



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cordeiro-Calouro, 2019 ONCA 1002

DATE: 20191218

DOCKET: C64734

Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rui Alberto Cordeiro-Calouro

Appellant

Alan D. Gold and Alex I. Palamarek, for the appellant

Alexander Alvaro and Jennifer Trehearne, for the
    respondent

Heard: December 11, 2019

On appeal from the convictions entered by Justice Dale
    Parayeski of the Superior Court of Justice on September 14, 2017, and from the
    sentence imposed on February 12, 2018.

REASONS FOR DECISION

A.

OVERVIEW

[1]

Rui Alberto Cordeiro-Calouro appeals his conviction on two counts of
    dangerous driving causing death and one count of dangerous driving causing
    bodily harm. The appellant also seeks leave to appeal the sentence of 18 months
    concurrent on the two counts of dangerous driving causing death and the
    sentence of 15 months on the one count of dangerous driving causing bodily harm.
    Finally, the appellant seeks to adduce fresh evidence regarding his proficiency
    in the English language.

[2]

At the conclusion of the hearing, we allowed the appeal and ordered a
    new trial with reasons to follow. We now provide those reasons.

[3]

As we shall detail below, the trial judge refused to grant the appellant
    an adjournment on the date scheduled for his trial. This decision began a
    series of events that led to the appellant not receiving a fair trial.

B.

Analysis

[4]

The appellant had had difficulty retaining counsel. He had two lawyers
    prior to trial, both of whom ceased to act for him for different reasons.
    Consequently, the appellants trial date had been marked with or without
    counsel. On the trial date, new counsel appeared for the appellant. This
    counsel had appeared on prior occasions to advise the court that the appellant,
    who had financial constraints, was trying to amass the necessary funds to
    retain him. Counsel said that he was now prepared to go on the record, that
    there would be a re-election to judge alone, that this, together with other
    concessions, would reduce the length of trial from three weeks to five days,
    and that the appellant would waive any s. 11(b) issues arising from the delay.
    All of this, however, was premised on the appellant being granted a four-week adjournment
    so that counsel could properly prepare for the trial.

[5]

This was the second adjournment of his trial that had been sought by the
    appellant. Crown counsel opposed the adjournment citing, among other reasons,
    that he was not available to do the trial four weeks later. The trial judge was
    understandably concerned about delay. It had been five years since the events
    giving rise to the charges. The trial judge offered the appellants counsel a two-week
    adjournment, but counsel said that would be an inadequate amount of time for
    him to properly prepare, including preparing the defence expert witness.
    Despite the fact that the adjournment sought was relatively short, that there
    was a s. 11(b) waiver, and the seriousness and complexity of the charges, the
    trial judge then refused the adjournment and ordered the trial to proceed with
    the appellant unrepresented.

[6]

When an accused person requests an adjournment of his trial on the date
    set for trial so that he can have counsel represent him, the trial judge is
    faced with two conflicting interests: the accuseds right to counsel, including
    counsel of choice, and the avoidance of delay. The resulting challenge is aptly
    expressed by Gillese J.A. in
R. v. Hazout,
(2005), 199 C.C.C. (3d) 474
    (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 412, [2005] S.C.C.A.
    No. 501, at para. 31:

When an accused person requests an adjournment of his or her
    trial on the date set for trial, the trial judge is required to balance two
    rights. The first is the accused's constitutional right to be represented by
    counsel including, when possible, counsel of choice. This is a fundamental
    right vigorously guarded by the court. The second is the trial judge's right to
    control the trial process, a right that includes a wide discretion to grant and
    refuse adjournments. An appellate court should only interfere with a trial
    judge's balancing of these rights if the refusal of an adjournment deprives an
    accused of a fair trial or the appearance of a fair trial. [citations omitted]

[7]

In this case, the denial of the adjournment deprived the appellant of a
    fair trial. It opened the door to various errors in the manner in which this
    legally-complex trial was conducted that contributed to its unfairness.

[8]

After the trial judge ordered the trial to proceed, he told the appellant
    to review the two bankers boxes of disclosure. The evidence shows that the
    appellant cannot read or write. If this fact were not clear to the trial judge
    at the commencement of the trial, even though the appellant so advised him, the
    trial judge certainly became aware of it by the second day of the trial after
    the counsel, who had asked for the adjournment but been refused, took it upon
    himself to write to the trial judge and advise him, both of the fact that the
    appellant could not read or write, and that English was not the appellants
    first language. Notwithstanding this knowledge, the trial judge failed to take
    any steps to address the obvious problems that these facts would pose for the
    fair conduct of the proceedings. For example, the trial judge never asked the
    appellant whether he needed an interpreter. Instead, the trial judges reaction
    to counsels letter was to describe it as presumptuous and offensive.

[9]

As matters unfolded, the decision on whether the offences would be
    proven turned, to a large degree, on the expert evidence. Fortunately, the
    appellant had an expert witness to respond to the Crowns expert because one of
    his former lawyers had retained that expert. The defence expert was present to
    assist the appellant when the Crowns expert gave his evidence. After the
    Crowns expert completed his examination in chief, an issue arose as to how the
    cross-examination was going to take place because the appellant could not read his
    experts proposed questions for the Crowns expert. In response to this issue, the
    trial judge directed the defence expert to conduct the cross-examination of the
    Crowns expert, even though the defence expert pointed out that he was not a
    jurist. Indeed, the defence expert was not sure what questions he was allowed
    to ask.

[10]

There was no proper legal basis for the trial judge to instruct the
    defence expert to undertake the cross-examination of the Crowns expert. If the
    trial judge was concerned that the appellant was not able to properly conduct
    the cross-examination of the Crowns expert, as he should have been, then he
    ought to have considered whether it was necessary to appoint
amicus
for that purpose. The trial judge also appears to have forgotten the
    fundamental principle that experts are supposed to be non-partisan:
R. v. McManus
,
    2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 67. It is hard to see how the
    defence expert could be expected to uphold his duty to be non-partisan once he
    was placed in the position of having to become the advocate for the appellant
    through cross-examination of the Crowns expert.

[11]

These errors occurred in the context of a trial that involved a legally
    complex issue of causation. The facts in this case were that the appellant was
    driving at a high rate of speed on a country road. He came over a hill to find
    another car coming in the other direction. The driver of the other car was impaired,
    and his car was over the centre line. The resulting collision caused the death
    of two people in the oncoming vehicle and serious injuries to one of the passengers
    in the appellants vehicle. The Crowns expert, while acknowledging that the collision
    would not have occurred had the other car not been over the centre line, also
    opined that, if the appellant had been travelling at a lower rate of speed, he
    would have had time to swerve and avoid the collision. The defence expert
    disagreed with the opinion of the Crowns expert.

[12]

It is not clear that the Crowns expert was entitled to give that latter
    opinion evidence. However, even if he was, the cross-examination of the expert,
    on that opinion, was of significant importance to the ultimate conclusion.

C.

Conclusion

[13]

For these reasons, the appeal was allowed. The conduct of this trial was
    anything but fair to the appellant. We would add that we are troubled by the
    failure of Crown counsel to intervene to ensure that the obvious problems with
    the manner in which the trial was proceeding were identified and corrected. On
    that point, we note that [t]he Crown is not an ordinary litigant. As a
    minister of justice, the Crown's undivided loyalty is to the proper
    administration of justice:
R v McNeil
, 2009 SCC 3, [2009] 1 S.C.R.
    66, at para. 49.

[14]

We ordered a new trial. In light of that conclusion, we do not reach the
    sentence appeal nor are we required to decide the appellants fresh evidence
    application.

[15]

Before concluding, we would add that the counsel, who wrote to the trial
    judge to draw his attention to the deficiencies from which the appellant
    suffered in terms of being unrepresented, is to be commended for taking the
    step that he did. His actions were in the best spirit of the conduct of members
    of the Bar and were in the interests of justice.

Alexandra
    Hoy A.C.J.O.

P.
    Lauwers J.A.

I.V.B.
    Nordheimer J.A.


