



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), (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    the complainant or a witness shall not be published in any document or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, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

(ii) an offence under section 144 (rape),
    145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

(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 complainant of the
    right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, 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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. Graham, 2014 ONCA 566

DATE: 20140729

DOCKET: M43406 and M43566 (C50624)

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Respondent

(Respondent on appeal)

and

Dale Graham

Respondent/Applicant

(Appellant on appeal)

Dale Graham, appellant in person

Jill Copeland,
amicus curiae

Alison Wheeler, for the Crown

Heard: March 25, 2014

On motion by the Crown for directions and on application
    by the appellant for an order pursuant to s. 683(3) of the
Criminal Code of
    Canada
for the examination or cross-examination of a witness.

By the Court:

[1]

There are two matters before the court:

(1)

a motion
    for directions by the Crown regarding an ineffective assistance of counsel
    claim sought to be advanced by the appellant, Dale Graham, on his pending
    conviction appeal in this court; and

(2)

an
    application by the appellant for an order pursuant to s. 683(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46 for the examination or cross-examination of his
    former trial counsel in aid of his proposed ineffective assistance claim.

Background

[2]

The background to these matters is somewhat complicated.  In brief, it
    may be summarized as follows.

[3]

The appellant, Dale Graham, was charged with 16 counts relating to child
    pornography.  On September 26, 2008, following a trial by judge alone, he was
    convicted of one count of making child pornography, one count of accessing
    child pornography, one count of voyeurism, and three counts of possession of
    child pornography.  His conviction for voyeurism was stayed in accordance with
R.
    v. Kienapple
, [1975] 1 S.C.R. 729.  On June 4, 2009, the appellant was
    sentenced to a total effective sentence of four years and one-months
    imprisonment.

[4]

The appellant appealed his convictions and sentence.  On June 16, 2011,
    this court heard his sentence appeal and reduced his sentence to three years
    and two months imprisonment, to reflect enhanced credit for pre-trial custody. 
    The appellant has now been released from custody.  His conviction appeal is outstanding.

[5]

The appellant is self-represented on his conviction appeal and does not
    wish to have counsel appointed on his behalf.  Prior to his release from
    custody, he was assisted by counsel from the Queens Correctional Law Project. 
    After the appellants release,
amicus curiae

assisted him with
    aspects of his conviction appeal, as described below.

[6]

The full transcripts from the appellants trial and his pre-trial
    conferences are now available for the purpose of the appellants conviction
    appeal.

[7]

In his Notice of Appeal, the appellant raises several grounds, including
    the alleged ineffective assistance of his trial counsel.  By an order dated
    October 4, 2011, Rosenberg J.A. (In Chambers), appointed
amicus
to
    assist the appellant on some of the grounds he seeks to advance, excluding his
    ineffective assistance of counsel ground.  Subsequently, pursuant to a pilot
    project then in progress at this court, the Crown agreed that the scope of
amicus
appointment should be extended to provide the appellant with an opinion
    concerning his ineffective assistance claim.
Amicus
has provided that
    opinion to the appellant.

[8]

The appellant swore three affidavits in support of his ineffective
    assistance claim.  He seeks to introduce these affidavits as fresh evidence on
    his appeal.

[9]

As part of his ineffective assistance claim, the appellant applied for
    an order pursuant to s. 683(1)(b) of the
Criminal Code
for the
    examination of various witnesses before a judge of this court or a special
    examiner.  The appellant did not name his former trial counsel as one of the
    proposed witnesses to be examined, apparently because he was then unaware that his
    trial counsel could be so included.

[10]

Extensive
    submissions were received from the appellant,
amicus
and the Crown on
    the appellants s. 683(1)(b) application.  The application was heard by a panel
    of this court on October 11, 2013 and was dismissed on October 30, 2013 on the
    ground that it did not meet the test under s. 683(1)(b) of the
Criminal
    Code
for the requested order:
R. v. Graham
, 2013 ONCA 652.

[11]

The
    appellant now applies under s. 683(3) of the
Criminal Code
for an
    order permitting him to examine or cross-examine his former trial counsel.  The
    court has been informed that, throughout, his former trial counsel has been
    prepared to voluntarily submit to examination or cross-examination, as
    necessary, without the necessity of a court order.

[12]

The
    appellants conviction appeal was first scheduled for argument before this
    court on December 5, 2013.  Following submissions by both parties and
amicus
on that date, on the request of the appellant and with the consent of the Crown
    and
amicus
, the appeal was adjourned to be rescheduled for argument as
    soon as possible after the determination of the Crowns motion for directions. 
    In its endorsement dated December 5, 2013, the court confirmed various steps
    that the parties agreed to undertake in order to permit argument of the Crowns
    motion before this panel on March 25, 2014.

[13]

After
    the December 5, 2013 attendance, the appellants former trial counsel sought to
    file submissions with the court outlining his position regarding aspects of the
    appellants application.  His submissions, together with the appellants responding
    submissions (delivered with the assistance of
amicus
) were filed on
    consent.  The court has considered these submissions as part of the materials
    relevant to the matters now before the court.

The Protocol

[14]

Effective
    May 1, 2000, this court introduced a procedural protocol regarding allegations
    of incompetence of trial counsel in criminal cases (the Protocol).  The
    Protocol provides for various procedural steps to be taken, many by the Crown, when
    an appellant seeks to raise an ineffective assistance claim in support of an appeal
    to this court.  These steps include the involvement of a case management judge
    of this court, the potential filing of an affidavit from trial counsel in
    response to the appellants allegation of ineffective assistance, the
    facilitation by the Crown in filing such an affidavit, and the possible
    examination or cross-examination of trial counsel.

[15]

In
    this case, for the reasons described below, a full fresh evidence process as
    envisaged under the Protocol has not yet been undertaken.  Specifically, the
    Crown has not sought an affidavit from the appellants trial counsel responding
    to the appellants allegation of ineffective assistance at trial, nor has it
    sought to cross-examine the appellant on his affidavits.

[16]

However,
    both the Crown and
amicus
have made inquiries of and have corresponded
    with the appellants former trial counsel.  Copies of that correspondence have
    been provided to the appellant.  In addition, the court was informed that the
    appellant has had access to his former trial counsels file and to the Crowns
    pre-trial disclosure.

Parties Positions

[17]

The
    Crown takes the position that: 1) the appellants ineffective assistance of
    counsel claim is without merit and, as a result, a full fresh evidence process
    in respect of this ground of appeal, as contemplated by the Protocol, is not
    only unjustified, but would also be a waste of time and resources; 2) in the
    circumstances, the appellant should be required to establish, as a preliminary,
    threshold matter, that this ground has a reasonable prospect of success before
    being allowed to advance it on appeal; 3) whether by means of this courts
    power to control its own process and/or by application of the leave requirement
    under s. 675(1)(a)(iii) of the
Criminal Code
, this court should make a
    preliminary determination whether the appellant has demonstrated sufficient
    potential merit to his ineffective assistance claim so as to justify full
    compliance with the Protocol (including obtaining a responding affidavit from
    the appellants former trial counsel and conducting a cross-examination on that
    affidavit); and 4) the appellants application for the examination or
    cross-examination of his former trial counsel should be dismissed.

[18]

For
    his part, the appellant argues that his ineffective assistance claim should be
    allowed to proceed and that he should be permitted to examine or cross-examine
    his former trial counsel in support of that claim.

[19]

Amicus
submits that the Crowns motion for directions should be dismissed.  She
    contends that the Crowns request for a threshold determination of the merits
    of the appellants ineffective assistance claim should be rejected: 1) as
    inappropriate, because it is difficult on a preliminary motion to consider the
    claim in the context of the full trial record; 2) as inefficient, since, as in
    most cases, other grounds advanced by the appellant will still require a full
    hearing on the merits before a panel of this court; and 3) because, in many
    cases, the lack of a response from trial counsel to an ineffective assistance
    claim in a criminal appeal will result in unfairness to the accused/appellant
    and corresponding injustice to the appellate process due to an incomplete
    record on the ineffective assistance issue.

Discussion

(1)

Crowns Motion for Directions

[20]

We
    turn first to the Crowns motion for directions.

[21]

The
    Crown seeks an order that the full application of the Protocol is neither
    appropriate nor warranted in the circumstances of this case.  As we understand
    Crown counsels submissions, the Crown invites this court to revisit the
    general application of the Protocol, to recognize a procedure for the Crown to
    obtain relief from the obligation to fully comply with the Protocol in a proper
    case, and to grant such relief in this case.

[22]

In
    our view, it is unnecessary to revisit the general application of the Protocol in
    addressing the case-specific issues raised by the Crown.

[23]

The
    Protocol sets out procedural guidelines to be followed in any criminal appeal to
    this court where the appellant proposes to advance an ineffective assistance
    claim.  The provisions of the Protocol are not cast in stone.  Neither are they
    intended to be rigidly applied in all instances where an ineffective assistance
    claim is proposed as a ground of appeal.  The flexibility of the procedural
    rules set out under the Protocol, on a case-by-case basis, is specifically confirmed
    by paragraph 19 of the Protocol, which reads in part as follows:

Judicial Variations of Procedural Rules
: This Protocol
    outlines the Rules that generally govern the procedure to be followed with
    respect to any appeal before the Court of Appeal for Ontario where the
    appellant proposes to allege that his or her counsel at trial conducted him or
    herself in a manner that amounted to professional incompetence or otherwise
    contributed to a miscarriage of justice.
Where a party is of the view,
    however, that the circumstances of the individual case are such that one or
    more of the Rules outlined in this Protocol should not apply, that party may
    bring an application, upon notice to the opposing party, to the case management
    Judge for an order making any necessary modification to the Rules of the
    Protocol
.  [Emphasis added.]

[24]

In
    addition, paragraph 18 of the Protocol states:

Compliance with Procedural Rules
: Where a party is
    having difficulty securing compliance with any of the Rules of the Protocol,
    the party at any time may seek a conference call with the case management Judge
    to address the issue.

[25]

Thus,
    the Protocol explicitly contemplates that some of its procedural rules may not
    be appropriate or necessary in all cases.  Further, any party may seek specific
    relief from strict adherence to the Protocol on an application to the involved
    case management judge of this court.

[26]

The
    Protocol is of great assistance to this court in adjudicating ineffective
    assistance claims on appeal. The Protocol seeks to ensure procedural fairness
    to appellants, involved trial counsel, and the Crown in respect of such
    claims.  Thus, compliance with the Protocol advances the administration of
    justice.  The Crown does not suggest otherwise.

[27]

That
    said, where the Crown is of the view that adherence to the entire process set
    out under the Protocol is neither necessary nor advisable in a given case, as in
    this case, it is open to the Crown to apply to the applicable case management
    judge of this court for relief from this obligation.
[1]
In effect, this is what the Crown did in this case.  At the end of the day, it
    remains for the Crown to determine the nature of its response to an appellants
     including a self-represented appellants  appeal to this court.

[28]

The
    merits of an appellants ineffective assistance claim on appeal and of the
    Crowns response to such a claim are matters to be determined by the panel
    hearing the appeal.  It is not for this panel of this court, on a motion for
    directions in a single appeal, to change the established practice of the court:
    see for example,
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R. (3d) 641 (Ont.
    C.A.), at para. 40.

[29]

The
    critical issue is to ensure that sufficient evidence is placed before the court
    in respect of an ineffective assistance claim so as to permit the proper
    adjudication of the claim and to ensure fairness to all parties, including the
    trial counsel whose assistance at trial is impugned by an appellant.  In some
    cases, these objectives will be met without full compliance with the Protocol.

[30]

In
    this case, we conclude that it is both unnecessary and inappropriate to make a
    preliminary determination on the merits of the appellants proposed ineffective
    assistance claim.

[31]

The
    record before us establishes that the appellants ineffective assistance claim
    has been particularized, trial counsel has been notified of the fact and
    details of that claim, inquiries have been made of him concerning the claim,
    and the nature and result of those inquires have been communicated to the
    appellant.  Further, the basis for the Crowns opposition to further compliance
    with the Protocol has been fully disclosed to the appellant and to the court.

[32]

In
    these circumstances, it cannot be said that the Protocol has been ignored, that
    its purposes have been undermined, or that the appellants ability to advance
    his ineffective assistance claim has been frustrated or impeded.  The Crown, as
    it may elect, is therefore at liberty to decline to follow the full fresh
    evidence process contemplated by the Protocol, subject to any further order as
    may be made by the panel hearing the appeal.

[33]

In
    our opinion, no criticism of the Crowns election in this case, once made, is
    warranted.  The Crown has made a proper and good faith attempt to seek judicial
    consideration and variation of the procedural rules set out under the Protocol
    in the particular circumstances of this case, as is permitted by the Protocol.

[34]

The
    Crowns motion for directions is therefore allowed in part, to the extent set
    out in these reasons.

(2)

Appellants Section 683(3) Application

[35]

Section
    683(3) of the
Criminal Code
states:

A court of appeal may exercise, in relation to proceedings in the
    court, any powers not mentioned in subsection (1) that may be exercised by the
    court on appeals in civil matters, and may issue any process that is necessary
    to enforce the orders or sentences of the court, but no costs shall be allowed
    to the appellant or respondent on the hearing and determination of an appeal or
    on any proceedings preliminary or incidental thereto.

[36]

In
    addition, the Protocol provides for the examination of trial counsel. 
    Paragraph 15 of the Protocol states in part:

The Examination of Trial Counsel
: Whether or not an
    affidavit from trial counsel has been filed by any party in connection with the
    allegation that the conduct of trial counsel amounted to professional
    incompetence or otherwise contributed to a miscarriage of justice, if any party
    wishes to compel the appearance of trial counsel at an Office of the Special
    Examiner for purposes of: (a) cross-examining trial counsel on his or her
    affidavit; or (b) examining trial counsel, in the absence of an affidavit, upon
    the issue of his or her professional performance in connection with the case,
    any party may bring an application to the Court, on notice to trial counsel and
    the opposing party, for an order compelling the appearance of trial counsel for
    purposes of such examination.  If the opposing party and trial counsel agree to
    the proposed order, the order may be made, on consent, without any court
    appearance.

[37]

Usually,
    where a self-represented appellant wishes to examine or cross-examine his or
    her former trial counsel in aid of an ineffective assistance claim, the Crown
    seeks to have counsel appointed for this purpose or, where the appellant
    opposes such an appointment, to have
amicus
appointed to attend and
    participate in the examination or cross-examination.

[38]

In
    this case, as we have said, the appellant is self-represented and does not wish
    to have counsel appointed on his behalf, either for the purpose of his appeal
    or for the purpose of examining or cross-examining his former trial counsel.  He
    wishes to conduct the examination or cross-examination of his former trial
    counsel himself.  Further, although
amicus
was instrumental in
    ensuring that a proper record in support of the appellants s. 683(3)
    application was placed before the court, her appointment does not extend to
    assisting the appellant with the merits of his ineffective assistance claim. 
    The appellant opposes the appointment of
amicus
(or the expansion of
amicuss
current appointment) to conduct any examination or cross-examination of his
    former trial counsel.

[39]

Having
    considered the record, and having had the benefit of both written and oral
    submissions from the appellant as well as the Crown on the appellants s.
    683(3) application, we are satisfied that the appellants application to
    examine or cross-examine his former trial counsel should be dismissed.

[40]

The
    appellants affidavits and related application materials outline in
    considerable detail his complaints about the assistance of his former trial
    counsel and the proposed areas on which he wishes to examine or cross-examine
    his former trial counsel.  The appellants complaints fall generally into four categories,
    as detailed in his affidavit sworn March 21, 2013 and his oral submissions. 
    The appellant maintains that his former trial counsel allegedly failed:

(1)

to follow
    his instructions regarding cross-examinations conducted at trial;

(2)

to effectively
    cross-examine a number of Crown witnesses;

(3)

to call a
    number of witnesses who the appellant asserts should have been called as defence
    witnesses; and

(4)

to file
    documents on time.

[41]

During oral argument, the appellant also maintained that his former
    trial counsel was confused and argumentative at trial and that he failed to
    provide any defence at all to the charges faced by the appellant.

[42]

We have carefully considered the details of these complaints, as
    furnished by the appellant.  Without commenting on the merits of his ineffective
    assistance claim, we are not persuaded on this record that the appellant has
    demonstrated any reasonable possibility that anything his former trial counsel
    might say on examination or cross-examination in respect of the appellants
    complaints would materially advance the appellants ineffective assistance
    claim.

[43]

In particular, through the efforts of the Crown and
amicus
, the
    appellant knows what his former trial counsel has to say in response to the
    appellants allegations.  We see no basis to conclude that examining or
    cross-examining his former trial counsel would add anything pertinent to the
    body of information now available to the appellant.  To the contrary, in our
    view, the proposed questioning of his former trial counsel that the appellant wishes
    to undertake relates to peripheral and speculative matters.

[44]

Further,
    in connection with the witnesses that the appellant says should have been
    called at trial, this court has already determined in its October 30, 2013
    ruling, described above, that much of the evidence that the appellant submits
    might have been provided by the identified witnesses would simply be irrelevant
    or redundant or mere speculation given the undisputed fact that child
    pornography was found on the appellants computer.  We note that with respect
    to at least one of these witnesses, the appellant is even uncertain as to the
    witness identity.

[45]

Finally,
    given the availability of the full trial transcripts, the panel hearing the
    appeal is positioned to assess the comportment and conduct of the appellants
    former counsel at trial, and the nature of the defence advanced on the
    appellants behalf.

[46]

We
    therefore conclude that the appellants affidavits, together with the full
    trial record and the record on this application, provide a basis on which the
    panel hearing the appeal may assess the appellants complaints about his former
    trial counsel.  Should that panel determine that evidence from the appellants
    former trial counsel is required in order to fully and fairly evaluate the
    appellants ineffective assistance of counsel claim, that panel may provide such
    further direction or order as it considers appropriate in the interests of
    justice.

Disposition

[47]

For the reasons given, the Crowns motion for directions is allowed in
    part, in accordance with these reasons, and the appellants application to
    examine or cross-examine his former trial counsel is dismissed.

[48]

We
    thank Crown counsel and
amicus
for their thorough and thoughtful
    submissions, which greatly assisted the court.

Released:

DW                                        E.A. Cronk
    J.A.

JUL 29 2014                           David Watt J.A.

K. van
    Rensburg J.A.





[1]
Given the particular history of this case, the Crowns motion here was brought
    at the outset of the scheduled appeal hearing.  In future, we anticipate that
    similar Crown motions, if any, will be brought before the involved case
    management judge of this court well in advance of any scheduled appeal hearing
    date.


