



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to in
    subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Olusoga, 2019 ONCA 565

DATE: 20190705

DOCKET: C66619

Feldman, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Temitope Olusoga

Appellant

Temitope Olusoga, acting in person

Michael Dineen, duty counsel

Andrew Hotke, for the respondent

Heard: June 4, 2019

On appeal from the convictions entered by Justice Peter
    Bawden of the Superior Court of Justice on November 1, 2018, and from the
    sentence imposed on January 28, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of one count of sexual assault and one count
    of threatening death following a trial by judge alone. He was sentenced to two
    years in custody, less time served. In his notice of appeal, the appellant
    indicated that he appealed from conviction and sentence. In oral argument, duty
    counsel focused on the conviction appeal. The appellant did not make any oral
    submissions.

[2]

Duty
counsel advances one ground of appeal: allowing
    the appellants convictions to stand in the face of the breach of
    solicitor-client privilege that occurred during his trial would constitute a
    miscarriage of justice.
We agree. For the reasons that follow, we would
    allow the conviction appeal and order a new trial. It is therefore unnecessary
    to address the sentence appeal.

Background

[3]

The appellant pleaded not guilty to sexual assault and threatening
    death. The events giving rise to those charges occurred on September 27, 2015.
    Both the appellant and the complainant testified at trial about what happened.

[4]

The complainant testified that while she was waiting at a bus stop, the
    appellant approached her from behind and said either hey cutie or hey sexy.
    When she did not respond, the appellant grabbed her by the hair and put his
    hand over her mouth. Then, he dragged her on her knees to an alleyway and put
    his hand down her shirt, underneath her bra. He also put his hand inside her
    leggings, underneath her underwear, and touched her genitals. The appellant
    kept a hand over the complainants mouth throughout the assault. At one point,
    the complainant managed to get the appellants hand off her mouth long enough
    to start screaming. This prompted the appellant to tell her shut the fuck up
    or I will kill you.

[5]

In his testimony, the appellant denied sexually assaulting the
    complainant, though he admitted to assaulting her. He stated that he was trying
    to frighten the complainant, because he mistakenly thought she was a friend of
    his former girlfriend. He hoped that by frightening the complainant, his former
    girlfriend would get the message that he was still angry with her. So, he
    walked up to the complainant and said wheres Tasha, referring to his former
    girlfriend. When the complainant did not respond, he grabbed her by the collar,
    shook her, and slapped her across the face. He asked the complainant where are
    all your friends now, to which she responded several times by asking what he
    was talking about. After the appellant slapped her, the complainant fell to the
    ground and the appellant decided to walk away. He denied touching the
    complainants breast or reaching down her pants. He acknowledged that he may
    have told her to shut the fuck up but denied threatening to kill her.

[6]

In his reasons for judgment, the trial judge rejected the appellants
    testimony. He accepted the complainants testimony, and found that it left him
    without a reasonable doubt as to the appellants guilt.

[7]

Before turning to the trial judges reasons, however, it is necessary to
    review an interaction that occurred between the trial judge and defence counsel
    during submissions.

[8]

The defence presented its closing submissions first. During the course
    of those submissions, the trial judge suggested to defence counsel that he had
    violated the rule in
Browne v. Dunn
(1893), 6 R. 67 (U.K.H.L.), by
    failing to put the appellants version of events to the complainant during her
    testimony. Counsel informed the trial judge that this was because he did not
    know that was how his client would testify. The trial judge continued to
    question defence counsel about why he did not put certain questions to the
    complainant. The trial judge suggested that he knew defence counsel to be an
    ethical lawyer, and that it must therefore be the case that the appellant
    testified to a different version of events than counsel expected to hear.
    Counsel, in breach of solicitor-client privilege, confirmed that this was the
    case.

[9]

In his reasons for judgment, the trial judge referred to the information
    disclosed to him in breach of solicitor-client privilege as one reason for
    rejecting the appellants testimony.
[1]
He explained:

[The rule in Browne v. Dunn is] really a rule of fairness, and
    its a well-known rule. All counsel are obliged to follow it. So in the context
    of this case, we know what [the complainant] has said about what happened to
    her. She was cross-examined very well, by an experienced and well-prepared
    lawyer, and in the course of that cross-examination a very well-prepared lawyer
    never said to her that she had been slapped. He never put to her that she had
    said what are you talking about? when you had said to her where are your
    friends now?

[]

Well, if that had actually occurred, then it would demonstrate
    that she could hear, and she was responding to you, so it was an important
    point in the trial. It wasnt put to her. The reason it wasnt put to her was
    because your lawyer didnt know, and that is one of the very rare instances
    where this rule of Browne and Dunn causes me as a judge to say I cant rely as
    much on the evidence of Mr. Olusoga. The legal term for it is drawing an
    adverse inference, but the reality of it is simply saying look, if this guy
    hasnt told his own lawyer what hes going to say on the stand, how much weight
    can I give it? [Emphasis added.]

[10]

The
    trial judge went on to say that the adverse inference he drew based on
Browne
    v. Dunn
was not determinative in the context of this case because there
    were several reasons for rejecting the appellants evidence,
including
    that it did not accord with the DNA evidence tendered by the Crown
. He
    went on to explain why he accepted the complainants evidence, and why he was
    left without a reasonable doubt about the appellants guilt in all the
    circumstances of the case.

Argument and Analysis

[11]

Duty counsel advances one ground of appeal: the breach of
    solicitor-client privilege that followed the trial judges questions about the
    rule in
Browne v. Dunn
, and the trial judges
    use of that information in finding the appellant guilty, constitutes a
    miscarriage of justice: see
Criminal Code
.
    R.S.C. 1985, c. C-46, s. 683(1)(a)(iii). It is immaterial, he contends, that
    the information that was improperly disclosed to the trial judge and the
    adverse inference he drew based on that information were not essential to his
    findings of guilt. Duty counsel submits that the appearance of unfairness in
    this case is so severe that the appeal must be allowed.

[12]

Counsel for the Crown takes the position that the appeal should be
    dismissed because the information disclosed to the trial judge in breach of
    solicitor-client privilege had no impact on his decision to reject the
    appellants testimony. Counsel notes that the trial judge gave several proper
    reasons for rejecting the appellants evidence. Further, the trial judge
    explicitly stated that the adverse inference he drew  purportedly relying on
    the rule in
Browne v. Dunn
 was not
    determinative in rejecting the appellants testimony. The Crown contends that
    there was accordingly no prejudice or unfairness, and that the appeal should be
    dismissed: see
R. v. Pomanti
, 2017 ONCA 48, at
    para. 10;
R. v. A.K.
, 2018 ONCA 567, at paras.
    8-9.

[13]

We agree with duty counsel that the appeal must be allowed and a new
    trial ordered. It is well-established that a miscarriage of justice need not
    always be supported by the demonstration of actual prejudice to an appellant;
    sometimes, public confidence in the administration of justice is just as shaken
    by the appearance as by the fact of an unfair proceeding:
R. v.
    McDonald
, 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 51
    (quoting from
R. v. Kankis
, 2012 ONSC 378, 281
    C.C.C. (3d) 113, at para. 37); see also
R. v. Cameron
(1991), 2 O.R. (3d) 633 (C.A.), at pp. 638-39;
R. v.
    Morrissey

(1995), 22 O.R. (3d) 514 (C.A.), at pp.
    541-42.

[14]

We are satisfied that the breach of solicitor-client privilege, and
    the trial judges use of that privileged information in his assessment of the
    appellants credibility, occasioned a miscarriage of justice.

[15]

The proper functioning of the adversarial system depends on the
    assurance, given to every accused, that communications with their lawyer for
    the purpose of receiving legal advice are, subject to certain exceptions,
    privileged. Individuals facing criminal charges must be free to discuss their
    case openly with their lawyer, so that their lawyer can help them navigate the
    system and give them competent legal advice: see
R. v. McClure
, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 33;
Canada
    (Privacy Commissioner) v. Blood Tribe Department of Health
, 2008 SCC 44, [2008] 2 S.C.R. 574, at para. 9;

Adam M.
    Dodek,
Solicitor-Client Privilege
(Markham,
    ON: LexisNexis Canada Inc., 2014), at pp. 7-9. This assurance would be
    undermined if information improperly disclosed to the trier of fact in breach
    of solicitor-client privilege could be used by the trier of fact to support a
    conviction.

[16]

That is precisely what happened in this case. Regardless of whether
    it was determinative in finding the appellant guilty, the trial judges use
    of the information disclosed to him in breach of solicitor-client privilege
    created an appearance of unfairness that rises to the level of a miscarriage of
    justice. The appearance of unfairness in this case requires that the appeal be
    allowed, the convictions set aside, and a new trial ordered. In these
    circumstances, the proviso in s. 686(1)(b)(iii) of the
Criminal Code
does not apply: see
R. v. Khan
,
    2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 25-27;
R. v. Bains
, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 88.

Disposition

[17]

The appeal is allowed, the convictions are set aside, and a new
    trial is ordered.

K. Feldman J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.





[1]
On appeal, duty counsel and the Crown agree that the trial judge misapplied the
    rule in
Browne v. Dunn
in his reasons for conviction. It is unnecessary
    to address that error, since the breach of solicitor-client privilege that
    followed the trial judges line of questioning and used by the trial judge to
    find the appellant guilty constituted a miscarriage of justice, which itself
    requires appellate intervention.


