R. v. Ryan (D.), 2012 NLCA 9

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 Appeal Heard: September 16, 2010 Judgment Rendered: February 16, 2012 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: Bob Buckingham

Counsel for the Respondent: Vikas Khaladkar 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. [ 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. 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. [ 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. [ 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 well-received 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 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. (

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, 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: 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. [ 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 … 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 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 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. (

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 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 cross-examination 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 … … 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 cross-examination 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 cross-examination … … 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) [ 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 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: I knows it’s touchy with this witness too because this is the only thing – 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? 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 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. (

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 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:

… 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 cross-examining 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 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; 2. 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; 3.

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; 4. 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; 5.

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. [ 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 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 notreceive 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.

Ryansubmitted, nevertheless, that a principle that would justify a declaration of a mistrial in the circumstances of this case could beextrapolated from a number of other principles relating to the obligations of a trial judge to assist an unrepresented accused, the generalprinciples 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 andthe 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 anddefence. It is a fundamental underpinning of our criminal justice system. As stated by Carthy J.A. in R. v. Clement (1995), (ON CA), 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 trialcannot 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, thecircumstances under which a mistrial may be ordered and the obligations of a trial judge to assist accused without counsel are in factdesigned 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 advantageoustrial from his point of view.

In R. v. Harrer, (SCC), [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 fairtrial must not be confused with the most advantageous trial possible from the accused’s point of view … Nor must it be conflated withthe 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 isnot 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 forsomething they did not do.

As noted by Rothstein J. in R. v.

Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651: [27] … society’s interest in a fair trial that reaches a reliable determination of the accused’s guilt or innocence based on all of theavailable 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 beendisclosed to the accused in a timely manner, and whether society’s interest in having a reliable determination of guilt or innocence on allavailable evidence justified a less drastic remedy (such as postponement of the trial) than exclusion.

The tipping point was stated by themajority to be whether the fairness of the trial and the integrity of the justice system would be compromised if the evidence wereexcluded. In that case, society’s interest in having a fair determination of guilt or innocence on all available evidence, including theundisclosed 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. Absenta fair trial, a remedy should flow.

Consideration of society’s interest in a fair trial that reaches a reliable determination of guilt orinnocence 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 theaccused will be convicted in questionable circumstances or on unreliable evidence or without a proper opportunity to make full answerand 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.

Afair trial has a substantive component. As a minimum, there should be a reasonable prospect, from the way the trial is conducted andunfolds, of obtaining a reliable verdict. The emphasis in recent years on rectifying cases involving wrongful convictions, and identifyingthe circumstances under which there is a risk of the trial process going wrong, demonstrates this principle.

It is also reflected in theprinciple 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, itis concluded by the court that there is a factual basis for conviction. It also underpins the “innocence at stake” exceptions that justifypiercing informer (R. v. Leipert, (SCC), [1997] 1 S.C.R. 281) and solicitor-client privileges (R. v. McClure, 2001 SCC14 , [2001] 1 S.C.R. 445) in favour of ensuring full answer and defence: “Our system will not tolerate conviction of theinnocent” (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 theseriousness 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 willbe 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 theaccused, to have made a Rowbotham order on the ground that the case (a charge of arson involving expert evidence) was sufficientlycomplex that legal representation of the accused, who was “out of his depth”, was “essential to ensure that the accused receives a fairtrial” (para. 24). The accused “did not have the capacity to defend the case without counsel” (para. 26).

At trial, the Crown had appearedto 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 resultof not having had the assistance of counsel, in the sense that there would have been a different result if counsel had been provided.

Itwas sufficient to conclude there was a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code “in that the failure to appointcounsel 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 isappointed because their assistance is essential for a fair trial.

In my view, fair trial in this context embraces both the concept of theability 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 wasdone in Rushlow) in terms of providing all necessary and appropriate assistance to the accused in the conduct of his or her defence, therestill may be an appearance of unfairness (and hence a miscarriage of justice) if the accused is required to proceed without counsel incircumstances where, despite proper assistance afforded by the trial judge, the accused still does not have the capacity to defend himselfor herself by acting alone. [98] In the instant case, Mr.

Ryan qualified for appointment of counsel under the legal aid scheme. In his subsequent applicationfor appointment of counsel of choice in the place of legal aid counsel, it was accepted that he needed counsel; the focus, instead, was onwhether there was justification for appointment of someone other than the legal aid counsel he had been offered. It was Mr.

Ryan’sdecision to proceed without counsel, once it was determined that he could not have anyone other than offered legal aid counsel, thatresulted 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 oneoccasion that the court cannot “force counsel upon an unwilling accused”: R. v. Cunnningham, 2010 SCC 10, [2010] 1 S.C.R. 331 perRothstein J. at paragraph 9; see also Vescio v.

The King, (SCC), [1949] S.C.R. 139, per Taschereau J. at para. 144; andR. v. Fleming (D.P.) (1999), (NL CA), 171 Nfld. & P.E.I.R. 183 (Nfld.C.A.), per Marshall J.A. at para. 197. Thisposition is reflective of “respect for individual autonomy within an adversarial system”: per Lamer C.J.C. in R. v. Swain, (SCC), [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 adefence and risks a possible wrongful conviction? As Cromwell J.A. observed in R. v.

Wolkins, 2005 NSCA 2, 192 C.C.C. (3d) 378 atpara. 89, “the clearest example [of a miscarriage of justice] is the conviction of an innocent person. There can be no greater miscarriageof justice”. Is there a point where the court may nevertheless step in even if the intervention may conflict with the accused’s autonomy todecide for himself or herself whether counsel is required? This issue was discussed in Wolkins, a case involving representation of anaccused 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 accusedmay insist on representing him or herself even in situations in which the court would appoint counsel for the accused, if asked, because afair trial would not be possible otherwise. But this apparent conflict is resolved very simply: an accused cannot complain about his or herdecision 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), (NS CA), 146 N.S.R. (2d) 1; [1995] N.S.J.

No. 483 (Q.L.) (C.A.) at para. 49 [describing theaccused’s disability in conducting his defence as “self-imposed]; aff’d (SCC), [1996] 3 S.C.R. 604. As the AlbertaCourt of Appeal aptly put it in R. v. Cai (2002), 2002 ABCA 299 , 170 C.C.C. (3d) 1; [2002] A.J. No. 1521 (Q.L.) (C.A.) atpara. 42, “To allow an accused…to spurn counsel and plead for mercy on grounds of lack of counsel would set a very dangerousprecedent.

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 theend of the trial in circumstances where the Nova Scotia Court of Appeal concluded, at para. 49, that “the appellant had no legitimatereason to lose confidence in him”.) [102] The circumstances in Wolkins were, of course, very different from the current situation. Wolkins had been represented by anagent at his trial for lobster fishing outside the area for which he had been licenced.

At the close of the prosecution case, the agent wasunprepared 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 threeyears.

On appeal from conviction, he argued that the agent had represented him with such incompetence that the conviction was amiscarriage 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 testify was his to make and there was nosuggestion 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 thatdid not work.” (para. 3). He stated, citing other authority: “[T]he fact that an agent does not meet the standard of competence expected ofcounsel 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 notbeen.

He acknowledged, however, there could be circumstances where the acts of an agent in representing an accused could lead to amiscarriage of justice, justifying appellate intervention, as where the agent engaged in unauthorized acts which could not be fairlyattributed to the accused (para. 77).

He reviewed the grounds on which Wolkins alleged miscarriage, including the suggestion that freshevidence 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 actedincompetently, and certainly not to a level that would amount to a miscarriage of justice. This is unlike the case at hand where theconcerns about disclosure, unfair impressions left with the jury respecting the selective admission of some of Mr. Ryan’s statements tothe police, and Mr.

Ryan’s complete inability to cross-examine the only witness who placed him at the scene of Mr. Brace’s beatingsraise 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 commitlitigation 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 thatthe trial judge failed in his duty to allow for the appointment of counsel where the accused “represented himself so incompetently as todeprive 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 infailing to grant an adjournment, mid-trial, to allow the accused to retain the services of counsel. The accused, as found by the trial judgeand by the Court of Appeal, had made a conscious decision to defend himself even though he had been given the opportunity to obtaincounsel of choice through legal aid.

During the trial, the accused, in the words of O’Neill J.A., “displayed an abysmal lack of knowledgeof the principles governing, and the rules and principles applicable to, a criminal trial” (para. 26) and “lacked the ability to conduct hisown 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 adjournmentto enable him to obtain one. This was opposed by Crown counsel, who relied on the fact that the Accused had previously had theopportunity to obtain a lawyer and had rejected it.

Counsel submitted that the request for counsel was merely a “stall tactic” and anattempt “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 tocounsel “long ago” and that the Court therefore “exhausted its duty” to protect the accused’s right to counsel in the face of his consciousdecision 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 newtrial. Marshall J.A. would have dismissed the appeal. Steele J.A. allowed the appeal on grounds unrelated to the issue relating to absenceof 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 hisdecision to allow the appeal. Marshall J.A., while addressing the issue, did not find it persuasive on the facts.

Although O’Neill andMarshall 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 thatthe 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 theaccused been provided with the opportunity to engage counsel.

He noted further that the trial judge had indicated that “there was a riskof miscarriage of justice because the [accused] was conducting his own defence.” He rejected the notion, which the trial judge hadapparently 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 theopportunity to engage counsel and had declined to exercise it, and in concluding that he was then foreclosed from exercising it, and thatthe 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 tocounsel 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 histrial, 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 ofhis 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 thedifficulties in then stopping the trial. These could not stand in the way of his request, however, if it had precluded Mr. Fleming frommaking full answer and defence, as his counsel in this appeal is claiming it did … (Emphasis added.) [112] Citing R. v. McGibbon (1988), (ON CA), 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 legalassistance turned on whether the record showed the accused had been able to mount a full and fair defence without the benefit ofcounsel. … [199] It appears important to underscore that the test whether Mr. Fleming was mounting a full and fair defence in following his choiceto represent himself is not to be judged on the basis of whether he had conducted his defence up to the adjournment motion with thecompetence 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 theaccused to make full answer and defence in representing himself with the assistance of the trial judge (see para. 206). That said, it seemsclear that had Marshall J.A. concluded that the ability of the accused to make full answer and defence had been jeopardized, he may havedecided that there was merit in this ground of appeal. [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, rejectsthe right to have counsel represent him does not exhaust the duty of the court to ensure that the accused has the opportunity to make fullanswer and defence; (ii) if, with assistance of the trial judge throughout the trial, an unrepresented accused is able, though withdifficulty, to make full answer and defence, there is no basis for providing him with counsel or declaring a mistrial.

The corollary of thissecond principle is that if the accused is unable to make full answer and defence without the assistance of counsel, the court shouldintervene 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 trialstarted, proceeded to trial without counsel and did not make application at the start of the trial for appointment of other counsel, GriffithsJ.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 earlierdifficulties with counsel.

The trial judge had no right to force the appellant to retain counsel against his will and in the circumstances ofthis 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 toretain counsel.

In my opinion, it would not be in the interests of justice to permit an appellant who had made a decision to proceedwithout 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 thecompetence of legal counsel …in his cross-examination of the complainant, the appellant posed helpful and rational questions whichwere relevant to and which promoted his theory of the defence” (p. 347).

There was no finding on the part of the trial judge or conclusionreached 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 hisdefence. 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 notengaged in McGibbon.

[…]