2011 QCCA 2103, 2011 QCCA 2103

Unofficial English Translation Vachon c. R. 2011 QCCA 2103 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002456-098 - (200-01-124760-087) 200-10-002457-096 - (200-01-124937-081) 200-10-002458-094 - (200-01-124576-087) DATE: November 15, 2011 CORAM: THE HONOURABLE ANDRÉ BROSSARD, J.A. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. JACQUES VACHON APPELLANT – APPLICANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT: On three appeals from judgments dated October 31, 2008, and September 28, 2009, rendered by the Court of Quebec, Criminal and Penal Division, District of Quebec (the Honourable Judge Hubert Couture), which convicted the appellant on twenty-nine counts; and on three applications for leave to present fresh evidence and on three applications for leave to appeal from the sentencing judgments; [ 2 ] For the reasons of Doyon J.A., with which Brossard and Kasirer JJ.A. agree: [ 3 ] DECLARES the fresh evidence admissible; [ 4 ] ALLOWS the appeals from the guilty verdicts; [ 5 ] SETS ASIDE the trial judgments; [ 6 ] ORDERS new trials with respect to the twenty-nine counts on which the appellant was convicted; [ 7 ] DECLARES that the applications for leave to appeal from the sentences handed down on October 30, 2009, are consequently moot.

ANDRÉ BROSSARD, J.A. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. Mtre Alain Dumas Dumas, Gagné For the appellant - applicant Mtre Nadine Dubois

Criminal and penal prosecutor For the respondent Date of hearing: September 8, 2011 REASONS OF DOYON, J.A. [ 8 ] The appellant was charged with several offences that were allegedly committed over a period of some thirty-odd years, against seven complainants.

With respect to five of these complainants, he was convicted on twenty-nine counts, including rape, indecent assault, gross indecency, sexual assault, assault causing bodily harm, and assault with a weapon. [ 9 ] This was a serious case, as reflected by the sentence ordering the appellant to serve twenty-three years of imprisonment, despite his lack of a prior record. [ 10 ] His main argument is that he did not receive effective assistance from the counsel representing him, and that consequently his right to a fair trial was violated. [ 11 ] For the following reasons, I find that he is right and that a new trial must be ordered.

CONTEXT [ 12 ] The events allegedly took place from the mid-1970s up until the early 2000s. [ 13 ] On March 30, 2008, the appellant, who was then 63 years old, appeared before the Court of Quebec, represented by Mtre Germain Côté. The prosecution opposed his release, and on April 3, the Court ordered his detention for the duration of the proceedings. On May 6, counsel for the appellant waived the preliminary inquiry.

The trial, before a judge alone, was set for October 27, 2008. [ 14 ] On the morning of October 27, 2008, the appellant informed the judge that he no longer trusted his counsel and that he wished to revoke his mandate. After asking the appellant and Mtre Côté a few questions, the trial judge dismissed the application and ordered the trial to begin. [ 15 ] At this juncture, we need only summarize in broad strokes the testimony heard, without going into great detail.

This will show, once again, the seriousness of the charges and counsel’s corollary obligation to be suitably prepared. [ 16 ] A was the appellant's spouse from 1978 to 1986. Her testimony tells a tale of constant abuse which lasted throughout their relationship. On several occasions, she was the victim of assault causing bodily harm, of rape, and of death threats. For example, she testified that shortly after the relationship began, the appellant allegedly beat her before raping her. Another time, he allegedly hit her in the face and broke her dentures, which caused her to sustain serious injuries.

Later, the appellant allegedly prohibited her from going to the hospital, threatening to kill her if she did. [ 17 ] In a separate event, the appellant allegedly attempted to drown her in the toilet bowl and then urinated on her. He had also pointed a handgun at her from time to time. [ 18 ] On one occasion, A fled to her mother's house, but she returned to the appellant after he promised to go to therapy.

As soon as she returned, he threatened to kill her because she had left him, dragged her by the hair, handcuffed her to the bed, and sexually assaulted her. [ 19 ] In 1985, after a stay in the hospital, A learned that her younger sister B, who was handicapped, had allegedly been sexually assaulted by the appellant. She confronted him, and she testifies that he admitted the offence. It should be added, however, that in 1986 the appellant was accused of this crime but acquitted. Consequently, this charge was withdrawn during the trial.

I will come back to this point. [ 20 ] C , A and B's sister, testified that B told her that she had been assaulted by the appellant. This testimony was authorized because, at the time of the proceedings, B had unfortunately passed away. [ 21 ] D is the daughter of A's mother's neighbour. She testified that on June 22, 1985, A invited her to come to her place, telling her that the appellant was not home. When she arrived, the appellant was still there and offered her some cannabis, beer, and cocaine, which she felt obliged to consume.

The appellant then ordered them to follow him into the bedroom, where he sexually assaulted them both. [ 22 ] E met the appellant in 1987 and she lived with him and his two children for two years. She stated that she was repeatedly sexually and physically assaulted. She recounted an incident where he allegedly broke six of her teeth. Once, he even brought a friend home and forced her to have sexual intercourse with this friend. He allegedly also threatened to kill her at gun point. [ 23 ] F is E's daughter. She was about twelve when the events took place.

She was allegedly a regular target for the appellant's physical violence. He once took advantage of the fact that she was asleep to sexually assault her. She said that she tried to defend herself and he retaliated by whipping her. [ 24 ] G met the appellant on August 9, 2000. On September 7, 2000, he asked her to go with him to the Beauce. During the trip, he put his hand between her legs. After eating at a restaurant, he rented a room without her knowledge, brought her there, and sexually assaulted her.

[ 25 ] H claims to have been the victim of assault and death threats. The appellant was acquitted of these charges, however. [ 26 ] At the end of this evidence, Mtre Côté declared that he had no witnesses to call. [ 27 ] The guilty verdict was rendered on October 31, 2008. The appellant was convicted on all counts, save the one relating to B, which was withdrawn by the prosecution, and those relating to H. [ 28 ] The prosecution requested that the appellant be declared a dangerous or long-term offender. He was brought back before the judge on November 20, and a psychiatric evaluation was ordered.

On December 16, 2008, the deadline to file that evaluation was extended to February 13, 2009. The report was filed on that date and submissions on sentencing were adjourned to April 24. [ 29 ] Meanwhile, in March of 2009, Mtre Côté, who was the subject of a number of disciplinary complaints, resigned from the Bar. He was permanently disbarred from the Roll of the Order on January 7, 2010. [ 30 ] Since the appellant no longer had representation, there followed a series of adjournments in an attempt to find an attorney who would agree to act on his behalf.

Despite all the judge's efforts, the search was unsuccessful and the judge finally appointed an amicus curiae to assist the appellant. [ 31 ] On September 28, 2009, the amicus curiae filed an application to reopen the inquiry claiming that Mr. Côté (who was no longer a lawyer) had allegedly infringed the appellant's right to testify. The judge granted the application and the appellant testified that very same day. He denied the charges, except for the comparatively minor assaults against A and E.

The judge did not believe him, dismissed his testimony, and upheld the guilty verdict without further ado. [ 32 ] On September 29, 2009, the judge granted the prosecution's application, declared the appellant a long-term offender, and sentenced him to serve a total of twenty-three years' imprisonment, while ordering that he serve at least ten of those years before being eligible for parole, pursuant to

section 743.6 Cr. C . GROUNDS OF APPEAL [ 33 ] The appellant, who appeals from the verdict and the sentences, raises the following grounds of appeal: 1. Was the Honourable trial judge justified in denying the appellant's right to discharge his counsel when the reasons supporting his application were valid? 2. Was the appellant afforded a full answer and defence considering the fact that his counsel committed serious errors by not calling any witnesses to refute the testimony offered by the prosecution and by ignoring the appellant's wish to testify in his own defence? 3.

Was the appellant entitled to judge-appointed counsel for the rest of the trial? 4. Should the trial judge have declared a mistrial rather than allow the reopening of the inquiry? 5. Did the Honourable trial judge err in allowing the prosecution to present evidence that was highly prejudicial to the appellant when he had been acquitted of this very charge in 1986? 6.

Did the trial judge err by imposing an aggregate sentence of twenty-three (23) years on the appellant? [ 34 ] The first two grounds concern the incompetence of counsel at trial and give rise to an application for leave to present fresh evidence on appeal. This evidence consists in the testimony of Mr. Germain Côté, gathered for the purposes of this appeal.

Since the outcome of this application was referred to the panel who would hear the merits of the appeal, I find that the evidence the appellant seeks to file meets all the requisite criteria and that the application should be granted and the testimony admitted into evidence. I also find that these grounds, by themselves, are sufficient to allow the appeal. [ 35 ] Grounds 3, 4, and 5 raise questions of mixed law and fact and, in my opinion, would not have been sufficient, by themselves, to justify the appeal.

I will therefore consider them only briefly. [ 36 ] As for the sixth ground, it becomes moot in light of my conclusion allowing the appeal from the conviction. INCOMPETENCE OF COUNSEL AT TRIAL [ 37 ] From the beginning of the trial, the appellant, who was detained as of his arrest and who, in his own words, is illiterate, expressed his anguish to the trial judge. He no longer wished to be represented by Mtre Côté. This is the exchange that was held at the time: [translation] Mtre GERMAIN CÔTÉ, counsel for the defence: If you please, your Honour, two seconds.

Your Honour, . . . he states that he no longer wishes to be represented by me . Mr. JACQUES VACHON: I have many reasons, your Honour. I no longer . . . we no longer trust each other, because . . . if you want to know, I can tell you why. . . .

THE COURT: I understand, from the application you've presented this morning, when all the witnesses are present – how many? Mtre NADINE DUBOIS, counsel for the prosecution: We have witnesses scheduled for the whole week, until Thursday afternoon at least. THE COURT: Very well. So you are seeking to discharge this attorney? Mr. JACQUES VACHON: Could I explain it, please? THE COURT: Yes, of course, but I would ask you, first, if I understand this correctly? Mr. JACQUES VACHON: Well that's what I'm asking because I do not trust him for many good reasons .

The first thing is that I called him around the month of May, and then my daughter did, for him to call me back but he never did. Friday morning, he called and said: [translation] "I need seven thousand dollars ($7000)” and then he said, “I can defend you. If you don't have the seven thousand dollars ($7000),” he said, “it's going to go badly for you." So, between Friday morning and Monday, I didn't have time to come up with the money, you know.

So this morning . . . and also, I never went to school, I don't know anything about files, you know, I don't know how to read or write, but I can get others to read it for me. And then, he said that I didn't need that, he said that I needed to pay to get the papers. Well I don't know the law, I'm just an idiot who never went to school, you know. It seems to me that my books . . . I don't even know what I'm charged with. And then he asks me for seven thousand dollars ($7000) that morning.

And you know, he has had all the time in the world since I went to prison, he had four (4) months to call to let me know that he needed seven thousand dollars ($7000). He arrived at the last minute, and I don't think that's right, it seems to me. He said that it would go badly. If that's not a threat then I don't know what it is. THE COURT: O.K. Do you . . . Mr. JACQUES VACHON: Well, those are the reasons I've got. THE COURT: Very well. Do you have anything else you'd like to add? Mr. JACQUES VACHON: No, those are the only reasons I've got. THE COURT: Mtre Côté, would you like to answer?

Mtre GERMAIN CÔTÉ: Pardon me? Well, let's just say, your Honour, that I don't agree with Mr. Vachon's comments, you know. But I don't want to answer him . Listen, if he doesn't trust me anymore, what am I supposed to say? THE COURT: But you are ready to go to trial? Mtre GERMAIN CÔTÉ: I am ready. THE COURT:

Very well. Application denied. [Emphasis added.] [38] In the moments that followed, the trial judge added some comments on the lateness of the application: [translation] And so there won't be any ambiguity, sir, on the morning that the trial is set to begin, when there are several witnesses, when you arecharged with some thirty-odd counts and at the very last minute, while we are swearing in the first witness, you ask the Court for theright to discharge your counsel.

There are ways of doing things and the Court furthermore considers that the reasons for which you seek this . . . the withdrawal of yourcounsel from the case, are not valid, all the more so because Mtre Côté is ready to represent you. It is the morning of the trial, the case has been scheduled for several months. Now that all this has been said, your application is denied. [39] With great respect for the trial judge, I find that the appellant's reasons were sound, as we will later see, and that, had the judgesought more information about the situation, he would have granted the request.

Moreover, there had been no undue delays, as theappellant had appeared less than six months prior to the trial. Also, when it was presented, the application did not seek to adjourn thetrial, but to recuse counsel. This right belongs to the client and a court cannot force accused to be represented by counsel in whom theyno longer trust. As Rothstein J. states in R. v. Cunnigham, 2010 SCC 10 , [2010] 1 S.C.R. 331 at para. 9: An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason.

A court may not interfere withthis decision and cannot force counsel upon an unwilling accused (see Vescio v. The King, (SCC), [1949] S.C.R. 139, atp. 144; though exceptionally the court may appoint an amicus curiae to assist the court). ... [40] Admittedly, in that case, the issue was one of counsel's right to withdraw, but these excerpts from the reasons of Rothstein J.give a good indication of the state of the law. Indeed, as early as 1949, in Vescio v.

The King, (SCC), [1949] S.C.R. 139at 142, Taschereau J. gave the following opinion: It is a fundamental of our criminal law that the choice of counsel is the choice of the accused himself, that no person charged with acriminal offence can have counsel forced upon him against his will, and that it is the paramount right of the accused to make his owncase to the jury if he so wishes, instead of having it made for him by counsel (Rex v.

Woodward ). ... [41] I would point out that, in the present case, we are not faced with a whim or a stalling tactic to delay the trial or to circumvent thedecision of a judge, as was the case in R. v. Spataro, (SCC), [1974] S.C.R. 253, or with an application brought withoutany grounds, as was the case in R. v.

Racine, 2011 QCCA 2025. [42] To understand the appellant's request, we must consider the fresh evidence, which I have no doubt reveals the seriousness of theappellant's fears and the need to adjourn the trial once the discharge is confirmed. [43] As we now know, as of March of 2009, Mtre Côté was the subject of a number of disciplinary complaints for incidents thatoccurred between 2003 and 2009.

These complaints questioned his professional competence and integrity and described a modusoperandi very similar to the criticisms formulated by the appellant, notably neglect in the performance of the mandate given by theclient.[1] His subsequent resignation and permanent disbarment could not have been known when the trial got under way. Yet, thesimilarity of the complaints to the arguments raised by the appellant cannot be ignored by this Court.

Indeed, the Court must verifywhether the appellant received a fair trial during which complex evidence was adduced through the testimony of several complainants, inrelation to events covering three decades. In other words, the Court cannot ignore the disciplinary board's decisions, which all found thatthe attorney had been negligent in performing his mandate, when the appellant raises the very same argument of negligence.

Thecomplexity of the evidence in the present case also convinces me of the necessity of taking these decisions into account. [44] But let us return to the appellant's fears. [45] From the moment the trial got under way, counsel weakened the appellant's credibility. How else are we to take his comments:[translation] "Well, let's just say, your Honour, that I don't agree with Mr. Vachon's comments, you know. But I don't want to answerhim". In other words: My client has not told you the truth, but I cannot contradict him, in all likelihood, I think, because ofconfidentiality. This trial got off to a very bad start.

It reveals the fact that the bonds of trust had been broken, even though they are anessential element of the client-attorney relationship. [46] An accused has the right to the effective assistance of counsel. Major J. points this out in R. v. G.D.B., 2000 SCC 22 ,[2000] 1 S.C.R. 520: 24 Today the right to effective assistance of counsel extends to all accused persons. In Canada that right is seen as a principle offundamental justice. It is derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada and ss. 7 and 11(

d) ofthe Canadian Charter of Rights and Freedoms. [47] Proulx J.A. made comments along the same lines in R. v. Delisle, [1999] R.J.Q. [should read 128]: [translation] 21 As I previously stated, the accused's right to competent counsel is tied to the accused's right to full answer and defence and to afair trial. It is not enough to establish the incompetence of counsel. It must also be shown that this incompetence interfered with theaccused's rights. The causal aspect of the incompetence therefore constitutes a fundamental element of the analysis.

22 On appeal, because the role of the Court is to ensure that the appellant was given a fair trial, any allegation of incompetence by counsel, even substantially proved, will justify intervention only if the appellant has established a relationship between this incompetence and a denial of justice (section 686(1)( b )(iii) Cr. C. ). In other words, the accused must have been deprived of his right to full answer and defence or to a fair trial because of counsel's blameworthy conduct.

This proposition has been consistently followed by this Court and is not subject to debate in Canadian case law. [ 48 ] Furthermore, I am aware that these cases require that harm be shown before there can be any consideration of counsel's competence. The requisite harm may take several forms, however, as Watt J. pointed out in R. v. D.M.G ., 2011 ONCA 343 : 103 The prejudice component acknowledges that, in the context of ineffective assistance of counsel, miscarriages of justice may take several forms.

Counsel's inadequacies may cause procedural unfairness in the proceedings or compromise the reliability of the result reached at first instance: B.(G.D.) at para. 28 . 108 It is critical to keep in mind that, during the course of criminal proceedings, defence counsel make many decisions in good faith and in the best interests of his or her client. We ought not look behind every decision counsel makes, except where it is essential to prevent a miscarriage of justice.

Defence counsel need not always obtain approval for each and every decision they make in the conduct of an accused's defence: B.(G.D.) at para. 34 . 109 On the other hand, some decisions, like whether to enter a plea of guilty or whether to testify, require instructions from the client. It is for the client, not for counsel to make these decisions.

The failure to discuss these issues with the client and to obtain the necessary instructions may raise questions of procedural fairness and the reliability of the trial result and lead to a miscarriage of justice: B.(G.D.) at para. 34 . [Emphasis added.] [ 49 ] Let us consider. [ 50 ] Not only was counsel's preparation so inadequate that he absolutely was not ready to proceed, but he also judged his client and did not represent him with a modicum of competence, which, as far as harm goes, resulted in the appellant being denied his right to a fair trial.

In other words, in addition to the inexplicable conduct of counsel during proceedings, his incompetence was such that it resulted in an unfair trial or a "miscarriage of justice" (very poorly translated in section 686 (1)( a )(iii) Cr. C. by the words " erreur judiciaire "). In this case, this results in harm requiring the Court's intervention. I reiterate the following extract from R. v. G.D.B. , supra : 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. [ 51 ] The fresh evidence shows that the appellant was left to fend for himself by his counsel, who did not give him the necessary advice, did not represent him adequately and did not respect his wishes, in particular with respect to the decision to testify. Let us review this evidence. [ 52 ] On May 6, 2008, counsel decided to forgo a preliminary inquiry. This is somewhat surprising in a file where seven complainants testified about incidents that had allegedly occurred up to thirty years earlier.

When we discover that counsel did not even consult his client prior to making this decision, which has serious implications, our surprise turns to bafflement. Adding to this is the explanation given during his examination carried out to gather fresh evidence: [translation] Q. Did you not think about proceeding with the preliminary inquiry? A. No. Q. Why? A. I didn't want one. Q. You didn't want one? A. No. Q. Was there a reason for this? A. No. [ 53 ] What else is there to add to such an explanation? [ 54 ] The appellant was not in court once between May 6, when the trial began, and October 27. Yet, Mr.

Côté testified that he met his client only at court. He stated, however, that he had spoken with him on the telephone on a few occasions. In short, he met him only for the release hearing and did not see him again to prepare for trial. He did read the complainants’ statements to him over the telephone, but nothing else. For such a complex trial, this is akin to reckless disregard. We understand and believe the appellant when he told the trial judge [translation] "I don't even know what I'm charged with". This may also explain the very limited scope of the cross- examinations led by Mr.

Côté. [ 55 ] The appellant was charged with an offence of which he had previously been acquitted. During the examination, his counsel first submitted that he had known this before the trial [2] but then changed tack and admitted that he had not [3] and learned of it only at trial. His client knew, however. I cannot believe that counsel would not have unearthed this fact if he had done just a minimal amount of

preparation; indeed, even his client could have told him. [56] Moreover, during the voir dire to establish the admissibility of the deceased complainant's statement, the appellant mentioned itbut was not believed. Crown counsel cross-examined him at length on the subject, and this rattled him, but he was in fact right.

The factthat he was disconcerted is understandable: he was not believed with respect to a fact that could easily have been verified (and Crowncounsel actually did check two days later, only to discover that the accused had indeed been acquitted; Crown counsel then notifieddefence counsel and the judge). But there is more.

The appellant's poor performance during this testimony, which can be explained byhis inability to convince the Court that he had been acquitted, is one of the reasons submitted by counsel to explain why he prevented theappellant from testifying in his own defence, even though he knew about the acquittal when he made that decision. [57] Counsel provides one other reason to justify stopping him from testifying: he refused to let his client perjure himself.Truthfully, notwithstanding that he made this statement, this is what he says, I am far from convinced that it was the actual reason.Rather, Mr.

Côté seems to be saying that his client, having offered to plead guilty in exchange for a seven-year sentence, wouldnecessarily have perjured himself if he had testified.[4] It is also relevant that the appellant allegedly admitted to his counsel that he hadcommitted some of the acts but that he was contesting most of them. This contradicts counsel's position because, even if that is true, theappellant could have testified to contest several of the charges without perjuring himself. [58] In reality, counsel judged his client, which it is obviously not his place to do: R. v.

Delisle, supra. [59] Furthermore, during his testimony, Mr. Côté stated that he had already decided that his client had little credibility. [translation] All right. Mr. Vachon testified during voir dire. So, it didn't go all that well. Now, what he wanted, at one time, in the beginning, he said that he wanted to testify, but . . . he had nothing to say. And what he didwant to say, when you get right down to it, was that all the others had said white, he would say black, and then he would swear to it onhis children's lives. That was his evidence. Then: Do you have witnesses?

Do you have any witnesses? . . . . . . you need witnesses, you need to say something probative. [60] In short, since his testimony alone would not be enough, there was no point to him testifying. I am not saying that it would havebeen unreasonable for the attorney to counsel his client not to testify.

What I am saying, however, is that he could not force him not totestify, as he did: [translation] I said: You’re not going to testify because, with what you've told me, I won't put you on the stand. [61] The appellant finally did testify after the inquiry had been reopened, but in my opinion this does not remedy the harm. From themoment the trial began, the appellant had no trust in his counsel, and this continued throughout the trial when counsel did not evenintervene to establish the truth about his client's acquittal[5] and refused to put him on the stand, against his client's wishes.

Also, theamicus curiae did not truly prepare the appellant for his testimony.[6] I will not criticize him since the role of amicus curiae is far fromwell-defined, but the fact remains that the appellant had no true preparation and was left to fend for himself during his testimony.Preparation was required, however, because of the nature of the evidence and the difficulty the appellant had in understanding its scope.I reiterate that the appellant could not prepare without the assistance of an attorney since he can neither read nor write. [62] Overall, the Crown's case was not truly contested by Mr.

Côté, who was not ready to proceed and did not demonstratecompetence. The fairness of the trial was irremediably affected. [63] In R. v. Joanisse, (1995) (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), Doherty J.A. reiterated the importance ofthe role of defence counsel in an adversarial process to test the value of the Crown's case and to ensure the fairness of the trial: 64 The importance of effective assistance of counsel at trial is obvious. We place our trust in the adversarial process to determine thetruth of criminal allegations.

The adversarial process operates on the premise that the truth of a criminal allegation is best determined by"partisan advocacy on both sides of the case": U.S. v. Cronic, 104 S. Ct. 2039 (1984), per Stevens J. at p. 2045. Effective representationby counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professionaltrained in the skills needed during the combat of trial. The skilled advocate can test the case advanced by the prosecution, as well asmarshal and advance the case on behalf of the defence.

We further rely on a variety of procedural safeguards to maintain the requisitelevel of adjudicative fairness in that adversarial process. Effective assistance by counsel also enhances the adjudicative fairness of theprocess 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 thatthe accused receives the full benefit of the panoply of procedural protections available to an accused. [64] The appellant was not afforded this opportunity. [65] We must also consider the issue of fees, which was raised by the appellant at the outset of the trial.

Clearly, there was adisagreement between the appellant and his counsel. This dispute, however, should have been settled well before the Friday precedingthe start of the trial. On this subject, the appellant must be believed, and there is nothing indicating that we should disregard hisstatement that counsel threatened him by telling him that [translation] "it would go badly" if he didn't find the $7000. In thesecircumstances, we cannot fault the appellant, as the trial judge did, for reacting at the last minute.

[ 66 ] In Joanisse , supra , Doherty J.A. added: 65 Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice. This court is under a statutory obligation to quash convictions which are the product of a miscarriage of justice: Criminal Code s. 686(1) ( a )(iii).

The accused who is the victim of a miscarriage of justice is entitled to at least a new trial. [ 67 ] In short, I find that the appellant was not represented by competent counsel in accordance with the threshold established by the courts, that consequently he sustained serious harm, and that the trial was unfair. Only a new trial can put the situation to rights. OTHER GROUNDS OF APPEAL [ 68 ] I doubt that it can be asserted that irreparable harm was suffered because inadmissible evidence was adduced (the facts of which the appellant was acquitted in this case) in a trial before a judge alone.

It is the judge's prerogative to set aside such evidence and not to take it into account. I see nothing indicating that this was not the case here. [ 69 ] As for the right to have counsel, as opposed to an amicus curiae , assigned, the efforts expended by the trial judge to help the appellant find counsel have convinced me that this case is not appropriate for determining the issue. [ 70 ] Finally, the decision to reopen the evidence was made following a specific application from the amicus curiae .

It is possible that, had the other circumstances described above not existed, reopening the inquiry might have been sufficient. In hindsight, knowing what we do now of counsel's conduct, this case would have warranted a mistrial. In light of my conclusions with respect to the first two grounds of appeal, however, the issue need not be pursued any further. RESPONDENT'S POSITION [ 71 ] Among its arguments, the respondent pleads alternatively that, even where there is no effective representation and there is evidence of harm, the Court should apply section 686(1) ( b )(iii) Cr.

C. because the appellant will be found guilty in a new trial in any event. This argument must fail. [ 72 ] First, that provision applies only when the court below has committed an error of law. In this case, what has been demonstrated above all is counsel's ineffectiveness to such a degree that the right to a fair trial was denied. In other words, this is not a case where no substantial wrong or miscarriage of justice has occurred, as section 686(1) ( b )(iii) Cr. C . requires. [ 73 ] Also, this provision should be applied in cases where the reliability of the evidence has been tested in a fair trial.

As noted in R. v. G.D.B. , R. v. D.M.G. and R. v. Joanisse , supra , however, the conduct of counsel casts doubt on the reliability of the evidence and the outcome of the trial. Therefore, it is not out of the realm of possibility for the appellant to be acquitted, if not on all counts, then at least on some of them. [ 74 ] Finally, the argument comes dangerously close to saying: If the evidence is solid, why bother with respecting the rights of the accused?

The respondent's argument does not go that far, obviously, but taken to extremes, it could. [ 75 ] We cannot take liberties merely because the evidence is overwhelming. If that were the rule, the constitutional rights of accused persons would become merely ancillary. CONCLUSION [ 76 ] For all of these reasons, I find that ordering a new trial is the only way for the appellant's guilt, if re-established, to result from proceedings that respect his rights. I would therefore grant the applications for fresh evidence, allow the appeal, and order a new trial. FRANÇOIS DOYON, J.A.