



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Imola, 2019 ONCA 556

DATE: 20190703

DOCKET: C64118

Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christine Imola

Appellant

Wayne Cunningham for the appellant

Randy Schwartz for the respondent

Heard: June 4, 2019

On appeal from the conviction entered by Justice Richard
    A. Lococo of the Superior Court of Justice on May 15, 2017.

REASONS FOR DECISION

Introduction

[1]

The appellant was charged with fraud over $5,000 and possessing proceeds
    of crime in an amount greater than $5,000. The complainant was the appellants
    former employer, Ball Media Corporation (Ball Media). Between the years 2007
    to 2012, the appellant was alleged to have issued unauthorized company cheques
    to herself, placed her son on the company payroll when he was not an employee,
    and charged company credit cards with unauthorized personal expenses, for a
    total of $530,788 in misappropriated funds. The appellants position at trial
    was that she had received the funds legitimately.

[2]

The appellant brought an unsuccessful
Rowbotham
application
    before an application judge for appointment of state-funded counsel. She was
    found guilty on both charges by the trial judge, who declined to hear her
    pre-trial application under s. 11(b) of the
Charter
.


[3]

The appellant appeals against conviction only and requests a new trial
    based on the following submissions. First, the application judge erred in
    failing to grant an order for appointment of state funded counsel pursuant to
R.
    v. Rowbotham
(1988), 25 O.A.C. 321 (C.A.). Second, her trial was rendered
    unfair as a result of trial Crown counsels misconduct. Third, the trial judge
    erred in refusing to hear her
Charter
application on procedural grounds.
    We disagree with the first two submissions, but agree with the third.

Issues

(i)

Rowbotham

[4]

The appellants pre-trial application
Rowbotham
was denied. On
    appeal, the appellants position is that the application judge failed to take a
    holistic view of the complexities of the case in his assessment of whether she
    required the assistance of counsel. The application judge is alleged to have
    failed to consider a number of factors that made this case complex, such as the
    length of the trial, the seriousness of the charges, the volume of disclosure,
    the requirement to cross-examine multiple Crown witnesses, the necessity to
    address the admissibility of evidence, and the need for forensic accountants.

[5]

We are not persuaded by this argument. The application judge
    appropriately balanced the appellants personal abilities against the
    complexity of the case and decided that state-funded counsel was not necessary
    for a fair trial. The appellants evidence in this regard was inadequate and
    generic, and stood in contrast to compelling evidence of her abilities.

[6]

The crux of the case was whether the appellant defrauded Ball Media or
    whether Ball Media paid her hundreds of thousands of dollars in bonuses,
    including at a time when the company was in dire financial circumstances. This
    was primarily a case that turned on the appellants credibility and thus
    documentary evidence did not play a central role in the trial.

[7]

In our view, the trial was not so complex that it required state-funded
    counsel to ensure that the appellant received a fair trial. We therefore
    dismiss this ground of appeal.

(ii)

Crown Conduct

[8]

The appellant advances a trial unfairness argument on the basis of
    alleged Crown misconduct and complains that the trial judge should have done
    more to protect her rights. The alleged Crown misconduct falls into two
    categories.

[9]

First, the appellant argues that the trial Crown tendered evidence that
    lacked a foundation, was previously undisclosed, or was presumptively
    inadmissible. In particular, the trial Crown adduced evidence of the
    appellants prior disreputable conduct, which is presumptively inadmissible,
    without holding a
voire dire
. Some of this evidence suggested that the
    appellant pressured a more junior employee at Ball Media to sign a fraudulent
    government grant document. Other evidence was led that the appellant diverted
    company staff time to creating promotional material for her private rental
    property in Florida. In addition, during her cross examination, the Crown
    produced previously undisclosed documents.

[10]

The tendering of the disreputable conduct evidence is troubling.
    Regardless of any probative value this evidence may have had, the trial Crown
    improperly suggested during closing submissions that it showed the appellants
    habit of pressuring other employees to go along with her financial schemes and
    dishonest practices relating to Ball Media money. Implicitly, this was an
    invitation to the trial judge to find that the alleged disreputable conduct
    made the appellant more likely to have committed the crimes she was charged
    with. However, the trial judge did not rely on the impugned evidence in his
    reasons for conviction, and we are of the view that it had no impact on his
    reasoning. Similarly, the documents put to the appellant in cross-examination
    were of marginal relevance and were not mentioned in the trial judges reasons
    for conviction. As a result, the trial judges failure to intervene at the time
    the evidence was introduced did not render the trial unfair or result in a miscarriage
    of justice.

[11]

Second, the appellant submits that the Crown crossed the line in
    cross-examining her by being aggressive, sarcastic, and unfair. In addition,
    the appellant says that the Crown bombarded her with mostly unfounded
    allegations of non-compliance with the rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L.)
. Cumulatively, the appellant submits,
    these issues made the cross-examination abusive and violated her right to a
    fair trial.

[12]

We accept that some of the trial Crowns
Browne v. Dunn

objections
    were not well-founded. However, the appellant had been warned by the trial
    judge about observing the rule in
Browne v. Dunn
, but then repeatedly
    testified to issues never put to Crown witnesses. The trial Crowns
    cross-examination, while aggressive at certain points, did not prejudice the
    appellants defence or bring the administration of justice into disrepute.
    Moreover, the fact that this was a judge-alone trial diminished any prejudicial
    impact.

[13]

In summary, although we are concerned by the manner in which the trial
    Crown prosecuted the case, we are not satisfied that the appellants right to a
    fair trial has been breached. Accordingly, we dismiss this ground of appeal.

(iii)

Charter
Application

[14]

The appellant sought a stay of proceedings, essentially for an alleged
    breach of her right under s. 11(b) of the
Charter

to be tried
    within a reasonable time. The trial judge found that the application did not
    comply with several requirements of the
Criminal Proceeding Rules for the
    Superior Court of Justice (Ontario)
, SI/2012 (the 
Criminal Rules
).
    For example, no affidavit or factum was filed, and the application was filed
    late. The Crown sought dismissal of the application for failure to comply with
    the
Criminal Rules
. The appellant asked that the application be decided
    immediately, or, in the alternative, that an adjournment be granted to remedy
    the deficiencies in her application record.

[15]

The trial judge noted that leave is required to proceed with an
    application if it does not comply with the
Criminal Rules
. He declined
    to grant leave because the deficiencies in the application were so serious as
    to make it impossible for the Crown to meaningfully respond. He also declined
    to grant an adjournment on the basis that it would result in further delay. In
    addition, the trial judge observed that there was no reasonable prospect that
    the application would succeed, noting that, according to the Crown, the
    56-month delay in the case exceeded the limits in
R. v. Jordan
, 2016
    SCC 27, [2016] 1 S.C.R. 631, but was subject to significant defence waivers. As
    a result, the trial judge dismissed the application.

[16]

The appellant argues that procedural rules are not to be applied rigidly
    and that the trial judge had a duty to help an unrepresented accused with the
    requirements of filing an application. Further, she submits that the trial
    judge erred in refusing to consider the merits of the application and providing
    virtually no reasons for declaring it to be without merit.

[17]

We are of the view that the trial judge erred in declining to hear the
    application. Trial judges have considerable discretion to manage the cases
    before them and an appellate court will not lightly interfere with that
    discretion. However, deference is not owed to unreasonable exercises of
    discretion: see
Haaretz.com v. Goldhar
, 2018 SCC 28, [2018] 2 S.C.R.
    3, at para 49;
R. v. Victoria
, 2018 ONCA 69, 359 C.C.C. (3d) 179, at
    para. 81. With all due respect to the trial judge, the decision not to hear the
    application was unreasonable, as there were a number of factors that the trial
    judge either failed to consider or did not accord adequate weight.

[18]

The first factor is the timing of the application. The appellant only
    became self-represented partway through pretrial proceedings. Her counsel
    considered bringing a s. 11(b) application but decided not to do so. Sometime
    after the appellant became unrepresented, the Supreme Court of Canada released
    the decision in
Jordan
. In light of that development in the law, the
    appellant decided to bring her application. This explains the timing of the
    application; it was not a last minute gambit designed to delay the prosecution
    of the case.

[19]

The next factor is the sufficiency of the appellants materials. There
    is no question that the materials did not comply with the
Criminal Rules
.
    It is also not challenged that at a judicial pre-trial conference conducted
    three weeks before the trial, the appellant was instructed regarding the
    materials she needed to file in support of her application. However, there is
    no reason to believe that, had the appellant been given the opportunity, she
    could not have remedied the deficiencies in her materials. Transcripts, an
    outline of the appellants argument, and other documents accompanied the notice
    of application and could have been supplemented by the necessary documents.
    Moreover, the deficiencies in the application record were not so significant as
    to foreclose the possibility of a meaningful Crown response, which came in the
    form of a factum.

[20]

The trial judges conclusion that the application was without merit was
    not explained. In our view, the application was at least arguable on the merits
    and had a reasonable prospect of success. Depending on the calculation of
    defence delay, this could be a case that exceeded the presumptive 30-month
    ceiling, thus placing the onus on the Crown to justify the delay.

[21]

It would appear from his reasons that the trial judge was concerned
    about the history of delay in the case. We note that the trial judge failed to
    consider who was responsible for that delay. In any event, even if the
    appellant had delayed the case previously, that is not a sufficient reason to
    prevent her from bringing a potentially meritorious
Charter
application.

[22]

We conclude that the decision of the trial judge not to hear the
    appellants application was unreasonable and cannot stand. In the next section
    of our reasons we consider the appropriate remedy that flows from our
    conclusion.

(iv)

Remedy

[23]

The Crown submitted that, in the event the court concluded that the
    trial judge erred in not hearing the s. 11(b) application, the court should
    determine the issue on the existing record. We decline to do so.

[24]

Appellate courts should be reluctant to determine a s.
    11(b) application where a trial court has not done so on its merits:
R.
    v. Rabba

(1991)
,
3
    O.R. (3d) 238 (C.A.). In our view, this matter has not been fairly and fully
    argued. The materials filed by the appellant in support of her application were
    incomplete. For example, some important transcripts that would have assisted in
    understanding who was responsible for specific periods of delay were not filed.
    The Crown has supplemented its materials on appeal but the appellant has not
    updated her application. It would be unfair to hold the appellant to the
    application record filed before the trial judge.

[25]

The issue that arises is whether a new trial should be ordered on all
    issues or only the issue of the appellants s. 11(b) application. As will be
    described below, we are of the view that the appropriate course in these
    circumstances is that the new trial be restricted to a determination of the s.
    11(b) application.

[26]

We start with the powers of a court on appeal. Section 686(2) of the
Criminal
    Code
, RSC 1985, c C-46 provides that when the court allows an appeal from
    conviction, it shall quash the conviction and either order a new trial or
    direct a judgment or verdict of acquittal to be entered. Section 686(8)
    provides that when the court exercises any of the powers conferred by s.
    686(2), it may make any order, in addition, that justice requires.

[27]

Section 686(8) has a broad remedial purpose. However, because this is a
    supplementary power, an order made under this subsection cannot be at variance
    with the primary order or limit the accuseds rights:
R. v. Hinse
,
    [1995] 4 S.C.R. 597, at paras. 30-31, and
R. v. Thomas
, [1998] 3
    S.C.R. 535, at paras. 17, 26.

[28]

In
R. v. Pearson
, [1998] 3 S.C.R. 620, the Supreme Court upheld
    a decision of the Quebec Court of Appeal ordering a new trial limited to the
    issue of entrapment on the basis that the Crown had failed to disclose information
    which could have been relevant to that issue. The court noted that entrapment
    is completely separate from the issue of guilt or innocence as is reflected by
    the fact that it is dealt with at a separate proceeding from the trial on the
    merits: at para. 7. It does not ask whether the accused is guilty or bring
    into play the presumption of innocence: at paras. 11-12. As a result, the court
    reasoned that  a new trial on the issue of entrapment would not be at variance
    with the primary order and it was unnecessary and wasteful to reopen the issue
    of the appellants guilt or innocence on the substantive charges in a new
    trial: at paras. 13-14.

[29]

In
Pearson
, at para. 16, the Supreme Court explained how an
    appellate court could quash a conviction without quashing the underlying
    verdict of guilt:

A court of appeal which orders a new trial limited to the issue
    of entrapment exercises its statutory jurisdiction under s. 686 of the
Criminal
    Code
in the following manner: where an accused successfully impugns the
    finding of no entrapment at his or her first entrapment hearing, the court of
    appeal allows an appeal against conviction, in accordance with the wording of
    s. 686(1). Then, pursuant to s. 686(2), the court of appeal quashes the
    conviction and orders a new trial. However, the quashing of the formal order
    of conviction does not, without more, entail the quashing of the underlying
    verdict of guilt. In most successful appeals against conviction, the court of
    appeal which quashes the conviction will also overturn the finding of guilt;
    however, the latter is not a legally necessary consequence of the former. Under
    s. 686(8), the court of appeal retains the jurisdiction to make an additional
    order to the effect that, although the formal order of conviction is quashed,
    the verdict of guilt is affirmed, and the new trial is to be limited to the
    post-verdict entrapment motion.

[30]

In our view, this case is analogous to the situation in
Pearson
.
    The appellant was convicted after a receiving a fair trial. The only
    meritorious argument advanced on appeal was about the failure of the trial
    judge to hear her s. 11(b) application. As in
Pearson
, the remedy that
    is sought on the application is a stay of proceedings, a consideration entirely
    unrelated to the issues at trial or the fairness of the trial result. Like in
Pearson
,
    it is unnecessary and wasteful to reopen the issue of the appellants guilt or
    innocence on the substantive charges in a new trial.

Disposition

[31]

The appeal is allowed in part. We make the following order:


(i)

the convictions are quashed pursuant to s. 686(2), but, pursuant to s.
    686(8) the findings of guilt are affirmed and are not set aside;


(ii)

a conditional stay of the proceedings is ordered pursuant to s. 686(8);


(iii)

a new trial is ordered, confined to the s. 11(b) issue; and

(iv)

the terms of the conditional stay are that: (a) in the event the s.
    11(b) application is successful, the conditional stay becomes a permanent stay,
    and (b) in the event the s. 11(b) application is not brought within 60 days, is
    abandoned, or unsuccessful, the conditional stay expires, and the findings of
    guilt and un-appealed sentence already imposed will operate.

Alexandra Hoy A.C.J.O.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.


