Docket: CACR2357 Phillip Keith Wapass Appellant - v. -, 2014 SKCA 76

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 76 Date: 2014-07-04 Between: Docket: CACR2357 Phillip Keith Wapass Appellant - and - Her Majesty the Queen Respondent Restriction on Publication: An order has been made directing that any information identifying the complainant shall not be published. Coram: Jackson, Whitmore and Ryan-Froslie JJ.A. Counsel: Phillip Wapass representing himself Andrew Stuart Davis for the respondent Appeal: From: 2013 SKQB 427 Heard: June 16, 2014 and July 4, 2014 Disposition: Appeal allowed (orally)

Written Reasons: July 10, 2014 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice Ryan-Froslie Jackson J.A. I. Introduction [ 1 ] When we heard this appeal, we allowed it, quashed the convictions and ordered a new trial. We gave brief reasons, with written reasons to follow. These are those reasons. [ 2 ] The essential issues are whether the trial judge erred with respect to the application of the rule of Browne v. Dunn (1893), 1893 CanLII 65 (FOREP) , 6 R. 67 (H.L.) and, if so, the consequences of that error for the verdicts in this case. II. Background [ 3 ] By way of brief background, Mr. Wapass was charged with (

i) sexually assaulting his girlfriend, R.F., contrary to s. 271 of the Criminal Code , R.S.C., 1985, c. C-46; (ii) committing an assault on Mr. Allister Scarlett, contrary to s. 266; (iii) uttering a threat to cause the death of R.F., Mr. Scarlett and Ms. Leona Jimmy, contrary s. 264.1(1)(a); and (iv) having the care or control of a motor vehicle while over .08, contrary to s. 255(1) and s. 253(1)(b). [ 4 ] These incidents arose out of a night of drinking during which Mr. Wapass himself called the police, after an alleged sexual assault of his girlfriend while she was unconscious.

He was found guilty of all four counts by a judge of the Court of Queen’s Bench. [ 5 ] Leading up to his trial, Mr. Wapass was only intermittently represented by counsel. In October of 2012, approximately 11 months before the trial, he was again self-represented. [ 6 ] At that time, the Crown applied under s. 486.3(2) of the Criminal Code [1] for an order appointing counsel to cross-examine R.F., Mr. Scarlett and Ms. Jimmy. Mr.

Wapass opposed the application. [ 7 ] A judge of the Court of Queen’s Bench, who was at that time scheduled to be the trial judge, concluded that “in order to obtain a full and candid account from [R.F., Mr. Scarlett and Ms. Jimmy] of the acts complained of, the accused should not personally cross-examine these witnesses” (Fiat, Queen’s Bench file dated October 17, 2012). He made this order: ii. Counsel shall be appointed by the court to conduct cross-examination of such witnesses for and on behalf of the accused.

The registrar shall provide the accused with a list of counsel who are prepared to be so appointed and the accused shall forthwith make arrangements for one of such willing counsel to accept a court appointment and shall within 14 days of this decision , advise the Registrar of the court as to who that counsel will be. Upon being so advised, I will confirm the appointment of that lawyer as court- appointed counsel. In the event the registrar is not so advised within 14 days, the matter will be brought back before me to appoint counsel without the accused’s participation [emphasis added]. [ 8 ] Initially, Mr.

Wapass selected Mr. Monte Migneault from the list of counsel presented to him. In light of this, on January 4, 2013, the same Queen’s Bench judge appointed Mr. Migneault, in accordance with the October 17, 2012 order. [ 9 ] On January 11, 2013 Mr. Wapass advised that he was “going back” to Mr. Alex Rickards who was his former counsel. On January 16, 2013, the Queen’s Bench judge indicated that Mr. Migneault’s appointment “ends as of to-day.” On March 8, 2013, the trial was set to take place September 23 to 27, 2013. [ 10 ] On July 24, 2013, the Court granted Mr.

Rickards “leave to withdraw as solicitor on file, having been discharged by Mr. Wapass.” The Court stated that the previous order “will continue to be in effect. Mr. Wapass may provide the court … the name of the solicitor to cross-examine these witnesses, failing which the court will appoint such available counsel as it deems appropriate.” The trial date was maintained. [ 11 ] By August 19, 2013, Mr. Wapass had not selected counsel from the list previously provided to him. Over his objection, counsel was appointed by the Queen’s Bench judge, who had made the October 17, 1012 order under s. 486.3(2) : [S]ince Mr.

Wapass has not provided the court with any names of counsel who would be willing to be appointed to represent him at trial for the purposes of cross-examination of the three victims in this case, the court hereby appoints Monte Migneault as counsel for Mr.

Wapass only for the purposes of cross-examining the victims at trial which is set to commence September 23, 2013. [ 12 ] When the trial commenced, the judge who made the various orders regarding the appointment of counsel was no longer the trial judge, but nothing was said of this during the course of the trial. [ 13 ] In accordance with the August 19, 2013 order, Mr. Migneault cross-examined R.F., Allister Scarlett and Leona Jimmy and was then excused. Mr. Wapass cross-examined the police witnesses. [ 14 ] Mr. Wapass took the stand in his own defence.

He took a different tack than the civilian witnesses had taken as to what had transpired on the night in question. For example, he testified to the following: the witnesses threatened him; Mr. Scarlett assaulted him;

R.F. invited him to join her on the couch; and she was clothed when Ms. Jimmy interrupted their activities. In relation to the driving offence, he testified that he had given the car keys to another family member. [ 15 ] When Crown counsel cross-examined Mr. Wapass, the following exchange occurred: Q Okay. Now, you heard both officers in court here? A Yes, I did. Q Okay. So you’re saying Officer Wegner is lying to this Court? A Well, maybe he’s not quite 100 percent sure. I tried to talk about different issues, too. Q Yeah. In fact -- A But -- Q -- you asked him about his notes? A Mmhmm.

Q What he made, didn’t you? A Yes, I did. Q At no time, did you put to Mr. -- to Constable Wegner, that he never said that to you, did you? You never asked him that, at all? A About what he was arresting me for? Q No -- yes. A Yeah, I did. Q Yeah. A I asked him. Q Yeah. And you never said to him, sir, you never said that to me, did you? Ever, ever put that to him? A Well, that’s because I had -- Q Mmhmm. A -- a lot of notes that I had to try and get everything done with. Q Mmhmm.

And when Leona Jimmy, Allister Scarlett and [R.F.] were on the stand, none of your story, as you put it, were ever put to them, were it -- was it? A Pardon me? Q They weren’t asked about the story that you’ve given here today, when they were on the stand, were they? A No.

Q No. A Because in the room there, the lawyer told me I was full of it, and that my family practiced bad magic -- black magic. Q Mmhmm. A Instructed by you. (Transcript 227–228) Nothing further was said on this point by Crown counsel or the trial judge during the trial. [ 16 ] When Crown counsel made his submissions at the close of trial, the trial judge raised Browne v. Dunn with him in the following manner: THE COURT: Yeah, it -- it struck me, that in -- and I’ll invite your comments on this.

That in addition to assessing evidence, as the Court always assesses it, and where an accused testifies, of course employing the cascading test in W.D. , which I’m obligated to do -- CROWN COUNSEL: Yes. THE COURT: -- this case is made a little more complex in a sense in that we’ve got this problem -- at least when I went to law school, probably when you did -- it was always referred to as the rule in Browne v. Dunn … where one party who is going to advance an alternate theory of events, needs to put that theory through cross-examination to witnesses from the other side.

And if he doesn’t, it can affect the weight to be given to his testimony, and it can affect credibility, as -- CROWN COUNSEL: Yes. THE COURT: -- as well. CROWN COUNSEL: Yes. THE COURT: I mean, there’s always the potential for re-call of the witnesses, but even -- even that’s not necessarily wholly satisfactory, in terms of addressing the problem that’s created by a failure to cross-examine on -- on -- on germane points, if the accused knows and appreciates that that’s the theory he’s going to advance for his case.

So I -- it strikes me that we’ve got an extra -- an extra layer of credibility issue here, because of that. And I suspect that arises from the fact that Mr. Wapass finds himself unrepresented at this trial . More than anything, I would suspect prudent defence counsel would -- would have crossed on the theory to be advanced. I can’t imagine why he wouldn’t [emphasis added] -- CROWN COUNSEL: Right. THE COURT: -- as defence counsel.

But is that -- I mean, that’s -- that’s more the -- it struck me that that’s one of the things I’ll have to contend with in my -- in my findings and my judgment, is how does -- how does that old rule from Browne v. Dunn apply here. Is that fair? CROWN COUNSEL: I’ll put one other aspect of that portion of the evidence to Your Lordship. And Your Lordship has indicated in court, that you listened to the actual 911 call, which is what should happen, and it is evidence. But you can hear on that -- when you listen to that CD, the Crown contends that listening to that, you can tell that’s one individual male voice.

It’s the same voice throughout. (T242–243) [ 17 ] At that point, the Court and Crown counsel begin to discuss the use of the evidence, regarding the 911 call. After that, the trial judge revisits the issue of Browne v. Dunn :

THE COURT: I don’t know. I’m not -- I’m not -- I haven’t made up my mind on anything, but I’m going to -- I’m going to go through all this, but my preliminary view is that I -- I’m going to consider all of the evidence, but I might have to take, then, a second look at the Crown’s case, and all of the evidence as a whole, including Mr. Wapass’s testimony, sort of excluding the 911 recordings, and say, okay, if we don’t have that and if I have to get -- you know, Mr. Wapass denies that, and I give him the benefit of that doubt, the guts of the Crown’s case are in the witnesses .

Where do I go from there -- CROWN COUNSEL: Yes. THE COURT: -- on that? So that’s a different assessment that I have to make -- CROWN COUNSEL: Yes. THE COURT: -- including the Browne v. Dunn and W.D. applications that -- CROWN COUNSEL: Yeah. THE COURT: -- I’ve got to do. CROWN COUNSEL: I would think -- the Crown would agree with that process. We think that’s what should be done [emphasis added]. (T250) [ 18 ] When Mr. Wapass’s turn came to make oral submissions, the trial judge did not ask him about the rule in Browne v. Dunn or explain it to him. Mr.

Wapass said he “wasn’t really allowed too much to cross-examine the three civilian witnesses because of the application the Crown had made on 486” and that “Mr. Migneault did not ask all the questions he wanted him to” and he only asked the questions he felt were “appropriate” (T271). The trial judge did not clarify with him what he meant. [ 19 ] The rule in Browne v. Dunn , however, played a central role in the trial judge’s decision, as witnessed by the following taken from the transcript of his reasons: I must then turn to look at the evidence in this case.

I will start with the fact that the accused chose to testify. He had been advised more than once, that he was under no obligation to do so. The accused set out a version of events that was entirely new to the Court, and I suspect, the Crown. He raised matters which directly conflicted with the testimony of Crown witnesses, without having cross-examined those witnesses on those points. This violates the rule in Browne v. Dunn , as recognized in modern cases in Canada. This can have significant impact on the weight and credibility to be given to the accused’s testimony.

It is open to me, as the trier of fact, to take this failure to cross-examine into consideration in assessing the accused’s credibility. Here, I will do so , because the failure to cross-examine related to numerous matters at the very core of the Crown’s case, as opposed to matters collateral in nature, or lying out in the penumbra. These central features of the Crown’s witness’s testimony were left untouched by the accused in cross-examination, only to be the subject of a radically different account from the accused himself . Examples, which are not exhaustive, but merely illustrative, include the following.

The accused’s assertion that [R.F.’s] pants and panties were on and had not been pulled down. The accused’s assertion that Allister Scarlett attacked the accused unprovoked in the kitchen. The accused’s assertion that a third party, identity unknown, and present at the Leona Jimmy house in the wee hours of the morning, through the unfathomable ways of providence, actually drove him home to his mother’s house. The accused’s assertion that [R.F.] relentlessly pursued him romantically, impliedly for less than good motive.

The accused’s account of the amounts the four acquaintances drank that evening or the trip to the bar at South Bay. The accused’s assertion that he began sleeping on the floor, but only ended up on the couch at [R.F.’s] specific invitation. And the accused’s suggestion that Leona Jimmy tried to kick him, was never put to her. In this case, the breadth and scope of the violation of the rule in Browne v. Dunn is staggering, and certainly exceeds the seven examples I have just referenced [emphasis added]. (T281) [ 20 ] Mr.

Wapass, who is again self-represented on appeal, has put forward a number of grounds of appeal. It is only necessary to address the application of the rule in Browne v. Dunn . Mr. Wapass submitted that counsel was “forced” upon him and “vital questions that I needed to be put before the civilian witnesses in order to have full answer and defense were never asked” (letter to the Court dated October 22, 2013). He asserts that errors of law were committed or a miscarriage of justice occurred. III. Analysis [ 21 ] As the Court explained in R. v. Lyttle , 2004 SCC 5 , [2004] 1 S.C.R. 193 , the rule in Browne v.

Dunn “requires counsel to give notice to those witnesses whom the cross-examiner intends later to impeach” (para. 64). Giving notice in this context means that if counsel intends to challenge the credibility of a witness by calling contradictory evidence on matters of significance to the facts in issue, “the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box”

(R. v. Henderson (1999), (ON CA), 134 C.C.C. (3d) 131 at 141). [22] The Supreme Court of Canada endorsed the rule in Browne v. Dunn in Lyttle in the criminal context as being “a sound principle ofgeneral application” (para. 65). In the circumstances of this case, however, the trial judge erred by applying the rule in Browne v. Dunnto determine the credibility of the accused and the Crown witnesses. The trial judge raised the possibility of the application of the ruleafter the Crown and defence had closed their cases, and applied it in his assessment of credibility. [23] The rule in Browne v.

Dunn is not absolute in the sense that once breached the accused must be disbelieved. In Lyttle, the Courtstated the extent of the application of the rule is within the discretion of the trial judge, after taking into account all the circumstances ofthe case (see para. 65).

The Court in Lyttle made it clear that the rule is designed to provide fairness to witnesses and parties and it is not“fixed” (para. 65). [24] As the Court in Lyttle demonstrates, “the right of an accused to cross-examine witnesses for the prosecution—withoutsignificant and unwarranted constraint—is an essential component of the right to make full answer and defence” (para. 2). The rule inBrowne v. Dunn must co-exist with the right to make full answer and defence. [25]

Section 486.3(2) of the Criminal Code raises difficult practical and conceptual issues in relation to the right to make full answerand defence. Counsel appointed under s. 486.3(2) clearly acts as the accused’s counsel, not as amicus curiae, but the accused cannotdischarge the counsel who has been appointed for him or her without first obtaining the approval of the Court. [26] When Crown counsel challenged the accused’s credibility in this case, he was at that point self-represented. Earlier in the trialhe had represented himself when he cross-examined the police witnesses, and Mr.

Migneault had represented him for the purposes ofcross-examining the civilian witnesses pursuant to an order of the court under s. 486.3(2). [27] Mr. Migneault, who acted above reproach, would know precisely his role, but nothing on the transcript shows Mr. Wapassunderstood how this bifurcated relationship, with each of them cross-examining some of the Crown witnesses, was intended to work.Indeed, the record appears to indicate that Mr. Wapass believed, erroneously, that Mr. Migneault’s cross-examination of the Crownwitnesses was not his cross-examination of those witnesses.

Matters were exacerbated in this case because Mr. Wapass was opposed tothe appointment of any counsel on the list provided by the Court. The trial judge referred to Mr. Migneault as acting to assist the Court(see T99) and to Mr. Wapass as having been “unrepresented” during the trial (see T243), which would only serve to re-enforce Mr.Wapass’s confusion. [28] Crown counsel on appeal pointed out that the case management judge gave Mr. Wapass some written instructions telling him toconsult with Mr. Migneault, but nothing on the record shows that they were explained to Mr.

Wapass or that he understood he wasrequired to explain the whole of his case to Mr. Migneault. The written instructions do not themselves explain the differing roles ofMr. Wapass and Mr. Migneault with respect to the conduct of the trial. In such circumstances, a trial judge must be particularly vigilantto ensure that no misunderstanding occurs between court-appointed counsel and the accused as to their respective roles. [29] It may be that some of the difficulty in this case arose because a judge, other than the ultimate trial judge, made the order unders. 486.3(2) as part of a case management hearing.

Subsection 486.3(4.1) requires that an application under s. 486.3(2) be made to thepresiding judge or to the judge who will preside at the proceedings. [30] In my view, “proceedings” in s. 486.3(4.1) means the proceedings where counsel will be required. At the very least, all of theproceedings pertaining to the appointment of court-appointed counsel under s. 486.3(2) must be audio-taped to enable a transcript to beprepared as part of the trial record.

The making of an order under s. 486.3(2) is an important part of the trial process. [31] Without deciding the effect of a failure to follow s. 486.3(4.1) or whether the failure can be rectified by having the trial judgeconfirm the prior order, the trial judge in this case could not know precisely what had been explained to the accused when the casemanagement judge made the appointment under s. 486.3(2) in part, because he did not make the appointment himself, but also becauseno transcript exists for the hearing leading to the appointment of Mr.

Migneault. [2] [32] In such circumstances, if the judge intended to apply the rule in Browne v. Dunn, it was incumbent on him to ask Crown counsel toclarify his intentions when he began challenging the accused’s credibility during cross-examination and, if Crown counsel intended topursue the matter, to decide upon a course of action. (See R. v. McNeill (2000), (ON CA), 144 C.C.C. (3d) 551 (Ont.C.

A) at paras. 47 to 50, R. v. Werkman, 2007 ABCA 130, 219 C.C.C. (3d) 406 at paras. 9 to 11, R. v. Dexter, 2013 ONCA 744, 313O.A.C. 226 at paras. 17 to 45. R. v. Paris (2000), (ON CA), 138 O.A.C. 287, 150 C.C.C. (3d) 162 at paras. 22 to 23,and R. v. Pincemin, 2005 SKCA 40, 257 Sask. R. 256 at paras. 8 to 9 for a discussion of what effect to give to a breach of the rule.) Tobe clear, the circumstances that required the trial judge to do more than was done in this case are: (

i) an order had been made unders. 486.3(2); (ii) it was not clear that the accused understood what he was required to do in relation to briefing his counsel; (iii) he wasself-represented when Crown counsel challenged his credibility on the basis of what had not been raised with the Crown witnesses inexamination-in-chief; and (iv) he did not understand the significance of that line of questioning. [33] Since the trial judge did not clarify the matter during the trial, he should not have raised Browne v.

Dunn when Crown counsel wasmaking his closing submissions—particularly because Crown counsel himself did not raise it. At that point, it was too late to take anysteps to rectify the matter without re-opening the trial. Thus, respectfully, I have concluded the trial judge erred by convicting on thebasis that Mr. Wapass was not to be believed as a result of his failure to follow the rule in Browne v. Dunn.

[34] Having found an error of law, it remains to determine the effect of the error. Crown counsel urged the Court to apply s. 686(1)(b)(iii) of the Criminal Code to sustain all of the convictions on the basis that the case against Mr. Wapass was so overwhelming that therewas no substantial wrong or miscarriage of justice. [35] The error in this case goes to the heart of the determination of the credibility of the accused. The trial judge stated he did notbelieve Mr. Wapass in significant part because of the rule in Browne v. Dunn. It is true that the trial judge went on to refer to the rule inR. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, but even when doing so, the trial judge referred to Mr. Wapass’s “failure … tocross-examine Crown witnesses as to key points of the account he gave in his testimony” (T281). [36] When referring to the credibility of the Crown witnesses, the trial judge stated “there is a dispute in the evidence, but [R.F.] wasnever asked about the accused’s account, nor were any of the other Crown witnesses” (T282). Thus, this Court is left with noindependent assessment of the credibility of Mr. Wapass or the Crown witnesses.

In order to find the case overwhelming, this Courtwould have to find that, notwithstanding these comments, we could independently, based on our own assessment of the evidence, cometo the conclusion that no reasonable doubt existed in relation to any of the charges. This, the Court cannot do. [37] In these circumstances, the Court has no choice but to order a new trial. IV.

Conclusion [38] In the result, the appeal is allowed, the convictions are quashed and a new trial is ordered. [1] 486.3 (2) “In any proceedings against an accused, on application of the prosecutor or a witness, the accused shall not personallycross-examine the witness if the judge or justice is of the opinion that, in order to obtain a full and candid account from the witness ofthe acts complained of, the accused should not personally cross-examine the witness. The judge or justice shall appoint counsel toconduct the cross-examination if the accused does not personally conduct the cross-examination.”