth Criminal Justice Act no person shall publish the name of a young person, or any other information related to a young person if it would identify the young person as having been dealt with under the Youth Criminal Justice Act

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL

BETWEEN: DAVID RYAN APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Green C.J.N.L., Rowe & Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200601T1043 September 16, 2010 February 16, 2012

Appeal Heard: Judgment Rendered:

Reasons for Judgment by Green C.J.N.L. Concurred in by Hoegg J.A. Dissenting Reasons by Rowe J.A. Counsel for the Appellant: Counsel for the Respondent: Bob Buckingham Vikas Khaladkar

Page: 2 Green, C.J.N.L.: [1] Canada Day was not a time for celebration for those in the house of David Ryan on July 1, 2005. The events of that day and the previous evening resulted in the death of Richard Brace. Mr. Brace was severely beaten on several occasions in the course of a party where drugs and alcohol were present. He subsequently died as a result of head injuries. [2] Three people were ultimately charged, on separate indictments, with murdering him. One, B.K., a young offender, was convicted of the included offence of manslaughter, following a three week trial at which he was represented by counsel. The second, A.W, also represented by counsel, pleaded guilty to, and was convicted of, the included offence of manslaughter on an agreed statement of facts. The third, David Ryan, the appellant in this case, represented himself and was convicted of second degree murder following a fourteen week trial. He was sentenced to life imprisonment without eligibility for parole for sixteen years. The prosecution was represented by two counsel. [3] Mr. Ryan now appeals his conviction. He raises issues relating to: lack of timely disclosure; failure of the trial judge to give a Vetrovec caution to the jury; inappropriate comments made by Crown counsel in her closing address to the jury; and the trial judge’s treatment of him as an unrepresented litigant and her management of the trial, including her failure to declare a mistrial even though Mr. Ryan did not seek, and actually opposed, such a declaration. He also submits that even if a mistrial should not have been declared, the verdict was unreasonable and cannot be supported by the evidence. [4] A common theme running through all of the submissions on appeal is that Mr. Ryan, a man with limited formal education and representing himself, was, although he did not fully appreciate it, in the words of his counsel “out of his depth” and could not properly conduct his own defence. [5] In R. v. Harris, 2009 SKCA 96, Richards J.A. observed that:
[27] … An accused who decides to proceed absent the assistance of a lawyer cannot, after the fact, attack a conviction on the basis that he or she did not have representation as effective as what might have been provided by counsel. … In other words, individuals who decide to represent themselves cannot have their cake and eat it too.

Page: 3 [6] This appeal engages, amongst other things, the broad question as to whether there are ever circumstances where it is appropriate for an appellate court facing a conviction appeal by a person, who insisted on representing himself at trial, in circumstances where the trial judge observed that he was incapable of properly representing himself, should attempt to save him from the consequences of his own folly, by ordering a new trial. I have concluded that there are exceptional circumstances where the appellate court should so act and that this case is one of them. The Trial [7] The trial lasted for fourteen weeks. Properly conducted, it need not have taken that long. It was extended to that length primarily because of the difficulties that resulted from Mr. Ryan’s decision to represent himself. His unfamiliarity with the court process and his apparent inability to accept explanations and instructions from the trial judge resulted in much wasted time. [8] In essence, the relevant events involved drinking and partying at Mr. Ryan’s house and that of a neighbour, Crystal Vokey, the day or so preceding July 1, 2005. The main protagonists present included Mr. Ryan, B.K. and his girlfriend Tamara White, and A.W., Richard Brace’s girlfriend. On June 30, B.K. was observed striking Brace at Vokey’s house. Later, when the group had returned to Mr. Ryan’s house, A.W. got into an argument with Mr. Brace, accusing him of infidelity. As a result, according to Tamara White, (the only eyewitness other than those who were charged), Mr. Brace was attacked in a bedroom on two occasions, being repeatedly struck in the head with A.W. egging the attackers on. On a third occasion that same evening, when A.W. accused Mr. Brace of stealing money from her, he was again attacked. [9] The following morning, Mr. Brace was found unconscious face down on the floor of his room. An ambulance was called and he was taken to the nearest hospital where he died a few days later. [10] The only evidence at trial linking Mr. Ryan to the beating was the evidence of Tamara White who placed him, with others, in the bedroom where the beatings occurred. She testified that he threw some of the punches, but not as many as B.K. or as hard as those thrown by B.K. Other witnesses, including B.K. and A.W., did not place him in the room when the beatings occurred and did not confirm Tamara White’s evidence of striking.

Page: 4 The only other evidence linking Mr. Ryan to the beating was the presence of three very small blood traces, one to two millimeters in size, on the cuff of Mr. Ryan’s pants which experts agreed could be the result of secondary blood splatter. By contrast, B.K., A.W. and Tamara White had significant blood staining on their clothes consistent with them being in closer proximity to Brace when he was beaten. Blood was also found on the walls of the bedroom and in other places in the house. Unlike the situation involving B.K., there were no cuts or marks on Mr. Ryan’s hands and no evidence that he threatened to harm Richard Brace prior to the offence. Legal Counsel [11] Prior to trial, Mr. Ryan had applied to the Newfoundland and Labrador Legal Aid Commission, and was approved, for the appointment of counsel to represent him. A Commission staff lawyer, based in Stephenville, was assigned. Mr. Ryan was being held in custody in St. John’s and claimed that the combination of his being in custody and his counsel being based on the other side of the province made it impossible for him to communicate appropriately and be properly represented. [12] Following his preliminary inquiry, at which he was committed for trial, Mr. Ryan dismissed his counsel and applied to the Trial Division for an order appointing counsel from the private bar to be paid for by the Attorney General. He took the position that he did not want a legal aid lawyer to represent him even though the Legal Aid Commission was prepared to offer him two alternative staff solicitors based on the west coast, there being no staff solicitor in St. John’s who did not have conflict issues. The application was denied. [13] An appeal to this Court was dismissed: 2007 NLCA 6. Welsh J.A. stated:
[7] In this case, legal aid has been made available to the accused. Mr. Ryan has not provided any objectively valid reason for refusing the offer made by the Legal Aid Commission. Nothing put forward by Mr. Ryan indicates that he would not receive a fair trial if he were represented by one of the staff solicitors offered by the Legal Aid Commission. The case law supports the conclusion that, in those circumstances, the court will not make an order for counsel of Mr. Ryan’s choice to be funded by the Attorney General or the Legal Aid Commission. …

[14] Rather than accept the offered legal aid lawyers, Mr. Ryan chose to represent himself at his trial.

Page: 5 [15] The trial judge did not, at the outset of the trial, give any specific information about the trial process or instruction to Mr. Ryan about how to conduct himself. She did, however, provide considerable guidance and instruction to him at various points throughout the trial when specific issues presented themselves for resolution. The Course of the Trial [16] Throughout the course of the trial, the trial judge expressed concerns as to Mr. Ryan’s ability to represent himself. She was required on numerous occasions to re-instruct Mr. Ryan on points of procedure that had previously been explained to him and she expressed concerns about Mr. Ryan’s apparent inability to comprehend or appreciate explanations and suggestions that were being made to him. There were occasions where Mr. Ryan expressed such things as: “I don’t know what’s happening here”, leading the judge to express the view that he appeared confused and did not understand the process. [17] She also expressed concern over Mr. Ryan’s decision not to challenge the admissibility of certain evidence and stated that he was “totally incapable” of cross-examining Tamara White. On a number of occasions she explicitly suggested to Mr. Ryan that he consult legal counsel and mused about his fitness to conduct his own trial. [18] It is not necessary to recite from the transcript each of the over sixty incidents where issues respecting Mr. Ryan’s apparent inability to represent himself effectively were commented on. There are, however, a number of specific matters that do require elaboration. (a) Pre-trial and Out-of-court Preparation issues

[19] Mr. Ryan’s preparation for trial was hampered not only by not having the assistance of counsel but also by the fact that he was incarcerated pending the trial. [20] Six or seven weeks before the trial started, the Crown disclosure package was sent to Mr. Ryan at Her Majesty’s Penitentiary from the legal aid counsel whom he had previously dismissed. Some of the disclosure was contained on computer discs. He was not provided access to a computer until a week or so prior to the commencement of the trial.

Page: 6 [21] Shortly after the trial started Mr. Ryan complained about his lack of access to a telephone when he was in the holding cells during breaks in the trial. He said he needed to have such access, as he had when in the penitentiary, to speak to potential witnesses and otherwise prepare for the trial. The trial judge made an order that he be provided with a telephone. [22] A short while later, Mr. Ryan expressed concerns about the limitations being placed on him at the penitentiary regarding access to a computer. He was being limited to two hours of computer access per day in the evenings during the week. He said he needed more time to complete trial preparation. As well, he had no access to a television and video recorder to be able to view the videotaped statements that he had given to the police. He wanted to view them in preparation for the voir dire on the admissibility of his statements, which was fast approaching. [23] The trial judge expressed skepticism as to whether she had the authority to order the penitentiary authorities to provide computer and video access and said it might be necessary for Mr. Ryan to make a separate formal application, naming the Department of Justice and the penitentiary authorities as parties, for an order for increased access. This was not wellreceived by Mr. Ryan. He responded:
Well, My Lady, if I got to go through all that I’ll leave it the way it is. I got too much work on my hands or (inaudible) I got two hours I got to rush with doing this and doing that. I got a job to do what I’m doing now.

(Transcript, Vol 14, p. 4). [24] Undaunted, the trial judge, with Mr. Ryan’s concurrence, wrote a letter to the Assistant Superintendent of the penitentiary urging that additional computer time be provided. The Assistant Superintendent responded that even two hours of time could not be “guaranteed” due to “operational requirements” of the penitentiary. Later, the situation was sorted out and accommodations for viewing were made in the penitentiary. [25] The trial judge was equally concerned about the need for Mr. Ryan to have access to video-viewing equipment so he could review his videotaped statements (which were not on computer discs) in preparation for the voir dire. She observed:
… You may need access to the VCR and the TV because in looking at the videotapes, then it may provide some information that may assist you that

Page: 7
wouldn’t appear in the transcript form if you’re looking for facial expressions or demeanour or hesitation in terms of answering questions or anything of that nature. Okay, because if, in fact, Mr. Ryan’s statements are ruled to be admissible by the Court, it’s my understanding that the Crown will actually be showing the videotape not just simply reading it from the transcription. They will be showing the videotape of those statements, so it is important that Mr. Ryan review the videotapes that he not just simply rely on the transcripts of the statements.

(Transcript, Vol 15, pp. 59-60) [26] While, ultimately, the Crown withdrew its application to have Mr. Ryan’s videotaped statements admitted, the same issue remained with respect to viewing video statements of potential witnesses. The judge made similar observations about accessing other videotaped statements because even if he had the statements in transcribed form “he may still need to look at the videotape because that may assist him in cross-examination of witnesses…” (Transcript, Vol. 14, p. 63). [27] Ultimately, before further accommodations were made at the penitentiary, arrangements were made for Mr. Ryan to view some of the videotaped statements of witnesses on monitors in the courtroom during breaks in the trial. Those viewings usually took place in close conjunction with the appearance of those witnesses in the trial. Mr. Ryan expressed concern as to whether he would be able to keep up with the process. For example, when he asked for “a bit of time” to get ready for the evidence of Corporal Matthews, one of the witnesses on the voir dire, the judge told him to concentrate on the videotape of Corporal Fox who would be the next witness. When Mr. Ryan indicated he was doing that, the judge said that Friday (the day after Corporal Fox was to testify) would likely be a free day “we may be able to make the opportunity available to you again” to look at other videotapes (presumably including Corporal Matthews’). Mr. Ryan’s response was to say “but still it’s not going to give me no time for that”. (Transcript, Vol. 20, p. 34; underlining added). [28] Although the judge acknowledged that it was important that disclosure had to be in a format which would be meaningful in the sense that the accused could properly access it in a way that would enable him to prepare for trial, she stated at one point that the process of making arrangements for Mr. Ryan to view videotapes in the court room’s off-hours while the trial was proceeding was a “band aid” (Transcript, Vol. 21, p. 7) for a situation that was the fault of the Crown in failing to provide timely and adequate disclosure.

Page: 8 (b) Disclosure Issues

[29] When, about six or seven weeks before the trial started, the Crown disclosure package was sent to Mr. Ryan from the legal aid counsel whom he had previously dismissed, it did not contain eleven videotapes and fifteen audiotapes of witness statements, including the videotaped statements of the key witness, Tamara White. This was not discovered until five weeks into the trial. While the video and audio statements had been transcribed and the written transcripts had been provided to Mr. Ryan in the disclosure package, the transcripts did not include the record of a portion of a potentially exculpatory statement that Mr. Ryan himself had given to the police. [30] This delayed disclosure, together with the restricted access he had to viewing and computer equipment, affected Mr. Ryan’s ability to prepare for the trial, especially with respect to viewing of the videos in a timely way to be in a position to cross-examine police officers during the voir dire with respect to the admissibility of his statements to the police, and also with respect to his cross-examination of other witnesses, including the key witness, Tamara White. [31] The discovery of the lack of full disclosure resulted in a delay in the trial, at the Crown’s request, until such time as it could be verified what items in the disclosure package were missing. In addition to the missing video and audiotapes, concern was expressed by the Crown and the judge as to whether that might indicate other items were missing. Crown counsel commented “we may be in a situation where we have to look at requesting appointment of counsel to help Mr. Ryan determine what disclosure he has” (Transcript, Vol 23, p. 6). [32] The trial judge saw the dilemma for Mr. Ryan and the Court as follows:
… this is the difficulty I have. … [W]hat the Crown is basically asking this morning, is to adjourn the trial until such time as it can determine exactly what was provided to you … If the Crown should learn over the next day or so that full disclosure had not been provided to you, and, in fact, you have been proceeding with five weeks of a trial without having had copies of the videotapes, audiotapes, and possibly other items and whatever, there is a possibility that the Crown may be asking for a mistrial, in which case then the trial would stop, and if I were to accede to that request, you would remain in custody, and then the trial would proceed again at some later date …Now I say this to you because you have stated to the Court on previous occasions, having been in custody almost two years,

Page: 9
you’re anxious for your trial to be completed, and you do not want a mistrial. And so I’m simply saying to you what’s happening here, because there were some concerns as well last week but this is a more serious concern…

(Transcript, Vol 23, pp. 6-7; underlining added.) [33] At other points, the judge expressed concern as to what the delayed disclosure and other issues affecting Mr. Ryan’s preparation were doing for the course of the trial. She was also concerned for the inconvenience to the jury. At another point she observed:
I mean we are losing a fair amount of time from the trial which is inconveniencing the jury as well. But what I am really concerned about is that it’s been five weeks now and Mr. Ryan has been representing himself, and now if there has to be a mistrial declared because of disclosure not having been provided by – to Mr. Ryan by [his former legal aid counsel], it may well be the fall while he sits in custody awaiting another trial in relation to this matter.

(Transcript, Vol. 23, p. 18; underlining added.) [34] The judge sought other ways of advancing the trial. She contemplated varying the order of calling witnesses whose evidence might not have been affected by the lack of disclosure:
… now we’re looking at, we’re going to be up to 16 weeks for the trial, and so I have a concern in that regard as well, so whatever we can go ahead with in terms of witnesses that we know he has gotten disclosure on, we should go ahead with, and Mr. Ryan is nodding his head, he has no disagreement with what I am saying. … [A]nd it’s going to take some extra work on the part of the Crown and a lot of extra work on the part of Mr. Ryan, in terms of trying to prepare now for witnesses that may be coming up in the future,

(Transcript, Vol 23, pp. 23-24; underlining added.) [35] Partly because of Mr. Ryan’s reluctance to ask for a mistrial and partly because of her concern about the consequences of having to start the trial over again, the judge did not declare a mistrial over this issue. She also did not appoint counsel to assist Mr. Ryan. The following passages from the Transcript are instructive:

Page: 10
THE COURT: I know the Crown had made a request today that possibly counsel be appointed to assist him, and that would be excellent. I mean counsel so used to dealing with disclosure and whatever could take the inventories and go through the inventories and go through what he has in his possession and maybe by utilizing a few hours today, in fact may well be able to say. You know, but then again how do I go about making that order? MS. STEAD: And I don’t know either, My Lady THE COURT: Would counsel be paid for by the department and as a result of the Court making an order that counsel be appointed for that limited purpose? MS. STEAD: I think, my lady, we’re not actually necessarily making that request at this point.

(Transcript, Vol. 23, p. 44) [36] Thus, partly because of uncertainty as to the authority for and procedure to be employed in respect of making a limited order for legal counsel and partly because neither the Crown nor Mr. Ryan pressed the issue, counsel was not appointed. Mr. Ryan did, however, say he would call his former legal aid solicitor and possibly another lawyer. That said, it is clear that the utility of having counsel for Mr. Ryan was nevertheless of concern to the judge. She observed:
… I can’t help thinking, and I’m going to say this, that if the Crown’s concerns are founded … [Mr. Ryan’s legal aid counsel] … would have gone through a Preliminary Inquiry on behalf of Mr. Ryan without having gotten full disclosure. Then the Legal Aid Commission would have offered him only two lawyers to represent him with respect to this murder trial, both of them being on the west coast of the Province. If all of this had been known by this Court, and by the Court of Appeal, a different decision may have been reached regarding whether he had to take a legal aid lawyer from the west coast of this province if they were not performing their mandate … And this is going through my mind right now as we speak, because it has become a major concern.

(Transcript, Vol. 23, pp. 46-47; underlining added) [37] The judge encouraged Mr. Ryan to speak to the lawyer he had wanted to represent him at the time he made his application for appointment of counsel from the private bar. He said he would do so.

Page: 11 [38] The judge ended her comments for that day with the observation that “if we’re going to try and salvage this matter and ensure that Mr. Ryan receives as fair a trial as what I can give to him” the cooperation of all, including the Legal Aid Commission in trying to determine what disclosure Mr. Ryan may not have received, was required. (Transcript, Vol 23, p. 51). [39] Counsel for the Crown submitted on the appeal in this Court that all of the troubles with non-disclosure did not matter, in the end, because Mr. Ryan had in fact been given transcripts of all of the statements that were contained on the videos and audios and that, while a lot of concern had been expressed at the time of the discovery of the absence of the video/audio material, in fact he had not been deprived, substantively, of any of the information to which he was entitled. I do not agree with this position for two reasons. [40] First, as the trial judge herself pointed out, having the sterile transcript is not the same as actually being able to view and hear what the witnesses were saying. Preparation for cross-examination of witnesses is enhanced by being able to see and hear the way in which a witness gives his or her evidence. Had the absence of the videos been known to defence counsel before the trial commenced, I have no doubt, such counsel would (or certainly should) have sought disclosure and such disclosure, if opposed by the Crown, would nevertheless have been granted. The unrepresented accused is entitled to no less if the matter is discovered only during the trial. [41] Secondly, quite apart from the question of whether non-disclosure in the circumstances amounted to a ground of appeal calling for an appellate remedy in its own right, the issue respecting non-disclosure, and the reaction of the parties, especially the trial judge, to it, is symptomatic of a much larger issue - the fairness of the overall trial – and is an important example of how the trial, as it unfolded, may not have been fairly conducted. (c) Use of Videotaped Statement

[42] During the voir dire on the admissibility of Mr. Ryan’s videotaped statements, it became apparent that with respect to one of the statements (the one given to Cpl. Fox) a portion (about twenty-five minutes) was missing and that an audio backup could not supply all of the missing dialogue. Furthermore, there were words missing from the transcript of what was said, due to inaudibility. The judge expressed concern about this, observing

Page: 12
… unless we are able to determine what was said on the videotape and add to the transcript, one particular sentence that I noted where there’s words missing at the beginning and words missing at the end, and the only words captured are incriminating and could be very misleading to the jury, when in fact it is not the full sentence that was uttered by Mr. Ryan.

(Transcript, Vol 20, p. 5) [43] The judge pointed out that although throughout the lengthy interview Mr. Ryan maintained that, on legal advice, he could not say anything and denied the offence, the one portion in the transcript where there appeared to be something missing also contained an apparent admission:
… it’s a phrase where there are a number of dots in front of it and a number of dots after it. And it refers to: “that I hit him”. And so therefore it appears to be an admission but the words before and after are missing, and if that was put to the jury in that format, then, of course, it may be extremely misleading and unfair to Mr. Ryan.

(Transcript, Vol 20, p. 25) [44] Crown counsel acknowledged to the Court that a review of the videotape showed that the words, “You thought” were uttered by Mr. Ryan before the words, “I hit him”. Those words were not therefore an admission and underscored the necessity of having the full videotapes available to Mr. Ryan. [45] Eventually, Crown counsel decided not to seek admission of the videotaped statement made to Cpl. Fox. She was content to have admitted an oral statement that Mr. Ryan made to another police officer (Cpl. Burgess) which, as Crown counsel suggested, showed Mr. Ryan to be evasive because he denied knowing Richard Brace. The other statements arguably were exculpatory in that they contained repeated denials and also showed that Mr. Ryan acknowledged he knew Brace, thereby clarifying, and possibly blunting the effect of, the previous statement characterized by the Crown as “evasive”. There were also other references in the statements, however, to Mr. Ryan’s previous criminal record, including a previous conviction for murder. The trial judge recognized the dilemma Mr. Ryan faced:
… this is a difficult situation because I can’t advise Mr. Ryan in terms of any defence strategies or anything of that nature. But there are defence counsel who would want to have this statement admitted because of the fact that the witness

Page: 13
was interviewed at 1:10 in the morning to 5:28 in the morning, and the fact that over 50 times he said he can’t say anything … or his lawyer told him not to say anything. And then he denies the offence and seems surprised at the condition of Richard Brace…

(Transcript, Vol 20, p. 5) …
You have to look at what would be left [if certain items were edited out], which is basically a denial by you showing your surprise to the situation regarding the condition of Mr. Brace and a statement that you would not want him to die and you would not want anyone to die, and so, so forth. But there are also admissions by you which would maybe corroborate or support what certain Crown witnesses are saying which may enhance their credibility. So it’s a difficult decision for you. And you’re representing yourself. I don’t envy you in terms of having to make that decision as to what your position would be regarding the admission of the statement or not.

(Transcript, Vol 20, p. 30; underlining added) [46] She also expressed concern as to trial fairness:
… the Crown obviously wishes to introduce the verbal statement given to Corporal Burgess … as it may indicate that Mr. Ryan was evasive … [I]t has occurred to me that even if the statement was determined by the Court to be voluntary because it was a spontaneous utterance would the Court be justified in excluding the statement under its residual discretion to exclude any evidence that may result in … an unfair trial to the accused. And I say that because the Crown has chosen now to not present to the jury the statement given by Mr. Ryan to Corporal Fox … [W]hat the jury will not see is that when Corporal Fox interviewed Mr. Ryan hours later in the earlier morning hours of July 2nd, he did not deny that he knew Richard Brace, in fact he referred to Richard Brace as a friend … [S]o I’m concerned about the effect on the fairness of the trial by simply putting the one verbal statement to the jury.

(Transcript, Vol. 28, pp. 9-11; underlining added.) [47] Nevertheless, at the end of the day, the judge allowed the oral statement to be admitted. [48] As already noted, Crown counsel did not seek, in the end, to have the videotaped interview with Cpl. Fox admitted, citing the problems with the

Page: 14 missing inaudible portions and the fact that it would have to be edited to exclude references to Mr. Ryan’s criminal record, leaving the remainder of the interview “of very minimal probative value to us” (Transcript, Vol. 25, p. 2). [49] In response, the trial judge again came back to her concern about the dilemma in which Mr. Ryan found himself with respect to his position on the admission of the statement:
THE COURT: Now, Mr. Ryan, you will recall that last week I spoke to you about the fact that if you had been represented by a lawyer, it is possible that a lawyer may have consented to the admission of the statement taken by Corporal Fox on the basis that it contained a denial on your part with respect to the commission of the offence. However, I pointed out that there are also details in the statement … which would corroborate some details the Crown is hoping to bring forward through subsequent witnesses, and therefore there may be reasons why defence counsel would not wish to have that statement admitted and viewed by the jury. I asked you to give it some thought, because at the end of the voir dire I would be requesting from you what your position is regarding the admissibility of the statement. … [L]ast week you indicated to me on a number of occasions that you did not wish … the jury to see the videotape or to be given a transcript of the statement taken by Corporal Fox. That was your position. So is that still your position … MR. RYAN: Yes, my lady.

(Transcript, Vol. 25, pp. 3-4) [50] In any event, the Crown took the position that it was within their discretion to decide whether the other statements would be tendered and that the accused had no right to insist on their admission. The trial judge apparently agreed with this position and ultimately admitted the oral statement but not the one given to Cpl. Fox. Although she ultimately ruled the video statement given to Cpl. Matthews voluntary and admissible, the Crown ultimately chose not to play it for the jury. The result was the jury saw and heard only the “evasive” statement given to Cpl. Burgess and none of the other exculpatory statements, notwithstanding the trial judge’s earlier expressed concerns as to potential unfairness to Mr. Ryan. [51] The decisions faced by Mr. Ryan respecting the positions he should take with respect to admissibility of the various statements he made to the authorities were, by any standard, difficult ones, even for properly instructed counsel.

Page: 15 (d) Examination and Cross-examination of Tamara White

[52] Tamara White, who was eighteen at the time of Richard Brace’s beating, was the only person who testified that Mr. Ryan had struck Mr. Brace. Her evidence was obviously key to the Crown’s case. She was also under police suspicion as to her potential involvement in the beating but she was never charged. [53] The evidence she gave at the trial was riddled with inconsistencies and was also inconsistent with a number of statements she had previously given to the police. Some of those statements were also inconsistent with each other. The evidence is clear that she had been drinking heavily the day before and the day of the assaults. [54] In addition to testifying that she saw Mr. Ryan and B.K. striking Mr. Brace, she also said that Mr. Ryan took Mr. Brace’s cell phone to prevent anyone calling the police. She also said that after the ambulance arrived and Mr. Brace had been taken to the hospital, Mr. Ryan also impliedly threatened her by showing her a knife inside his coat. [55] With respect to the striking of Mr. Brace, Ms. White said that B.K. did more of the punching and his punches appeared to be harder than those thrown by Mr. Ryan. B.K. was the one who was remonstrating with Mr. Brace about cheating on A.W.; Mr. Ryan said little or nothing. Tamara White also said, with respect to the second assault, that Ryan was “at the end of the bed” but B.K. was “leaned over him”. [56] Neither B.K. nor A.W. confirmed Tamara White’s evidence that Mr. Ryan struck Mr. Brace. They both claimed that they had little or no recollection of what had happened. [57] The record indicates that Mr. Ryan had great difficulty mounting an effective cross-examination of Tamara White. It went on for ten days. Whenever he sought to challenge evidence given by White, he essentially launched into elaborate speeches about his view of the events. He had to be continuously reminded by the trial judge that he had to ask questions. He appeared not to understand why he could not contradict her directly on matters that he thought were obviously wrong. For example, White had testified that she only noticed blood in Mr. Brace’s room, the floor of the hallway and in the bathroom. She did not notice blood on B.K. or anyone else. Most other evidence was to the effect that blood was found at various

Page: 16 other places in the house and that B.K., and even Ms. White herself, had blood on them. Mr. Ryan became very frustrated when he could not get her to admit this. There were numerous interchanges between the judge and Mr. Ryan about these matters and she expressed the view on a number of occasions that Mr. Ryan was “totally incapable” of cross-examining. [58] Mr. Ryan also had difficulty in effectively cross-examining Tamara White on inconsistent statements made by her in statements to the police and at the preliminary inquiry. On other occasions she had said that A.W had threatened to kill Mr. Brace, there was blood on B.K.’s knuckles, that he and A.W. had kicked Mr. Brace as well as punched him and she could not remember seeing any blood on Mr. Ryan. She also had stated that she consumed greater quantities of beer than she testified in court. There were also differences in the number of punches thrown. [59] The trial judge certainly recognized the importance of effective crossexamination of Tamara White and Mr. Ryan’s limitations in that regard. When he expressed frustration as to why Ms. White would not acknowledge the presence of blood in other places in the house, with Mr. Ryan following up with a commentary on the answer, the following exchange occurred:
THE COURT: … But it’s not necessary for you to comment on it. MR. RYAN: Okay, I won’t say it my lady, but for – THE COURT: Just ask the questions. MR. RYAN: For a person who only seen three spots [of blood] in the house, and to see this [police photographs] what I am showing now, my God, it’s unreal. THE COURT: … Mr. Ryan, I don’t envy you representing yourself … MR. RYAN: Well, I got to do my job. THE COURT: At a murder trial and it is quite difficult, especially for someone – MR. RYAN: it’s the star witness. THE COURT: Just listen. Especially for someone who is not experienced in cross-examining a witness. And if you’re going to make full answer and defence and receive a fair trial in this matter, it is absolutely imperative that you conduct a good cross-examination of the main witnesses …

Page: 17 …
THE COURT: … here I am trying to instruct you as I’m required to do because you’re unrepresented, just sit down for a moment now and just listen to me. As I said to you earlier, I’m saying this to you because I can not do your cross-examination. The reason I can not do your crossexamination is because I don’t have the six statements of Tamara White. And so therefore I don’t know what the inconsistencies are in her statements compared to her testimony today. What I do know as a judge is that for you to make full answer and defence to this charge, for you to get a fair trial, you have to be able to conduct an effective cross-examination of this witness.

(Transcript, Vol. 33, pp.111-112; underlining added) [60] It is clear that the judge tied trial fairness to Mr. Ryan’s ability to cross-examine the key trial witnesses effectively. [61] As a suggestion as to how to conduct a cross-examination, the judge referred Mr. Ryan to the transcript of a cross-examination of Tamara White at the preliminary inquiry relating to the charges against A.W. as conducted by A.W.’s counsel. She also referred him to the video tapes of White’s statements but told him she would not let him simply play them in their totality for the jury. He had to “zero in” on the specific inconsistencies and cross-examine on those. She stated:
THE COURT: And make sure you have any video tapes or audio tapes for Tamara White – MR. RYAN: Well, I can’t even use them. THE COURT: that you may be intending to refer to. And I just want to say to you before we close, now I’m not going to sit the jury through eight hours of video taped statements from Tamara White. That would not be a proper crossexamination …


THE COURT: Find the areas in the statements that you want to cross-examine her and zero in on those particular pages

(Transcript, Vol. 33, p. 116)

Page: 18 [62] Mr. Ryan’s response to this suggestion was to speak about something completely disconnected to it – giving an assurance that he did not mean to be “ignorant” to Tamara White in what he said to her. The judge responded:
THE COURT: Mr. Ryan, I have to say for the record, I have great concerns that you’re not understanding what I’m saying to you – MR. RYAN: I understand, my lady. THE COURT: And you’re not understanding how you go about doing an effective cross-examination. But that’s all I can do. I can only go so far in terms of instructing you so you try and get your points across with the jury.

(Transcript, Vol 33, pp. 116-117; underlining added) [63] The judge’s concerns heightened as the cross-examination continued. She nevertheless felt powerless to do anything more than she was doing. In the context of once again trying to explain to Mr. Ryan the importance of asking questions to bring out evidence that might be favourable to him or contradict unfavourable evidence from other Crown witnesses, the following exchange occurred:
MR. RYAN: … I can’t make her say yes. THE COURT: You should be asking questions trying to bring the answers out, because there may well be witnesses called by the Crown or by yourself throughout the trial that may give evidence to the contrary on these particular points. So it is important that you ask questions. Whether you do so or not is your own choice. MR. RYAN: Well I should show her the videotape and let the jury see it. THE COURT: [Without responding to Mr. Ryan’s last statement] And I will say to Mr. Ryan and to Crown counsel that I did some research on the assistance that a judge should be providing to an accused regarding the evidence and regarding his defence … [T]he trial judge is expected to provide reasonable assistance to an accused in the presentation of evidence and putting any defences before the Court. And the trial judge is also expected to guide the accused in such a way that the defence is brought out with full force and effect. … But in thinking this through, I don’t know that there’s anything more I can do to direct Mr. Ryan other than suggesting to him that he ask questions, and suggesting to him that he not make comments after the witness has testified. And I’ve already pointed out to him the use he can make of previous statements of the witnesses, and also the use he can make of the Preliminary Inquiry transcripts. … I do not have the disclosure before

Page: 19
me, and I think it would be improper for me to conduct a cross-examination for Mr. Ryan. And I am concerned about the effectiveness of the cross-examination that is being conducted, but I don’t think there’s much more I can do.

(Transcript, Vol. 34, pp. 15-16; underlining added) [64] Notwithstanding her feeling that there wasn’t much more she could do to assist Mr. Ryan, the judge nevertheless remained of the view that he was not benefiting from what guidance she was giving. At a later point in the cross-examination, when the judge questioned the relevance of certain questions Mr. Ryan was asking, the following occurred:
MR. RYAN: thing – I knows it’s touchy with this witness too because this is the only

THE COURT: No MR. RYAN: - they got. I know that too, right, so I – THE COURT: You’re misinterpreting the situation – MR. RYAN: I’m not. THE COURT: - you truly are, but that’s fine, I’m not going to reach you anyway. MR. RYAN: No, but I’m just saying – THE COURT: You’re not going to understand what I’m saying no matter how often I say it to you – MR. RYAN: I understand my lady, but I don’t know what to say –

(Transcript, Vol. 35, pp. 43-44; underlining added) [65] Still later, when the issue of the appropriateness of Mr. Ryan referring to previous consistent statements made by Tamara White on previous occasions arose, the judge again tried to explain the use of prior statements for the purpose of exposing inconsistencies:
THE COURT: … don’t ask questions that simply give the same answers that she’s already given at trial, go to the inconsistencies. Do you know what I mean by an inconsistency?

Page: 20
MR. RYAN: I know, my lady, she – like I said before –

THE COURT: No, Mr. Ryan, listen to me, please. Listen to me, because you’re not going to be able to do any kind of cross-examination – MR. RYAN: I can’t, I can’t do it, no. THE COURT: -unless you understand what I’m saying. MR. RYAN: I understand what you’re saying, my lady.

THE COURT: No, you do not. You do not understand what I am saying.


THE COURT: … you don’t simply go through all the questions – MR. RYAN: I’m not, my lady, THE COURT: - and all the answers. MR. RYAN: I’m not getting a chance to question it. I’m not asking everything, no. THE COURT: Okay. We’ll try it again.


THE COURT: Concentrate on the transcript and what’s different. MR. RYAN: I can’t concentrate, I can concentrate, my lady, right now, I can concentrate on nothing on it right now because – THE COURT: Totally incapable of conducting a cross-examination of this witness. MR. RYAN: I am (inaudible) but if I can ask?

THE COURT: Totally incapable.

(Transcript, Vol. 36, pp.17-19; underlining added) [66] The trial judge’s perception of Mr. Ryan’s inability to understand the difference between consistent and inconsistent statements and their usage for

Page: 21 the purpose of cross-examination placed her in what she regarded as another dilemma: she became concerned that if she emphasized too much the inappropriateness of simply asking witnesses to verify that they had made previous statements that were consistent with their testimony at trial, the result might be that Mr. Ryan, not appreciating the distinction, would not use the transcript for proper purposes of cross-examining on prior inconsistent statements and asking “essential questions” to the witnesses. (Transcript, Vol. 36, p. 35). [67] The concerns over the problems with cross-examination also reached Crown counsel. Towards the end of the cross-examination of Tamara White, counsel spoke to the Court in the absence of the jury:
MS. STEAD: … in consideration of your ladyship’s comments this morning, questioning … Mr. Ryan’s ability to conduct a cross-examination of this witness. THE COURT: An effective cross-examination. MS. STEAD: We had some – and in conjunction with some discussions that we’ve had with some superiors in our division, I guess we wanted to clarify whether your ladyship was suggesting a course of action in making those comments or if – because your ladyship also pointed out that Mr. Ryan has made some very good points, certainly last week, so I guess weren’t sure how to interpret those comments.

(Transcript, Vol. 36, p. 107) [68] This appeared to be an oblique inquiry as to whether the trial judge was effectively inviting the Crown to make a motion for a mistrial. (e) The Trial Judge’s Comments on the necessity or advisability of Legal Advice

[69] At several points throughout the trial, the trial judge expressed to Mr. Ryan the importance of having legal advice in respect of specific issues. For example, on the voir dire with respect to admissibility of his statements to the police the issue of references to his prior criminal record during the interviews came up. I have already referred to the comments of the judge about the difficulty Mr. Ryan faced in deciding whether to oppose admissibility of the statements. On two occasions, she told him he should obtain legal advice on that issue.

Page: 22 (f) Addressing the Potential for a Mistrial

[70] The trial judge flirted with declaring a mistrial on a number of occasions but drew back from its implications, stating, for example, “I do not want to declare a mistrial unless it becomes absolutely necessary”. (Transcript, Vol. 26, pp. 46-47.) [71] During the discussion in Court about the delays in access to the videotapes of Mr. Ryan’s statements and those of other witnesses, she commented that:
… it’s coming at a very late stage. And of course, these late disclosures can delay a trial and even result in a mistrial if I feel I can’t keep a jury out for too long … And we’re into five weeks now and so we don’t want to declare a mistrial unless it’s absolutely necessary.

(Transcript, Vol 20, p. 20) And later:
Mr. Ryan: … I don’t want no mistrial, my lady. I wants to get this over with. The Court: I know you do. Mr. Ryan: I took me sixteen weeks to get this done. I don’t want no – The Court: And I do not want a mistrial either because a lot of time and effort, as well as cost, had gone into – Mr. Ryan: This. The Court: - proceeding this far. And we still have a fair distance to go before the trial will be completed. And so therefore we need to see it to its conclusion. …

(Transcript, Vol. 22, p. 14) [72] When Mr. Ryan became frustrated over the question of how to reconcile the admissibility of his exculpatory statements to the police with the references to his prior criminal record in those statements, the judge commented:
You are going to have to see it through to its conclusion. You decided to represent yourself and if you are getting frustrated in doing so, you are going to have to calm down, be patient, try and remain focused and see it through to the end of the

Page: 23
trial … because I am not going to be declaring any mistrial, not unless there are very, very, very compelling reasons to do so. I am continuing through and finishing the next twelve weeks.

(Transcript, Vol 19, p. 146) [73] The trial judge was obviously concerned about whether the trial could be effectively managed in a way that would ensure the fairness of the trial from Mr. Ryan’s point of view. Reference has already been made, at paragraph [63] above, to her comments to Mr. Ryan and Crown counsel during the cross-examination of Tamara White that despite her obligation to assist Mr. Ryan in bringing out his defence, there was not “anything more I can do” despite the fact that she remained “concerned about the effectiveness of the cross-examination that is being conducted”. [74] In making such observations, the trial judge was effectively acknowledging that even with assistance from the court, Mr. Ryan could not conduct an effective cross-examination and she felt that there was nothing more she could do to ensure the fairness of the trial. [75] Of course, one thing she could have done was declare a mistrial. It is clear, however, that she regarded that option as an exercise in futility. Her reasoning is summed up in the following statements by her:
… If I were to declare a mistrial at this stage because of my belief at least from what has transpired from the cross-examination of Tamara White, that he does not have the capability of conducting an effective cross-examination of … this witness, which is crucial to his defence, I’m not certain how the matter will unfold, because he is not required by law to have counsel defend him at a trial. He has a right to [choose] to represent himself. There is no issue put before me as to fitness at this stage, so he has made that decision. Even if a mistrial were declared by me, he may not necessarily get counsel of his own choice, and therefore if the legal aid staff are offered to him again to defend him with respect to a criminal trial, he may well refuse them the second time around, so we’re back into the same situation again of him going through a second trial representing himself.

(Transcript, Vol.36, pp. 108-109; underlining added) [76] Yet, she recognized that carrying on with the trial would likely mean that Mr. Ryan could not properly defend himself and therefore by extension would not get a fair trial. She commented:

Page: 24
… I do have some concerns that he is not able to effectively and properly defend himself in a second-degree murder trial. It would be a huge task for any accused to face to represent himself or herself at a second-degree murder trial, [given] the number of witnesses and the volume of information, documents, videotapes, audiotapes, et cetera, and also not to be [emotionally] charged when crossexamining a witness so that you remain focused and you remain clear as to what your task is at that particular point in the trial, rather than be dragged into an emotional confrontation with the witness or whatever. So, it would be a huge task for any accused, but I’m not at all certain at this point that Mr. Ryan is capable of defending himself fully and effectively during a second degree murder trial. And I think anyone who has sat through the proceedings would understand where I’m coming from in terms of my concerns in that regard.

(Transcript, Vol 36, p. 109; underlining added) She continued:
But this is not a case where he’s been denied legal counsel. If this was a case where [he] was denied legal counsel, I would stop the trial now and make an order that legal counsel be appointed for him, which would in all likelihood would come from the Legal Aid Commission, which is usually what does happen in this province. This is a case where he was offered counsel by the Legal Aid Commission. He refused to accept that counsel. … but I don’t see at this stage that there would be any point in exploring that avenue of having Mr. Ryan be represented by counsel at this stage. Because he has made it clear to me that he will not be represented by any lawyers from the Legal Aid Commission. As he has already been unsuccessful at this level, and at the Court of Appeal with having a lawyer of his own choice, … then a mistrial may simply mean that he’s going through a second trial defending himself again. And there will not be any difference.

(Transcript, Vol 34, p. 109-110; underlining added) [77] It is clear from these remarks that the trial judge was of the view that Mr. Ryan needed the services of counsel to enable him to be able to make full answer and defence and could not do without one if he were to receive a fair trial. Nevertheless, she concluded that she should not manage the trial in such a way that he could have legal counsel or stop the trial to enable counsel to be provided. The key considerations were twofold: (i) he chose to put himself in the situation he was in; and (ii) he would be in exactly the same situation in a second trial if a mistrial were to be ordered. Fault and futility were the watchwords. Faced with the choice of proceeding with a

Page: 25 trial in circumstances where Mr. Ryan likely could not properly defend himself or stopping the trial in circumstances where Mr. Ryan had chosen not to be represented by counsel (was the author of his own misfortune, so to speak), she opted for the former. Issues [78] In his factum the appellant raised a number of specific issues with respect to rulings during the trial, conduct of Crown counsel and the judge’s instructions to the jury. In slightly reorganized form, they can be stated as follows: 1. Whether Mr. Ryan’s right to make full answer and defence was breached by incomplete and untimely disclosure and whether the trial judge took appropriate steps to address that issue; Whether the trial judge erred in failing to give a Vetrovec warning to the jury respecting the evidence of Tamara White, a key (and the only) eye-witness who implicated Mr. Ryan; Whether the manner of the Crown’s address to the jury improperly compromised Mr. Ryan’s right to a fair trial and to be presumed innocent and whether the trial judge erred in failing to correct those comments; Whether the trial judge erred in failing to assist Mr. Ryan, as an unrepresented litigant, in bringing out his defence with full force and effect by failing to ensure he had full and timely disclosure and by incorrectly informing him with respect to certain legal points during the trial; Whether the trial judge ought, on her own motion, to have declared a mistrial on the ground that there was a real danger of prejudice to Mr. Ryan in the way the trial unfolded and was conducted, with a resulting miscarriage of justice.

2.

3.

4.

5.

[79] In addition to these specific complaints with respect to the conduct of the trial, the appellant also submits that the verdict was unreasonable and cannot be supported by the evidence. [80] As noted previously, a common thread running through all of the appellant’s argument, however, is the submission that Mr. Ryan was not able

Page: 26 to conduct his own defence without the assistance of legal counsel and that the trial judge should have taken steps, on her own motion, even though Mr. Ryan at the time opposed it, to declare a mistrial to give him, in effect, another opportunity to obtain legal counsel of choice at a new trial. In other words, in the circumstances Mr. Ryan could not receive a fair trial unless this step was taken. [81] This result should have followed, so it was said, even though this Court, in dismissing Mr. Ryan’s appeal of the Trial Division order refusing him counsel of choice, expressed the view that he would be able to receive a fair trial even if he were not represented by his counsel of choice but represented instead by appointed legal aid counsel, and even though Mr. Ryan refused to accept offered legal aid counsel and during the trial opposed a declaration of a mistrial. Counsel for Mr. Ryan submitted that, with the benefit of hindsight, i.e., the knowledge of what actually happened at the trial, it is clear that Mr. Ryan could not represent himself effectively and did not appreciate the consequences of opposing the declaration of a mistrial. Again with the benefit of hindsight, he says Mr. Ryan now realizes that he should have been represented by counsel and argues that the trial judge should have taken steps to allow this opportunity. [82] As a result of this theme underpinning much of the argument on the appeal, this Court sought additional submissions from counsel on the following question: In the context of a jury trial involving a self-represented accused who is entitled to use but does not avail of counsel, in what circumstances, if any, should a trial judge declare a mistrial where it is apparent that, despite attempts by the trial judge to give direction to the accused as to the conduct of the trial, the accused cannot properly conduct his defence and there is a danger that he will not receive a fair trial? [83] It is the approach to this question which is the focus of the remainder of this judgment. Analysis [84] Counsel were not able to cite any case that directly addressed the question posed by the Court. Counsel for Mr. Ryan submitted, nevertheless, that a principle that would justify a declaration of a mistrial in the circumstances of this case could be extrapolated from a number of other

Page: 27 principles relating to the obligations of a trial judge to assist an unrepresented accused, the general principles relating to the basis for declaring a mistrial, the right of an accused to make full answer and defence and to have a fair trial and the right to a minimum standard of counsel competency, amongst other principles. (a) The right to a fair trial

[85] The Charter, ss. 7 and 11(d), guarantees an accused the right to a fair trial which includes the right to present full answer and defence. It is a fundamental underpinning of our criminal justice system. As stated by Carthy J.A. in R. v. Clement (1995), 25 O.R. (3d) 230 (Ont. C.A.) at p. 239, “… a fair trial is at the root of the administration of justice and an unfair trial cannot be condoned, no matter what the other circumstances may be.” [86] Many of the more specific principles that broadly relate to trial management, such as the standards of counsel competency, the circumstances under which a mistrial may be ordered and the obligations of a trial judge to assist accused without counsel are in fact designed to buttress the notion of trial fairness. [87] The right to a fair trial does not, of course, mean that the accused is entitled to a perfect trial or even the most advantageous trial from his point of view. In R. v. Harrer, [1995] 3 S.C.R. 562, McLachlin J. observed:
[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 obtained. A fair trial is one that satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.

(Emphasis added.) [88] The importance of a fair trial extends beyond a concern for the protection of the interests of the accused. Even if he or she is not concerned about the course of the trial, or the decision that may result, the interests of broader society are also engaged. As a society, we expect to be governed by a system that treats its citizens fairly and does not result in persons being convicted and punished for something they did not do. As noted by Rothstein J. in R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651:

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[27] … society’s interest in a fair trial that reaches a reliable determination of the accused’s guilt or innocence based on all of the available evidence cannot be ignored.

(Emphasis added.) [89] This statement was made in the context of a discussion of the appropriateness of the exclusion of evidence that had not been disclosed to the accused in a timely manner, and whether society’s interest in having a reliable determination of guilt or innocence on all available evidence justified a less drastic remedy (such as postponement of the trial) than exclusion. The tipping point was stated by the majority to be whether the fairness of the trial and the integrity of the justice system would be compromised if the evidence were excluded. In that case, society’s interest in having a fair determination of guilt or innocence on all available evidence, including the undisclosed evidence, was held to justify not excluding the evidence because trial fairness would not be compromised. [90] The touchstone for all of these determinations is the bedrock consideration of whether the accused will have a fair trial. Absent a fair trial, a remedy should flow. Consideration of society’s interest in a fair trial that reaches a reliable determination of guilt or innocence should also operate, in principle, on the other side of the coin, i.e., in favour of the accused: if there is a real risk that the accused will be convicted in questionable circumstances or on unreliable evidence or without a proper opportunity to make full answer and defence, then the interest of society in not participating in wrongful convictions will call into question the fairness of the trial. [91] A fair trial, therefore, should mean something more than merely a trial without procedural defects regardless of the outcome. A fair trial has a substantive component. As a minimum, there should be a reasonable prospect, from the way the trial is conducted and unfolds, of obtaining a reliable verdict. The emphasis in recent years on rectifying cases involving wrongful convictions, and identifying the circumstances under which there is a risk of the trial process going wrong, demonstrates this principle. It is also reflected in the principle that a guilty plea of an accused will not be accepted and acted upon until, following a screening of the facts by the trial judge, it is concluded by the court that there is a factual basis for conviction. It also underpins the “innocence at stake” exceptions that justify piercing informer (R. v. Leipert, [1997] 1 S.C.R. 281) and solicitor-client privileges (R. v. McClure, [2001] 1 S.C.R. 445) in favour of ensuring full answer and

Page: 29 defence: “Our system will not tolerate conviction of the innocent” (per Major J. in McClure at para. 40). (b) The right to counsel

[92] Sir James Fitzjames Stephen wrote in his History of the Criminal Law of England, Vol. 1 (London, U.K: MacMillan, 1883) p. 442: “when a prisoner is undefended, his position is often pitiable, even if he has a good case.” [93] Nevertheless, Canadian law does not provide an unqualified right to counsel in criminal cases. That said, both the common law, and the law since the Charter, guarantee an accused the right to state-funded counsel whenever it is regarded, on a case-by-case basis, as essential to assure an accused a fair trial, taking into account the accused’s education, experience and other abilities as well as the seriousness of the offence and the complexity and length of the case: R. v. Jesso, 2007 NLCA 28, 265 Nfld. & P.E.I.R. 187. [94] The touchstone for the application of the principle underlying the right to have counsel appointed is whether the accused will be able to have a fair trial, or a trial without the appearance of unfairness, unless he has the assistance of counsel. [95] In R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302 a new trial was ordered because the trial judge ought, at the request of the accused, to have made a Rowbotham order on the ground that the case (a charge of arson involving expert evidence) was sufficiently complex that legal representation of the accused, who was “out of his depth”, was “essential to ensure that the accused receives a fair trial” (para. 24). The accused “did not have the capacity to defend the case without counsel” (para. 26). At trial, the Crown had appeared to recognize that the accused “would have difficulty cross-examining even the straightforward witnesses let alone the expert witnesses” (para. 11). [96] In ordering a new trial, the Court in Rushlow held that it was not necessary for the appellant to show actual prejudice as a result of not having had the assistance of counsel, in the sense that there would have been a different result if counsel had been provided. It was sufficient to conclude there was a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal

Page: 30 Code “in that the failure to appoint counsel resulted in an appearance of unfairness” (para. 35). Rosenberg J.A. stated:
[39] The purpose of the right to counsel in the context of a Rowbotham case is reflected in the nature of the test itself. Counsel is appointed because their assistance is essential for a fair trial. In my view, fair trial in this context embraces both the concept of the ability to make full answer and defence and the appearance of fairness…

(Emphasis added.) [97] Rushlow also stands for the proposition that even though the trial judge conducts a “model trial” (as the Court recognized was done in Rushlow) in terms of providing all necessary and appropriate assistance to the accused in the conduct of his or her defence, there still may be an appearance of unfairness (and hence a miscarriage of justice) if the accused is required to proceed without counsel in circumstances where, despite proper assistance afforded by the trial judge, the accused still does not have the capacity to defend himself or herself by acting alone. [98] In the instant case, Mr. Ryan qualified for appointment of counsel under the legal aid scheme. In his subsequent application for appointment of counsel of choice in the place of legal aid counsel, it was accepted that he needed counsel; the focus, instead, was on whether there was justification for appointment of someone other than the legal aid counsel he had been offered. It was Mr. Ryan’s decision to proceed without counsel, once it was determined that he could not have anyone other than offered legal aid counsel, that resulted in his direct participation in the trial, not the fact that it was determined that he could have a fair trial without any counsel. [99] The correlative to the right to have counsel appointed is the right to refuse counsel. The courts have said on more than one occasion that the court cannot “force counsel upon an unwilling accused”: R. v. Cunnningham, 2010 SCC 10, [2010] 1 S.C.R. 331 per Rothstein J. at paragraph 9; see also Vescio v. The King, [1949] S.C.R. 139, per Taschereau J. at para. 144; and R. v. Fleming (D.P.) (1999), 171 Nfld. & P.E.I.R. 183 (Nfld.C.A.), per Marshall J.A. at para. 197. This position is reflective of “respect for individual autonomy within an adversarial system”: per Lamer C.J.C. in R. v. Swain, [1991] 1 S.C.R. 933 at p. 972. [100] But what if the decision not to have counsel puts the accused in a situation where he is incapable of properly conducting a defence and risks a

Page: 31 possible wrongful conviction? As Cromwell J.A. observed in R. v. Wolkins, 2005 NSCA 2, 192 C.C.C. (3d) 378 at para. 89, “the clearest example [of a miscarriage of justice] is the conviction of an innocent person. There can be no greater miscarriage of justice”. Is there a point where the court may nevertheless step in even if the intervention may conflict with the accused’s autonomy to decide for himself or herself whether counsel is required? This issue was discussed in Wolkins, a case involving representation of an accused by a non-lawyer agent:
[70] At times, the principle respecting individual autonomy may appear to conflict with the right to a fair trial. For example, an accused may insist on representing him or herself even in situations in which the court would appoint counsel for the accused, if asked, because a fair trial would not be possible otherwise. But this apparent conflict is resolved very simply: an accused cannot complain about his or her decision not to be represented by counsel provided that it is not tainted by the breach of any right or duty owed to the accused: see, e.g., R. v. Howell (1995), 146 N.S.R. (2d) 1; [1995] N.S.J. No. 483 (Q.L.) (C.A.) at para. 49 [describing the accused’s disability in conducting his defence as “self-imposed]; aff’d [1996] 3 S.C.R. 604. As the Alberta Court of Appeal aptly put it in R. v. Cai (2002), 170 C.C.C. (3d) 1; [2002] A.J. No. 1521 (Q.L.) (C.A.) at para. 42, “To allow an accused…to spurn counsel and plead for mercy on grounds of lack of counsel would set a very dangerous precedent. To do so in the name of fairness would be very contrary.”

[101] (I would note in passing that Howell, as cited in Wolkins, was a case of an accused effectively dismissing his counsel near the end of the trial in circumstances where the Nova Scotia Court of Appeal concluded, at para. 49, that “the appellant had no legitimate reason to lose confidence in him”.) [102] The circumstances in Wolkins were, of course, very different from the current situation. Wolkins had been represented by an agent at his trial for lobster fishing outside the area for which he had been licenced. At the close of the prosecution case, the agent was unprepared to proceed with the defence despite unequivocal advance notice from the judge that the trial would proceed to a conclusion. He unsuccessfully sought an adjournment, having previously been given a number of adjournments that had delayed the trial for three years. On appeal from conviction, he argued that the agent had represented him with such incompetence that the conviction was a miscarriage of justice. [103] In dismissing the appeal, Cromwell J.A. held that Wolkins, having chosen to be represented by an agent rather than a lawyer, was bound by that decision. He also held that Wolkins’ decision not to call evidence or to

Page: 32 testify was his to make and there was no suggestion that he had been misled or misinformed by the agent or the judge as to how to make that choice. He noted that Wolkins had been in the courtroom with his agent throughout the many court appearances and he described the decision simply as “a trial tactic that did not work.” (para. 3). He stated, citing other authority: “[T]he fact that an agent does not meet the standard of competence expected of counsel cannot, on its own, support an argument that the trial was unfair or that a miscarriage of justice has occurred” (para. 71; emphasis added). Cromwell J.A. went on to consider whether there had been a miscarriage of justice and concluded that there had not been. He acknowledged, however, there could be circumstances where the acts of an agent in representing an accused could lead to a miscarriage of justice, justifying appellate intervention, as where the agent engaged in unauthorized acts which could not be fairly attributed to the accused (para. 77). He reviewed the grounds on which Wolkins alleged miscarriage, including the suggestion that fresh evidence could have made a difference in a new trial, and found none of the arguments meritorious. [104] On its facts, therefore, Wolkins does not deal with a situation where the accused and his agent were found to have acted incompetently, and certainly not to a level that would amount to a miscarriage of justice. This is unlike the case at hand where the concerns about disclosure, unfair impressions left with the jury respecting the selective admission of some of Mr. Ryan’s statements to the police, and Mr. Ryan’s complete inability to cross-examine the only witness who placed him at the scene of Mr. Brace’s beatings raise real concern about the reliability of the verdict. [105] Does individual autonomy always win out over trial fairness? Will the accused always be allowed, effectively, to commit litigation suicide particularly in a murder case where the consequences are so serious? [106] In Fleming (D.P.), one of the grounds of appeal against conviction for twelve sex offences involving six complainants was that the trial judge failed in his duty to allow for the appointment of counsel where the accused “represented himself so incompetently as to deprive himself of a fair trial” (para. 186). This ground was treated by the Court as a submission of error on the part of the trial judge in failing to grant an adjournment, mid-trial, to allow the accused to retain the services of counsel. The accused, as found by the trial judge and by the Court of Appeal, had made a conscious decision to defend himself even though he had been given the opportunity to obtain counsel of choice through legal aid. During the trial, the accused, in the

Page: 33 words of O’Neill J.A., “displayed an abysmal lack of knowledge of the principles governing, and the rules and principles applicable to, a criminal trial” (para. 26) and “lacked the ability to conduct his own defence and needed a lawyer” (para. 28). [107] Near the end of the prosecution’s case, the accused appeared to recognize that he needed a lawyer and asked for an adjournment to enable him to obtain one. This was opposed by Crown counsel, who relied on the fact that the Accused had previously had the opportunity to obtain a lawyer and had rejected it. Counsel submitted that the request for counsel was merely a “stall tactic” and an attempt “to play games” with the Court. [108] The trial judge denied the request for an adjournment. He determined that the accused had effectively waived his right to counsel “long ago” and that the Court therefore “exhausted its duty” to protect the accused’s right to counsel in the face of his conscious decision to refuse counsel previously. He stated that to stop the trial at that point would be “an abuse of the system”. [109] Three opinions were written by the appeal panel. Two judges (O’Neill and Steele JJ.A.) allowed the appeal and ordered a new trial. Marshall J.A. would have dismissed the appeal. Steele J.A. allowed the appeal on grounds unrelated to the issue relating to absence of counsel. O’Neill J.A. and Marshall J.A. both addressed the counsel issue. O’Neill J.A. relied on that ground, along with others, for his decision to allow the appeal. Marshall J.A., while addressing the issue, did not find it persuasive on the facts. Although O’Neill and Marshall J.A. differed in the result on this issue, comments made by both of them are instructive for the present case. [110] O’Neill J.A. noted that, contrary to the submissions of Crown counsel, the accused had not employed any delay tactics and that the trial judge had not made any inquiry as to the nature and extent of any delay in the trial that might have been occasioned had the accused been provided with the opportunity to engage counsel. He noted further that the trial judge had indicated that “there was a risk of miscarriage of justice because the [accused] was conducting his own defence.” He rejected the notion, which the trial judge had apparently accepted, that “once commenced, a jury trial by its nature is obliged to proceed” to a conclusion. He concluded:
[44] … the trial judge was in error in restricting his consideration of the appellant’s request to the fact that the appellant had had the opportunity to engage

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counsel and had declined to exercise it, and in concluding that he was then foreclosed from exercising it, and that the court “had exhausted its duty to protect Charter rights in the face of a refusal by the [appellant] to seek the protection of the right to counsel in a proper and timely fashion”. [45] In my view in failing to grant the request of the appellant that he be allowed time to engage counsel to conduct the balance of his trial, the trial judge was in error.

[111] Marshall J.A. concluded that “the record shows the trial judge lent fair and adequate assistance” to the accused in the conduct of his defence (para. 169). He determined that the trial judge
[196] … was heavily influenced by the preceding circumstances relative to the earlier attempts to have him engage counsel and the difficulties in then stopping the trial. These could not stand in the way of his request, however, if it had precluded Mr. Fleming from making full answer and defence, as his counsel in this appeal is claiming it did …

(Emphasis added.) [112] Citing R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont. C.A.), he stated:
[198] … the test whether the interests of justice required a quashing of the conviction and an ordering of a new trial for want of legal assistance turned on whether the record showed the accused had been able to mount a full and fair defence without the benefit of counsel. … [199] It appears important to underscore that the test whether Mr. Fleming was mounting a full and fair defence in following his choice to represent himself is not to be judged on the basis of whether he had conducted his defence up to the adjournment motion with the competence that might be expected of legal counsel. The test of the adequacy of the defence advanced rests on whether Mr. Fleming was able, notwithstanding imperfections in the defence he was putting forth, to adequately promote the theory of his defence. …

[113] Marshall J.A. ultimately concluded that, on the record, there was no case to be made that there was a failure on the part of the accused to make full answer and defence in representing himself with the assistance of the trial judge (see para. 206). That said, it seems clear that had Marshall J.A. concluded that the ability of the accused to make full answer and defence had been jeopardized, he may have decided that there was merit in this ground of appeal.

Page: 35 [114] The following principles can be extracted from Fleming (D.P.): (i) the fact that an accused, at or before the start of a trial, rejects the right to have counsel represent him does not exhaust the duty of the court to ensure that the accused has the opportunity to make full answer and defence; (ii) if, with assistance of the trial judge throughout the trial, an unrepresented accused is able, though with difficulty, to make full answer and defence, there is no basis for providing him with counsel or declaring a mistrial. The corollary of this second principle is that if the accused is unable to make full answer and defence without the assistance of counsel, the court should intervene to ensure that the accused receives a fair trial. [115] In McGibbon, which was referred to by Marshall J.A. in Fleming (D.P.), the accused, whose counsel withdrew before the trial started, proceeded to trial without counsel and did not make application at the start of the trial for appointment of other counsel, Griffiths J.A. held, at p. 347, that:
It is patent on the record both before and at the trial that the appellant wished to defend himself, particularly in the light of his earlier difficulties with counsel. The trial judge had no right to force the appellant to retain counsel against his will and in the circumstances of this case the trial judge was under no obligation to inquire of the accused whether he wished to be defended by counsel or to urge him to retain counsel. In my opinion, it would not be in the interests of justice to permit an appellant who had made a decision to proceed without the assistance of counsel to now have a new trial because he was convicted.

[116] This comment was made, however, in the context of conclusions that although the accused “did not conduct his defence with the competence of legal counsel …in his cross-examination of the complainant, the appellant posed helpful and rational questions which were relevant to and which promoted his theory of the defence” (p. 347). There was no finding on the part of the trial judge or conclusion reached by the Court of Appeal that the standard of representation the accused provided himself, with the assistance of the trial judge – which the judge “took great pains” to provide - fell below the minimal acceptable level necessary to enable him to adequately present his defence. In other words, there was no finding that the accused did not receive a fair trial. [117] The situation where an accused who chooses to represent himself is incapable of making full answer and defence was not engaged in McGibbon. Nor was it engaged, in Marshall J.A.’s view, in Fleming (D.P.). On the other hand, it was engaged as far as O’Neill J.A. was concerned. He

Page: 36 concluded that even though the accused consciously chose to proceed to trial without counsel, the duty of the trial judge to ensure he was able to make full answer and defence (with the assistance of counsel, if necessary) and thereby receive a fair trial continued throughout the trial, and failure to intervene would lead to an order for a new trial on appeal. While it is true that in Fleming (D.P.) (unlike the instant case), the accused had at some point during the trial requested the assistance of counsel, it is clear from the underlying reasoning employed by both Marshall and O’Neill JJ.A. that they, though differing on their perception of the facts, both regarded the fundamental consideration to be the ability of the accused to receive a fair trial by being able to make full answer and defence. [118] The conclusion to be reached from this analysis is that while the decision of an accused to represent him or herself may well be determinative where the accused in the resulting trial, with the assistance of the trial judge, can nevertheless be said to have been able to present a defence, other considerations come into play where the decision to proceed unrepresented puts the accused in the position of not being able to make full answer and defence. I do not regard the comment quoted from Wolkins above as determinative of the issue in all circumstances. It does not follow that just because the accused consciously rejects counsel before or at the start of the trial and does not specifically request appointment of counsel during the trial, he or she is to be left totally to his or her own devices, with the court washing its hands of any further concerns about trial fairness flowing from the absence of counsel. [119] In Cunningham, Rothstein J., in the course of affirming the right of an accused to refuse counsel, nevertheless recognized that “exceptionally the court may appoint an amicus curiae to assist the court” (para. 9). In R. v. Hart, 2009 NLCA 10, 282 Nfld. & P.E.I.R. 346, Wells C.J.N.L. ordered the appointment of amicus curiae in an appellate matter over the objections of the appellant. One of the considerations taken into account in making the appointment was the appellant’s “inability to prepare for and present his appeal” (para. 29). The justification for the appointment in the face of the appellant’s assertion that it would “be violating my rights” was that it would “further the interest of justice and ensure the protection of his rights” (para. 30). There are circumstances, therefore, where the court will be justified in taking steps, over the objections of the accused, to ensure that the accused’s rights are protected and, in so doing, further the interests of justice. The motivation is to ensure that the Charter right to a fair trial is protected.

Page: 37 [120] In the instant case, the question is not whether Mr. Ryan could be forced to accept the appointment of counsel over his objections but whether, the trial judge, in the face of Mr. Ryan’s wish to continue the trial without counsel, should nevertheless have taken other steps, such as the appointing of amicus or declaring a mistrial, in light of the judge’s perceptions of how the trial was unfolding and the concerns she had that a fair trial was not going to result. (c) The right to a minimum standard of counsel competency

[121] Canadian criminal law recognizes an accused’s right to the effective assistance of counsel, once engaged. It is seen as a principle of fundamental justice under the Charter: R. v. G.D.B., [2000] 1 S.C.R. 520 at para. 24. In G.D.B., Major J. observed:
[25] The value of effective assistance of counsel is apparent, but was fully explained by Doherty J.A. in R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont C.A.), at p. 57: … Effective representation by counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professional trained in the skills needed during the combat of trial. The skilled advocate can test the case advanced by the prosecution, as well as marshall and advance the case on behalf of the defence. … Effective assistance by counsel also enhances the adjudicative fairness of the process in that it provides to an accused a champion who has the same skills as the prosecutor and who can use those skills to ensure that the accused receives the full benefit of the panoply of procedural protections available to an accused. …

(Emphasis added.) [122] Major J. pointed out, however, that counsel incompetence alone is not sufficient to entitle a convicted accused to a remedy:
[26] … For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and, second, that a miscarriage of justice resulted. [27] Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within a wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the

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result of reasonable professional judgment. The wisdom of hindsight has no place is this assessment. [28] Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised.


[34] Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice.

(Emphasis added.) [123] The hurdle to be gotten over before a court will determine that counsel’s representation was incompetent is a high one and even then it must be shown that a miscarriage of justice resulted. [124] The standard of counsel competence to which an accused is entitled is therefore grounded in results: was there a miscarriage of justice resulting from procedural unfairness or lack of “reliability of the trial’s result” brought about by a level of representation that was below reasonable professional judgment. Although establishing counsel incompetence is difficult and, fortunately such cases are infrequent, what is important for present purposes is that actions taken by an accused’s legal representative, when they do fall outside what can be characterized as reasonable professional judgment, can result in judicial intervention even if the actions were taken in good faith, to prevent a miscarriage of justice. [125] It would be odd, therefore, in a case where an accused represents himself, if he also should not be entitled to the same degree of protection, namely, to have the court intervene, either during the trial or on appeal, where the standard of representation (in this case, self-representation), even if undertaken willingly and in good faith, falls so low as to raise the spectre of a miscarriage of justice, either because of procedural unfairness or a compromise to “the reliability of the trial’s result”. [126] This is not to say that an unrepresented accused is entitled to the same level of advocacy as if he had been represented by competent counsel or that fairness of the trial is to be measured by comparing the accused’s conduct of his own case with the potential conduct of the case by a competent counsel.

Page: 39 The authorities are clear that he is not entitled to that level of protection: see, e.g., R. v. Rain, 1998 ABCA 315 per Sulatycky J.A. at para. 38. In most situations, one would expect that competent counsel would present a better case. The accused gives up the opportunity to present that case when he or she chooses to represent himself or herself. The question at issue here, however, is more fundamental: is the accused entitled to protection where the level of his advocacy falls below, not the level that one could expect from competent counsel, but below the acceptable competency level of counsel advocacy that would justify appellate intervention? [127] Accordingly, even though an accused has the right to choose not to engage counsel that does not mean that, once he does so, he must in all circumstances be taken to have waived the right to protection against a miscarriage of justice. The court still has a role in ensuring a minimum standard of representational competence. (d) Duty of Trial Judge to an Unrepresented Accused

[128] The fundamental duty of a trial judge to see that an accused receives a fair trial means that the judge must take steps to provide assistance to an unrepresented accused to enable his or her defence, or any defence that proceeding may reasonably disclose, is brought to the attention of the jury with full force and effect: R. v. Darlyn, [1947] 3 D.L.R. 480 (B.C.C.A.), per O’Halleran J.A. at para. 7; R. v. McGibbon, per Griffiths J.A. at p. 347; R. v. Tran (2001), 55 O.R. (3d) 161 (C.A.), per Borins J.A. at para. 22; R. v. Assoun, 2006 NSCA 47 per curiam at paras. 259-263. [129] The trial judge’s duty does not go as far as providing the same degree of assistance as would be provided by counsel if the accused were represented: R. v. Rain, para. 38. Otherwise he or she would become an advocate for the accused, thereby compromising judicial impartiality. There is no set formula of instruction that can ritualistically be used in each case. The advice and instruction must be tailored to the particular circumstances. As stated by Fruman J.A. in R. v. Phillips, 2003 ABCA 4, 172 C.C.C. (3d) 284, aff’d [2003] 2 S.C.R. 623:
[22] … … trials involving unrepresented accuseds are rarely consistent or simple. Their need for guidance varies depending on the crime, the facts, the defences raised and the accused’s sophistication. The judge’s advice must be interactive, tailored to the circumstances of the offence and the offender, with appropriate instruction at each stage of a trial.

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[23] How far a trial judge should go in assisting an accused is therefore a matter of judicial discretion: McGibbon, supra, at 347. The overriding duty is to ensure that the unrepresented accused has a fair trial.

(Emphasis added.) [130] In Assoun, the Nova Scotia Court of Appeal postulated, relying on Phillips, that the test of whether judicial assistance was adequate is “an objective standard – the right to a fair trial”(para. 263). [131] Even where the level of assistance provided to an unrepresented accused is inadequate, the authorities are clear that “inadequate assistance is not a free-standing ground of appeal. The question is whether there has been a miscarriage of justice under s. 686(1)(a)(iii) [of the Criminal Code]”: Assoun, para. 264. [132] Once again, the test for appellate intervention in circumstances where issues arise regarding the integrity of trial representation, whether by counsel or by way of self-representation, is whether the accused has not received a fair trial. As Rushlow has noted, a fair trial encompasses both the ability to make full answer and defence as well as the appearance of fairness. The absence of a fair trial in this sense may justify a conclusion that there is a miscarriage of justice: Rushlow, para. 35. (e) Declaration of a Mistrial

[133] In R. v. Burke, [2002] 2 S.C.R. 857, Major J. described the power of a judge to declare a mistrial as follows:
[74] … There are broad common law powers to declare a mistrial. Mistrials have been ordered or considered as a potential solution in a range of situations: where a jury member is discharged (R. v. Taillefer (1995), 40 C.R. (4th) 287 (Que. C.A.), leave to appeal refused, [1996] 1 S.C.R. x; and R. v. Lessard (1992), 74 C.C.C. (3d) 552, [1992] R.J.Q. 1205 (C.A.), leave to appeal refused, [1992] 3 S.C.R. vii); where inadmissible evidence is adduced during trial which might influence the jury (R. v. Woods (1989), 49 C.C.C. (3d) 20 (Ont. C.A.), leave to appeal refused, [1990] 2 S.C.R. xii); where there is inadmissible communication between a witness and a juror causing prejudice (R. v. Martineau (1986), 33 C.C.C. (3d) 573 (Que. C.A.)); where disclosure is made immediately prior to or during the trial (R. v. Antinello (1995), 97 C.C.C. (3d) 126 (Alta. C.A.); R. v. T. (L.A.) (1993), 84 C.C.C. (3d) 90 (Ont. C.A.)); and where the jury had already rendered a verdict but had not decided on the issue of mental disorder, making it impossible for the

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judge to enter the intended conviction without "taint" (R. v. Rondeau, [1998] O.J. No. 5759 (QL) (Gen. Div.)). The common theme running through this case law is the test of whether there is a [TRANSLATION] "real danger" of prejudice to the accused or danger of a miscarriage of justice: Lessard, supra, at p. 562 C.C.C. [75] In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice. …

(Emphasis added.) [134] The test for determining whether a declaration of a mistrial is indicated is, therefore, whether: (i) there is a real danger of prejudice to the accused; or (ii) it is necessary to prevent a miscarriage of justice. In reality, the danger of prejudice to the accused is a subset of ensuring that there is no miscarriage of justice. [135] The declaration of a mistrial is a discretionary judicial act and, clearly, the trial judge’s assessment of the situation is something not to be interfered with lightly on appeal. Nevertheless, appellate intervention is not entirely precluded where the appeal court is satisfied that the trial judge did not bring to bear on the issue a proper consideration of the applicable factors at play. Fundamentally, the decision to declare or to refuse to declare a mistrial must be viewed through the lens of whether a mistrial is needed to prevent a miscarriage of justice or to address a real danger of prejudice to the accused if the trial were to continue. [136] It is to be noted that one of the examples given by Major J. in Burke of a circumstance where a mistrial could be ordered is where “disclosure is made immediately prior to or during the trial”. In R. v. Antinello (1995), 97 C.C.C. (3d) 126 (Alta. C.A.) an application for a declaration of mistrial was made by the defence mid-trial based on late disclosure by the Crown of a statement by a new witness who implicated the accused in the alleged murder. The application was denied; instead the trial judge ordered the Crown to pay the cost of the defence conducting an investigation into the background of the witness. On appeal, the Court concluded that merely making the Crown pay for an investigation was not an appropriate remedy for the Crown’s untimely disclosure. Kerans J.A. noted at p. 131 that “the

Page: 42 key was time, not money”. The defence did not have enough time to prepare for the cross examination of the witness regardless of the results of the investigation. Kerans J.A. stated for the court at pp. 132-134:
[16] The fact of the trial date, of course, imposed a duty on both Crown and defence not to dawdle. But the effect of the order was to impose on the defence counsel the entire burden of the rush, despite the fact that the Crown caused the crisis. It dealt with the matter, before trial, in what may be called a stately and unhurried manner. If that approach is reasonable for the Crown, in terms of trial preparation, then it is also reasonable for the accused.


[18] In my view, the learned trial judge was driven by the force of circumstances here to declare a mistrial. … It is impossible to say what the outcome of a trial would be if the defence succeeded in demolishing the credibility of Stapleton. I therefore, am of the view that we must allow the appeal and order a new trial.


[24] … Disclosure, when it came, was too late to save this trial date and offer the accused a fair trial.

(Underlining added.) [137] The Court in Antinello also rejected the Crown’s argument that, to justify a mistrial, the accused has to establish actual prejudice in making full answer and defence. Instead, all that was required was that the accused had lost a “realistic opportunity” or “reasonable possibility” to garner evidence or make decisions about the defence. [138] There is no question that the trial judge in the instant case gave consideration to declaring a mistrial when the problems resulting from late disclosure of the video and audio taped statements of various witnesses as well as Mr. Ryan were identified. The question is whether, in considering the appropriate remedy for late disclosure, she properly applied the test for a mistrial as a possible remedy – was there a real danger of prejudice to Mr. Ryan if the trial were to continue or whether a declaration of a mistrial was needed to prevent a miscarriage of justice. I will return to this issue later. [139] The issue of whether it is appropriate to declare a mistrial in the context of issues relating to whether a self-represented accused had the ability to conduct his own defence arose in R. v. Springthorpe, [2007] O.J.

Page: 43 No. 1543 (SCJ), a summary conviction appeal relating to a conviction for assault. The accused argued on appeal that the trial judge should have granted a mistrial once it became apparent that the appointment of counsel was necessary to properly present his defence. Gordon J. concluded that a mistrial should have been ordered:
[27] Unlike some of the authorities referred to, there was no indication Mr. Springthorpe had previously retained and discharged counsel and no suggestion of any attempt to delay the trial. [28] R. v. Tran … requires a trial judge to provide an explanation to an unrepresented defendant at the outset of the trial. This did not occur. The trial judge made no comment to Mr. Springthorpe as to the danger of proceeding without counsel and did not engage him in a discussion as to attempts to retain counsel. Had such event occurred at the start of the trial, in all likelihood the problems that later developed could have been addressed.


[31] The review in this case, however, does not reach the point of considering deference, such as, for example, discretion to order a mistrial. Here, given the findings of the trial judge, failure to grant a mistrial was an error of law. [32] During the trial, the trial judge became concerned about Mr. Springthorpe’s ability to conduct his defence. The trial judge advised Mr. Springthorpe while testifying in chief that counsel would be appointed [for the purpose of sentencing] in the event of a finding of guilty. In my view, a mistrial, at the very least, ought to have occurred at this point. [33] The trial judge did, in fact, determine Mr. Springthorpe required counsel and upon making such a finding after final submissions, an order was granted appointing counsel [for the purpose of sentencing]. This finding is not appealed. Accordingly, the focus of the appeal is not trial fairness in terms of assistance provided to Mr. Springthorpe, but, rather, the result that follows a finding a defendant is in need of counsel.

(Emphasis added.) [140] As in the concept underpinning the notion of a fair trial, the key consideration in determining whether to declare a mistrial is whether there is a danger of a miscarriage of justice if the trial were to continue. If there is, the trial judge has a duty to declare a mistrial.

Page: 44 (f) Role of appellate court

[141] It is important to remember that the appellate court has a role to play in ensuring a fair trial for an accused that may extend beyond simply correcting error in the course of the trial process. In R. v. Rain, Sulatycky J.A. stated:
[42] The trial judge is not the lone guardian of the right to a fair trial. The right can be protected retrospectively as well. As suggested in Robinson, supra [(1990), 51 C.C.C. (3d) 452 (Alta CA)], upon appeal, a court is in the position to determine if the conduct of the trial without counsel breached the accused’s right to a fair trial. For examples of appellate scrutiny of the fairness of a trial without counsel see R. v. Hardy, (1991) 7 C.R.R. (2d) 382 (Alta C.A.) and R. v. Jones (1994), 154 A.R. 118 (Q.B.)

[142] This is especially relevant in this case in light of developments that have occurred in the law with respect to the right to counsel since the time when the trial occurred. (g) Miscarriage of Justice

[143] This Court can intervene in a trial decision where s. 686(1)(a)(iii) of the Criminal Code applies. It provides:
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that


(iii) on any ground there was a miscarriage of justice;

[144] In Fanjoy v. The Queen, [1985] 2 S.C.R. 233, McIntyre J. described a miscarriage of justice in the following way at p. 240:
… A person charged with the commission of a crime is entitled to a fair trial according to law. Any error which occurs at trial that deprives the accused of that entitlement is a miscarriage of justice …

[145] In Wolkins, Cromwell J.A. described a miscarriage of justice this way:
[88] But what is a miscarriage of justice?

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[89] The clearest example is the conviction of an innocent person. There can be no greater miscarriage of justice. Beyond that, it is much easier to give examples than a definition; there can be no "strict formula ... to determine whether a miscarriage of justice has occurred": R. v. Khan, [2001] 3 S.C.R. 823 per LeBel, J. at para. 74. However, the courts have generally grouped miscarriages of justice under two headings. The first is concerned with whether the trial was fair in fact. A conviction entered after an unfair trial is in general a miscarriage of justice: Fanjoy, supra; R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 220-221. The second is concerned with the integrity of the administration of justice. A miscarriage of justice may be found where anything happens in the course of a trial, including the appearance of unfairness, which is so serious that it shakes public confidence in the administration of justice: R. v. Cameron (1991), 64 C.C.C. (3d) 96 (Ont. C.A.) at 102; leave to appeal ref'd [1991] 3 S.C.R. x.

[146] A miscarriage of justice can occur, therefore, either: (i) because the trial was unfair; or (ii) the conduct of the trial shakes public confidence in the administration of justice. As noted by Major J. in G.D.B. at para. 28, a miscarriage of justice may result where “the reliability of the trial’s result may have been compromised”. Where the reliability of the result of the trial is compromised, that is surely a situation where public confidence in the administration of justice could be shaken. (h) Summary

[147] It must be recognized that an accused, in choosing to represent him or herself, may not always be acting in his or her best interests. The accused, may, in good faith, believe that given the available choices and perception of the complexity and nature of the case, he or she could effectively act without assistance, only to be rudely awakened as the trial begins to unfold. In fact, the “awakening” may only amount to a nagging unease that something is not right but without an appreciation as to how to respond to the difficulties being presented. On the other hand, the decision not to engage or accept available counsel may be driven by a collateral agenda such as obstruction or delay of the process. [148] Comments made in the case law such as “an accused cannot complain if he has, by his own conduct, forfeited his right to counsel and become the author of his own misfortune” (R. v. Bitternose, 2009 SKCA 54 at para. 29) are often made in the context of allegations of obstruction of the process by the accused. The references to the accused forfeiting his right to counsel “by his own conduct” and by being “the author of his own misfortune” are references to obstructive or other abuse of process behavior, not simply the

Page: 46 choice not to engage a lawyer. In Bitternose, for example, the court found that the accused deliberately delayed proceedings by his actions in firing two lawyers and then three days before the start of the trial agreeing to rehire one of them but only on condition that the trial would be adjourned. The court denied the adjournment, referring to the accused’s actions as “deliberate and tactical delay”, and allowed the trial to proceed with the accused being unrepresented. The Saskatchewan Court of Appeal held that the trial judge acted reasonably under the circumstances. See also, to the same effect, R. v. Hazlewood (1994), 42 B.C.A.C. 44; and R. v. Wood (2005), 196 C.C.C. (3d) 155 (Ont. C.A.). [149] The situation may be otherwise, however, where the accused proceeds, perhaps unwisely but in good faith, to represent himself and gets in “over his head” to the point where – perhaps not even appreciated by him – his handling of the trial is so poor that it jeopardizes his ability to make full answer and defence and raises the spectre of a possible wrongful conviction. [150] There is a difference between making unwise choices in good faith relative to one’s defence and deliberately making obstructive ones in bad faith. [151] It must be remembered that an accused who in good faith faces his accusers in court is entitled to a fair trial. Trial fairness involves something more than rote compliance with a procedural checklist. A fair trial is provided so that the accused will have a reasonable prospect of being able to make full answer and defence and thereby avoid the prospect of a wrongful conviction. It is also provided so that, by an appearance of fairness to the accused, the community at large can have confidence in the administration of justice. [152] The common theme running through the principles relating to appellate review of cases governing the right to counsel, the right to a minimum standard of counsel competency, the duty of the court to provide assistance to an unrepresented accused, the appointment of amicus and the duty to declare a mistrial is the notion of ensuring a fair trial and thereby preventing a miscarriage of justice. These are principles which are fundamental to our system of justice. One would think that they cannot be compromised, at least in situations where the accused acts in good faith and in accordance with acceptable court processes.

Page: 47 [153] We do not say to an accused who was represented by incompetent counsel “you chose that counsel, you are the author of your own misfortune and there is therefore nothing we can do for you.” As Cromwell J.A. noted in Wolkins, “freedom to chose counsel is not taken as waiver of counsel’s duty to be competent” (para. 73). Rather, we accord a remedy on appeal where the level of representation falls below a minimum level to be expected of counsel and that level of incompetence leads to a miscarriage of justice in the sense that the reliability of the trial’s result may be compromised. It would be inconsistent and treating an unrepresented accused less fairly to use that same reasoning to say “your choice of counsel (yourself) means you are the author of your own misfortune and you have no remedy”. Should not the unrepresented accused equally be entitled to a remedy on appeal where the level of representation he gave himself falls below a minimum level necessary to enable a proper defence to be presented, leading to a conclusion that there is a miscarriage of justice in the sense that the reliability of the trial’s result may be compromised? I think so. [154] The trial judge’s duty to ensure a fair trial for the accused overrides any consideration flowing from the fact that, with hindsight, it appears the accused made a bad choice in not engaging counsel. True, the accused cannot argue later that he or she would have had a better defence if counsel had been present, but if the accused’s standard of self-representation falls below a standard that, minimally, would be regarded as affording him a fair trial in the sense of presenting full answer and defence, the accused is essentially in the same position as an accused who is represented by incompetent counsel. There should be no different treatment in these two situations, provided the accused is acting in good faith. [155] To the suggestion of my colleague, Rowe J.A. that it would be incongruous that “a willful or conceited man [who does not engage a lawyer] gets two trials, while a prudent man [who engages a lawyer] gets only one”, the answer can be given quite simply: even the prudent man with a lawyer may be entitled to a second trial if the standard of his representation falls below a minimally acceptable level. Both the represented and unrepresented accused are entitled to one fair trial. If either does not receive it the first time, he or she should be entitled to a second attempt. [156] Drawing from the principles discussed, I would state the position thus: where in the course of a trial, the presiding judge comes to the conclusion, based on the seriousness and complexity of the charges, the circumstances of the accused and his or her actual performance at trial, that,

Page: 48 (a) the level of the accused’s advocacy is so deficient that it is analogous to the type of actions or inaction of incompetent counsel that could be regarded as a miscarriage of justice; the judge is not able to assist the accused further in making full answer and defence in a manner consistent with the judge’s obligation of impartiality; there is a realistic possibility that the reliability of the trial’s result will be compromised if nothing further is done; and the accused is acting in good faith and has not placed him or herself in the position he or she is in as a result of engaging in tactics calculated to obstruct or delay the trial or otherwise abuse court process,

(b)

(c) (d)

the judge should consider whether other steps, such as, (i) appointing counsel for the remainder of the trial (if the accused does not oppose it); (ii) appointing amicus curiae (even if the accused does oppose appointment of counsel); (iii) adjourning or slowing down the trial to enable the accused to prepare properly; or (iv) declaring a mistrial, could prevent a miscarriage of justice and, if so, then grant an appropriate remedy. Failure to do so constitutes error. [157] While there is an obvious importance in facilitating bringing a jury trial, once started, to a conclusion without unnecessary delays or premature termination, this concern should not overshadow the importance of ensuring that the accused has the opportunity to make full answer and defence and to receive a fair trial. See Fleming (D.P.). [158] The application of this principle does not mean that an accused will be entitled to legal representation as a matter of course in a criminal jury trial or that declarations of mistrial will become the norm in cases involving an unrepresented accused. The nature of the charges and their complexity, as well as the abilities, talents and behaviour of the accused will be important considerations. In many (perhaps most) situations an accused will be able to represent him or herself with the assistance provided by the trial judge. It is only in those situations where, despite all appropriate assistance, the accused is still not able to represent himself by addressing possible defences or by performing in such a way that the reliability of the trial’s result may be compromised – in other words, by defending himself at a standard that

Page: 49 would be equivalent to that of incompetent counsel that would lead to a miscarriage of justice – that the principle would be engaged. [159] In many cases, the appointment of counsel or an amicus mid-trial will not be appropriate. An adjournment to enable the counsel to familiarize him or herself with the case will usually be required, making it difficult to keep the jury empanelled. A declaration of a mistrial may therefore be the practical result. There is always an obvious reluctance to declare a mistrial, with its attendant delays in the prosecution of the case to a conclusion and in the expenses thrown away for the first abortive effort. Nevertheless, it is important for the trial judge to address the issue from the perspective of the circumstances surrounding the current trial, not on the basis of speculation as to what might happen when a second trial commences. The focus is, as Burke reminds us, on “whether a mistrial is needed to prevent a miscarriage of justice” (para. 75) and that “necessarily involve[s] an examination of the surrounding circumstances”. In the end, the question is whether there is a real danger of prejudice to the accused and whether a mistrial is necessary to prevent a miscarriage of justice. The focus is on prejudice to the accused and a potential for miscarriage of justice arising out of the circumstances of the current trial. Application to this Appeal [160] The fundamental question in this case is whether an accused can nevertheless disentitle himself to a fair trial or agree to treatment that may amount to a miscarriage of justice. [161] The record of this case indicates that this was not simply a difficult case for the trial judge to manage. It was more than that. She expressed on numerous occasions throughout an abiding concern that Mr. Ryan was not able to represent himself properly and that his ability to make full answer and defence was being compromised. Those statements included the following:
[the absence of a lawyer] “has become a major concern” “you’re not understanding” “I’m not going to reach you anyway … you’re not going to understand what I’m saying no matter how often I say it you”

Page: 50
“for you to make full answer and defence to this charge, for you to get a fair trial, you have to be able to conduct an effective cross-examination of this witness” “totally incapable of conducting a cross-examination of this witness … Totally incapable” “I’m not at all certain … that Mr. Ryan is capable of defending himself fully and effectively” [alluding to the fact that Mr. Ryan had chosen to represent himself] “If this was a case where [he] was denied legal counsel, I would stop the trial now”

-

-

-

[162] These types of statements, coming with such frequency, are like “canaries in the coalmine”. They are warnings uttered by the trial judge that Mr. Ryan, by virtue of his choice not to be represented and his inability to understand how to represent himself effectively, was jeopardizing his ability to make full answer and defence and thereby making a miscarriage of justice a realistic possibility. In fact, she made a point on several occasions of stating that she was stating her concerns “for the record”. [163] Faced with this assessment, what, if anything, was the trial judge required to do? She certainly made many attempts, patiently and in great detail, to assist Mr. Ryan throughout the trial. Clearly, her monumental efforts with explanations to Mr. Ryan as to how to conduct himself were not working and she stated on a number of occasions words to the effect that “I don’t think there’s much more I can do”. Yet it is clear that she felt that Mr. Ryan was not getting a fair trial. If that was in fact the case, that meant there was a risk of a wrongful conviction. She addressed, at several points throughout the trial, the possibility of declaring a mistrial. She was obviously concerned about the cost to the system and the inconvenience to the jury if the case were to be aborted and tried again. Of course, these considerations could not be determinative of the decision whether to declare a mistrial. In the end, matters of administrative and financial convenience must give way to considerations of trial fairness and the ability of the accused to effectively defend himself: Fleming (D.P.), para. 196. [164] Another factor making the judge hesitate to declare a mistrial was the insistence by Mr. Ryan that he did not want one. A decision to make a declaration would therefore have to be made over his objections. In the end, however, the parties to the litigation do not make the final determination of

Page: 51 whether a trial can continue. That is a determination for the trial judge to make based on her assessment of the potential for danger of prejudice to the accused or danger of a miscarriage of justice. [165] A trial judge has a duty to ensure that an accused receives a fair trial. (per Donald J.A. in R. v. P.H.L.W., 2004 BCCA 522, (2004), 190 C.C.C. (3d) 60 at para. 8, citing other authority). The effective performance of that duty may translate into different scenarios, as the exigencies of the particular case require. As noted previously, it might translate into an obligation to instruct and assist the accused during the course of the trial (something that, in the instant case, was not effective) but if that is not adequate to provide a fair trial, other steps should be taken. As determined in P.H.L.W. where, as the trial progresses, it is determined that the accused cannot adequately defend himself without counsel the trial judge has a duty, even if the accused has the means to hire counsel but nevertheless has proceeded on his own, to intervene and either consider appointment of counsel on her own motion or request the Attorney General to appoint amicus curiae. This is so even if the effective result will be a mistrial because the jury cannot be placed in limbo while the appointed counsel briefs himself on the file. The overriding consideration in each case is the fairness of the trial process. [166] It must be remembered that counsel appointed pursuant to a Rowbotham application does not have to be an employee of the legal aid system. The counsel could be the accused’s counsel of choice from the private bar, provided that counsel agrees to accept the brief. Indeed, at one point during the trial the accused was provided with counsel to assist and advise him in respect of one matter. The counsel provided on that occasion was someone from the private bar. [167] The main consideration influencing the trial judge’s decision not to declare a mistrial, however, was her perception that declaring a mistrial would be an exercise in futility. From the comments she made throughout the trial, it is likely that but for this consideration she would have made the declaration. She reasoned that Mr. Ryan would continue to insist on having counsel of choice on any retrial, which would mean he would not accept a legal aid staff lawyer, thereby resulting in his again representing himself on the retrial. The court retrying him would thus be faced with exactly the same scenario again. [168] The reasoning of the trial judge was based on two assumptions: (i) Mr. Ryan’s bona fide attitudes towards and perceptions of his best interests

Page: 52 would not change in the future; and (ii) the law requiring an accused qualifying for legal aid to accept a Legal Aid Commission staff lawyer rather than counsel of choice from the private bar would not change. [169] In fact, the law respecting the choice of counsel by a legal aid recipient did change. Subsequent to the completion of the trial, s. 31 of the Legal Aid Act, RSNL 1990, c. L-11 was amended to eliminate the requirement, in cases of murder, manslaughter and infanticide, that a legal aid recipient would have to accept a solicitor employed by the Legal Aid Commission as his or her counsel. The amended provision provided, instead, that the legal aid recipient could “select … a solicitor in private practice”, SNL 2008, c. 25, s.1(2). On any retrial, therefore, Mr. Ryan would now be able to choose his own counsel, provided, of course, that counsel agreed to act for him. While the trial judge, from her vantage point, could not have been expected to predict this development, it nevertheless points out the danger of deciding mistrial issues on the basis of future speculation rather than focusing on considerations pertaining to the current trial. [170] In like manner, to decide the case on the assumption that Mr. Ryan would maintain his intransigent position that he would not accept a member of the Legal Aid Commission as his counsel and would continue to represent himself if he could not have his counsel of choice, is also a shaky foundation. One cannot predict with any accuracy that a person will necessarily maintain an attitude expressed in the past, after he is exposed to other experiences and consequences that might cause a reasonable person to revisit or rethink positions previously taken. Given the frustrations and difficulties resulting from representing himself in the current trial, Mr. Ryan might well, after reflection, have reconsidered his position on legal counsel. Of course, he might not change his mind for a second trial. But it cannot be ruled out. Again, to focus on such a factor is to rely on future speculation. Indeed, in this case, it appears that Mr. Ryan has in fact changed his mind about the advisability of having counsel (though not, apparently, legal aid counsel) because he is represented by private counsel on the appeal and the submissions made on his behalf included the argument that the judge should have either provided him with counsel or declared a mistrial on the basis that he could not effectively defend himself by acting on his own. [171] It might be objected that unless such matters are at least factored into the equation, there will be a risk that an accused, by taking an unreasonable position that effectively disables himself from being able to defend himself at trial, and subsequent retrials, could effectively avoid ever being brought to

Page: 53 trial. There is something to this. If it could be inferred that the accused was manipulating the system to avoid its consequences and was thus abusing the process, the trial judge would be within her right to take that fact into account in deciding to give the accused another chance to obtain a fair trial in just the same way that a court may decline a request from an accused for a postponement of the start of a trial to engage new counsel, if the court is satisfied that the discharge of existing counsel was made for the ulterior motive of postponing the trial and not for some legitimate reason. (Indeed, if a mistrial were declared and, on a retrial, the judge was faced with the accused again persisting in representing himself in similar circumstances, and demonstrating he had learned nothing from the previous experience, that would be part of the history of the case which could be legitimately taken into account in considering what remedy, if any, should be granted on the subsequent trial if the accused’s performance again threatened a fair trial.) [172] But that is not this case. There is nothing to suggest that Mr. Ryan had deliberately chosen not to have counsel so that he could avoid being brought to trial. In fact, throughout the trial he stated that he wanted the trial to continue. In the circumstances, therefore, speculation as to what Mr. Ryan might have done, or what he might have been able in law to do, with respect to his representation at a retrial if a mistrial were to be declared was unwarranted. [173] The trial judge erred in the approach she took to the mistrial issue. She should, instead, have focused on considerations relating to the current trial and whether they warranted a declaration of a mistrial or some other remedy such as a Rowbotham order, an order appointing amicus curiae, or an order delaying the trial to enable those things to be effectuated. [174] Had she done so, she should have concluded, given her stated concerns throughout the trial that Mr. Ryan could not adequately defend himself and that he was not able to make full answer and defence and therefore was not getting a fair trial, that action had to be taken to prevent a miscarriage of justice. Her failure to invoke one or more of those remedies was an error. [175] This is not a case of having to disagree with the perceptions of the judge as to how the developing trial impacted on trial fairness. Her perceptions were “tacked to the mast” by her comments throughout the trial. The only question in this case is whether, having made those observations, she should have done something more about them.

Page: 54 [176] Mr. Ryan’s inability effectively to cross-examine Tamara White, the only key witness implicating him in Mr. Brace’s death, in itself raised the spectre of a possible wrongful conviction. To adopt the words used by Kerans J.A. in Antinello at para. 18, “It is impossible to say what the outcome of the trial would be if the defence succeeded in demolishing the credibility of…”, in this case, Tamara White. Indeed, I would go further and say that it would be impossible to say what the outcome of the trial would be if Tamara White’s evidence was merely weakened or even modified on cross-examination with respect to Mr. Ryan’s role in the events. [177] This was compounded by the problems with late disclosure. While it is true that Mr. Ryan had the transcripts of the statements of the witnesses and of his own statements in the disclosure package that had been sent to him by his former lawyer, that was not the same, as the trial judge noted, as being able to view the videotapes of the statements. He was forced, in very difficult circumstances, to prepare for cross-examination of those witnesses as the trial progressed. This is one of those circumstances where “disclosure is made immediately prior to or during the trial” (Burke, para. 74) that the court should be “driven by the force of circumstances to declare a mistrial” (Antinello, para. 18). [178] As in Springthorpe, there was no suggestion from the way Mr. Ryan acted that he was deliberately attempting to manipulate the proceedings to delay the trial or to avoid being tried altogether. To the contrary, he wanted to get the trial over with and repeatedly said he did not want a mistrial with the consequence that it would have to start all over again. [179] One might be tempted to say that he nevertheless brought his problems on himself by unreasonably refusing to accept the legal aid counsel who was offered to him. To an extent, that is so. Yet, this is not a case of an accused blindly refusing all help in some mistaken belief that he can do better than any lawyer. Mr. Ryan recognized that he needed legal representation and sought it, through application to legal aid, then through a pre-trial Rowbotham application which he fought all the way to the Court of Appeal. Although they were not accepted by the courts, he advanced rational reasons why he felt he could not be properly represented by the legal aid lawyers assigned to him. [180] As subsequent events demonstrated, his choice to represent himself rather than accept the assigned lawyers that he did not have confidence in was probably not a wise one; nevertheless, it cannot be said that it was made

Page: 55 in bad faith or for an ulterior motive, such as trying to delay or upset the trial process. In these circumstances, the court is not justified in ignoring his plight on the basis that he must lie in the bed that he has made. The Court was obligated to try to assist him to make full answer and defence throughout the trial. This, the trial judge tried to do. But when it became apparent that the assistance being provided was not being effective, the judge was obligated to do something more to ensure that the level of representation Mr. Ryan was trying, in good faith, to provide for himself did not fall below the level of advocacy that would, if counsel had been involved, have justified appellate intervention. Judged against that standard, Mr. Ryan is entitled to at least the same level of protection. [181] In the circumstances, as the trial judge recognized and reiterated on a number of occasions throughout the trial, Mr. Ryan was not receiving a fair trial. I agree that Mr. Ryan’s inability to cross-examine such an important witness as Tamara White effectively, as found by the trial judge; his inability to appreciate and deal with the implications of the admission of some, but not all, of his police statements, which portrayed him as evasive and did not allow the jury to see his denials of culpability; and his difficulties in preparing for trial and cross-examining witnesses due to late disclosure of video-taped statements, rendered the trial unfair and also gave the appearance of unfairness. It did not “satisfy the public interest in getting at the truth while preserving basic procedural fairness” to him (Harrer). There could not, in the circumstances, be any confidence that the resulting verdict was “a reliable determination of the accused’s guilt or innocence” (Bjelland). The error of the trial judge in not providing an appropriate remedy, including, if nothing else was appropriate, a mistrial, resulted in Mr. Ryan not receiving a fair trial. Such an error which deprives him of his entitlement to a fair trial constitutes a miscarriage of justice. See Fanjoy. [182] The only remedy that can be provided, post-trial, at the appellate level is to declare that a mistrial should have been ordered by the trial judge and order a new trial under s. 686 (2)(b) of the Code. [183] In light of this disposition, it is not necessary to address any of the individual grounds of appeal except the issue relating to whether the verdict was unreasonable.

Page: 56 Unreasonable Verdict? [184] Counsel for Mr. Ryan also submits that he is entitled to have this Court enter a verdict of acquittal, rather than order a new trial, on the basis that the verdict of guilty was unreasonable and cannot be supported by the evidence, within the meaning of s. 686(1)(a) of the Criminal Code. [185] Counsel bases this submission on the fact that the only evidence implicating Mr. Ryan in the death of Mr. Brace was the testimony of Tamara White who, he suggests, was an unsavoury and unreliable witness and should not be believed; and the presence of microscopic bloodstains on Mr. Ryan’s pants, which can be explained as secondary blood spatter or as noncontact transfer. [186] The problem with this submission is that, given the problems with Mr. Ryan’s cross-examination of Tamara White, it is not possible to predict how a jury might have regarded her evidence if it had been properly tested. One cannot assume that it would necessarily have been weakened or that the jury would necessarily have rejected it. It is just not possible to know. Her evidence if not shaken or discredited on cross-examination could possibly be enough for a jury to infer that, within s. 229(a) of the Criminal Code, Mr. Ryan either meant to cause Richard Brace’s death or meant to cause him bodily harm that he knew was likely to cause death and was reckless whether death ensued or not. The fact that, according to Tamara White Mr. Ryan participated in all three beatings and would have been aware of Richard Brace’s physical condition from earlier beatings, leaves open the possibility that a jury, properly instructed, could conclude – if her evidence remains the same (something that cannot, of course, be foreseen) – that Mr. Ryan must have had subjective knowledge that the bodily harm being inflicted by him was of such a serious nature that it was likely to result in death. [187] It follows that it cannot be said that a verdict of guilty is one a properly instructed jury, acting judicially, could not reasonably have rendered, within the meaning of such cases as R. v. Yebes, [1987] 2 S.C.R. 168 and R. v. Biniaris, [2000] 1 S.C.R. 381. [188] Accordingly, it would be inappropriate to enter a verdict of acquittal.

Page: 57 Summary and Disposition [189] I would allow the appeal and order a new trial.

J. D. Green C.J.N.L.

I concur: L. R. Hoegg J.A.

Rowe J.A (dissenting): [190] I have read the extensive reasons of the Chief Justice in which he sets out an intricate rationale for granting Mr. Ryan a new trial. The scholarship is of a high order, but the result is in my view simply wrong. [191] It is not for this Court to save Mr. Ryan from his own folly. Before the trial, he discharged his counsel. During the trial, he was repeatedly advised to get counsel; on every occasion he refused. He made his choice. It was an unwise choice, but it was his to make. Having made it, he must live with the consequences. [192] The law on these matters is settled. See Richard J.A. in R. v. Harris, supra, quoted in paragraph 5 above and Cromwell J.A. (as he then was) in R. v. Wolkins, supra, quoted in paragraph 100 above. In his decision, the Chief Justice amends the law. This is an exercise of judicial policy with which I strongly disagree. In effect, the law becomes that a willful or conceited man gets two trials, while a prudent man gets only one. [193] This also has the consequence that in cases such as sexual assault complainants must tell their story yet again in public, something that, out of sheer frustration, they might not be willing to do.

Page: 58 [194] Regarding the other issues in this appeal, as noted by the Chief Justice, given that Mr. Ryan will have a new trial, this Court need address only one, his submission that the verdict was unreasonable and, accordingly, an acquittal should be entered. I concur in the reasons of the Chief Justice and his conclusion that the verdict was not unreasonable. [195] I would have dismissed the appeal in its entirety.

M. H. Rowe, J.A.

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