



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al-Enzi, 2014 ONCA 569

DATE: 20140731

DOCKET: C52834

Laskin, Goudge and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nawaf Barerh Al-Enzi

Appellant

Marie Henein and Matthew Gourlay, for the appellant

Jamie Klukach and Gavin MacDonald, for the respondent

Heard: February 26 and 27, 2014

On appeal from the conviction entered on September 26,
    2010 by Justice Roydon Joseph Kealey of the Superior Court of Justice, sitting
    with a jury.

Laskin J.A.:

A.

Introduction

[1]

On the night of August 18, 2006, Mohamed Zalal, an Ottawa-area drug
    dealer, was murdered. The appellant Nawaf Al-Enzi, Mahmoud Kayem and Ali
    Abdul-Hussein were charged with his murder. Abdul-Hussein made a deal with the
    Crown and gave a statement to the police in which he said that Al-Enzi shot
    Zalal in a car driven by Kayem. The Crown then proceeded jointly against
    Al-Enzi and Kayem, charging each with first degree murder. Both pleaded not
    guilty and blamed the other. Al-Enzi claimed that he was elsewhere when the
    murder occurred.

[2]

When the trial began, both Al-Enzi and Kayem were represented by
    experienced and competent defence counsel. Midway through the trial, the
    Crowns main witness, Abdul-Hussein, recanted his statement to the police. He
    was then cross-examined. Before his cross-examination was finished, Al-Enzis
    counsel withdrew from the case, leaving Al-Enzi unrepresented.

[3]

The trial judge adjourned the trial for nearly four months so Al-Enzi
    could find another lawyer. But, despite an extensive search throughout the
    province, no defence lawyer was prepared to step into the middle of a first
    degree murder trial.

[4]

Al-Enzi sought a severance or a mistrial so that he could be represented
    by counsel at a new trial. The trial judge refused either remedy. Instead, he
    ruled that the trial should proceed and appointed
amicus curiae
, with
    whom Al-Enzi had no relationship, to assist him during the rest of the trial. Neither
    accused testified or called any evidence. Kayem, represented throughout the
    trial, was acquitted; Al-Enzi was convicted and sentenced to the mandatory term
    of life imprisonment with no eligibility for parole for 25 years.

[5]

Al-Enzi appeals his conviction on two grounds. His first and main ground
    is that the trial judges refusal to grant a severance or a mistrial caused a
    miscarriage of justice. Al-Enzi submits that his right to be represented by
    counsel outweighed the importance of a joint trial. He argues that the trial
    judges ruling deprived him of a fair trial, both in appearance and in reality.

[6]

Al-Enzis second ground of appeal is that the trial judge erred by
    admitting private telephone conversations between Al-Enzi and his wife, in
    breach of the spousal privilege rule. This evidence was important to the
    Crowns case, and Al-Enzi argues that its erroneous admission prejudiced him.

[7]

In response, the Crown first submits that in the light of the
    antagonistic defences of the two accused, the trial judge exercised his
    discretion reasonably by ordering the joint trial to proceed and appointing
amicus
in an expanded role to assist Al-Enzi. Second, the trial judge admitted only
    conversations that were facilitated by three-way calls, and therefore were not
    privileged. Alternatively, if the trial judge erred, his error was harmless
    because the calls he admitted formed a relatively insignificant part of the
    Crowns case.

[8]

I agree with Al-Enzis main ground of appeal. I would therefore allow
    his appeal, set aside his conviction for first degree murder, and order a new
    trial.

B.

The
    Crowns theory AND the positions of the two accused

(1)

The relationship among the
    individuals involved

[9]

The victim Zalal and Al-Enzi were distant cousins, though not close. Both
    were in the drug trade. Abdul-Hussein is Al-Enzis brother-in-law. During the
    summer of 2006, Abdul-Hussein and Kayem became friends. Through that friendship,
    Kayem knew Al-Enzi.

(2)

The Crowns theory about how
    Zalal was murdered

[10]

According
    to the Crown, Zalal was murdered over a 9mm handgun. The handgun belonged to
    Zalal but he had been in jail, and while there, he loaned the gun to Al-Enzi.

[11]

Zalal
    was released from jail during the day on August 18 and demanded his gun back.
    Al-Enzi liked the gun and did not want to return it. The Crown alleged that
    Al-Enzi and his friends, Abdul-Hussein and Kayem, lured Zalal into a car on the
    pretext that he would get his gun back. Kayem drove and Abdul-Hussein sat in the
    back seat behind him; Zalal sat in the front passenger seat, and Al-Enzi sat
    behind him in the back seat. They drove east from Ottawa along Highway 417 late
    at night. Al-Enzi took out the gun Zalal had given him and shot Zalal in the
    back of the head. Kayem kept driving. Eventually they dumped Zalals body in a
    field, where it was discovered the next day.

[12]

In
    June 2008, nearly two years after the killing and after a lengthy police
    investigation, Abdul-Hussein, Kayem and Al-Enzi were charged with Zalals murder.

(3)

The positions of the accused

[13]

Originally,
    Kayem was charged separately, and Abdul-Hussein and Al-Enzi were charged
    jointly. After his arrest, Kayem was confronted with his DNA on a cigarette butt
    left at the scene. He then gave a statement in which he admitted that he was
    present at the murder but claimed that he had no advance knowledge of it. He
    said that Al-Enzi was the killer. After his preliminary inquiry, Kayem was
    committed for trial separately.

[14]

At
    the end of the preliminary inquiry for Abdul-Hussein and Al-Enzi, Abdul-Hussein
    made a deal with the Crown. He gave a
KGB
statement
[1]
to the police and pleaded guilty to accessory after the fact, for which he
    received a sentence of time served. In his statement, he also pointed to
    Al-Enzi as the killer. Like Kayem, he said that he was present for the murder
    but knew nothing about it in advance. He also said Kayem was shocked and
    surprised when Al-Enzi shot Zalal. After the police obtained Abdul-Husseins statement,
    the Crown decided to proceed jointly against Kayem and Al-Enzi.

[15]

Al-Enzi
    gave a statement to the police in which he said that he had been nowhere near
    the scene of the murder. He claimed that he had gone to the Exhibition with his
    wife and then to a nightclub in Gatineau.

C.

Background
    to the main ground of appeal

[16]

The
    question of the appropriate remedy after the withdrawal of Al-Enzis counsel
    must be sensitive to the context. It calls for a case-specific inquiry into the
    surrounding facts. It thus becomes necessary to review these facts in some
    detail. I begin with a list of the important points disclosed by that review.

·

Kayem and Al-Enzi blamed each other for Zalals murder.

·

When Al-Enzis counsel, Gary Barnes, withdrew, Kayems interest
    and the Crowns interest were aligned: both sought to show Abdul-Husseins
    police statement inculpating Al-Enzi was truthful and his recantation at trial
    was fabricated.

·

Barness withdrawal was required by the Law Societys Rules of Professional
    Conduct.

·

Although Barness withdrawal was mandatory, he gave uncontested
    statements that Al-Enzi was not to be blamed.

·

By the time of Barness withdrawal, the Crown had mounted a
    formidable case against Al-Enzi: the risk of conviction was high.

·

Al-Enzi, his family, Barnes and the Legal Aid Office all
    diligently searched throughout the province for a new lawyer.

·

Over 100 lawyers were contacted and not one was willing to take
    on Al-Enzis defence in the middle of the trial.

·

Al-Enzi had never met and had no relationship with the
amicus
appointed by the trial judge.

·

After Barness withdrawal and for the remainder of the trial,
    Al-Enzi continued to ask for his own lawyer.

·

Three more weeks of motions and evidence took place after Barness
    withdrawal. During that time, the Crown led more evidence to strengthen its
    case against Al-Enzi.

(1)

The trial proceedings

[17]

As
    I have said, after the Crown obtained Abdul-Husseins police statement, it
    proceeded jointly against Al-Enzi and Kayem. Al-Enzi was represented by Gary
    Barnes. Kayem was represented by Leonard Shore and Patrick McCann. All three
    were experienced Ottawa defence counsel. The trial began in April 2010 and
    concluded in September 2010.

[18]

The
    timeline of the trial was as follows:

·

April 14: Pre-trial motions begin. They include the spousal
    privilege
voir dire
(which is not concluded before the trial begins)

·

April 29: The jury begins to hear evidence

·

May 18: Barnes withdraws

·

May 18 - Aug 31: The trial adjourns to permit Al-Enzi to retain
    counsel

·

May 31  June 2  The severance application is argued and the
    trial judge reserves his ruling

·

August 6: The trial judge dismisses the severance application and
    appoints
amicus

·

August 31: The spousal privilege
voir dire
resumes

·

September 7: The trial resumes before the jury

·

September 17: The Crown closes its case

·

September 22: Al-Enzi,
amicus
, counsel for Kayem and the
    Crown address the jury

·

September 23: The jury begins its deliberations

·

September 26: The jury returns its verdict

[19]

May
    18, the date Barnes withdrew, was a pivotal moment in the trial. By then, the
    jury had been hearing evidence for three weeks. The Crown had called seven
    witnesses. Its last witness before Barness withdrawal was its main witness,
    Abdul-Hussein.

[20]

When
    the Crown called Abdul-Hussein to testify, he recanted his police statement. He
    said that he had been coerced into giving it to get out of jail and that he had
    essentially adopted Kayems statement to the police. The Crown, of course,
    applied to have Abdul-Husseins police statement admitted for its truth. The
    trial judge granted the application. Abdul-Hussein was then cross-examined by
    the Crown, by Barnes for Al-Enzi and by counsel for Kayem. Kayems counsel had
    nearly completed his cross-examination when Barnes asked to withdraw as counsel
    for Al-Enzi.

(2)

Barness withdrawal

(i)

The withdrawal

[21]

On
    the morning of May 18, Barnes advised the court that issues had arisen between
    him and Al-Enzi that made it impossible for him to continue to act for his
    client. He asked to withdraw as counsel. He said that the major issue between
    him and Al-Enzi was a matter of ethics. He had conferred with the Law Society
    and was instructed that he must apply to be removed from the record under rule
    2.09(7) of the Rules of Professional Conduct, which governs situations of mandatory
    withdrawal.  He undertook to help Al-Enzi find another lawyer.

(ii)

The positions of the parties

[22]

Crown
    counsel did not oppose Barness application, but said that the Crown would not
    consent to proceeding against an unrepresented accused on a first degree murder
    charge. At the same time, Crown counsel opposed a severance. He asked that
    Al-Enzi be instructed to retain counsel within a specified period.

[23]

Counsel
    for Kayem also said that the Crown could not proceed against an unrepresented
    accused. They said, however, that the prosecution need not proceed as a joint
    trial. They opposed a mistrial for both accused because it would severely
    prejudice Kayem.

[24]

By
    this time, the interests of Kayem and Al-Enzi were diametrically opposed. Kayem
    was aligned with the Crown. Both sought to discredit Abdul-Husseins
    recantation and demonstrate the truth of his original statement to the police. That
    statement suggested Kayem had not knowingly participated in Zalals murder. Abdul-Hussein
    had been effectively cross-examined on his recantation and Kayem did not want
    to lose the fruits of that cross-examination. Moreover, he had retained his
    counsel privately and had been in custody for two years. He wanted the trial to
    continue against him.

[25]

Al-Enzi,
    on the other hand, wanted to discredit Abdul-Husseins police statement and
    affirm the veracity of his recantation. And Al-Enzi wanted a new lawyer to
    represent him  indeed, he blurted out that it was going to take a year to find
    one. At the very least, he wanted a severance and a new trial.

[26]

The
    trial judge sent the jury away. He granted Barness application to withdraw and
    said that he would hear an application for severance. In the meantime, he
    adjourned the trial to permit Al-Enzi to find another lawyer.

(iii)

Al-Enzi is not to be blamed
    for Barness withdrawal

[27]

Because
    Barnes withdrew under the mandatory withdrawal rule of the Law Societys Rules
    of Professional Conduct, the Crown (both at trial and on appeal), and, as I
    will discuss, even the trial judge, suggested that Al-Enzi should be faulted
    for his counsels withdrawal.

[28]

The
    only evidence on the record, however, came from Barnes. And, at several of the
    court appearances after his withdrawal, Barnes unequivocally stated to the
    court that Al-Enzi was blameless. He was not to be faulted for his lawyers
    withdrawal. On July 8, for example, Barnes asserted that this was a no fault
    situation  nothing can impugned against Mr. Al-Enzi about it. No evidence
    on the record contradicted Barness assertions.

(3)

The unsuccessful
    attempts to find another lawyer

(i)

Initial positions

[29]

The
    trial judge was optimistic that Al-Enzi could find new counsel. He decided he
    would hear submissions on severance and reserve judgment on the application,
    and would monitor Al-Enzis progress in retaining new counsel by regular court
    attendances over the summer. The trial judge did not regard the case as
    terribly complex. He later expressed incredulity that no counsel would take the
    matter on.

[30]

From
    the moment Barnes withdrew, counsel for Kayem were highly skeptical that Al-Enzi
    would find another lawyer to take on the case in the middle of the trial. On
    May 18, McCann said it was pie-in-the-sky hopes and highly, highly unlikely
    that Al-Enzi could find another lawyer. A week later, Shore told the court that
    no lawyer worth his salt is going to come and we are all dreaming in
    technicolour to think that any serious lawyer would come in mid-trial.

[31]

Craig
    Fleming from the Toronto office of Legal Aid Ontario, which had been asked to
    assist in finding a new lawyer, had a similar view. On May 31, he told the
    trial judge that he had a grave concern on an ethical basis whether a lawyer
    could walk into a trial of this magnitude and complexity and provide competent
    representation.

[32]

The
    views of Kayems counsel and Fleming proved to be prophetic.

(ii)

Lawrence Greenspon
    is willing to act for Al-Enzi, but not mid-trial

[33]

On
    May 25, a week after his withdrawal, Barnes told the court that Al-Enzi had
    spoken to Lawrence Greenspon, a senior Ottawa lawyer. Greenspon was interested
    in taking the case, and Al-Enzi wanted him. Shore did not believe Greenspon
    would come in mid-trial. The trial judge responded that the trial was going
    ahead in September. Al-Enzi and Greenspon were not going to control the process.
    If Al-Enzi could not get a lawyer,
amicus
would be appointed.

[34]

On
    May 27, Greenspon appeared. He told the court that he expected to be retained
    but that he was not prepared to pick up the case in the middle of trial when he
    had not selected the jury or seen the evidence. He would take the case only if a
    new trial was granted.

[35]

The
    trial judge said that he would not grant a mistrial. He was not losing this
    trial. If he did not grant a severance, the trial would go forward with an
amicus
.

(iii)

The search for counsel

[36]

Barnes,
    the Legal Aid Office, Al-Enzi himself and Al-Enzis family all tried to find a
    lawyer to take on the case in the middle of the trial. The record is clear that
    they searched diligently and that although Al-Enzi preferred Greenspon, he was
    willing to accept another lawyer.

[37]

The
    record is also clear on the results of the search. Despite everyones diligent
    efforts over the course of several months, not a single lawyer was prepared to
    take on Al-Enzis defence in the middle of the trial. I set out here a brief
    summary of these efforts:

·

Ms. Champagne, a lawyer from the Ottawa office of Legal Aid,
    canvassed almost everyone on the extremely serious matters list in her region
    and contacted the major case management unit in Toronto. She received the
    identical response from everyone: no one was willing to pick up the case in the
    middle of the trial.

·

Barnes made similar inquiries. He expanded the search to lawyers
    on the extremely serious matters list for all of eastern Ontario. He, too, was
    told no one would step in.

·

Eventually, Barnes contacted the Criminal Lawyers Association
    and lawyers in Toronto and across eastern and southern Ontario. There, too, he
    had no success finding a lawyer willing to take on Al-Enzis defence.

·

Al-Enzi and his family contacted lawyers throughout the province.
    Barnes confirmed that Al-Enzi and his family had actively searched for a lawyer.
    Their efforts were also unsuccessful.

[38]

All
    told, over 100 lawyers were contacted. Nobody was willing to act.

(iv)

The provisional appointment of
amicus

[39]

In
    late June at one of the attendances to update the trial judge, Barnes said that
    two lawyers who had spoken to him were willing to act as
amicus
. One
    was Clay Powell, a lawyer with many years experience at the criminal bar, both
    as a Crown counsel and as a defence lawyer.

[40]

The
    Crown asked that
amicus
be appointed immediately. Barnes objected. He
    argued that appointing
amicus
was inappropriate because Al-Enzi wanted
    to retain his own lawyer and had done nothing blameworthy to prolong the
    proceedings. Indeed, he had done everything in his power to find another lawyer
    and had not stopped looking. Barnes contended a severance was the most
    effective way to prevent Al-Enzi from being prejudiced.

[41]

The
    trial judge disagreed with Barnes. He gave an oral ruling appointing Powell as
amicus
provisionally. He did not define Powells role but did say that solicitor-client
    privilege would attach to Powells communications with Al-Enzi. The question
    whether Powell was to be appointed for the balance of the trial was deferred
    for further argument. Up until Powells provisional appointment, Al-Enzi had
    never met or even spoken to him.

[42]

The
    trial judge then addressed Al-Enzi directly and told him that his time to find
    counsel was drawing down. The trial was going to continue on September 7. Al-Enzi
    replied that he did not want
amicus
; he wanted his own lawyer.

(v)

Greenspon
    and Fleming

[43]

During
    the search for new counsel, two related matters arose: whether Greenspons
    offer to act if a severance were granted deterred other counsel from taking on
    the case; and whether Fleming from the Legal Aid Office was willing to act for
    Al-Enzi. I will deal briefly with the evidence on each of these matters.

[44]

At
    one of the many court appearances during the summer of 2010, Crown counsel
    claimed that Greenspons involvement had dissuaded other defence lawyers from
    stepping in. The trial judge apparently held the same view. During the argument
    on the provisional appointment of
amicus
, he observed that Greenspons
    willingness to act only if a new trial was granted had poisoned the process.

[45]

The
    record, however, does not bear this out. Even before Greenspons name surfaced,
    Barnes, Al-Enzi and even the Legal Aid Office had tried unsuccessfully to find
    another lawyer. This was hardly surprising. Kayems very experienced defence
    counsel had told the trial judge that the court was dreaming in technicolour
    to think another lawyer would step in.

[46]

Barnes
    did acknowledge that some lawyers he had contacted were turned off when told
    that Greenspon was prepared to take the case if the trial began anew. But
    Barnes also said that the lawyers he had spoken to had given several other reasons
    for declining to act: they had no involvement in jury selection, no involvement
    in the various pre-trial motions and no opportunity to cross-examine the
    important witnesses who had already testified. As I read the record, the trial
    judges observation that Greenspons involvement had poisoned the entire
    process is not supportable.

[47]

At
    one of the court appearances during the summer, Fleming seemed to suggest that
    he would be willing to act as defence counsel if Al-Enzi agreed. In this court,
    the Crown submitted that Al-Enzi chose not to avail himself of Mr. Flemings
    willingness to represent him for the continuation of the trial.

[48]

Unfortunately,
    the record is unclear on whether Fleming actually extended the offer, and if
    so, whether Al-Enzi declined it. Instead, the matter seems to have been left
    hanging. That Fleming would have been willing to act seems quite inconsistent
    with his initial comment to the court: he would have grave concern on an
    ethical basis whether a lawyer could step into the trial and adequately
    represent Al-Enzi. Moreover, in his many comments on the search for counsel and
    in his severance ruling, the trial judge does not advert to Flemings supposed willingness
    to act. On this record, therefore, no reliable inference can be drawn that
    Fleming was prepared to act for Al-Enzi.

(4)

The Crowns case against
    Al-Enzi

[49]

When
    Barnes withdrew, unquestionably the Crown had already put forward a formidable
    case against Al-Enzi. Its principal evidence consisted of the following:

(i)
Abdul-Husseins police statement
: In his statement,
    Abdul-Hussein described in some detail how Al-Enzi shot Zalal and disposed of
    his body. Although Abdul-Hussein recanted his statement at trial, both the
    Crown and Kayems counsel had effectively cross-examined Abdul-Hussein on the
    implausibility of his recantation.

(ii)
Kayems police statement
: it substantially corroborated
    Abdul-Husseins statement.

(iii)
Forensic evidence
: Zalal was killed by a single gunshot
    wound to the head. The Crown claimed that he was shot while sitting in the
    passenger seat of the car. Blood staining on Zalals clothing was shown to be
    consistent with his being in a seated position when shot and then slumping
    forward with his head down.

(iv)
Telephone records
: Phone records for August 18, the day
    of the murder, showed 17 telephone calls between Al-Enzi and Kayem, a level of
    communication that was allegedly unusual for them. Additionally, phone records
    of the relevant service towers were consistent with Abdul-Husseins description
    of the movement of the perpetrators on August 18.

(v)
Al-Enzis intercepted telephone calls
: After Zalal was
    killed, Kayem went to Dubai. While he was there, Al-Enzi spoke with him on the
    phone many times. During their calls, Al-Enzi repeatedly told Kayem that the
    police knew nothing and that if they said nothing they would be alright. He
    tried to persuade Kayem to stay in Dubai, but also told him that if he came
    back he should resist breaking down.

[50]

The
    Crown also relied on intercepted telephone calls between Al-Enzi and various
    friends and family members, which took place while Al-Enzi was in jail. The
    calls with Al-Enzis wife contained what the Crown alleged were conversations
    about how to keep Kayem in Dubai and keep her brother, Abdul-Hussein, from
    talking to the police. Early in the trial, Barnes had applied to exclude these
    conversations on the ground of spousal privilege. That application had not been
    completed when Barnes withdrew. It was dealt with when the trial resumed. The
    trial judge ruled that the calls were admissible.

(5)

The severance ruling and the
    appointment of
amicus

[51]

The
    severance application took place between May 31 and June 2. As he said he
    would, the trial judge reserved his ruling. He gave his ruling on August 6. He
    dismissed the application and appointed Powell as
amicus
in an
    expanded role to assist Al-Enzi.

[52]

In
    his ruling, the trial judge framed the question he had to resolve this way:

[T]he question is, in all the circumstances present in this
    case, should Mr. Al-Enzis right to be represented by counsel of his choice
    prevail over the Crowns right to have the one trier of fact deal with jointly
    accused persons, and Mr. Kayems right to the continuance of his trial now
    rather than later[?]

[53]

The
    trial judge then gave three reasons why he was ordering the trial to proceed
    jointly against both accused:

·

[T]he overwhelming public interest in joint trials where the
    accused blame one another.

·

Al-Enzi is without counsel by his own doing, having directly or
    indirectly made it necessary for Mr. Barnes to withdraw from the case.

·

[T]he very substantial criminal record of Mr. Al-Enzi shows
    that [h]e is no neophyte, but rather it would seem he is quite familiar with
    the criminal justice system and retaining lawyers to defend him.

[54]

The
    trial judge therefore concluded that the trial would continue against both
    accused before the jury on September 7, though Al-Enzi would be without
    counsel.

[55]

Then,
    to assure trial fairness for Al-Enzi, the trial judge appointed Powell as
amicus
in an expanded role. This expanded role included:

·

Consulting with and taking instructions from Al-Enzi, and
    assisting in the cross-examination of the remaining witnesses;

·

Leading any evidence Al-Enzi chose to call; and

·

Making any appropriate submissions to the court and final submissions
    to the jury on Al-Enzis behalf.

[56]

In
    addition, the trial judge affirmed that communications between Al-Enzi and
    Powell shall be cloaked with the usual solicitor-client privilege.

(6)

The resumption and
    completion of the trial

[57]

On
    August 31, the court reconvened for the
voir dire
on the issue of
    spousal privilege for the intercepted telephone calls between Al-Enzi (who was
    in jail at the time of the phone calls) and his wife. Powell was present during
    the
voir dire
and the trial judge told Al-Enzi that Powell was
    available to assist him. Al-Enzi replied that Powell was the courts lawyer,
    not my lawyer. I dont have a lawyer. Im forced to represent myself. I dont
    know how to do that.

[58]

On
    September 7, the trial resumed before the jury. The jurors were given
    transcripts of the evidence to date to refresh their memory. After Kayems
    counsel completed his cross-examination of Abdul-Hussein, the Crown called more
    witnesses to strengthen its case against Al-Enzi. Powell did cross-examine
    these witnesses. Throughout the remainder of the trial, however, Al-Enzi
    continued to assert his right to counsel and express his dissatisfaction with
    the role of
amicus
. He did on occasion act as his own counsel, usually
    by objecting to the Crowns evidence.

[59]

Neither
    Kayem nor Al-Enzi called a defence. Powell and Al-Enzi gave closing addresses
    to the jury. Both were brief.

[60]

The
    jury began its deliberations on September 23 and gave its verdict on September
    26. It convicted Al-Enzi and acquitted Kayem.

D.

Did the trial
    judges refusal to grant a severance or a mistrial cause a miscarriage of
    justice
?

(1)

The legal context

[61]

The
    legal context for analyzing this main ground of appeal is well established and
    uncontroversial. Section 591(3) of the
Criminal Code
sets out the test
    for severance: the court may order that two accused be tried separately where
    it is satisfied that the interests of justice so require. This provision
    confers broad discretion on a trial judge. In exercising that discretion, the
    trial judge must take account of the interest of each accused and of the
    public, represented by the Crown: see
R. v. Suzack
(2000), 141 C.C.C.
    (3d) 449 (Ont. C.A.), at para. 85, leave to appeal to S.C.C. refused, [2000]
    S.C.C.A. No. 583.

[62]

When,
    as in this case, two persons are accused of committing a crime in concert,
    there is a presumption in favour of trying the accused together. That
    presumption applies with particular force when two accused mount a cut-throat
    defence and blame each other, as Kayem and Al-Enzi did: see
Suzack
, at
    paras. 87-89. Thus, in cases in which two accused engage in cut-throat tactics,
    only exceptionally should they be tried separately.

[63]

Similar
    considerations apply to decisions on applications for a mistrial. In
    determining whether to grant a mistrial, a trial judge must consider whether
    there is a real danger of prejudice to the accused or of a miscarriage of
    justice if the trial were to continue:
R. v. Burke
, 2002 SCC 55, [2002]  2 S.C.R. 857, at para. 74.
As
    with decisions on severance applications, the trial judge must balance the
    interests of the accused against other considerations, including the public
    interest:
Burke
, at para. 75.

[64]

Because
    severance decisions (and decisions refusing a mistrial) are discretionary, they
    are entitled to deference on appeal. An appellate court is justified in
    intervening only if the trial judge exercised this discretion unreasonably or
    acted on a wrong principle.

[65]

In
    this part of my reasons, I will focus on the trial judges severance decision
    because severance was the subject of a formal application and ruling, while the
    possibility of a mistrial was only referred to in passing. Nonetheless, the two
    remedies engage similar considerations.

(2)

The trial judges
    severance ruling

[66]

Once
    Barnes withdrew as counsel for Al-Enzi in the middle of the trial, the trial
    judge faced a difficult decision about how to proceed. He had to consider
    Al-Enzis interest; he had to consider Kayems interest; he had to consider the
    Crowns interest; and he had to consider the strong presumption in favour of
    joint trials when two accused are alleged to have acted in concert and put
    forward antagonistic defences. There is indeed some merit to Ms. Klukachs
    submission that in weighing these considerations and denying severance, the
    trial judge did not err.

[67]

However,
    for reasons I will discuss, I have concluded that the trial judges severance
    ruling cannot stand. He asked himself the wrong question and thus acted on a
    wrong principle. And he exercised his discretion unreasonably by relying on two
    unsupportable considerations and by failing to take into account other highly
    relevant considerations.

[68]

This
    is one of those exceptional cases in which the interests of justice demand that
    Al-Enzi be given a new trial so that he can be defended throughout by his own
    counsel. The appointment of
amicus
, even with an expanded mandate, was
    not an adequate substitute. The trial judges ruling thus deprived Al-Enzi of
    the reality and appearance of a fair trial and produced a miscarriage of
    justice.

[69]

Although
    it is not necessary to decide whether a severance or a mistrial was the
    appropriate remedy, an order for severance would likely have been preferable. It
    would have preserved the proceedings against Kayem and would have put the two
    accused in the position they were in when they were first charged  with
    separate trials. The availability of Abdul-Husseins police statement
    implicating Al-Enzi would have diminished any prejudice to the Crown.

[70]

In
    his severance ruling, the trial judge said that the question he had to decide was
    whether Al-Enzis right to be represented by counsel of his choice prevailed
    over the Crowns right to proceed jointly against the two accused with
    antagonistic defences and Kayems right to continue the trial. This was not the
    right question. The trial judge thought he had two options: preserving the
    joint trial or giving Al-Enzi his counsel of choice at a new and separate trial.
    But this was not a case in which an accused insisted on counsel of choice. This
    case was about a choice between counsel or no counsel. Although Al-Enzi did
    want Greenspon to act for him, he would have accepted another lawyer. And the
    critical fact is that no lawyer was willing to take on his defence in the
    middle of a first degree murder trial  a fact the trial judge seemed unwilling
    to accept or even recognize.

[71]

The
    right question  the question the trial judge ought to have asked himself  is
    this: would requiring Al-Enzi to proceed without counsel but with the
    assistance of
amicus
strike a reasonable balance between Al-Enzis
    right to a fair trial, the Crowns interest in a joint trial and Kayems
    interest in the continuation of this trial?  That question should have led, in
    my view, to a very different answer from the one given by the trial judge.

[72]

The
    trial judge compounded this error by giving two unsupportable reasons for his
    ruling and by failing to take into account other important considerations. As I
    have said, the trial judge gave three reasons for his ruling: the public has an
    overwhelming interest in joint trials when two accused blame each other for the
    crime; Al-Enzi caused Barnes to withdraw; and Al-Enzi was familiar with the
    criminal justice system from his extensive criminal record.

[73]

As
    Al-Enzi and Kayem mounted cut-throat defences, the strong presumption in favour
    of joint trials was an important consideration on the severance application. Indeed,
    it seemed to dominate the trial judges thinking in the weeks leading up to his
    severance ruling. More than once, he commented on his overriding obligation
    to preserve the integrity of the joint trial. As important as this
    consideration was, however, it was not the exclusive consideration. And I do
    not agree with the other two reasons given by the trial judge.

[74]

For
    the first of these reasons  that Al-Enzi caused Barness withdrawal and thus
    was to blame for it  the trial judge relied on rule 2.09(7) of the Law
    Societys Rules of Professional Conduct, which prompted Barness application. The
    Rule states:

Mandatory
    Withdrawal

(7) Subject to the rules about criminal proceedings
    and the direction of the tribunal, a lawyer shall withdraw if

(a) discharged by the client,

(b) the lawyer is instructed by the client to do
    something inconsistent with the lawyers duty to the tribunal and, following
    explanation, the client persists in such instructions,

(c) the client is guilty of dishonourable conduct
    in the proceedings or is taking a position solely to harass or maliciously
    injure another,

(d) it becomes clear that the lawyers continued
    employment will lead to a breach of these rules,

(d.1) the lawyer is required to do so pursuant to
    subrules 2.02(5.1) or (5.2) (dishonesty, fraud, etc. when client an
    organization), or

(e) the lawyer is not competent to handle the
    matter.

[75]

As
    Al-Enzi did not discharge Barnes, his application would have been based on any
    one or more of subsections (b), (c) and (d). All three of these subsections
    speak explicitly or implicitly of dishonourable conduct by the client. Because
    they do, it seems tempting to infer that Al-Enzi should be blamed for Barness
    withdrawal.

[76]

But
    that is not a fair inference to draw for two reasons. First, Barnes stated
    unequivocally to the court several times that Al-Enzi should not be blamed for
    his withdrawal. It is, Barnes said, a no-fault situation  nothing can be
    impugned against Mr. Al-Enzi about it. Barnes was not contradicted on his
    statements, and no one has questioned his credibility. Indeed, he acted
    admirably throughout these proceedings.

[77]

Second,
    to attribute blame here is rank speculation, not fair inference, in the absence
    of any evidence about what occurred between Al-Enzi and Barnes. Solicitor-client
    privilege prevented Barnes from disclosing his discussions with Al-Enzi to the
    court. There is simply no evidence on the record of any dishonourable conduct
    on the part of Al-Enzi or of any attempt by him to manipulate the proceedings.
    He did not fire Barnes and he did not want Barnes to withdraw.

[78]

The
    second of the trial judges reasons with which I disagree is his reliance on
    Al-Enzis criminal record. In some cases, that might be a legitimate
    consideration. But not in this case. Al-Enzis criminal record and therefore
    his apparent familiarity with the criminal justice system had little
    significance in the light of the complexity of this case and the seriousness of
    the charge. Moreover, the record does not show that Al-Enzi was using his
    knowledge of the criminal justice system to manipulate the proceedings against
    him.

[79]

Thus,
    of the three reasons given by the trial judge for denying severance, only the
    first, the presumption in favour of joint trials, was a fair consideration. Other
    considerations not referred to by the trial judge should have been taken into
    account in the exercise of his discretion. They include:

·

The trial was complex, both legally and factually. And the
    admissibility and use of dozens of wiretaps remained to be decided when Barnes
    withdrew.

·

A charge of first degree murder is the most serious charge in
    Canadian law. Although the right to counsel at trial is not an absolute right,
    representation by counsel is generally essential to a fair trial, and that is
    especially so when an accused is charged with a serious offence and the trial is
    likely to be complex. See
R. v. Bitternose
, 2009 SKCA 54, 244 C.C.C.
    (3d) 218; and
R. v. Rowbotham
(1988), 41 C.C.C. (3d) 1 (Ont. C.A.).

·

The Crown and Kayem, both represented by experienced counsel,
    were aligned in interest against Al-Enzi. If a severance were refused, Al-Enzi
    would have to face these adversaries unrepresented.

·

The Crowns case against Al-Enzi was formidable, heightening his
    need to be represented.

·

Al-Enzi was not particularly literate and was not conversant
    with the use of computers,
[2]
making it difficult for him to defend himself without assistance.

·

Although Al-Enzi was represented for part of the trial, including
    for the cross-examination of Abdul-Hussein, the Crowns main witness, other
    important parts of the trial had not taken place when Barnes withdrew. The
    Crown still had considerable evidence to lead to buttress its case against
    Al-Enzi, and closing jury addresses had yet to be given.

·

There was no evidence that Al-Enzi was attempting to frustrate the
    proceedings or, as Crown counsel at trial charged, to engineer a severance. Moreover,
    Al-Enzi had no history of discharging or precipitating the withdrawal of his
    lawyers.

·

Al-Enzi and others trying to help him made sincere and diligent
    efforts to find a lawyer to replace Barnes.

·

The evidence uniformly showed that not a single lawyer in the
    province would take over the defence of a first degree murder charge in the
    middle of the trial.

·

While severance would mean losing the advantage of a joint trial,
    the Crown still had Abdul-Husseins police statement implicating Al-Enzi in
    Zalals murder.

[80]

These
    considerations argued forcefully for a severance, unless an
amicus
to
    assist Al-Enzi for the rest of the trial was an adequate substitute.

(3)

Amicus
was
    not an adequate substitute for counsel for Al-Enzi

[81]

The
    traditional role of
amicus
was to assist the court, typically by
    making submissions on points of law. Only indirectly did the traditional
amicus
assist a party. The trial judge, however, did not appoint
amicus
in a
    traditional role. He appointed Powell in an expanded role more akin to the role
    of defence counsel. That expanded role fits uncomfortably with the Supreme
    Court of Canadas recent decision in
Ontario v. Criminal Lawyers
    Association of Ontario
, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 49-56. However,
    this trial took place before the Supreme Courts decision, and thus the trial
    judge did not have the benefit of that decision.

[82]

Even
    with an expanded mandate, however,
amicus
was not an adequate substitute
    for defence counsel. Al-Enzi needed a person fully familiar with his case, a
    person in whom he had full trust and confidence. The solicitor/client
    relationship is built on intangible characteristics, not transferable to a
    person appointed by the court  certainly not a person with whom the client has
    had no relationship: see
R. v. McCallen
(1999), 43 O.R. (3d) 56 (C.A.);
    and
R. v. Rafferty
, 2013 ONCA 741, [2013] O.J. No. 5550. Both the actual
    fairness and perceived fairness of criminal proceedings against an accused
    partly depend on this relationship. Courts zealously guard ones right to be
    represented by a lawyer at a criminal trial. Only in rare cases do courts limit
    this right. In my view, this was not one of those rare cases.

[83]

In
    saying all of this, I do not criticize Powell or his performance as
amicus
.
    Any
amicus
would have fallen short. Powell himself recognized this. He
    refused to take on the duties of Al-Enzis defence counsel mid-stream; yet the
    trial judge expected him to discharge these very duties in fulfilling the
    expanded role of
amicus
. It is telling that on several occasions
    during the trial, Powell commented that he had not had sufficient time to fully
    familiarize himself with the facts of the case. This comment alone should have
    signalled to the trial judge that the appointment of
amicus
, even in
    an expanded role, could not assure Al-Enzis right to a fair trial. And the
    most telling evidence of all that
amicus
was not an adequate
    substitute for defence counsel  not one person was willing to take this case
    on as defence counsel.

[84]

The
    Crown makes two submissions in support of its contention that the refusal of a
    severance and the appointment of
amicus
did not cause an injustice:
    Al-Enzis right to a fair trial was not prejudiced because Powell performed
    admirably once he was appointed; and this court has upheld first degree murder
    convictions at least twice in cases in which the accused was unrepresented for
    part of the trial and had only
amicus
to assist him: see
R. v.
    Amos
, 2012 ONCA 334, 292 O.A.C. 298, leave to appeal to S.C.C. refused,
    [2014] S.C.C.A. No. 160; and
R. v. Phung
, 2012 ONCA 720, [2012] O.J.
    No. 5058, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 97. I do not
    accept either of the Crowns submissions.

[85]

It
    seems to me that an inquiry into Powells performance and whether it did or did
    not prejudice the fairness of Al-Enzis trial is neither a desirable nor a
    relevant inquiry: see
McCallen
, at pp. 78-80. This is a case in which the
    accused was deprived of counsel, not a case in which he claimed to be
    ineffectively represented by counsel. In a claim of ineffective representation
    the issue of prejudice is central to an appeal courts determination of whether
    a miscarriage of justice has occurred. See
R. v. Joanisse
, [1995] 102
    C.C.C. (3d) 35 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A.
    No. 347; and
R. v. G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at para.
    29. When, however, an accused is deprived of the right to counsel altogether,
    that deprivation almost always gives rise to the appearance of unfairness. No
    demonstration of actual prejudice is therefore needed.

[86]

In
McCallen
, at pp. 78-80, OConnor J.A. rejected the Crowns argument
    that an accused had to show actual prejudice from the denial of a right to
    counsel of choice. The denial itself created a perception of unfairness and
    resulted in a miscarriage of justice. That perception is even stronger here,
    when Al-Enzi was deprived not just of counsel of his choice, but of counsel
    altogether. He was left unrepresented, facing two well-represented
    adversariesthe Crown and Kayemwho were lined up against him. Forcing him to
    proceed without a lawyer was unfair and produced a miscarriage of justice.

[87]

There
    is a related reason why it is not desirable to try to assess whether Al-Enzi
    was prejudiced. To do so when he was unrepresented would require the court to
    attempt to guess how the trial might have played out if he had been
    represented. As Rosenberg J.A. said in
R. v. Rushlow
, 2009 ONCA 461,
    245 C.C.C. (3d) 505, at paras. 39-40: the court must, however, be wary of
    speculating as to how the case might have been different had counsel been
    appointed . [P]ondering the utility of assistance of defence counsel in a
    complex case is an inherently dangerous exercise.  In short, one can never
    really know what would have happened if Al-Enzi had had his own counsel
    throughout the trial.

[88]

Finally
    I come to this courts decisions in
Amos
and
Phung
. As I said at the beginning of these reasons,
    deciding whether the refusal of a severance caused an injustice calls for a
    case-specific review of the record that is sensitive to the context giving rise
    to the refusal. The facts and context in both
Amos
and
Phung
were very different from the facts and context in this case. Most strikingly,
    the accused in both
Amos
and
Phung
were blatantly trying to
    manipulate the proceedings. No such finding can be made here. The evidence
    points to the opposite conclusion.

[89]

In
Amos
, the appellant and two others were jointly tried for first degree
    murder. At the end of the Crowns case, the appellants counsel applied to be
    removed from the record, and the trial judge granted the application. The
    appellant then sought an adjournment to retain new counsel. The trial judge
    refused the adjournment. He found that the request was a sham and appointed
    the appellants former counsel as
amicus
. The appellant was convicted.
    On the appeal, he argued that the trial judge erred in refusing an adjournment
    and in appointing as
amicus
a lawyer in whom he had lost confidence.

[90]

This
    court dismissed the appeal. Watt J.A., writing for the panel, held that there
    was an adequate evidentiary foundation for the trial judges finding of a sham
    request for an adjournment. In particular, the appellant ignored the trial judges
    offer of assistance to find a new counsel. Instead the appellant called only
    one lawyer  the lawyer he had fired after the preliminary inquiry because of
    her lack of experience with murder cases. Additionally, in asking to be removed
    from the record, the appellants lawyer told the court that he could not in
    good conscience follow his clients instructions, suggesting those
    instructions were inconsistent with the lawyers professional ethical
    obligations.

[91]

By
    contrast, Al-Enzi and others searched extensively for a replacement counsel,
    contacting over 100 lawyers. Also, Barnes did not impute any unethical
    behaviour to Al-Enzi; he said that Al-Enzi was blameless.
Amos
does
    not assist the Crown.

[92]

In
Phung
, the appellant and another were charged with first degree murder
    and attempted murder. Midway through the trial, the appellant fired his lawyer
    and sought an adjournment to retain new counsel. The trial judge refused to
    adjourn the trial. He described the appellants conduct as patent manipulation.
    Indeed, the accused had been overheard saying that he [had] to get this judge
    off the panel, and he had asked two separate court officers if he would obtain
    a mistrial if he fired his lawyer. This was powerful evidence that the accused
    was attempting to engineer a mistrial, and it is understandable why the trial
    judge denied that request.

[93]

Instead,
    with the appellants consent, the trial judge appointed two
amici
to
    assist him, one of whom had argued his request for an adjournment. The
    appellant was convicted of both murder and attempted murder. One of his grounds
    of appeal was that the trial judge erred by refusing an adjournment and forcing
    him to proceed unrepresented. This court rejected this argument (and the other
    grounds of appeal) and dismissed the appeal.

[94]

The
    panel noted that the trial judges refusal to grant an adjournment was rooted
    in his finding that the appellant was trying to manipulate the process and delay
    the proceeding. In the panels view, that considered and pivotal finding is
    unassailable. In addition, the panel held that the appellant had not shown how
    his trial was unfair or appeared to be unfair because he represented himself,
    but with the assistance of an
amicus
whose appointment he consented
    to.

[95]

By
    contrast, Al-Enzi did not fire his lawyer and he did not try to manipulate or
    delay the proceedings. And he did not consent to Powells appointment as
amicus
.
    Throughout the trial, he said repeatedly that he wanted his own lawyer.
Phung
,
    too, does not assist the Crown.

[96]

For
    all these reasons, I conclude that the trial judge exercised his discretion
    unreasonably by denying Al-Enzi a severance or a mistrial so that he could
    retain a lawyer to represent him at a new trial. The appointment of
amicus
,
    even with an expanded mandate, was not an adequate substitute for counsel for
    Al-Enzi. The trial judges denial of a severance or a mistrial deprived Al-Enzi
    of a fair trial, both in appearance and in reality. It produced a miscarriage
    of justice.

E.

Conclusion

[97]

I
    would allow the appeal, set aside Al-Enzis conviction for first degree murder,
    and order a new trial. It is thus unnecessary to consider Al-Enzis other
    ground of appeal concerning the admissibility of the telephone conversations
    between him and his wife.

[98]

I
    would like to thank all counsel for their advocacy on this difficult appeal.

Released: July 31, 2014  JL

John
    Laskin J.A.

I
    agree S.T. Goudge J.A.

I
    agree David Watt J.A.





[1]
A
KGB
statement is a previous
    inconsistent out-of-court statement that, although hearsay, is admissible for
    the truth of its contents because it is both necessary and reliable: see
R. v. K.G.B.
, [1993] 1 S.C.R. 740.



[2]
Al-Enzis unfamiliarity with computers put him at an additional disadvantage
    because during the trial, everybody in the courtroom  the police, Crown
    counsel and Kayems counsel  were using computers to facilitate their work.


