



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Breton, 2018 ONCA 753

DATE: 20180917

DOCKET: C64269

Hoy A.C.J.O and Watt J.A. and Then J.
(ad
    hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Marcel Breton

Appellant

Angela Ruffo and Daniel Santoro, for the appellant

James Sutton, for the respondent

Heard and released orally: September 13, 2018

On appeal from the conviction entered on July 25, 2014 by
    Justice Terrence A. Platana of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant, who was self-represented, was convicted of 21 offences
    after a three-week trial on two indictments which were tried together by a
    judge of the Superior Court of Justice sitting without a jury.

[2]

Among the offences of which the appellant was convicted were possession
    of cannabis; possession for the purpose of trafficking in cannabis, cocaine and
    ecstasy; six counts of possession of the proceeds of crime exceeding $5,000; possession
    of a prohibited weapon; seven counts of money laundering; and three counts of
    possession of proceeds of crime under $5,000.

[3]

At the conclusion of the trial, the judge sentenced the appellant to a
    term of imprisonment of nine and one-half years.

[4]

The appellant appeals his convictions. He says that a miscarriage of
    justice occurred because:

i.

the trial judge refused to grant him an adjournment when the judge
    removed counsel then representing him on the morning of trial;

ii.

the trial judge failed to provide the appellant with the level of
    assistance to which a self-represented litigant is entitled to ensure that the
    trial was fair; and

iii.

the appellant was excluded twice from his trial, thus offending the
    statutory provisions of s. 650(1) of the
Criminal Code
and his
    constitutional entitlement.

[5]

The respondent concedes that the appeal from conviction should be
    allowed, the convictions set aside and a new trial ordered on the indictments.

[6]

The respondents concession is grounded on the trial judges failure to
    provide sufficient assistance to the self-represented appellant during the
    trial proceedings. It is upon that basis that we agree that a new trial is
    required. It is unnecessary for us to consider, and we do not consider nor
    decide, the other grounds advanced by the appellant.

[7]

Some brief background is necessary to explain how it was that the
    appellant became self-represented and that the trial proceeded to its conclusion
    while he remained self-represented.

[8]

From time to time over the nearly five year period from first appearance
    to sentencing the appellant was represented by counsel. Counsel, not always the
    same counsel, appeared at a bifurcated preliminary inquiry and discovery,
    various adjournments and pre-trial applications, as well as at sentencing.

[9]

A pre-trial motion challenging the constitutionality of a search was
    scheduled for hearing shortly before the commencement of the formal portion of
    the trial. Shortly prior to the start of the pre-trial motion, trial counsel
    then acting on the appellants behalf asked to be removed as counsel of record.
    Counsel said that the appellant had refused to provide instructions and that
    the relationship between solicitor and client had broken down. With some
    difficulty, the pre-trial applications proceeded with the appellant represented
    by that counsel.

[10]

Several
    weeks later, the trial judge dismissed the pre-trial application challenging
    the constitutionality of the search and the admissibility of its proceeds. The
    same day trial counsel again sought his own removal as counsel of record on the
    basis of an irreparable breakdown in the solicitor-client relationship. The
    trial judge adjourned the application until the first day of trial. The
    application proceeded then and counsel was removed.

[11]

Throughout
    the proceedings the trial judge made it clear that if trial counsel were
    removed, the trial would proceed as scheduled with the appellant unrepresented.
    In light of the lengthy history of the proceedings, the trial judge appears to have
    been of the view that the appellant was gaming the system.

[12]

After
    defence counsel was removed, the trial judge adjourned briefly to permit the
    Crown to reorganize its case against the now self-represented appellant. When
    Crown counsel had done so, the appellant was arraigned, entered pleas of not
    guilty and the trial proceeded.

[13]

It
    is well settled that where an accused is self-represented at trial, the
    presiding judge has a duty to ensure that the accused has a fair trial. To
    fulfill that duty, the trial judge must provide guidance to the accused to the
    extent that the circumstances of the case and those of the particular accused
    may require it. Within reason and without becoming counsel for the accused,
    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:
R. v. Richards
,
    2017 ONCA 424, at para. 110.

[14]

No
    one gainsays that the onus on a trial judge to assist a self-represented
    accused is a heavy one. It is not enough that the verdict at the end of the
    trial is or appears correct. What matters is whether the trial has been fair
    for the self-represented accused:
R. v. Tran
(2001), 156 C.C.C. (3d)
    1 (Ont. C.A.), at para. 22.

[15]

The
    onus on a trial judge to assist a self-represented accused extends to an
    obligation to raise
Charter
issues on the judges own motion, at the
    very least where there is admissible uncontradicted evidence of a relevant
Charter
breach. In those circumstances, the trial judge has an obligation to raise the
    issue; to invite submissions; and to enter into an inquiry into the
    infringement and its consequences:
R. v. Arbour
(1990), 4 C.R.R. (2d)
    369 (Ont. C.A.), at p. 372;
Richards
, at para. 113. This onus remained
    despite the failure of prior counsel to advance this claim of
Charter
infringement as a discrete pre-trial application.

[16]

In
    this case, as the respondent rightly acknowledges, questioning the appellant
    following his arrest,
Charter
advice and the implementation of his
    right to counsel, offended the holding off requirement of the implementation
    component of s.10 (b) of the
Charter
. The responses of the appellant
    formed part, but by no means the entirety, of the evidence supporting the
    Crowns theory that the appellant was in constructive possession of the
    contents of the garage. Yet neither the trial Crown nor the trial judge raised
    or otherwise alerted the appellant to this violation, or to the connection
    between it and the evidence located in the garage, and thus to the impact of
    the violation on the admissibility of that evidence.

[17]

The
    appellant was charged with and on trial for several different offences. Possession
    of a controlled substance. Possession for the purpose of trafficking.
    Possession of a prohibited weapon. Possession of the proceeds of crime. Money
    laundering. Several of these offences have a number of constituent elements.
    Indeed, the trial judge himself sought additional assistance from the Crown in respect
    of the essential elements of
some
of these offences.

[18]

It
    was incumbent on the trial judge to ensure that the appellant understood the
    essential elements of those offences that the Crown was required to prove in
    order to establish his guilt. The trial judge failed to provide that
    assistance.

[19]

There
    are no easy days in the trial of self-represented litigants. It is all the more
    so for self-represented litigants who appear to be playing the system, bent on
    delaying the day of reckoning until the 12
th
of never by various
    devices. Consistent with the mandate of
R. v. Jordan
, 2016 SCC 27 and
R.
    v. Cody
, 2017 SCC 31, it is essential that trial judges exercise their
    trial management powers to ensure that justice is not delayed. But in the case
    of self-represented accused, they must not lose sight of their well-established
    obligation to assist, lest justice be denied.

[20]

In
    this case, we are satisfied that the trial judge failed to provide the
    assistance required by the authorities necessary to ensure that this
    self-represented appellant had a fair trial. It is on this ground, and on this
    ground only, that we allow this appeal, quash these convictions and order a new
    trial on all counts of the indictments.

Alexandra Hoy A.C.J.O.

David Watt J.A.

Edward Then J. (ad hoc)


