



C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. Ibrahim, 2021 ONCA 241

DATE: 20210416

DOCKET:
C6
2636

MacPherson,
    Trotter and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fayisa Ibrahim

Appellant

James Lockyer and Alexander Ostroff,
    for the appellant

Frank Au, for the respondent

Heard: January 19, 2021 by videoconference

On appeal from the conviction entered by
    Justice Gladys I. Pardu of the Superior Court of Justice, sitting with a jury,
    on May 15, 2013.

Trotter
    J.A.:

A.

introduction

[1]

Fayisa Ibrahim was convicted of the first degree
    murder of Kamal Hercules. Mr. Hercules was shot 10 times as he stood outside a
    grocery store at 171 Front Street, in downtown Toronto, on September 5, 2009.

[2]

The two men had exchanged angry words just a few
    hours before the shooting. With the assistance of others, the appellant
    obtained a gun and went looking for Mr. Hercules, culminating in the killing.

[3]

The appellant raises two grounds of appeal: (1)
    the trial judge erred by not granting the appellant an adjournment to retain
    new counsel after he discharged his trial counsel; and (2) the Crowns
    cross-examination of the appellant and her closing address to the jury undermined
    the fairness of the trial.

[4]

The following reasons explain why I would dismiss
    the appeal.

[5]

The trial judge properly exercised her
    discretion in handling the appellants decision to discharge his lawyer. She
    appointed his former lawyer as
amicus curiae
and took appropriate steps to ensure that the appellant received a
    fair trial.

[6]

The Crowns cross-examination of the appellant,
    combined with some ill-advised comments and factual inaccuracies in her closing
    address, was problematic. However, the trial judges interventions, along with
    her mid-trial and final instructions, neutralized any prejudice.

B.

factual overview

(1)

Introduction

[7]

This part provides a general overview of the
    evidence presented at trial. Further references to the evidence are provided as
    necessary during the discussion of the issues raised on appeal.

[8]

The Crowns case rested primarily on the
    testimony of three witnesses, all of whom were with the appellant at various
    times on the night of the murder: Rajko Tanovic, Abdalla Hassan, and Yvonne
    Asekunowo.

[9]

Mr. Tanovic was the appellants friend, although
    they were not particularly close. By the time of the trial, Mr. Tanovic had
    moved to Serbia. He was not charged in relation to Mr. Hercules murder.

[10]

Mr. Hassan had known the appellant all of his
    life. Before he testified against the appellant at trial, they were good friends.
    The appellant testified they were like brothers. Mr. Hassan said he feared
    for his safety while in jail because of his decision to testify against the
    appellant, however he did not attribute these concerns to anything the
    appellant may have done. Mr. Hassan was also charged with murdering Mr.
    Hercules, but was to be tried separately, after the appellants trial.

[11]

Ms. Asekunowo was the appellants girlfriend at
    the time of the shooting. When Mr. Hercules was murdered, she and the appellant
    lived together in an apartment at 171 Front Street  the building above the
    Rabba Fine Foods store where Mr. Hercules was murdered. She was pregnant with
    the appellants child at the time. Ms. Asekunowo was charged with being an
    accessory after the fact for helping to dispose of the gun used to kill Mr.
    Hercules.

[12]

Collectively, these key witnesses provided a
    first-hand account of the following: the dispute between the appellant and Mr.
    Hercules a few hours before the shooting; the procurement of the gun used to
    kill him; how the appellant located Mr. Hercules later that night; the
    appellants actions just before he shot Mr. Hercules; and how the gun was
    disposed of immediately after the shooting. The Crown also tendered cell phone
    records, which arguably corroborated the evidence of these witnesses.

[13]

All three witnesses had credibility issues: Mr.
    Hassan and Mr. Tanovic lied in their police statements, and Mr. Tanovic and Ms.
    Asekunowo lied at the appellants preliminary inquiry. Accordingly, the trial
    judge gave
Vetrovec
warnings in relation to all three witnesses:

Vetrovec v. The Queen
, [1982] 1 S.C.R.
    811.

[14]

The appellant testified that he was elsewhere at
    the time Mr. Hercules was ambushed. He claimed that the phone records supported
    his version of events.

(2)

Background to the Shooting

[15]

This murder was over nothing. Inconsequential
    words exchanged that resulted in a killing. These were the words of the trial
    judge at sentencing. This is an apt characterization of what happened.

[16]

The appellant and Mr. Hercules met each other at
    a party at Mr. Tanovics house in August 2009. They became involved in a
    trivial dispute. The appellant was talking to a guest outside. Mr. Hercules
    came outside and vomited. Concerned that vomit might get on him, the appellant
    asked Mr. Hercules to back up. Mr. Hercules friend, Vanteno Whynder, said that
    Mr. Hercules was very upset by the way the appellant treated him.

[17]

On September 5, 2009, Mr. Whynder was drinking
    with Mr. Hercules and some other men. Between 1:00 and 2:00 a.m., they walked
    along Front Street. Around 2:00 a.m., Mr. Tanovic and the appellant drove up in
    a car to speak to Mr. Whynder. Like the appellant and Ms. Asekunowo, Mr.
    Whynder also resided at 171 Front Street. Mr. Hercules, intoxicated at the
    time, was still upset about what happened at the party the month before. He muttered
    profanities under his breath, called the appellant a bitch, and challenged
    him to a fight. Mr. Whynder and Mr. Tanovic tried to calm the situation. Mr.
    Tanovic and the appellant drove off.

(3)

Obtaining a Gun

[18]

According to Mr. Tanovic, as he and the
    appellant drove away, the appellant was angry and kept saying Im going to get
    this guy and Im going to do him, which Mr. Tanovic understood to mean that
    he was going to hurt or kill Mr. Hercules. The appellant called Mr. Hassan and
    arranged to meet him at a bar nearby.

[19]

Mr. Hassan testified that at roughly 2:00 a.m., the
    appellant called him and asked for a gun.
[1]
He did not have one at the time, but he knew where he could get one. The
    appellant and Mr. Tanovic met Mr. Hassan at the bar.

[20]

Ms. Asekunowo testified  and the cell phone
    records confirm  that the appellant called her at 2:24 a.m. She was in bed. He
    asked her to go downstairs at their building to see if there were security
    cameras outside. At 2:28 a.m., he called her again and when she said she had not
    checked, he again directed her to do so, while he remained on the line. There
    were no security cameras.

[21]

After arriving at the bar to meet Mr. Hassan, Mr.
    Tanovic drove himself, the appellant, and Mr. Hassan to a building west of
    downtown Toronto, where Mr. Hassan was to get a gun from a person known as Grizz.
    Cell phone records suggest Mr. Tanovic drove the group to Grizzs apartment around
    2:45 a.m. Mr. Hassan was in the front passenger seat; the appellant was seated
    behind the driver. Mr. Tanovic said that during the drive the appellant and Mr.
    Hassan conversed in another language. Mr. Hassan confirmed that he and the
    appellant sometimes spoke Oromo with each other.

[22]

Mr. Tanovic said that at some point on the drive
    to Grizzs apartment, the appellant gave his cell phone to Mr. Hassan. This
    fact takes on significance in terms of the usefulness of the cell phone records,
    discussed below.

[23]

When the men arrived at Grizzs building, Mr.
    Tanovic said that he remained in the car with Mr. Hassan while the appellant
    went inside alone. When he came back out, the appellant appeared to be carrying
    something wrapped in a red sweater. The appellant got into a taxi. Mr. Tanovic
    and Mr. Hassan followed the taxi downtown until both vehicles were within a few
    blocks of 171 Front Street, at which point the taxi turned onto a side street and
    Mr. Tanovic continued on. Mr. Tanovic said they saw Mr. Hercules and Mr.
    Whynder standing outside of the Rabba grocery store at 171 Front Street. Mr. Tanovic
    hoped that Mr. Hassan did not see them, but he did. Mr. Hassan made a call and
    started speaking in a different language. Mr. Tanovic assumed Mr. Hassan was
    talking to the appellant. Mr. Tanovic wanted to warn Mr. Hercules and Mr.
    Whynder, but his phone was dead.

[24]

Mr. Hassans account was different. He said that
    both he and the appellant went into the building to the apartment to meet
    Grizz. Grizz gave him a loaded handgun. When they left the building, Mr. Hassan
    got back into Mr. Tanovics car and the appellant got into a taxi that Mr.
    Hassan had ordered. Mr. Hassan and Mr. Tanovic followed the taxi downtown. Once
    in the area of 171 Front Street, Mr. Tanovic panicked because he saw Mr.
    Whynder and Mr. Hercules. Mr. Tanovic made a quick call. Mr. Hassan denied that
    he had the appellants phone and that he called the appellant just before the
    shooting.

(4)

The Shooting of Mr. Hercules

[25]

Ms. Asekunowo testified that sometime after 2:30
    a.m., the appellant showed up at their apartment at 171 Front Street, changed
    into black clothes, and asked Ms. Asekunowo to follow him downstairs. They went
    to a door that opened to the buildings east side. It had a push bar and locked
    when it was closed. The appellant told Ms. Asekunowo to hold the door open for
    him. He covered his face with a black mask, said you didnt see anything, and
    went outside. Ms. Asekunowo heard clicking sounds, then gunfire. She let the
    door close. Shortly afterwards, the appellant was knocking on the door and she
    let him back in. They ran upstairs to their apartment.

[26]

Mr. Whynder was standing next to Mr. Hercules outside
    the Rabba store. He testified that the masked gunman walked up to them and
    started shooting. After firing many shots in rapid succession, the gunman ran
    away.

[27]

When they got back to their apartment, Ms.
    Asekunowo asked the appellant, What did you do? The appellant said that he
    shot a man. She was upset and asked him why he would do such a thing when they
    were expecting a baby. The appellant explained that he felt threatened and, if
    he did not act first, the other person would. The appellant changed out of his
    black clothes and made arrangements to return the gun.

[28]

Mr. Tanovic testified that roughly one minute
    after Mr. Hassan ended his call with the person he believed was the appellant, he
    and Mr. Hassan heard gun shots. Mr. Hassan testified that after Mr. Tanovic
    made the phone call, they turned the car around and heard gun shots as they
    were leaving the neighbourhood. After hearing the shots, the two of them were
    shocked. Neither thought that the issue between the appellant and Mr. Hercules
    was that serious.

(5)

The Aftermath

[29]

Mr. Tanovic testified that, after he and Mr.
    Hassan heard shots fired, he dropped off Mr. Hassan and then went home at about
    4:30 a.m.

[30]

Mr. Hassan said that after they heard the shots,
    he and Mr. Tanovic stopped near 200 Wellesley Avenue. Mr. Tanovic then spoke to
    someone on the phone and told Mr. Hassan that Ms. Asekunowo was on her way up
    to where they were. Mr. Hassan assumed she was coming to return the gun. Mr.
    Tanovic gave a phone to Mr. Hassan and told him to give it to Ms. Asekunowo. Mr.
    Hassan believed the phone belonged to the appellant.

[31]

Meanwhile, according to Ms. Asekunowos
    testimony, back at the apartment, the appellant instructed her to take a taxi
    to 200 Wellesley Avenue and return the gun to Mr. Hassan. The appellant told
    her to contact Mr. Hassan by calling him at the appellants cell phone number. At
    around 4:20 a.m., she got into a taxi approximately two blocks west of 171
    Front Street. Once she was in the taxi, she used her cell phone to call Mr.
    Hassan on the appellants number and told him she was on her way. Cell phone
    records support her claim that she used her phone near 171 Front Street and
    that the appellants phone was near 200 Wellesley Avenue when she called from
    the taxi. When she arrived at 200 Wellesley, Mr. Hassan got into the taxi and
    told her who he was. Ms. Asekunowo had the gun in her purse. The taxi took them
    to Grizzs apartment where they were to return the gun. For reasons that are
    not important to this appeal, this errand was unsuccessful. The next day Mr.
    Hassan threw the gun in the lake by the Argonaut Rowing Club. A passerby
    recovered the gun on September 7, 2009.

[32]

The appellant did and said various things after
    the shooting. He became aware that the police were looking for someone named
    Fuzzy in connection with the murder. Fuzzy was the appellants nickname. Ms.
    Asekunowo and others testified that the appellant instructed them not to refer
    to him by this name any longer. He told Ms. Asekunowo to assume that her phone
    calls were being monitored.

[33]

Mr. Hassan testified that he spoke with the
    appellant after the shooting. The appellant described approaching and shooting
    Mr. Hercules while Mr. Whynder stood by. He reported that Mr. Whynder did not
    run, which Mr. Whynder confirmed.

(6)

The Appellants Evidence

[34]

The appellant advanced an alibi defence: he was
    at the apartment of his friend Ahmed Muktar at 200 Wellesley Avenue when Mr.
    Hercules was murdered. He revealed this alibi for the first time at trial.

[35]

The appellant explained that, when he and Mr.
    Tanovic encountered Mr. Whynder and Mr. Hercules that night, Mr. Hercules was intoxicated
    and muttered profanities. Mr. Whynder attempted to control Mr. Hercules. The
    appellant was not particularly bothered by the confrontation, nor was he concerned
    about their interaction at the party the previous month.

[36]

At about 2:00 a.m., the appellant and Mr.
    Tanovic met with Mr. Hassan at a bar on Sherbourne Street. Afterwards, the appellant
    went to visit Mr. Muktar. When he arrived, he encountered several men who he
    did not know. Mr. Muktar was asleep.

[37]

The appellant left 200 Wellesley Avenue after
    3:00 a.m. He took a taxi to a Coffee Time store near Queen and Sherbourne to
    purchase pastries for Ms. Asekunowo. He called her, but because she was angry
    at him, she told him not to come home. The appellant directed the cab back to
    200 Wellesley, where he spent the night. He said that Ms. Asekunowo came to Mr.
    Muktars apartment to see him later that night, but he refused to see her. He
    returned to 171 Front Street the next day. He said he first learned about the
    shooting on the news.

(7)

Cell Phone Evidence

[38]

An important part of the Crowns case was comprised
    of cell phone records relating to the phones of Mr. Tanovic, Ms. Asekunowo, and
    the appellant.
[2]
The usefulness of the records associated with the appellants phone depended
    upon who had the phone at the time. The appellant denied that he gave someone
    else his phone that night, insisting that it did not make sense to do so. The
    evidence of Mr. Tanovic, Mr. Hassan, and Ms. Asekunowo, while inconsistent in
    certain respects, suggested otherwise.

C.

refusal to grant aN adjournment

(1)

Background

[39]

About four weeks into the trial, the appellant
    advised the trial judge that he wished to discharge his counsel. This occurred
    towards the end of the Crowns case, after Mr. Tanovic, Mr. Hassan and Ms.
    Asekunowo had testified, one after the other.

[40]

His trial counsel, Mr. Dennis, advised the trial
    judge of this development when the court convened on April 18, 2013. He told
    the trial judge that the appellant thought that his cross-examination of Ms.
    Asekunowo was inadequate and that the appellant could have done better. The
    following discussion occurred:

MR. IBRAHIM: And I feel that the way he
    cross-examined the most critical witness in the case was below satisfaction.

THE COURT: Mr. Dennis is a very experienced
    counsel.

MR. IBRAHIM: I understand that.

THE COURT: Do you think you could do better
    yourself?

MR. IBRAHIM: With those witnesses I honestly
    thought I believe that I could have. And I respect Mr. Dennis a lot. Ah we have
    a pretty good relationship. This is nothing personal, you know what I mean.
    This is my life, and this is a personal choice of mine.

[41]

The trial judge advised the appellant that if he
    discharged Mr. Dennis he would have to examine witnesses and address the jury
    himself. The appellant spoke of retaining new counsel, saying that it should
    not be an issue.

[42]

Discussion ensued about the potential
    difficulties in retaining counsel in the circumstances, including the
    willingness of Legal Aid Ontario (LAO) to fund a new lawyer. The trial judge
    mentioned that she might consider an adjournment for a week. She acknowledged
    the appellants concern that he may not be able to retain the services of a
    lawyer during that period of time. As the trial judge said:

So the consequence of your decision might be
    that you continue unrepresented in this case and you should know that before
    you make the final decision about terminating Mr. Dennis services. You would
    definitely be at a disadvantage to proceed on your own without a lawyer, but
    that might happen

.

[43]

Mr. Dennis advised the trial judge: The
    remaining witnesses are not that contentious. He then explained that although
    one remaining witness  a cell phone records expert  could be contentious, he
    assured the trial judge that the appellant knew the cell phone records
    extremely well and that he had had access to Mr. Dennis work product. He
    described the rest of the evidence as not controversial. He also mentioned
    that wiretaps, the admissibility of which was not contested, would be played
    and said: you know, you cant cross-examine a wiretap, so its not that
    complicated from here on in.

[44]

The trial judge arranged for the parties to
    appear before McMahon J. for a mid-trial conference to discuss the implications
    of the appellants intention to discharge his counsel. The appellant agreed to
    this arrangement. When proceedings resumed before the trial judge, the
    appellant outlined his understanding of his options  he could request a
    mistrial or request an adjournment to retain new counsel. He brought
    applications for both. The appellant reiterated his concerns with Mr. Dennis
    performance, but again insisted that his decision was not personal, and that he
    had a great deal of respect for him.

[45]

The Crown opposed the granting of a mistrial or
    a lengthy adjournment.

(2)

The Trial Judges Ruling

[46]

Following the discussion with the appellant and
    counsel, the trial judge dismissed the mistrial and adjournment applications. She
    said the following:

Having regard to the stage at which this
    discharge of counsel has occurred and the reasons for the discharging, in my
    view it would be contrary to the public interest to declare a mistrial under
    these circumstances. I must be satisfied that Mr. Ibrahim can have a fair
    trial. He is charged with a very serious offence. I will give fuller reasons
    for dismissing the request for a mistrial and for an adjournment to retain new
    counsel at a later date.

. . .

The most important witnesses have testified
    already as part of this case, as Mr. Ibrahim has referred to, the evidence of
    Mr. Hassan and the evidence of his former girlfriend. Having regard to the
    nature of the evidence that rests as part of the Crowns case, I am satisfied
    that Mr. Ibrahim can have a fair trial with the appointment of Mr. Dennis as Amicus.

[47]

In her subsequent written decision,
R. v. Ibrahim
, 2013 ONSC 2412, at
    paras. 1-2, 4-7,

the trial judge made a number of observations that are
    important to this ground of appeal:

·

Mr. Hassan and Ms. Asekunowo both gave very
    incriminating evidence, though it differed from the evidence Mr. Hassan made in
    his police statement and Ms. Asekunowo gave at the preliminary inquiry;

·

the appellant was informed ahead of trial that
    Mr. Hassan and Ms. Asekunowos testimony would be changing, though until they
    testified, no one could be sure what they would say;

·

nevertheless, their trial testimony undoubtedly
    had a substantial impact on the likelihood of conviction, and that impact was
    likely the reason the appellant discharged Mr. Dennis and requested a mistrial;

·

the appellants primary reason for discharging
    Mr. Dennis was to derail the trial because the evidence ha[d] become
    uncomfortably incriminating;

·

most of the important Crown witnesses had
    already testified and the remaining evidence  much of which related to the
    cell phone records  was not controversial;

·

the appellant had made no attempts to secure
    new counsel and there was no realistic prospect of new counsel, therefore the
    appellants request for an adjournment was effectively a request for a
    mistrial;

·

in light of the reasons for and timing of the
    discharge, it would be contrary to public interest to declare a mistrial;

·

appointing Mr. Dennis as
amicus
would
    ensure the appellant received a fair trial, as Mr. Dennis was prepared to
    assist the court and he had the experience and ability required to effectively
    take on the role; and

·

fairness to both sides required that the trial
    continue, despite the fact the appellant was on trial for first degree murder,
    which is one of the most serious offences.

[48]

Later in the day on April 18, the trial judge formally
    appointed Mr. Dennis as
amicus curiae
.

[49]

The trial judge then gave the appellant detailed
    instructions, both orally and in writing, about how to participate in the trial
    without counsel. The appellant made no complaint about the adequacy of these
    instructions.

[50]

At the end of this presentation, as the trial
    judge was vetting the admissibility of the evidence of a firearms expert, the
    appellant said: I thought that it was my right to have a fair trial. I feel
    like without being represented by counsel the whole fairness goes right out the
    window. The trial judge explained to the appellant that his present
    circumstances were the result of the decision that he made, saying to the
    appellant: its a poor decision on your part, but its your right to make that
    decision. And I simply cannot force you to continue with counsel.

[51]

The appellant responded, saying: I understand
    that, but I mean the whole point of me doing that [discharging Mr. Dennis] was
    from my understanding to be able to obtain another lawyer. I wouldnt fire a
    lawyer to continue my trial to represent myself. Thats just ridiculous. After
    further discussion, the case was adjourned to April 22, 2013. The trial judge
    said the following to the appellant:

I have already told you I think its a bad
    decision to terminate your counsel. You can change your mind about it if you
    wish. You dont have to. The trial will continue one way or the other, but its
    up to you to make that decision.

[52]

The appellant did not change his mind.

(3)

The Continuation of the Trial

[53]

When the trial resumed a few days later on April
    22, 2013, Mr. Dennis requested clarification in his role as
amicus
. He asked that he be restricted
    to a traditional role in assisting the court. The trial judge acceded to this
    request.

[54]

The trial continued that day. By the end of the
    following day, April 23, the Crown had called its last four witnesses  the
    person who found the gun in the lake, the firearms expert, the cell phone
    records expert, and a police officer who introduced intercepted communications.
    During the examination-in-chief of the police officer, the trial judge
    intervened on her own motion to stop the Crown from eliciting unnecessary and
    potentially prejudicial investigative hearsay evidence. The appellant
    cross-examined the cell phone records witness in some detail and asked some
    questions of the police officer.

[55]

Once the Crowns case was closed, the trial
    judge granted the appellants request to adjourn the case so that he could
    properly prepare for the next stage of the trial. Initially, the trial judge
    was prepared to adjourn the case for five days. However, after the appellant
    advised her that it would be difficult to get access to his court papers while
    incarcerated, the trial judge adjourned the case for eight days, from April 24
    to May 2.

[56]

When the trial resumed on May 2, the appellant
    told the trial judge that he did not have sufficient access to his materials at
    the institution to prepare his defence. Considering all of the circumstances,
    including the delay that had already transpired, the trial judge decided to
    continue with the trial. This was after learning that the appellant planned to
    call one or two witnesses, and that he might testify on his own behalf.

[57]

Accordingly, the trial continued and the
    appellant gave his opening address to the jury, which was brief but focused and
    articulate. He called a single witness  Malleena Browne  a resident of a building
    near the murder location. In questioning this witness, the appellant more than
    once successfully refreshed her memory with her preliminary inquiry testimony.
    Ms. Browne described hearing shots and said she saw the shooter go down some
    stairs and into an alleyway. She said the shooter was dressed in all black. She
    was roughly 500 metres away at the time. When she made these observations,
    emergency vehicles were already on the scene, making it unlikely that she actually
    saw the shooter running away.

[58]

The appellant conferred with the
amicus
before stating his intention to
    testify. He gave his examination-in-chief in narrative form; the
amicus

did
    not assist him
.
He was
    cross-examined for part of that same day, the following day, being Friday, May
    3, and then on the following Monday, May 6.

[59]

The appellant delivered his closing address to
    the jury on May 9, 2013. He addressed the jury at length and covered the
    evidence in great detail. At the pre-charge conference, the
amicus
made some submissions on behalf
    of the appellant. The appellant used this opportunity to make objections to
    inaccuracies in the Crowns closing address to the jury, an issue to which I
    return below.

[60]

Following the trial judges instructions to the
    jury, both the Crown and the appellant raised a few concerns. The trial judge characterized
    their objections as relating to mostly factual matters that [were] the
    province of the jury and declined to provide further instructions. Subsequently,
    the
amicus
assisted the appellant with providing input to the trial
    judge on the jurys sole question, concerning the meaning of the words planned
    and deliberate.

(4)

The Positions of the Parties

[61]

The appellant originally appealed the trial
    judges failure to declare a mistrial. However, at the hearing of the appeal, he
    did not pursue this issue. Instead, he submitted that the trial judge erred in
    failing to adjourn the proceedings so that he could retain new counsel. The
    appellant submits three underlying issues contributed to the trial judges
    error. First, the trial judge erred in her finding, in para. 47 above, that the
    appellant discharged Mr. Dennis in an attempt to derail the trial. The
    appellant submits that this finding was unfair because the suggestion was never
    raised in submissions and the appellant was never directly asked about it. Moreover,
    the appellant submits that, instead of focusing on whether Mr. Dennis had
    performed to standard, the trial judge should have focused on whether the
    appellant had a legitimate reason to believe that Mr. Dennis was not doing a
    proper job.

[62]

Second, the trial judge erred in failing to raise
    alternatives to an undefined adjournment to retain new counsel with the
    appellant. The appellant submits those alternatives included: giving him a time-limited
    opportunity to retain new counsel; permitting him to recall witnesses for
    further cross-examination; and canvassing whether the Crown would consent to a
    re-election to a judge-alone trial, based on the existing record, if an
    adjournment were permitted to obtain new counsel.

[63]

Lastly, the appellant submits that, given the
    strength of the evidence and seriousness of the charge, appointing his
    discharged counsel as the
amicus
was an insufficient substitute for the appellant being represented
    by proper defence counsel. The appellant points to the fact that the trial
    judge initially envisaged that the
amicus
would assume an enhanced role, akin to defence counsel, a view the
    Supreme Court of Canada subsequently ruled against in
Ontario v. Criminal Lawyers Association of Ontario
, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 49-56. However, when the
    trial judge later restricted the
amicus
to a more limited role, she failed to revisit whether that limited
    role would ensure trial fairness. The appellant also argues that appointing his
    discharged counsel as
amicus
risked tension between the
amicus
and the appellant.

[64]

The respondent submits that the objective
    circumstances of the case support the trial judges finding that the appellant
    attempted to derail the trial. He further contends that the appellant never expressed
    a desire for anything other than a jury trial or sought to recall witnesses, and
    that the appointment of
amicus
was appropriate in the circumstances, particularly in light of the steps
    the trial judge took to ensure a fair trial for both sides.

(5)

Analysis

(a)

Introduction

[65]

The case against the appellant took a serious
    turn once Mr. Tanovic, Mr. Hassan, and Ms. Asekunowo testified. Their trial
    evidence was very different from their police statements and preliminary
    inquiry testimony. As the trial judge observed, before they testified at trial,
    no one knew what they would say; after they testified, their trial evidence
    had a substantial impact on the likelihood of conviction. The appellant
    attempted to palliate his predicament by discharging Mr. Dennis.

[66]

On appeal, the appellant does not allege that he
    received ineffective assistance from Mr. Dennis. Nonetheless, this was an
    undertone in the appellants written and oral submissions, which focused on Mr.
    Dennis cross-examinations of the key Crown witnesses, especially Ms. Asekunowo.
    The appellant criticized Mr. Dennis cross-examination for being too gentle,
    despite the fact Ms. Asekunowo was the appellants former girlfriend and the
    mother of their child. The appellant told the trial judge that he could have
    done a better job. The trial judge was dubious of this claim. Four weeks into
    the trial, and having had the opportunity to observe Mr. Dennis in action, the
    trial judge was well-placed to make this appraisal. As she said at para. 3 of
    her written ruling:

It is always easy to second guess counsels
    approach to cross-examination.
There was nothing about the cross-examination
    which could support an argument that the accused lacked competent counsel.
Reasonable counsel may take different approaches to this task. It was
    established in cross examination that the witnesses [Mr. Tanovic, Mr. Hassan
    and Ms. Asekunowo] made prior statements under oath about important matters,
    which did not incriminate the accused in the way their trial testimony did.
    [Emphasis added.]

[67]

The appellant reviewed these inconsistencies in
    his closing address, as did the trial judge in her charge, in which she
    instructed the jury in accordance with
Vetrovec
. The appellant makes no complaint about this instruction.

[68]

Following the appellants declared intention to discharge
    Mr. Dennis, the trial judge urged him to reconsider. She told him it was ill-advised.
    But he was unpersuaded. As was his right, he decided to represent himself.

(b)

An Attempt to Derail the Trial

[69]

I would not upset the trial judges finding that
    the appellant attempted to derail the trial by discharging counsel. The circumstances
    surrounding the appellants applications and the potential consequences of his
    decision were discussed in submissions leading up to the trial judges ruling.
    No unfairness was occasioned merely because the appellants motivation was not
    put to him directly. Had it been, the response would undoubtedly have been a denial.

[70]

This court has upheld similar findings by trial
    judges. In
R. v. Amos
,
    2012 ONCA 334, 292 O.A.C. 298, leave to appeal refused [2014] S.C.C.A No. 160, the
    appellant was convicted of first degree murder. At the end of the Crowns case,
    five or six weeks into the trial, the appellant discharged his counsel. The
    trial judge permitted counsel to withdraw and adjourned the proceedings to allow
    the appellant to retain new counsel. However, the trial judge denied the appellants
    application for a subsequent three-week adjournment to allow one of his former
    counsel to re-acquaint herself with the case. The trial judge characterized the
    adjournment request as a sham and appointed trial counsel as
amicus curiae
.

[71]

On appeal, this court held that the trial judge
    did not err in this characterization of the adjournment request. The court
    looked to the circumstances surrounding the request, including the fact that
    the appellant essentially ignored the trial judges offers of assistance to obtain
    new counsel. This court found, at para. 17, that there was an adequate
    evidentiary foundation for the trial judges finding that the appellants
    request for an adjournment  was a sham.

[72]

In
R. v. Phung
, 2012 ONCA 720, leave to appeal refused, [2014] S.C.C.A. No. 97, involving
    one count of first degree murder and one count of attempted murder, the trial
    judge refused to grant an adjournment when the appellant discharged his lawyer.
    The trial judge heard evidence that the appellant told a court officer that he
    did not like the judge and asked if he would get a mistrial if he fired his
    lawyer. The trial judge found the circumstances, including the timing of the
    discharge of counsel (
i.e.
, after
    an unfavourable ruling), demonstrated patent manipulation on the part of the
    appellant. This court found that this pivotal finding [was] unassailable: at
    para. 33.

[73]

In
R. v. P.D.C
.
, 2021 ONCA 134, the appellant was
    convicted of sexual assault, criminal harassment, and breach of recognizance. On
    appeal, he submitted that the trial judge erred by not declaring a mistrial
    when he discharged his counsel, failing to appoint an
amicus curiae
, and failing to preserve
    the fairness of the continuing trial.

[74]

The appellant alleged, among other things, that
    his trial lawyers performance was lacking. The trial judge disagreed and
    stated that the appellants request for a mistrial appear[ed] to be nothing
    more than an attempt  to delay th[e] trial. As in this case, the appellant
    submitted that the trial judges finding about the appellants motivation was
    procedurally unfair because this position was not put to him, the Crown did not
    argue it, and it was in any event unsupported by the evidence.

[75]

This court dismissed this ground of appeal.
    Zarnett J.A. observed that, as soon as the appellant stated his intention to
    discharge counsel, the trial judge expressed his concerns about the timing of
    the request, especially when he afforded the appellant an earlier opportunity
    to seek an adjournment to address counsel-related issues. Zarnett J.A. wrote,
    at para. 42: The concern that this was a delay tactic was thus effectively put
    on the table. On the record before him, the trial judge was entitled to draw
    the conclusion that a desire for delay motivated the request for a mistrial.

[76]

Timing was also critical in the case at bar. The
    testimony from Mr. Tanovic, Mr. Hassan, and Ms. Asekunowo was key to the
    Crowns case. It was only after the completion of their testimony that the
    appellant made his move. At that stage, there was little in the anticipated
    evidence that was controversial. The damage had already been done.
    Realistically, the only curative course was to start all over again. This could
    only be achieved by terminating 
i.e.
, derailing  the trial. The appellant hoped to achieve this goal by
    turning on his lawyer who, by all accounts, had performed perfectly well.

[77]

The appellant was entitled to discharge Mr.
    Dennis, and the trial judge recognized that she had no authority to force the
    appellant to continue to be represented:
R. v.
    Cunningham
, 2010 SCC 10, [2010] 1 S.C.R. 331, at
    para. 9. As in
Amos
,
    at paras. 20-21, the trial judge ensured that the appellant was aware of the
    consequences of his actions. She asked him to reconsider. She also arranged for
    a mid-trial conference before another judge so that the appellant could truly
    understand what might lay ahead. The appellant made his decision, fully
    informed of the consequences.

[78]

Having made an informed decision to discharge Mr.
    Dennis, the appellant was not automatically entitled to a mistrial or a lengthy
    adjournment: these matters lie in the discretion of the trial judge, who must
    assess whether there is a real danger that trial fairness has been
    compromised:
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79. In this case, as in
Amos
,
Phung
, and
P.D.C
.
, the surrounding circumstances of the
    appellants decision to discharge Mr. Dennis supported the trial judges
    finding that the appellants actions were not taken in good faith and that he
    was attempting to subvert the trial process. Notwithstanding his true
    motivation, the trial judge ensured that he received a fair trial.

(c)

Failure to Grant a Longer Adjournment

[79]

The appellant states that after he raised his
    intention to discharge his counsel on Thursday, April 18, the trial judge only
    permitted an adjournment until the following Monday. Pointing to the time the
    trial judge subsequently and cumulatively afforded him during the remainder of
    the trial, the appellant submits this makes his point that the trial judge
    should have granted a longer adjournment when the issue first arose.

[80]

This submission benefits from hindsight, but it
    does not undermine the trial judges decision, which was made on the facts
    known at the time. The trial judges refusal of a potentially lengthy
    adjournment must be afforded deference on appeal:
R.
    v. Nichols
, 2001 CanLII 5680 (Ont. C.A.), at para.
    23, leave to appeal refused, [2001] S.C.C.A. No. 508;
R. v. McCallen
(1999), 131 C.C.C. (3d)
    518 (Ont. C.A.). The trial judge was correct to conclude that it would be both
    unrealistic that new counsel would be prepared to take on the case on such
    short notice such that the trial could continue, and that it was highly
    unlikely that LAO would permit a change of counsel at that juncture. A lengthy
    adjournment of this jury trial was essentially just another request for a
    mistrial.

[81]

This case differs markedly from
R. v. Al-Enzi
, 2014 ONCA 569, 121 O.R.
    (3d) 583, leave to appeal refused, [2014] S.C.C.A. No. 405, upon which the
    appellant places great reliance. In
Al-Enzi
,

this court
    found that the appellant did not receive a fair trial after his counsel asked
    to withdraw for ethical reasons. The appellant was charged and tried with
    another individual. After the appellants counsel was discharged, the trial
    judge granted a four-month adjournment for the appellant to obtain new
    representation.  During that time, the appellant, with the assistance of
    others, made extensive good faith efforts to retain new counsel. However, no
    lawyer was willing or prepared to represent him mid-trial. The trial judge
    refused to grant severance or a mistrial; instead, he appointed an
amicus
and the trial continued. The
    appellant was convicted; his co-accused was acquitted.

[82]

On appeal, this court considered the severance
    and mistrial issues together, in part because the two remedies engage similar
    considerations: at para. 65. Those considerations also apply to this case in
    terms of the propriety of the appellants adjournment request.

[83]

There are several points of contrast between
    this case and
Al-Enzi
.
    First, in
Al-Enzi
,
    this court noted that the appellant was blameless in the discharge of his
    counsel, who effectively withdrew on his own motion: at para. 91. In this case,
    the appellant discharged his counsel for what the trial judge believed to be
    dubious reasons.

[84]

Second, in
Al-Enzi
, the appellant made extensive efforts to retain new counsel. The
    appellant and others collectively contacted over 100 lawyers, but to no avail: at
    para. 38. By contrast, in this case, it appears the appellant had no plan to
    engage new counsel. He mentioned that he had spoken to other lawyers before his
    trial, and indicated that it should not be a problem. However, throughout this
    process, he never mentioned a specific lawyer. There is no indication that the
    appellant tried to retain new counsel. There was no realistic prospect that a
    new lawyer would be retained. A lengthy adjournment would have been fruitless.

[85]

Third, in
Al-Enzi
, the case was legally complex: at para. 79. In this case, it was
    not.

[86]

Fourth, in
Al-Enzi
, the appellant faced a trial with a co-accused who was adverse in
    interest. They ran so-called cut-throat defences: at para. 62. The appellant
    was forced to defend himself on two fronts  battling both the Crown and his
    co-accused. Mr. Al-Enzi was convicted and his co-accused was acquitted: at
    para. 4. In this case, the appellant did not face similar challenges.

[87]

Lastly, in
Al-Enzi
, the appellant was described as not particularly literate: at para.
    79. In this case, the appellant demonstrated that he was intelligent, literate,
    and effective in his in-court dealings.

[88]

Many of the key factors that supported allowing
    the appeal in
Al-Enzi

are non-existent in the appellants
    case;
Al-Enzi
does not
    support the appellants position on this appeal.

(d)

Other Options

[89]

The appellant further submits that, having
    refused an adjournment to allow him to retain new counsel, the trial judge
    should have considered other options, such as recalling witnesses, exploring
    the possibility of discharging the jury, or permitting a re-election to a
    judge-alone trial with an adjournment until new counsel could be retained to
    continue the trial on the existing record. I disagree.

[90]

There is no indication that the appellant wished
    to have any witnesses recalled. It is difficult to see how he would benefit
    from having Mr. Tanovic, Mr. Hassan and/or Ms. Asekunowo provide further
    testimony. Realistically, it was the last thing the appellant could have
    wanted.

[91]

The suggestion of re-electing the mode of trial
    is completely speculative. There is no indication  either at trial or on
    appeal  that the appellant was prepared to waive his constitutional right to
    trial by jury. Moreover, in a prosecution for an offence listed in s. 469 of
    the
Criminal Code
, of
    which murder is one, the Crowns consent is required for a trial to be
    conducted by a judge sitting without a jury: ss. 471, 473. It is not known
    whether the Crown would have been prepared to consent.

(e)

The Appointment of
Amicus Curiae

[92]

The appellant submits that the trial judges
    decision to appoint
amicus curiae
was inadequate to preserve the fairness of the trial.

[93]

The appellant points out that, as originally
    envisaged, the trial judge expressed the hope that, in this new position, Mr.
    Dennis would take on a robust role that included cross-examining witnesses. As
    the appellant correctly points out, this expanded role sits uncomfortably with
    the Supreme Courts decision in
Ontario v. Criminal
    Lawyers Association
, at paras. 49-56. However,
Ontario v. Criminal Lawyers Association
was decided on August 1, 2013, after the appellants trial was
    complete.
[3]


[94]

Notwithstanding the trial judges initial approach
    to the scope of assistance the
amicus

would provide
, Mr.
    Dennis requested that he be permitted to fulfill a narrower, more traditional
    role. The appellant submits that, in these circumstances, the trial judge
    should have re-assessed whether a fair trial was still possible. I disagree.

[95]

Although
Mr. Dennis
fulfilled the more traditional aspects of the
amicus
role, he continued to provide valuable
    assistance to the appellant. As set out in the respondents factum:

As
amicus
, Mr. Dennis made himself
    available to the appellant for consultation, explained legal concepts to him,
    assisted with subpoena for defence witnesses, made objections, argued points of
    law and points of evidence, facilitated an agreed statement of facts, and
    offered advice on the closing address.

[96]

In addition, the trial judge repeatedly took
    steps to ensure that the appellant received a fair trial by accommodating his
    numerous requests for more time and assistance.

[97]

The appellant also submits that it was not
    appropriate to appoint his discharged trial counsel as
amicus curiae
. I disagree. In
Amos
, Watt J.A. rejected this general
    proposition, at para. 29: No bright line rule bars the appointment of former
    counsel as
amicus
.
    The propriety of such an appointment is determined by the circumstances of the
    case.

[98]

The appellant again relies upon
Al-Enzi
, in which the court concluded
    that the appointment of
amicus
, even with an expanded mandate, was not an adequate substitute for
    defence counsel: at para. 82. Laskin J.A. explained, at para. 82:

Al-Enzi needed a person fully familiar with
    his case, a person in whom he had full trust and confidence. The
    solicitor/client relationship is built on intangible characteristics, not
    transferable to a person appointed by the court  certainly not a person with
    whom the client had no relationship; see
R. v. McCallen
(1999), 43 O.R.
    (3d) 56 (C.A.); and
R. v. Rafferty
, 2013 ONCA 741, [2013] O.J. No. 5550.

[99]

Once more, the comparison with
Al-Enzi
does not assist the appellant.
    In the appellants case, and in line with
Amos
(distinguished in
Al-Enzi
), it was appropriate to appoint former defence counsel as
amicus curiae
. Mr. Dennis was
    completely familiar with the case; in
Al-Enzi
, the
amicus
was new to the case. In this case, the appellant said that he had a
    good relationship with and a lot of respect for Mr. Dennis, despite being
    dissatisfied with some aspects of his performance as counsel. No one was better
    placed to assume the role of
amicus
in the circumstances.

(f)

Conclusion

[100]

When the appellant discharged Mr. Dennis, the trial judge was
    required to consider numerous factors in plotting the path ahead. At the
    forefront was the appellants fair trial interests. However, there were also
    public interest considerations to be taken into account. The trial judge
    decided that it would be contrary to the public interest to grant a lengthy
    adjournment  which she likened to granting a mistrial  given the timing and
    reasons for discharging counsel. The trial judges conclusion that fairness to
    both sides required that the case continue was a reasonable one in the
    circumstances. With no prospect of new counsel on the horizon, the trial
    judges accommodation of the appellants requests, the appointment of
amicus
, and the trial judges
    assistance to the appellant ensured that he received a fair trial.

[101]

I would dismiss this ground of appeal.

D.

the conduct of the Crown

(1)

Introduction

[102]

The appellant submits that the Crown misconducted herself in her cross-examination
    of the appellant and gave a jury address that was unfair and riddled with
    inaccuracies. He contends that the Crown took advantage of him, as a self-represented
    party, and thereby rendered the trial unfair.

[103]

Certain aspects of the Crowns conduct are concerning. She
    occasionally tested the limits of propriety when cross-examining the appellant.
    However, the trial judge intervened to minimize the potential damage.

[104]

The appellant also criticizes the Crown for not confronting the
    appellant with evidence that contradicted his version of events, including the
    cell phone records. The appellant submits that, by failing to do so, the Crown
    denied him the opportunity to give his version of events. I disagree. The Crown
    was not required to put her case and theory to the appellant, step-by-step. The
    Crowns failure to do so did not render the trial unfair.

[105]

Finally, the appellant correctly notes that the Crown misstated the
    evidence a few times during her closing address and made comments that were
    ill-advised. However, these missteps did not render the trial unfair. The
    Crowns factual mistakes were corrected in the trial judges final
    instructions, which were impeccable, both for their fairness and their accuracy.

(2)

Cross-Examination

[106]

The appellant has isolated a number of aspects of the Crowns
    cross-examination which he contends crossed the line.

(a)

Bail Conditions and Drug Charges

[107]

At the time of the murder, the appellant was bound by the terms of a
    bail order in relation to drug charges, which had been withdrawn by the time of
    the trial. Under the terms of the bail order, the appellant was prohibited from
    possessing a cell phone; he was required to live with his mother (and not Ms.
    Asekunowo); and he had a curfew.

[108]

The issue respecting the appellants bail conditions first arose ahead
    of Ms. Asekunowos examination-in-chief. Mr. Dennis was still on the record at
    this time. The Crown sought an advance ruling from the trial judge about her line
    of questioning on the appellants bail conditions. Counsel had pre-trial
    discussions and reached an agreement. Mr. Dennis had no objection to references
    to a court order, but objected to any mention of the withdrawn drug charge.
    The trial judge ruled as follows:

Yes. I think it would be safer to stay away
    from the area of selling drugs. You can simply elicit that he was under a court
    order that he had to reside in a certain place and that he was not to have cell
    phones in his possession.

[109]

Mr. Dennis was content with this limitation, and advised the trial
    judge that information about the court order would also be apparent from the
    wiretaps that would subsequently be played for the jury. Following this
    colloquy, the trial judge clarified her ruling:

So that its clear, it can be adduced from this
    evidence that Mr. Ibrahim was under a court order that required he reside at a
    certain address and which prohibited him from having cell phones in his
    possession. I gather youre going to adduce the fact that she had cell phones
    in her name and that he used them.

The Crown agreed that this was the
    case. The evidence was adduced through Ms. Asekunowo.

[110]

The issue arose again when the appellant testified. In her opening
    questions in cross-examination, the Crown asked: Mr. Ibrahim, you at that time
    were under a court order to reside with your mother, is that correct? The
    Crown pursued this theme over a number of pages of transcript, finishing with:
    So then you are at times disrespectful to court orders, arent you?. The
    appellant answered Possibly, and the Crown followed up with how about to the
    judicial process in general, Mr. Ibrahim? The appellant never got a chance to
    answer this question because the Crown moved onto her next inquiry.

[111]

Inexplicably, the Crown later initiated the following exchange:

Q.      And
    you indicated that youre a very laid back kind of guy 

A.      Yes.

Q.      Very peace loving?

A.      Very calm 

Q.      Is that what you say?

A.      Yes, calm, cool, collective, yes.

Q.      Yes. What was the court order in
    relation to?

A.      Um
    well, in all fairness ah it was in relation to drug charges that were
    withdrawn.

Q.      I
    see, but at the time you were on a court order in relation to drug charges,
    correct?

A.      Correct.

[112]

The following morning, the appellant complained about the Crowns line
    of questioning. Without expressly saying so, the trial judge seemed to agree
    that it was improper. She said:

I will be telling the jury that they can draw
    no conclusions at all from the fact that at one stage you had drug charges
    against you. I will tell them that those charges were withdrawn and they can
    draw no conclusions from that whatsoever.

[113]

In her final instructions, the trial judge instructed the jury that
    the fact that the appellant breached his bail could not be used to conclude
    that he [was] a person of bad character who for that reason [was] likely to
    have shot Kamal Hercules. She limited the jurys use of the appellants
    evidence on this issue to the assessment of his credibility. With respect to
    the references to the drug charges, the trial judge explained to the jury that
    the charges were withdrawn, that there was no evidence the appellant was guilty
    of a drug offence, and that the charges were irrelevant to [the jurys]
    deliberations.

[114]

The appellant does not submit that the trial judge erred in
    permitting the Crown to question Ms. Asekunowo and the appellant about his
    court order and the breach of his conditions. In combination, this conduct
    was relevant to the use of cell phones the night of the murder and, arguably,
    the appellants credibility. However, the questions concerning the underlying,
    yet withdrawn, charges were clearly improper and contrary to the trial judges ruling.

[115]

The trial judge provided a corrective instruction that was
    sufficient to defuse any prejudice caused by this line of questioning.

(b)

The Right to Silence

[116]

In the course of his testimony, the appellant said that, after the
    murder, there were rumours that Mr. Hercules was shot by someone named Fuzzy,
    a nickname by which the appellant was known. The appellant told people that
    [he] had nothing to do with [the shooting]. The following exchange occurred
    during cross-examination:

Q.      Did you tell the police?

A.      I tried getting in contact with the
    police.

Q.      Did you tell the police 

A.      I never spoke to the police.

Q.      Correct.
    And when you were arrested in May of 2010 for the first degree murder of Kamal
    Hercules, did you tell the police that you had not 

MR. DENNIS:        Excuse me, Your Honour, Im
    not sure 

THE COURT:        Yes, the accused has an
    absolute right to remain silent.

MS. RICHARDS: Im  all Im asking is did he tell
    the police?

THE COURT: No, I dont think you should go
    there.

[117]

Shortly afterwards, when the jury was excused, the trial judge
    addressed the issue with counsel. The Crown insisted that she was entitled to
    ask the disputed questions because the appellant asserted an alibi for the
    first time during his testimony. The appellant maintained that he was not
    asserting an alibi because he accepted that there was evidence that proved that
    he was in the area of the shooting when it happened.

[118]

After hearing submissions and considering the matter over the
    weekend, the trial judge provided a ruling. She found that the appellant had
    raised an alibi defence and that he raised it for the first time at trial. The
    trial judge further said:

Accordingly, the Crown will be permitted to
    put questions to the accused with a view to eliciting evidence that he has not
    at anytime between arrest and trial disclosed to police or the Crown his
    position that he was not at 171 Front Street in the early morning hours of
    September 5th, or at the time of the shooting, nor his actual whereabouts at
    the relevant times.

I will warn the jury about the right of an
    accused person to remain silent and that no inference as to guilt can be drawn
    from a failure to disclose an alibi. That any failure to disclose only goes to
    the weight of the alibi.

The Crown was limited to questioning
    the appellant about his failure to disclose the alibi post-arrest, but after he
    had the opportunity to consult counsel.

[119]

After the appellant completed his testimony, the trial judge
    provided the jury with a mid-trial instruction that addressed the alibi issue.
    I will return to this instruction below, when dealing with the Crowns closing
    address on this issue. On the issue of the right to silence, the trial judge
    provided the following mid-trial instruction:

An accused person has an absolute right to
    remain silent. No person is obliged to speak to police. You cannot draw any
    conclusions as to guilt from the fact that a person exercised his or her right
    to remain silent. An accused person is in under no duty to come forward and
    give an explanation
.

However, if you find that the alibi evidence,
    that is to say the evidence by Fayisa Ibrahim that he was not at 171 Front
    Street at the time of the shooting, was not disclosed in time to make a
    meaningful investigation of the alibi evidence, you may take this delay into
    account when you decide how much weight to give to the accuseds evidence that
    he was not at 171 Front Street at the time of the shooting.
You may or may not
    believe the alibi evidence; however, you may not draw an inference that the
    accused is guilty from a delay in disclosing alibi evidence. Any delay should
    only be considered until you decide how much weight, if any, you will give to
    the alibi evidence
. [Emphasis added.]

[120]

The trial judge repeated this instruction in her final charge to the
    jury.

[121]

The appellant accepts that these instructions amounted to a
    satisfactory correction of the Crowns cross-examination, but maintains that
    these questions should not have been asked of an unrepresented accused person.

[122]

Represented or not, the questions should not have been asked.
    Nonetheless, the trial judges instructions defused any prejudice arising from
    the Crowns questioning.

(3)

The Crowns Closing Address

[123]

The appellant submits that the Crowns closing address was unfair in
    a number of ways. He points to erroneous and prejudicial submissions about the
    appellants alibi, inaccuracies in the Crowns review of the evidence, and improper
    comments about the evidence or witnesses. I will deal with each in turn.

(a)

Alibi Submissions

[124]

Picking up on the issue concerning the appellants whereabouts at
    the time of the killing, the appellant testified that he was at Mr. Muktars
    apartment. Mr. Muktar was not called as a witness. The Crown said the following
    about this evidence:

I suggest to you that Mr. Ibrahims
    testimony was a fabrication.
The cell records
    easily confirm Ms. Asekunowos testimony and that of Hassan and Tanovic that
    Ibrahim did not have his cell phone after returning to the apartment over the
    Rabba store before the shooting around 3:40 in the morning. Mr. Ibrahim
    testified that both before and after the crucial time of 3:40 a.m. he was at
    200 Wellesley and people that he knew were with him. In fact, when Mr. Fayisa [
sic
]
    returned to 200 Wellesley for the second time between 3:00 and 4:00 a.m., he
    told you he actually had a conversation with Ahmed Muktar.

None of those individuals who could confirm
    Mr. Ibrahims story testified in this trial. You did not hear from Ahmed Muktar,
    or the others, because I suggest to you they cannot corroborate or support his
    alibi. Mr. Ibrahim was not at 200 Wellesley, he was at 171 Front Street, masked
    and prepared to ambush Kamal Hercules and Vanteno Whynder. [Emphasis added.]

[125]

On the issue of the late disclosure of the alibi and the consequent inability
    of the police to investigate it, the Crown said: Ladies and gentlemen, I
    submit to you it is obvious that Mr. Ibrahims evidence is fabricated and I ask
    you not to accept it.

[126]

The appellant submits that the Crowns closing address invited the
    jury to draw an adverse inference from the appellants late disclosure and failure
    to call evidence to support his alibi.

[127]

For criminal lawyers and judges, fabricated is a term of art in
    the context of alibi evidence, potentially giving rise to an inference of
    consciousness of guilt; whereas, an alibi that is simply disbelieved cannot
    support such an inference: see
R. v. Adamson
, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 67;
R. v. Hibbert
, 2002 SCC 39, [2002] 2
    S.C.R. 445, at para. 67. However, this distinction would not have been apparent
    to the jury. More importantly, the Crown did not invite the jury to infer guilt
    from fabrication; she simply asked the jury not to accept the alibi because it
    had been fabricated. This was in line with the trial judges instructions, when
    she told the jury: Because the Crown bears the onus of proving his guilt, you
    cannot draw any inference against Fayisa Ibrahim because of his failure to call
    a witness such as Ahmed Muktar.

[128]

Similarly, in relation to the timing of the disclosure, the trial
    judge told the jury:

You may take this delay into account when
    deciding how much weight you will give to the accuseds evidence that he was
    not at 171 Front Street at the time of the shooting. You may or may not believe
    the alibi evidence. However, you may not draw an inference that the accused is
    guilty from a delay in disclosing alibi evidence.

[129]

This was a correct instruction, to which the appellant made no
    objection on appeal. It clarified any confusion that may have been associated
    with the Crowns comments.

[130]

I would dismiss this ground of appeal.

(b)

Factual Inaccuracies

[131]

The Crown made a number of inaccurate factual claims in her closing
    address, including: (a) misstating that the appellant could not recall who
    answered or let him in when he buzzed into Mr. Muktars residence at 200
    Wellesley Avenue and that he subsequently changed his testimony to say no one
    answered and he was simply let in, when the appellant in fact always maintained
    that he was simply let in; (b) misstating that the appellant never disclosed
    the name of the coffee shop he attended to obtain pastries for Ms. Asekunowo,
    when he had named Coffee Time twice; (c) misstating that Ms. Asekunowos
    phone suddenly happened to call the appellants phone at 3:40 a.m., when in
    fact the appellants phone initially called Ms. Asekunowos phone and her phone
    then called back twice; and (d) misrepresenting her questions and the
    appellants answers in cross-examination by saying the appellant made no mention
    whatsoever of Ms. Asekunowos apparent visit to 200 Wellesley Avenue at 4:00
    a.m., when the Crown never cross-examined the appellant on that point.

[132]

The appellant picked up on some of these inaccuracies and brought
    them to the attention of the trial judge during the pre-charge conference.

[133]

The special duties imposed on Crown counsel in conducting trials,
    including their duties when addressing juries, are well known and need not be
    addressed in detail: see
R. v. Rose
, [1998] 3 S.C.R. 262. In
R. v. Mitchell
(2006), 212 C.C.C. (3d) 258 (Ont. C.A.), Blair J.A. said, at para.
    19:

Where Crown counsel has failed to comply with
    these obligations, it is the duty of the trial judge to remedy the situation.
If
    the trial judge fails to redress properly the harm caused by a clearly
    inflammatory, unfair or significantly inaccurate jury address, a new trial may
    ensue
:
R. v. Rose
,
supra
, at para. 127. [Emphasis added.]

[134]

In
Regina v. Gregoire
(1980), 60 C.C.C. (2d) 542 (Que. C.A.), leave to appeal refused,
    [1980] 2 S.C.R. viii, LHeureux-Dubé J.A., then a member of the Court of Appeal
    of Quebec, said, at p. 563:

In trials of this length where the addresses
    of counsel and the Judge's charge extend over several hours, it is not surprising
    to find some weaknesses, unfortunate expressions, an idea poorly expressed and
    even certain discrepancies in speech.
(An address by counsel with no
    mistakes and a perfect jury charge have not yet been delivered.) What should
    concern us is whether the accused has thereby been so prejudiced that he cannot
    receive a fair and just trial.
[Emphasis added.]

[135]

The respondent relies on the following statement from the Crown at
    the beginning of her jury address: As I review the evidence for you and ask
    you to recall it, it is, of course, your collective memory of the evidence that
    counts. It is your memory of the evidence that must be relied upon in the
    course of your deliberations. The respondent submits: The trial Crown did her
    best to be accurate, but she cannot be held to a standard of perfection.

[136]

It is impossible to know, and in any event, I need not decide
    whether the Crown did her best or not; there is no credit for failed attempts
    if the result is an injustice. But the trial judges instructions alleviated any
    prejudice. The trial judge provided an accurate review of the evidence. The
    appellant takes no issue on appeal about the correctness of the trial judges review
    of the facts.

[137]

The appellant submits that, in addition to merely summarizing the
    evidence accurately, it was incumbent on the trial judge to go one step further
    and explicitly identify for the jury the mistakes in the Crowns closing
    address. Although it would have been open to the trial judge to instruct the
    jury in this manner, she was not obliged to explicitly correct or admonish
    counsel. Trial judges are best situated to gauge the temperature of a trial in
    determining what corrective steps should be taken to maintain equilibrium:
R. v. Quansah
, 2015 ONCA 237, 125 O.R.
    (3d) 81, at para. 90, leave to appeal refused, [2016] S.C.C.A. No. 203, citing
R. v. Giroux
(2006), 207 C.C.C. (3d)
    512 (Ont. C.A.), at para. 49, leave to appeal refused, [2006] S.C.C.A. No. 211.
    In this case, the trial judge successfully removed any unfairness associated
    with the Crowns factual inaccuracies. It was unnecessary to go further.

(c)

Questionable Comments

[138]

The appellant submits that the Crown made a number of inappropriate
    comments in her final address, comments that contributed to an unfair trial.
    Although I agree that some of these comments may have been ill-advised, they
    did not undermine the fairness of the trial.

No Explicit Denial

[139]

At the very end of her address to the jury, the Crown said the
    following:

Ladies and gentlemen, I ask you to recall the
    most important part of Fayisa Ibrahims testimony before you, in actuality its
    what Fayisa Ibrahim did not say to you while in that witness stand under oath, at
    no time in his evidence did Fayisa Ibrahim look you in the eye, Members of the Jury,
    and tell you that he did not shoot Kamal Hercules. At no time did Fayisa
    Ibrahim say to you he was not the masked man.

[140]

The respondent submits that this comment was accurate and
    harmless. It was not entirely accurate. The appellants position throughout
    the trial was that he did not kill Mr. Hercules and that he was elsewhere at
    the time of the shooting. The following exchange occurred in the cross-examination
    of the appellant:

Q.      Now
    obviously, Mr. Ibrahim, Im going to suggest to you that you had never been
    associated with causing the death of an individual or a shooting before, would
    that be fair?

A.      Um I never have, period.

[141]

Notwithstanding the unfortunate rhetorical finale to the Crowns
    closing address, the appellants position at trial  that he did not kill Mr.
    Hercules because he was elsewhere at the time  was squarely before the jury by
    virtue of his own evidence, his closing address, and the trial judges
    instructions. The Crowns remarks did not undermine the fairness of the trial.

Ms. Asekunowos Apology

[142]

The appellant relies on the Crowns comments about an aspect of Ms.
    Asekunowos evidence in which she started crying and said, Im really sorry.
    In addressing her credibility, the Crown told the jury: at one point in her
    testimony Yvonne Asekunowo looked into the body of the court at Kamal Hercules
    mother and tearfully stated Im really sorry..

[143]

The appellant referred to this aspect of the closing address during
    the pre-charge conference. He submitted that the Crown was acting on an
    assumption or was speculating about who Ms. Asekunowo was apologizing to and
    the reason for her apology. The Crown argued that it was her view that Ms.
    Asekunowo was apologizing to the mother of Mr. Hercules. She insisted it was
    an issue for the jury to determine. The trial judge did not mention this
    issue in her final instructions.

[144]

Again, the Crowns comment was ill-advised. Dressed up as a badge of
    trustworthiness for Ms. Asekunowos testimony, the jury may have experienced it
    as an appeal to sympathy for Mr. Hercules and his family. The trial judge was
    best placed to gauge the impact of this statement. In all of the circumstances,
    it was a minor distraction which must be viewed in the context of the trial
    judges entire instructions, which included the following admonition: You must
    consider the evidence and make your decision without sympathy, prejudice or
    fear.

The Appellants Mother

[145]

The appellant takes exception to the Crowns reference to Ms.
    Asekunowos testimony in which she described middle-of-the-night phone calls
    with the appellants mother.

[146]

After the confrontation between the appellant and Mr. Hercules
    earlier in the night, the appellant called Ms. Asekunowo to ask her what she
    was doing. She testified: sometime after I got a phone call from his mother
    asking me where Fayisa was and what he was doing, um and she was a little bit
    frantic because um shed heard  she overheard an argument  [o]ver the cell 
    over the phone. At this point, the Crown cautioned Ms. Asekunowo not to
    testify about anything that she did not hear or see herself. Ms. Asekunowo then
    elaborated that as a result of her call with the appellants mother, she called
    the appellant and told him to call his mother. This theme was not pursued
    further in the evidence. Mr. Dennis was still engaged as counsel at this point.
    He raised no objection to this line of questioning.

[147]

The matter arose again in the Crowns closing address, when she was
    reviewing the sequence of phone calls that night. She said:

I respectfully suggest to you, ladies and
    gentlemen, the calls occur in the middle of the night, and one of them is 15
    minutes long because, indeed, [the appellants mother] is most certainly
    frantic. I suggest to you shes concerned about her sons whereabouts, what he
    has done and what he is about to do.

[148]

The appellant submits that the appellants mothers comments and
    state of mind as expressed by [Ms.] Asekunowo were inadmissible hearsay.
    Further, he submits that the Crown took advantage of this evidence, which the
    trial judge did not correct. The respondent contends that the Crown properly
    relied upon the evidence that the appellants mother was indeed frantic and that
    no hearsay value was attributed to this evidence.

[149]

The evidence does not identify exactly what the appellants mother
    was frantic about. Through the evidence of Ms. Asekunowo, we learn that the
    appellants mother overheard a conversation, which presumably made her frantic.
    This suggests an implied hearsay use of the statement. However, without knowing
    why the appellants mother was frantic, the evidence had little value. The
    Crowns comment about the appellants mother being concerned with what he ha[d]
    done and what he [was] going to do was speculative and should not have been
    said.

[150]

The appellant submits that [n]o correction was given by the trial
    judge. However, the trial judge did address this evidence. Reviewing some of
    the evidence of Ms. Asekunowo, the trial judge said: During the walk she got a
    call from Fayisa Ibrahim asking her where she was and what she was doing. She
    then got a call from Fayisa Ibrahims mother, and then she called Fayisa
    Ibrahim and told him to call his mother. The trial judge omitted the impugned
    aspects of the evidence and the spin the Crown placed upon it. In my view, this
    was an appropriate manner of addressing this issue. A rehashing of this
    evidence and the Crowns address would not have benefitted the appellant. In
    the end, while improper, in the context of the evidence as a whole, the Crowns
    brief comments were inconsequential.

(d)

Failure to Confront

[151]

The appellant submits that the trial was rendered unfair because, in
    her closing address, the Crown relied heavily on certain parts of the evidence,
    especially the cell phone records, but failed to confront the appellant with
    this evidence during cross-examination. He argues that because he was
    self-represented, it was incumbent on the Crown to afford him the opportunity
    to speak to those facets of the evidence. The appellant submits that the
    Crowns approach unfairly ambushed him. I disagree.

[152]

When he testified, the appellant had the benefit of advice from the
amicus
. He also knew the case that he
    had to meet, including the cell phone records. As discussed above in the
    context of discharging counsel, the
amicus
assured the trial judge that the appellant was very familiar with
    the cell phone records.

[153]

The Crown was entitled to restrict her cross-examination to the
    evidence that the appellant gave in-chief. She took the appellant through his
    evidence in-chief, testing it at various stages. It was quite clear that the
    importance of the cell phone records hinged on who had the appellants phone
    at various points in the evening, especially in the aftermath of the shooting,
    when Mr. Tanovic, Mr. Hassan, and Ms. Asekunowo testified about returning the
    murder weapon and the meeting outside 200 Wellesley Avenue. It was also clear
    that the Crown viewed the appellants version of events about Mr. Muktar and
    his apartment as a fanciful attempt to explain the whereabouts of his phone
    at a critical time. The appellant addressed the issue of leaving his phone with
    the other men, contending that it would make no sense for him to do so. His
    position was placed squarely before the jury and may have been an answer to the
    cell phone records; however, it was at odds with the evidence of the three main
    witnesses  Ms. Tanovic, Mr. Hassan, and Ms. Asekunowo.

(4)

Conclusion

[154]

Although there were some issues with the manner in which the Crown
    conducted her case, they did not rise to a level that requires intervention on
    appeal. Through her interventions and instructions to the jury, the trial judge
    maintained the fairness of the trial.

[155]

I would dismiss this ground of appeal.

E.

conclusion

[156]

I would dismiss the appeal.

Released: April 16, 2021 JCM

Gary Trotter J.A.

I agree. J.C. MacPherson J.A.

I agree. Harvison Young J.A.





[1]

Mr. Hassans phone records show he received a call from the
    appellants cell phone number at 1:48 a.m.



[2]

Ms.
Asekunowo had two phones, one of which the
    appellant regularly used and referred to informally throughout the trial as his
    phone. At the time, the appellant was subject to bail conditions that forbade
    him from having a cell phone.



[3]
The appellant was sentenced on May 15, 2013.


