



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Imona-Russel, 2019
    ONCA 252

DATE: 20190401

DOCKET: C51078

Lauwers, Pardu and Paciocco JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

William Imona-Russel

Appellant

William
    Imona-Russel, self-represented

Leslie
    Paine, for the respondent

Heard: September 7, 2018

On appeal from the conviction entered on
    February 23, 2009, and the sentence imposed on September 25, 2009 by Justice John
    McMahon of the Superior Court of Justice, sitting without a jury.

Lauwers J.A.:

[1]

The appellant was convicted of attempted
    aggravated sexual assault, sexual assault (x2), assault with a weapon,
    threatening death, assault causing bodily harm, and assault. He was given a
    global sentence of nine years, and was registered as a sex offender. The
    appellant appeals both his conviction and his sentence, and seeks a new trial.

[2]

The primary ground of the conviction appeal
    concerns his unsuccessful
Rowbotham

applications.
    I turn to that after addressing the appellants other arguments that the
    conviction reasons and the sentencing reasons were deficient.

I.

Conviction

[3]

The appellant testified at trial that he did not
    commit the offences as charged. His evidence, if believed, would have rendered
    him not guilty on all counts. However, the trial judge found that the appellant
    was not a forthright witness; his evidence had many internal inconsistencies; it
    was not consistent with the evidence of most of the other witnesses, nor with
    the objective evidence.

[4]

With respect to the attempted aggravated assault
    and sexual assault charges, the appellant knew he was HIV positive around June
    2003. The trial judge reviewed the elements of the
mens rea
and
actus
    reus

set out in
R. v. Williams
, 2003 SCC 41, [2003] 2
    S.C.R. 134. He rejected the appellants testimony that he disclosed his HIV
    positive status to the complainant in June 2003 and did not have sex with her
    thereafter. The trial judge found instead that the Crown had proved beyond a
    reasonable doubt that the complainant first learned that the appellant was HIV
    positive almost two years later in late March 2005. She would not have
    consented to sex had she known he was HIV positive. There was evidence they had
    unprotected sex after the appellant learned he was HIV positive although he
    denied it.

[5]

With respect to the assault, threats, and sexual
    assault endangering life relating to the March 3, 2005 incident, the trial
    judge accepted the complainants evidence that the appellant knocked her to the
    ground and assaulted her, and then put a drill to her head and threatened to kill
    her. He relied on physical evidence such as the drill, the damage done to the
    wicker chair into which the appellant tossed the drill, and the complainants
    physical injuries. However, with respect to the aggravated assault charge,
    there was insufficient evidence that the sex was unprotected. The trial judge
    found the appellant guilty of the lesser and included offence of sexual
    assault.

[6]

With respect to the assault and sexual assault
    endangering life relating to the March 13, 2005 incident, the trial judge
    accepted the complainants evidence that the accused attended at her apartment,
    assaulted her, choked her, and then raped her. This was corroborated by
    material evidence, in particular, a pair of panties laden with his semen that was
    recovered from her laundry hamper a few days later. The trial judge found none
    of the appellants alternative explanations for the presence of his semen to be
    plausible. However, the trial judge found there was no evidence that this act
    of unprotected sex had endangered the complainants life, because she might
    already have been infected. He found the appellant guilty of the lesser and
    included offence of sexual assault.

[7]

The appellant submits that the trial judges
    credibility findings, which preferred the complainants evidence, were
    unreasonable. He argues that the significant inconsistencies in her evidence,
    some of which defied common sense, rendered her evidence incredible and
    unreliable. In oral argument, the appellant argued that he and the complainant
    had friendly relations after the alleged March 2005 assaults, showing that she
    was not credible.

[8]

I would reject the appellants arguments. The
    trial judge carefully detailed his findings and his reasons for them. The trial
    judge said: [b]ecause of all of these factors that I have outlined that
    negatively impact on both the reliability and credibility of [the complainant],
    it is necessary to look at whether there is any objective evidence that
    confirms her evidence. Knowing of the infirmities in the complainants evidence,
    the trial judge only accepted her evidence if it was corroborated by other
    objective evidence.

Disposition of the conviction appeal

[9]

The appellant has not demonstrated that the
    trial judge made a palpable and overriding error in his assessment of the evidence.
    I would dismiss his conviction appeal.

II.

Sentence

[10]

The Crown proposed eight to ten years in Federal
    penitentiary less pre-trial custody at a credit rate of one to one. The defence
    proposed a sentence of four to six years less pre-trial custody with a two to
    one credit for pre-trial custody and a three to one credit for time spent in
    segregation.

[11]

The trial judge sentenced the accused to a
    global sentence of nine years and gave him credit for five years and fifteen
    days of time served, which was calculated at the rate of 1.5 to one credit on
    three years and 133 days of actual incarceration. This left the accused with
    about four years left to serve on this sentence. The trial judge stayed the March
    13, 2005 sexual assault count on the
Kienapple
principle. The Crown
    pointed out that this sentence is being served concurrently with the
    appellants separate sentence on a murder conviction, which will be completed
    in 2031, thus rendering this sentence appeal somewhat moot.

[12]

The trial judge identified several mitigating
    factors in his sentencing reasons: the appellant had no previous criminal
    record; he was gainfully employed in his home country before immigrating to
    Canada; and he had served three years and 133 days of pre-trial custody.

[13]

The trial judge identified several aggravating
    factors: the appellant, after learning he was HIV positive, did not advise the
    complainant; given the nature of their relationship, his actions were a breach
    of trust. The trial judge also noted the appellants use of gratuitous violence
    and a weapon. He raped the complainant without a condom and terrorized her,
    with traumatizing effects. However, since it was possible that the complainant had
    contracted HIV before the appellant knew he was HIV positive, the fact that she
    was later found to be HIV positive was not taken to be an aggravating factor.

[14]

The trial judge also observed that while the
    appellant was out on bail, he breached bail and was re-arrested. He was
    sentenced to a short period of jail on that breach, and then he was released on
    bail again. He was later charged with first degree murder.

[15]

The trial judge identified the range of
    sentences in cases involving non-disclosure of HIV positive status as from 1 to
    11 years. He did so after reviewing an exhaustive brief compiled by
amicus
of all the sentences in HIV positive sexual assault cases to the date
    of sentencing. The trial judge identified denunciation and deterrence as the
    primary objectives in such cases. He found that a lengthy penitentiary sentence
    was necessary to reflect the accuseds conduct because he had attacked a
    vulnerable victim twice in a brutal fashion for his own sexual gratification.
    This led him to impose a sentence of 9 years imprisonment on the appellant.

[16]

The appellant argues that the trial judge erred
    in relying on
Williams

in sentencing, because
    in that case there were many victims, which makes his sentence
    disproportionate. The trial judge did not refer to
Williams

directly in his sentencing reasons. Even assuming he did rely on
Williams
as Mr. Imona-Russel contends, the trial judge did not impose a
    disproportionate sentence. He was alive to the issue of proportionality, because
    he noted:

[I]n almost every
    case I was referred to the acts of sexual assault are consensual albeit the
    consent was falsely obtained without full disclosure of the HIV status of the
    accused. The facts in this case, involving Mr. Imona-Russel, are far more
    aggravating.

[17]

Sentencing attracts appellate deference because
    it is an exercise of judicial discretion that the trial judge is best equipped
    to undertake given his familiarity with the facts and with the accused:
R.
    v. Rezaie

(1996), 31 O.R. (3d) 713 (C.A.),
    at paras. 17-21;
R. v. Shropshire
, [1995] 4 S.C.R. 227, paras. 46-50;
R.
    v. M. (C.A.)
, [1996] 1 S.C.R.
    500, at paras. 90-92, and
R. v. Lacasse
, 2015 SCC 64,

[2015] 3 S.C.R. 1089 at paras. 11, 49-51.

Disposition of the Sentence Appeal

[18]

The appellant has identified no error in
    principle made by the trial judge, nor is the sentence disproportionate or
    outside the acceptable range. The sentence is fit. I would dismiss the sentence
    appeal.

III.

The
Rowbotham

Appeal

[19]

The appellant appeals the refusals of Nordheimer
    J. (as he then was) and the trial judge, to make a
Rowbotham
order
    (named after
R. v. Rowbotham
,

(1998) 25 O.A.C. 321)
to require the Attorney General to fund counsel of his choice.

[20]

The appellant appealed these refusals
    immediately after they were rendered in 2008. This court quashed the appeal on
    March 5, 2009 on the basis that the refusal of a
Rowbotham

order
    is an interlocutory order over which this court has no jurisdiction: 2009
    CarswellOnt 3503. The Supreme Court of Canada refused leave to appeal on June
    1, 2009: 262 O.A.C. 394 (note), 2009 CarswellOnt 3391 and 3392.

[21]

Now that the trial process has run its course the
Rowbotham
appeal is properly before this court.

(1)

The Decisions under Appeal

[22]

The procedural history leading to the
Rowbotham

applications is relevant. Legal Aid Ontario initially granted the appellant
    a legal aid certificate in September 2005. Over the following years, he
    retained and discharged six lawyers, one twice. Legal Aid Ontarios notice of
    refusal to yet another change of counsel stated that the appellants reason to
    change did not meet its criteria. It also noted that

amicus
was
    appointed by Marrocco J. (as he then was) on May 14, 2008 as a precaution so
    that the trial could proceed smoothly.

(a)

The Motion Judges Ruling

[23]

Sitting as pre-trial motions judge, Nordheimer
    J. dismissed the appellants
Rowbotham
application on December 10,
    2008: [2008] O.J. No. 5405. Although it was plain that the appellant, who faced
    separate serious charges, could not afford to retain counsel, the motion judge
    stated, at para. 17, that the central issue that this application raises is
    whether an indigent accused is entitled, under the principle of trial fairness,
    to repeatedly discharge counsel and then require the state to bear the costs of
    retaining new counsel.

[24]

The motion judge found, at para. 22, that the
    appellant was not so entitled:

[T]he right of an accused person to retain
    counsel of his or her choosing is not absolute, however. It is subject to
    reasonable limitations

see
R.
    v. Speid
(198), 43 O.R. (2d) 596 (C.A.). The applicant has on five
    occasions (arguably six) been given counsel of his choice and he has chosen to
    squander those opportunities. In my view, the applicant has, as a direct
    consequence of his own actions, disentitled himself to a
Rowbotham
order. That fact, coupled with the appointment of
amicus curiae
on
    each of these indictments, means that the applicant has also failed to
    establish that his fair trial rights will be infringed absent such an order
    being made.

(b)

The Trial Judges Ruling

[25]

The appellant asked the trial judge to
    reconsider at the outset of trial several days later. The trial judge refused,
    on the basis that:

I am not
    satisfied that I have the jurisdiction to reconsider the decision of Nordheimer
    J. given last week on the
Rowbotham
application. Even if I did have
    jurisdiction, I have not been advised of any material change in circumstance,
    which would allow me to reconsider the matter afresh. For these reasons, the
    application to have a further
Rowbotham
application is dismissed.

[26]

I note, parenthetically, that the trial judge
    erred in doubting his jurisdiction to reconsider the
Rowbotham

matter
    in light of the decision of the motion judge ten days earlier. It is always
    open to a trial judge to consider a
Rowbotham
application at the
    outset of the trial or even during the trial, even where the application has
    previously been rejected by a pre-trial motions judge or by the trial judge
    personally. Things might look different to the trial judge, when the exigencies
    of the situation and their practical implications call for a different result
    at a given point in the trial. However, in the absence of any material change,
    the trial judge did not err in refusing to reconsider the renewed
Rowbotham

application.

[27]

In this case the trial judge expanded the role
    of
amicus
, Ferhan Javed, as suggested by the
    appellant. The
amicus

order appointed Mr.
    Javed:

·

To advise the accused about points of law and
    legal issues;

·

To discuss legal issues with the Crown on behalf
    of the accused;

·

To speak to the court on behalf of the accused
    in relation to legal issues;

·

To cross-examine the complainant.

The
amicus
order also provided that communications between
amicus
and
    the appellant for preparation of pretrial applications and cross-examination
    are privilege[d]. The Crown consented to the
amicus
order.

[28]

The trial judge explained the genesis of this
    order and elaborated on it further in reasons dated January 5, 2009 regarding
    the appointment of
amicus.
The context was the appellants request,
    after seeing Mr. Javed in action, that he become his counsel. The appellant
    wanted, as the trial judge said, to convert
Amicus
to his counsel and
    then per
R. v. Rowbotham
order the Ministry of the Attorney General to
    pay the cost.

[29]

The trial judge actively considered the request
    but rejected it in light of the appellants history of discharging counsel. He
    stated
: 
I am not satisfied
    that it is appropriate to appoint Mr. Javed as trial counsel and relinquish his
    role as Amicus. He explained:

Unfortunately, Mr. Imona-Russel has demonstrated an
    inability to work with counsel as is highlighted by the fact that he has had
    five or six counsel on this file. He has discharged each and every one of them.
    Should I appoint Mr. Javed as counsel and he was to be discharged, the trial
    would be in jeopardy.

[30]

The trial judge noted that it was his duty to
    ensure that the appellant had a fair trial, in light of his view that the case
    was somewhat complex, since: from my brief understanding is it involves
    allegations of infecting a woman with AIDS and that there will be medical
    evidence being called that will need to be challenged.

[31]

This led the trial judge to expand the customary
    role of
amicus
, for which he provided a lengthy and careful explanation
    focused on the core principle of trial fairness:

While recognizing that
Amicus
is not
    counsel to the accused, the role of
Amicus
, I find, can be expanded to
    ensure trial fairness. See
R. v. Cairenius
(2008), 232 C.C.C, (3d) at
    page 13, Ontario Superior Court, and
R. v. Lee
, (1988), 125 C.C.C,
    (3d), 363, Northwest Territories.

In this case, because of the nature of the
    sexual offences, with the consent of Mr. Imona-Russel and the Crown, I have
    already expanded the role of
Amicus
to allow
Amicus
to
    cross-examine the complainant. Obviously, to prepare the cross-examination,
Amicus
,
    Mr. Javed, must have discussions with the accused. Such discussions must remain
    confidential and will be treated by the Court as such.

Crown counsel, quite fairly, has also
    undertaken not to challenge the confidentiality of any such discussions in
    preparation for the cross-examination.

In order to ensure trial fairness, I am
    prepared to allow
Amicus
to cross-examine Crown witnesses, provided Mr.
    Imona-Russel indicates he wishes such assistance with any or all of the
    witnesses. We will address each witness separately to determine whether Mr.
    Imona-Russel wishes the assistance of the
Amicus
, Mr. Javed, in
    cross-examining any of the witnesses.

So it is clear, Mr. Javed, in his role of
Amicus
,
    will not be counsel for Mr. Imona-Russel. Should Mr. Imona-Russel wish
    assistance with the cross-examination, and Mr. Javed feels he is able to do so,
    Mr. Javed may conduct that cross-examination on behalf of Mr. Imona-Russel.

Since Mr. Javed is not counsel for Mr.
    Imona-Russel, Mr. Imona-Russel may ask any further questions, if he wishes to
    do so, after Mr. Javed has conducted the cross-examination. That will be with
    the exception, of course, of the evidence of the complainant, where there will
    be no such right for an accused to cross-examine the complainant directly.

To ensure that this expanded role of
Amicus
does not become blurred, we will approach each witness separately. With each
    Crown witness Mr. Imona-Russel will have to decide whether he wishes to
    cross-examine himself or he wishes the assistance of Mr. Javed, the
Amicus
to the Court.

I am satisfied
    that if we deal with
Amicus
in a fluid fashion such as this, submissions
    can be made on each witness to ensure that Mr. Imona-Russel receives a fair
    trial and receives the benefit of assistance where necessary with any of the
    witnesses.

(c)

The Progress of the Trial

[32]

The transcript shows that the trial proceeded on
    the basis set out in the trial judges
amicus
decision.
Amicus
communicated with the appellant and conducted the
    cross-examinations as requested. Nonetheless, the trial judges worry that the
    appellant would discharge
amicus
if he became
    his counsel was prescient. Just before the end of the conviction stage of the
    trial there was a falling out between
amicus
and the appellant. Before this court the appellant said he was not happy with
    some of the cross-examinations conducted at trial by
amicus
.

[33]

The argument at the conclusion of the conviction
    stage of the trial proceeded on February 12, 2009.
Amicus
had prepared written submissions. The appellant complained to the
    trial judge that
amicus

did not visit him on
    February 11, 2009 to go over the submissions. He believed, from his quick
    review, that
amicus
intended to make some
    factual assertions with which he did not agree. The appellant asserted his
    right to present the argument personally and asked for time to prepare. After
    the Crowns conviction submissions, the court recessed for the day to allow the
    appellant time to prepare, and resumed on February 13, 2009. A careful reading
    of the appellants submissions in the transcript shows that he had a full grasp
    of the facts and was well organized in his submissions.
Amicus
then made several submissions on the law.

[34]

While
amicus
had evidently been in contact with the appellant
    throughout the conviction stage of the trial, they ceased communicating after
    the conviction. Sentencing submissions proceeded several months later.

(2)

The Issues

[35]

The appellant argues that both the motion judge
    and the trial judge were wrong in refusing his application for the appointment
    of trial counsel by a
Rowbotham

order. His argument gives rise
    to the following issues:

1.

Did the motion judge and the trial judge properly consider the usual
    prerequisites for a
Rowbotham
order?

2.

Was it appropriate for the motion judge and the trial judge to refuse
    the appellant a
Rowbotham
order based on his history of unreasonably discharging
    counsel?

3.

In considering whether to grant a
Rowbotham

order before
    or at the outset of the trial, were the motion judge and the trial judge
    permitted to take into account the prior appointment of
amicus
?

(3)

Analysis

[36]

The motion judge reviewed the prerequisite
    factors in his
Rowbotham
decision, but took into account an additional
    factor  that an accused who has a history of not conducting himself reasonably
    in his relations with counsel may be denied a
Rowbotham

order.
    The motion judge was right to do so. He was also right to take into account the
    earlier appointment of
amicus
by
    Marrocco J
., who made the appointment when the appellant was still
    represented by counsel.

[37]

The trial judge was right in refusing to make a
Rowbotham

order, both at the outset of the trial and again during the trial when he
    was even more familiar with the appellant and with the exigencies. He carefully
    tailored the
amicus
order to the specific exigencies of the case before
    him in order to ensure trial fairness. Neither the motion judge nor the trial
    judge erred in the exercise of their discretion, as I will explain in going
    through the issues.

(a)

Did the motion judge and the trial judge
    properly consider the prerequisites for a
Rowbotham
order?

[38]

The three prerequisites for a
Rowbotham
order are that:
the accused must have been refused
    Legal Aid; the accused must lack the means to employ counsel; and
    representation for the accused must be essential to a fair trial:
R. v. Tang,
2015 ONCA 470, leave to
    appeal refused, 2016 CarswellOnt 5402 and 5403, at para. 9
.

[39]

Rosenberg J.A. explained the third prerequisite,
    trial fairness, in
R. v. Rushlow
, 2009 ONCA 461, 96 O.R. (3d) 302, at
    para. 39:

The purpose of
    the right to counsel in the context of a
Rowbotham
case is reflected in the nature of the test itself. Counsel is
    appointed because their assistance is essential for a fair trial. In my view,
    fair trial in this context embraces both the concept of the ability to make
    full answer and defence and the appearance of fairness.

[40]

Trial and motion judges must evaluate whether
    appointing counsel under a
Rowbotham
order is necessary for a fair
    trial on a case-specific basis, having regard to relevant factors, including the
    seriousness of the charges, the likelihood of imprisonment, the length and
    complexity of the proceedings in terms of the factual evidence, and the
    procedural, evidentiary and substantive law that would apply. The judge must
    also attend to the possibility of specialized procedures such as
voir dires
,
    and the accuseds personal ability to participate effectively in defending the
    case:
Rushlow
, at
paras. 19-20. The trial judge has an obligation to assist unrepresented counsel,
    which can sometimes mitigate the need for counsel:
Rushlow
, at

para. 21;
Ontario v. Criminal Lawyers Association
    Ontario
, 2013 SCC 43, [2013] 3 S.C.R.
    3 at para. 116, (per Fish J., dissenting on other grounds) (
CLA
).

[41]

These prerequisites were considered by the
    motion judge and the trial judge. But for the appellants habit of unreasonably
    discharging counsel, both
the motion judge and the trial judge would have made
a
Rowbotham
order in his favour.

(b)

Was it appropriate for the motion judge and the
    trial judge to refuse the appellant a
Rowbotham
order based on his
    history of unreasonably discharging counsel?

[42]

I agree with the motion judges spare words:
    [T]he right of an accused person to retain counsel of his or her choosingis
    not absolute, however. It is subject to reasonable limitations. As I outline
    below, there are circumstances in which the appointment of counsel for the
    accused by a
Rowbotham
order would not be appropriate.

[43]

The trial judge followed the motion judges
    logic in deciding whether to make his own mid-trial
Rowbotham
order.
    He noted that the appellant 
has
    demonstrated an inability to work with counsel, and worried, quite rightly,
    that if
amicus
were
    appointed as counsel and were discharged later in the trial, the trial would
    be in jeopardy. This line of reasoning was adopted in
R. v.
    Chemama
, 2014 ONCA 171, where this
    court affirmed the decision of Feldman J.A. to appoint
amicus
rather than counsel under s. 684 of the
Criminal
    Code
because any counsel appointed by
    the appellant would be dismissed by him.

[44]

The principle
    that an accused must act reasonably and in good faith in seeking relief from
    the court is found in the jurisprudence: see
R.
    v. Wood
, (2005) 197
    O.A.C. 43, (C.A.), at para. 15 (accused manipulating the system by
    orchestrating delay - adjournment denied); and
R. v. Smith
,
    (1989) 35 O.A.C. 301 (C.A), (accused wrongly refused adjournment requested in
    good faith);
R. v. Montpelier
[2002] O.J. No. 4279 (S.C.J.) at paras.
    34, 38 (applicant cannot rely on Legal Aid refusal when caused by his own
    failure or inaction, also accused failing to disclose financial means). The
    principle that an applicant cannot rely on Legal Aid refusal where the
    applicants own conduct caused the refusal has been confirmed and applied in a
    number of recent decisions, see e.g.
R. v.
    Plange,
2017 ONSC
    134, at para. 8;
R. v. Kazman
, 2016 ONSC 4320, at para. 15;
R. v. Thompson
, 2015 ONSC 4070, at paras. 9, 15.

[45]

Neither the
    motion judge nor the trial judge erred in their assessment of the situation
    presented by Mr. Imona-Russels history of misconduct.


(c)

In considering whether to grant a
Rowbotham

order before or at the outset of trial, were the motion judge and the trial
    judge permitted to take into account the prior appointment of
amicus
?

[46]

A
Rowbotham
order is to be made on an all things considered basis, taking into account
    the relevant exigencies in the case. In this case Marrocco J. made the initial
amicus
order to ensure that the trial would start and progress in a reasonable
    fashion. He did so when the appellant still had counsel.

[47]

Both the
    motion judge and the trial judge took into account the prior appointment of
amicus
in
    concluding that a
Rowbotham
order was not warranted, particularly in
    light of the appellants practice of discharging counsel. They were right to do
    so. It would be wrong to treat
amicus
as a substitute for defence counsel, but
    the involvement of
amicus
remains a relevant factor in determining
    whether the interests of justice can be met without a
Rowbotham
order.

[48]

The
    assessment of what trial fairness requires is intensely contextual. Both the
    motion judge and the trial judge plainly thought that the prospect of trial
    unfairness in refusing to make a
Rowbotham
appointment could be substantially
    mitigated by an appointment giving
amicus
sufficient scope of action.

[49]

I turn now to
    consider an argument that was open to the appellant, but which eluded him as a self-represented
    lay person, albeit highly intelligent and articulate.

[50]

Is this court
    obliged to consider arguments not advanced by a self-represented appellant but
    that emerge obviously and naturally in the context, but which would not be
    apparent to a self-represented lay person? In my view this court shares the
    duties of trial judges in ensuring fairness, with necessary modifications.

[51]

As Watt J.A. noted in
R. v. Richards
, 2017 ONCA 424, at para. 112, in ensuring trial fairness: 
The
    onus on the trial judge to assist the self-represented accused is a heavy one.
    Without becoming counsel, he added, at para. 110: the trial judge must provide
    assistance to aid the accused in the proper conduct of his defence and to guide
    him as the trial unfolds in such a way that the defence is brought out with its
    full force and effect. The duty is circumscribed by a standard of
    reasonableness: at para. 111.

[52]

The
    appellant, who was self-represented on the appeal, said he did not think it
    necessary to argue that he was having
amicus
represent [him] at trial. He therefore did
    not raise or address directly this issue:

(d)

Was the trial judge permitted to tailor the
    scope of the activities of
amicus
in the manner he did,
and to take that
amicus
order into
    account in considering whether to grant a
Rowbotham

order?

[53]

Not
    surprisingly, it appears that it did not occur to the appellant, as a lay
    person, that if the scope of the activities of
amicus
under the order appointing him was impermissible, then it would be wrong in
    principle for the trial judge to have taken the
amicus
appointment into account in deciding whether to make the
Rowbotham
appointment. He did, however, raise this issue implicitly when he argued that
    the trial was unfair because he was denied his own counsel under a
Rowbotham
order,
    and was forced to make do with
amicus
, whom he did not select or control, and
    with whom he eventually broke contact.

[54]

Crown counsel was alive to this issue on the appeal, and directly
    addressed the expanded role given to
amicus
.
The Crown asserted
    that: [N]one of the concerns that the Supreme Court of Canada raises [in
CLA
]
     the potential concerns, the reasons  to be wary of an expanded
amicus
role  really played out in any way  in this case. As I will explain, with
    one possible caveat, I agree with that assessment.

[55]

My analysis proceeds in two steps. First I review the governing
    principles. Second, I apply the governing principles to the facts of the case.

(i)

The Governing Principles on the Scope of
Amicus
Activities

[56]

The governing
    principles concerning the scope of permissible activities of
amicus
were addressed by the Supreme Court in
CLA
.

[57]

It is a matter of
    some irony that the appellant was indirectly involved in the
CLA
decision.
Neither the motion judge nor the trial
    judge therefore had the benefit of this decision, in which t
he Supreme Court reversed this courts decision in
R.
    v. Imona-Russel
,
2011 ONCA 303, 104 O.R. (3d) 721, on
whether the appointing judge had the
    authority to set the rate of remuneration for
amicus
in the appointment order. This court had
    held that the appointing judge did have such authority. In
CLA
the
    Supreme Court
set
a binding rule that the remuneration of
amicus
was a matter for the Crown and not the court
.

[58]

In
CLA
the
    Supreme Court also considered the permissible scope of the activities of
amicus
,
even though that is not the
    issue before us, as Fish J. noted, at para. 121
.

The majority and minority in
CLA

did not differ on the issue of the
    proper scope of an
amicus
order, but only the trial judges power to fix the
    fees of
amicus
in the order. The decision identifies principles that constrain the role of
amicus
, while recognizing the important function
    that
amicus
can play
    in ensuring that efficient and fair trials are conducted.


The Permissible
    Scope of
Amicus
Orders under
CLA

[59]

In
CLA
the
    majority and the dissent agreed on the general principles applicable to the
    scope of
amicus
orders.
Fish
    J. added several observations, at para. 119, for which he cited with approval
Durno J. in
R. v. Cairenius
, 232 C.C.C. (3d) 13, [2008] O.J. No. 2323
:

While the
amicus
may, in some circumstances, be called upon to "act" for an accused by
    adopting and defending the accused's position, his role is fundamentally
    distinct from that of a defence counsel who represents an accused person either
    pursuant to a legal aid certificate or under a
Rowbotham
order.
    Furthering the best interests of the accused may be
an

incidental
    result
, but is not
the purpose
, of an
amicus
appointment.

[60]

Justice Fish
    stated, at para. 114, that: 
Once clothed with all
    the duties and responsibilities of defence counsel, the
amicus
can no longer properly be called a 'friend of the court.'"
Speaking for the majority, Karakatsanis J. concurred,
    at para. 49.

[61]

Justice Karakatsanis
    raised another concern, at para. 51, that 
the
    appointment of
amici
for such a purpose may conflict with the
    accused's constitutional right to represent himself: see
R. v. Swain
,
    [1991] 1 S.C.R. 933, at 972. Justice Fish agreed, stating at para. 116:

An accused is
    entitled to forego the benefit of counsel and elect instead to proceed
    unrepresented. An
amicus
should not be appointed to impose counsel on
    an unwilling accused or permit an accused to circumvent the established
    procedure for obtaining government-funded counsel:
Cunningham
,
[
R. v. Cunningham
, 2010 SCC 10, [2010] 1 S.C.R. 331]
at para.
    9. In the vast majority of cases, as long as a trial judge provides guidance to
    an unrepresented accused, a fair and orderly trial can be ensured without the
    assistance of an
amicus
. Such is the case even if the accused's
    defence is not then quite as effective as it would have been had the accused
    retained competent defence counsel.

[62]

In
CLA
the
    Supreme Court expressed concerns that: an
amicus
order defining a role that closely
    resembles the role defence counsel would usually play in a trial might encroach
    on the right of an accused to proceed without counsel: at para. 51; might blur
    the roles played by the trial judge, Crown and defence counsel: at para. 54;
    and might undermine a provincial legal aid scheme: at para. 55.

[63]

Specifically,
    because judges cannot give strategic advice to unrepresented accused persons,
    an
amicus
would, by parity of reasoning, not be empowered to
    give strategic advice: para. 54. However,
amicus
may, in appropriate cases, assist in
    cross-examination and the presentation of evidence. However, I pause to observe
    that any cross-examination would require
amicus
to have a theory to guide the effort,
    moreover one that would work in the overall tableau of the evidence.

[64]

Justice Karakatsanis
    said, at para. 53: 
the privilege that would be afforded to
    communications between the accused and the
amicus
is muddied when the
amicus
'
    client is in fact the trial judge. This might suggest that

communications between the accused
    and
amicus
cannot be protected by solicitor-client
    privilege. I need not determine the issue, because in this case the same
    critical function that would be performed by solicitor-client privilege in
    allowing for candid communications between the
amicus
and the
    accused could be performed by a Crown undertaking, in consenting to the
    appointment of
amicus
, to treat communications between
amicus
and
    the accused as privileged. Nothing turns on the issue.

[65]

Justice Fish
    noted, at para. 117:

If appointed, an
amicus
may be asked to play a wide variety of roles:
R. v. Cairenius
(2008),
    232 C.C.C. (3d) 13 (Ont. S.C.J.), at paras. 52-59,
per
Durno J. There
    is, as Rosenberg J.A. pointed out in
R. v. Samra
(1998), 41 O.R. (3d)
    434 (C.A.), at p. 444, "no precise definition of the role of
amicus
    curiae
capable of covering all possible situations in which the court may
    find it advantageous to have the advice of counsel who is not acting for the
    parties".

[66]

In
Cairenius
,
Durno J. canvassed the spectrum of possible roles
    for
amicus
, at paras. 55-56, ranging from being relatively
    detached from the accused, to being fully engaged on the accuseds behalf. In
    his view, the place of
amicus
on the spectrum would depend entirely on
    the exigencies of the case.

[67]

I would draw
    several pertinent principles from the jurisprudence: First, an accused person has
    the right to self-represent, and cannot be compelled to appoint counsel, to
    pursue public funding through Legal Aid for counsel, or to pursue a
Rowbotham
order appointing counsel:
CLA
, at para.116. An accused also has the right
    to discharge counsel including counsel appointed under a
Rowbotham
order,
    but since
amicus
does not represent the accused person,
    the accused person may not discharge
amicus
.

[68]

Second, while
amicus
may assist in the presentation of evidence,
amicus
cannot control the litigation strategy. While there may be an issue about
    whether a trial judge may impose a privilege on communications between
amicus
and the accused person, the necessary confidentiality can flow from an express
    Crown undertaking in consenting to the appointment of
amicus
,
    as I have noted.

[69]

The third
    principle is that, in considering the appointment of
amicus
,
    the trial judge must consider whether he or she can provide
sufficient guidance to an unrepresented accused in the
    circumstances of the case to permit a fair and orderly trial without the assistance
    of
amicus
, even
    if
the accused's defence would not be quite as
    effective as it would have been had the accused retained counsel:
CLA
,
    at para.116;
Rushlow
, at

para. 21
.

[70]

One
    circumstance in which the appointment of
amicus
might be warranted is where the accused
    is
contumelious,
    like the appellant.

[71]

A second
    circumstance would be where the accused refuses to participate or disrupts
    trial proceedings:
Cairenius
, at

para. 51.

[72]

A third
    circumstance would be where the accused is adamant about conducting the defence
    personally, but is hopelessly incompetent to do so. As
Code J. observed in
R. v. Jaser
,
    2014 ONSC 2277, at para. 35:

The practical
    difficulty, left unresolved and unaddressed in
Ontario v. C.L.A.
,
supra
,
    is that a number of authorities have held that self-represented accused can
    sometimes conduct their own defence so incompetently that a "miscarriage
    of justice" results. In these cases, the trial judge properly carried out
    the duty to assist the self-represented accused. Nevertheless, the accused's
    complete inability to conduct the defence led to an unjust result that was
    reversed on appeal through s. 686(1)(a)(iii)  the "miscarriage of
    justice" power. One of the remedies suggested in these cases is the
    appointment of
amicus
, in effect, to assist
    with the otherwise incompetent conduct of the defence.

[73]

The fourth
    principle is that the trial judge is responsible for ensuring that the trial
    progresses reasonably: see e.g.
R. v. Valley
, (1986) 26 C.C.C. (3d) 207, leave to
    appeal to SCC refused, (1986) 26 C.C.C. (3d) 207 (note);

R. v. Snow
, (2004), 73 O.R. (3d) 40 (
C.A.), at para. 24;

Chippewas of
    Mnjikaning First Nation v. Ontario
, 2010 ONCA 47, 265 O.A.C. 247;
R. v. Hungwe
,
    2018 ONCA 456, 142 O.R. (3d) 22).

[74]

Trial judges may
    consider the appointment of
amicus
where necessary as one way to ensure both
    trial progress and trial fairness.
This principle was illustrated in
Chemama
,
    where the accused had repeatedly dismissed or refused to co-operate with
    counsel, which caused significant delay to the proceedings. The court affirmed
    Feldman J.A.s refusal to appoint counsel under s. 684 of the
Criminal Code
, holding that the since the accused would likely dismiss any counsel
    appointed by him, it was appropriate to appoint
amicus
who
    cannot be dismissed by the appellant:
Chemama
, at paras. 1-2.

[75]

Similarly,
    the Court of Appeal for British Columbia upheld the decision of the lower court
    to appoint
amicus
where the accused had unreasonably
    delayed proceedings by repeatedly discharging counsel:
R. v. Mastronardi
, 2015 BCCA 338. In doing so,

the court noted that the case was unusual
    as it involved a highly manipulative accused who was determined to derail
    the proceedings, thus making the appointment of
amicus
necessary to protect the courts process and to prevent a miscarriage of
    justice: at paras. 9-10, 50; see also
R. v.
    Samra
(1998), 41
    O.R. (3d) 434 (C.A.), leave to appeal to SCC refused, [1999] 1 S.C.R. xiii
    (note).

(ii)

Application
    of the Governing Principles

[76]

In CLA, the Supreme Court recognized that there
    is ample authority for judges appointing
amici curiae
where this is necessary to permit a particular proceeding to be
    successfully and justly adjudicated: Karakatsanis J., para. 44.

[77]

Even though the power to appoint
amicus
is to be used sparingly and with caution ... in response to
    specific and exceptional circumstances," it would be appropriate to
    exercise that power where "the assistance of
amici
[is] essential to the judge discharging her judicial functions in
    the case", that is, "to ensure the orderly conduct of proceedings and
    the availability of relevant submissions ... [on] contested, uncertain, complex
    and important points of law or of fact":  Karakatsanis J., at para. 47 and
    per Fish J., at para. 108.

[78]

The trial judge appointed
amicus

for these very reasons, and to safeguard
    trial fairness in the special circumstances of the case. This was far from a
    routine appointment of
amici
that would risk crossing the line between
    meeting the judges need for assistance, and the provinces role in the
    administration of justice:
CLA
, para 47.

[79]

Despite the wide role assigned to
amicus
, the trial judge was scrupulous in insuring that the
    appellants right to self-represent was respected. The appellant played no role
    in selecting
amicus.
Even
    under the expanded order, the appellant retained the right to ask his own
    questions, and present his own argument.

[80]

I do not read the Supreme Courts decision in
CLA
as removing or substantially curtailing the trial judges well-recognized
    discretion to appoint
amicus
and to tailor the scope of the appointment
    to cope with the exigencies of the case in order to ensure a fair and orderly
    trial and to prevent a predictable miscarriage of justice.

[81]

The Crown pointed
    out, in my view fairly, that: 
Justice McMahon  was actually at
    first quite leery of an expanded
amicus
role, and was very careful to do
    it on an as-needed basis  [he] was very careful to explain that for each
    witness we were going to have this discussion, and to  emphasize for Mr.
    Imona-Russel that
amicus
isnt a substitute for counsel. The trial
    judge repeated this admonition on several occasions.

[82]

When the parties first discussed the possibility of creating an
    expanded role for
amicus
, the trial judge observed that the case law
    directs that 
amicus
isnt counsel for the accused and opined that he
    could not indirectly make
amicus
into defence counsel. Later, he
    explained to the appellant that communications with
amicus
would be
    privileged just as if he was your lawyer, although hes not. It would have
    been preferable for the trial judge to have used the word confidential
    instead of privileged.

[83]

During the course of the proceedings, it became clear that the
    appellant did not simply want an expanded role for
amicus
, but wanted
amicus
to be converted to defence counsel. In his ruling on the role of
amicus
,
    the trial judge said that he was not satisfied that it is appropriate to
    appoint Mr. Javed as trial counsel and relinquish his role as
Amicus
,
    and went on to expand the role of
amicus
[w]hile recognizing that
Amicus
is not counsel to the accused. He concluded: So it is clear, Mr. Javed, in
    his role of
Amicus
, will not be counsel for Mr. Imona-Russel.

[84]

When the appellant stated at the beginning of the argument at the
    conviction stage that he wanted to make the argument himself because he
    disagreed with
amicus
s draft submissions, he was
    allowed to do so and
amicus
made additional legal
    submissions.

[85]

Later on, during the sentencing proceedings, the appellant sought
    to remove Mr. Javed as
amicus
for an alleged conflict. Once again, the
    trial judge reiterated that Mr. Javed is not counsel to Mr. Imona. He is
    counsel to the Court, albeit I have given him an expanded role to assist Mr.
    Imona. Both
amicus
and the appellant made sentencing submissions.

[86]

However,
amicus
was not defence counsel, as the trial judge pointed out. I observe that the
    appellant had no role in selecting
amicus
.
    When the appellant stated at the beginning of the argument at the conviction
    stage that he wanted to make the argument himself because he disagreed with
amicus
s draft submissions,
amicus
still
    made legal submissions. He returned for the sentencing stage.
Amicus
played the role described by Fish J. in
CLA
at para. 118: 
Regardless
    of what responsibilities the
amicus
is given, however, his defining
    characteristic remains his duty to the court and to ensuring the proper
    administration of justice.

[87]


Moreover, given the appellants
    inability to direct or dismiss
amicus
, the role assigned to
amicus
was
    sufficiently different from the role that
Rowbotham
counsel would have assumed
    that there can be no realistic concern that the
amicus
order undermined
    the denial of the
Rowbotham
application.

[88]

The trial judge was well aware that
his overarching goal
a
t
    all times was to safeguard trial fairness when he
gave duties to
amicus
that
approached the usual duties of defence counsel. As
    noted,
amicus
was:
    t
o advise the accused about points of law and the legal
    issues; to discuss legal issues with the Crown on behalf of the accused; to
    speak to the court on behalf of the accused on legal issues; and to cross-examine
    the complainant. He also cross-examined other witnesses. These are all proper
    functions for
amicus
to perform in a case such as this, and there is no
    indication that
amicus
overstepped
    his role.

[89]

With respect to privilege, the order provided
    that: Communications with Mr. Russel for preparation for pre-trial
    applications and cross-examination are privilege[d]. The terms of the order
    were plainly intended to give the appellant a basis for confiding
    confidentially in
amicus,
which
    the trial judge thought was necessary for trial fairness.
I need not resolve whether
CLA
absolutely prohibits orders of
    the kind made in this case. There is no indication that the privilege was actually
    invoked, and, in any event, the Crown agreed to treat the communications
    between
amicus
and the appellant as privileged. In those circumstances
    it would have been abusive for the Crown to seek confidential information,
    irrespective of the trial judges order.

[90]

The elements of
    the
amicus
order
    enured to the appellants benefit and assisted in ensuring that the trial
    proceeded smoothly and fairly to its conclusion, consistent with the observation
    of Fish J. in
CLA
that
even though
    an
amicus

does not represent the accused person, [f]urthering the best interests
    of the accused may be
an

incidental

result, but is not
the purpose
,
    of an
amicus

appointment:
CLA
, at para. 119.

[91]

The trial
    judge responded masterfully to the exigencies of this case. His
amicus
order was fully consistent with these
    principles. A careful reading of the transcript shows that the trial judge was
    unfailingly solicitous of the appellant, patient with him in explaining what
    was going on and what was, from time to time, expected of him. With less active
    involvement by
amicus
, trial fairness might well have been jeopardized. If
    the trial judge had converted
amicus
into defence counsel by a
Rowbotham
order as requested by the appellant, his
    anticipated and inevitable discharge would have jeopardized the trial.

[92]

I would be especially
    loath, in this extremely delicate and volatile situation, to interfere with the
    exercise of the trial judges discretion, which he exercised carefully and
    explained fully in the context of his more immediate and intimate understanding
    of the case and his familiarity with the appellant.

[93]

The concerns expressed by the Supreme Court in
CLA

did not manifest in this case. This was not a case of foisting
    counsel on an unwilling accused; here the appellant asked that
amicus

be appointed as his counsel. The role played by
amicus
was clearly defined, and was explained to and understood by the
    appellant.
Amicus
s duties were owed to the
    court alone and he remained after the falling out with the appellant. Here the
    Attorney General consented to the terms of the order appointing
amicus
.

[94]

In my view it
    remains open to trial judges to appoint
amicus
where no
Rowbotham
appointment should be made, as in this
    case, or to appoint
amicus
to function alongside a
Rowbotham
appointee, where there is a real risk
    that the accused will discharge counsel as a way of disrupting the trial
:
see
Mastronardi
;
Chemama
. It remains open to trial judges to make
    similar
amicus
appointments where the conditions warrant such an order, but exceptionally,
    bearing in mind the principles laid out by the Supreme Court in
CLA
. Although the trial judge did not have
    the benefit of the decision in
CLA
when he made his order, in my view it complied fully
    with the principles of
CLA
.

Disposition of the
Rowbotham
Appeal

[95]

Did the refusal of the motion judge and the
    trial judge to appoint
Rowbotham
counsel
    result in a miscarriage of justice? For the reasons set out above, there was no
    unfairness or appearance of unfairness in the appellants trial, in large
    measure because of the
amicus
appointment and
    the trial judges careful and respectful trial management.

[96]

I would dismiss the conviction appeal that was
    based on the appellants unsuccessful
Rowbotham

applications.

[97]

Consequently, I would dismiss the appeal in its
    entirety.

Released:
P.L.  April 1, 2019

P. Lauwers J.A.

I agree. G. Pardu
    J.A.

I agree. David M.
    Paciocco J.A.


