Décision

SUMMARY

GENERAL OVERVIEW 5

The Leblond Trial: General Facts 6

The Buffoni Trial: General Facts 6

The Appeals: Procedural History 8

THE KASHAI DECISION 10

THE VERDICT APPEAL IN THE LEBLOND TRIAL (500-10-005357-130) 12

The Leblond Trial: Procedural Highlights 12

Grounds of Appeal 15

(1) Did the trial judge lack jurisdiction in the absence of a re-election compliant with the mandatory provisions of s. 561 Cr.C.?              15

Additional Facts 15

Position of the Parties 17

Discussion 18

(2) Did the trial judge err in law in not proceeding with a preliminary assessment of the appellant’s fitness to stand trial after stating himself that he had doubts about his fitness to stand trial and then not deciding the issue?              19

Additional facts 19

Position of the Parties 20

Discussion 20

(3) Did the trial judge err in removing the appellant from the courtroom without considering alternatives that would have allowed the proper continuation of the trial while ensuring the accused’s right to a fair hearing?              21

(4) Did the trial judge fail to ensure a fair trial by not rendering sufficient assistance to the appellant as a self-represented accused?              21

Additional Facts 22

Position of the Parties 27

Discussion 28

THE SENTENCE APPEAL IN THE LEBLOND TRIAL (500-10-005444-136) 29

THE VERDICT APPEAL IN THE BUFFONI TRIAL (500-10-005556-145) 29

Grounds of Appeal 30

Question #1: Did the trial judge err in law by discharging juror #12 under section 544 Cr.C. without conducting a proper inquiry and without involving the appellant?              30

Position of the Parties 32

Discussion 33

Question #2: Did the trial judge err in law in assessing the accused’s fitness to stand trial without directing the issue to the jury as provided by section 672.26 Cr.C.?              34

Position of the Parties 34

Discussion 36

Question #3: Did the trial judge err in law by designating the amicus curiae at trial as designated counsel under section 486.3 Cr.C. to cross-examine the three complainants?              43

Position of the Parties 45

Discussion 46

Question #4: Did the trial judge err in law and in fact in allowing the use of similar fact evidence on the issue of identification?              47

Position of the Parties 48

Discussion 50

Question #5: Did the trial judge err in his instructions to the jury on the use that they could make of similar fact evidence?              52

Position of the Parties 52

Discussion 52

Question #6: Did the trial judge err in his instructions to the jury on the issue of identification? 54

Position of the Parties 56

Discussion 58

THE APPELANT’S APPEAL: UNREASONABLE DELAY 59

Grounds of Appeal 59

(1) Was the appellant’s right to be tried and sentenced within a reasonable time pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms violated, and should this honourable court set aside his conviction and enter a stay of proceedings?              60

(2) Did the trial judge err in refusing to entertain the appellant’s application under section 11(b) of the Charter to determine if his right to be tried within a reasonable time had been violated?              60

Additional Facts: From Arrest to Trial 61

Additional Facts: the Sentencing Stage 72

Discussion 75

THE DANGEROUS OFFENDER APPEAL 78

Grounds of Appeal 78

(1) Did the Trial Amicus misunderstand his role and did his appointment at the sentencing stage create an appearance of unfairness?              79

Additional Facts 79

Position of the Parties 84

Discussion 85

(2) Did the judge err in law in refusing to put the Rowbotham application filed by Me Cohen on the docket?              87

Additional Facts 87

Position of the Parties 91

Discussion 93

(3) Did the judge err in forcing legal representation on the appellant? 94

Additional Facts 94

Position of the Parties 98

Discussion 99

(4) Did the judge err in adopting an analytical framework incompatible with the principles laid out by the Supreme court in Boutilier and by imposing on the appellant an indeterminate sentence?              100

Additional Facts 101

Position of the Parties 105

Discussion 107

THE APPELLANT’S VARIOUS MOTIONS AND APPLICATIONS ON APPEAL 107

The A-1 Application pertaining to a request for a stay of proceedings resulting from the alleged loss of trial materials by federal correctional services              108

The A-2 Application pertaining to “additional grounds” for a stay of proceedings 115

The A-3 Application – Motion for Authorisation to adduce fresh evidence in appeal section 683(1)(a) and 683(3) of the Criminal Code and Rule 48 and 33 of the Rules of Practice in Criminal Matters S.I. 2018-96 – Dated June 14, 2022              116

The A-4 Application: Motion for Authorisation to raise a new ground of appeal before the panel of this Honourable Court who will hear the Appeal – Dated May 3, 2023              118

The A-5 Application: Motion for Authorisation to raise a new ground of appeal before the panel of this Honourable Court who will hear the Appeal – Dated May 4, 2023.              119

CONCLUSION 128

INTRODUCTION

[1]                The following reasons address four appeals by Erich Chemama (hereinafter the “appellant” or “Chemama”). Two deal with issues in his trial and sentencing before the Court of Québec, and the others with his trial and sentencing before the Superior Court.

[2]                As will be explained, the appeals were argued mainly by Mtre Paul Skolnik, assisted by Mtre Jessy Bourassa Héroux, who acted as amicus curiae, hereinafter the “appeal amicus”. The Court wishes to recognize the valuable work of the appeal amicus.

[3]                The appellant also presented several motions that were argued by his counsel, Mtre Daniel J. Brodsky, who also argued a ground of appeal relating to unreasonable delays. These motions are also dealt with herein.

[4]                These matters have less to do with the appellant's guilt or with the determinations made on sentencing, than with the process that led to the verdicts some three years after his arrest as well as the dangerous offender decision, again rendered three years later.

[5]                From the outset, the Court cannot overlook the fact that the appellant has generally adopted an antagonistic, even belligerent attitude, towards everyone involved in both trials. He has systematically obstructed the proceedings against him, delaying them through multiple applications, extraordinary remedies and unfounded appeals. Most notably before the Superior Court, very early in the trial and several times thereafter, before the jury, he adopted an uncontrollable and insulting attitude towards counsel and the judge.

[6]                These remarks, harsh though they may be, are nonetheless necessary as they provide a general but significant backdrop to grasp the issues submitted to the Court in all the appeals and inform the reasons set out below.

[7]                The words of Proulx J.A. in Fabrikant c. R. are apposite: “how can the appellant claim he was denied a right when he refused to exercise that right in anything approaching a reasonable manner and when he used every opportunity during his trial to discredit the court and the trial process.”[1]

[8]                Both sets of charges, and the two subsequent trials now under appeal, are linked. Thus, before addressing the issues raised on the appeals, and to better understand the sequence of events, a general overview of the trials is necessary.

GENERAL OVERVIEW

[9]                On November 25, 2010, the appellant was arrested and charged with violent offences against two sex workers. He arranged for sex workers to come to his home, and thereupon assaulted, confined and threatened them. He was detained shortly thereafter and has been in custody ever since.

[10]           In 2011, a third sex worker came forward and the appellant was charged with three new counts that had occurred in 2009. At that time, the Crown joined the charges in a preferred indictment for nine counts, three for each complainant.

[11]           Following his arrest in November 2010 and while he was awaiting trial in custody, the appellant tried to dissuade a witness, Ms. Z. (a pseudonym used for the purposes of these reasons), from giving information to the police and pressured her to change her initial statement to the police. Consequently, on December 14, the appellant was charged with obstructing justice and criminal harassment. He was eventually tried before Court of Québec judge Claude Leblond, an experienced judge of the Court’s criminal division (the “Leblond Trial”). The appellant was found guilty and sentenced to four years imprisonment, a sentence which was fully served by the time the present appeals were argued.

[12]           The sexual offences were tried before a jury in a trial presided by the honourable Jean-François Buffoni J.S.C., also an experienced judge, who conducted the proceedings with great patience (the “Buffoni Trial”). The jury trial proceeded between September 30 and November 11, 2013. The appellant was found guilty of six counts regarding two complainants and was acquitted of three counts concerning a third complainant. He was later declared a dangerous offender and received a sentence of indeterminate detention.

[13]           Throughout the two trials, the appellant was not represented by counsel, although he occasionally expressed the wish to be represented; on those occasions, counsel was provided, but quickly discharged by the appellant. At other times, he retained counsel himself. We shall return to these facts, but, in the end, the appellant did not have the assistance of counsel in either of his trials.

The Leblond Trial: General Facts

[14]           At trial, the Crown proffered straightforward evidence and closed its case after two witnesses were heard on June 15, 2011, a police officer and Ms. Z, who was also a witness in the Buffoni Trial. Ms. Z was the manager of the building where the appellant rented an apartment and where the assaults took place. She was able to identify the appellant as the tenant of the apartment where the assaults had occurred. She also confirmed that “Mr. Simon Mayer”, the name appearing on the lease documents, was indeed the appellant. She had several interactions with “Mr. Simon Mayer”, was a witness to his arrest in the parking lot of the building, and therefore recognized the appellant without hesitation. In the Leblond Trial, Ms. Z testified that, following Mr. Chemama’s arrest, she received several visits from his mother, who insisted on retrieving documents regarding the apartment. Ms. Z also received a call from Mr. Chemama himself, asking her to write a letter stating that she could not identify or recognize him and that he did not live in the building. No defence was advanced. The appellant was found guilty on January 28, 2013, and, on May 24, 2013, he received a four-year prison sentence, which was fully served at the time of the present appeal.

The Buffoni Trial: General Facts

[15]           The Court reproduces here the description of the offences as reported by the Superior Court judge in his sentencing decision:

The October 7, 2009 incident against O.M.

[14] Mr. Chemama, 28 years old at the time, called an agency to obtain the paid sexual services of an escort. The escort O.M., 18 years old, was driven to his apartment, which she described as dark, messy, with its only light source coming from a small window.

[15] After some small talk, Mr. Chemama put a condom on, as he was required, but he surreptitiously removed it. O.M. told him that she knew he had removed it and reiterated that the use of a condom was a prerequisite. Mr. Chemama reacted with anger and a heated discussion followed during which O.M. said that she was leaving.

[16] Mr. Chemama grabbed her and pushed her back down on the bed. O.M. screamed, but Mr. Chemama turned up the volume of the TV set to cover her voice. Making a gesture as if to look for a concealed object, he threatened to kill her, saying, “I’ll make it like a Soprano, no one will find your body.”

[17] Conscious that her life was threatened, O.M. gave in to Mr. Chemama’s commands and submitted to unprotected vaginal sex as well as an unprotected, albeit failed, attempt at anal sex. Mr. Chemama also forced his penis to her mouth, again against her will.

[18] After he was done, Mr. Chemama warned O.M. against going to the police, adding, “There is always a loophole, I’m a lawyer, you know”. To secure O.M.’s silence, he pulled her driver’s licence from her purse and photocopied it. He also dialed her phone number to make sure that the number obtained from her was correct.

[19] O.M. finally managed to leave the apartment and she called the police from her home. The incident left her with bruises on her vagina and her anus.

The November 25, 2010 incident against A.O.

[20] Mr. Chemama, called an agency to obtain the paid sexual services of an escort. This escort, A.O., 18 years old, was having her very first experience with a client. She was driven to Mr. Chemama’s apartment, which she described as messy and dark, with no lights on besides a TV set. The client looked a bit scary, clad mostly in black clothing, black hat, white shirt and dark sunglasses in the middle of the night.

[21] When A.O. confirmed that she would neither have sex without a condom nor engage in oral sex, Mr. Chemama replied that she would have to do whatever he wanted. He then aggressively tried to perform oral sex on her, which she protested against. Mr. Chemama then tried to penetrate her without a condom and he was again met with resistance. He became upset.

[22] A.O. pulled a condom from her purse, but Mr. Chemama refused to wear it. He put on black leather gloves, saying, “I don’t want to leave my fingerprints on you”. He grabbed her by the neck and a rough fight followed. When A.O. screamed and bit his gloves, Mr. Chemama shouted, "If you don't shut up, I'm gonna fucking kill you. I'm gonna take your body, cut it up and put it in a bag. I did that to many girls before, you don't know me – I'm a sick guy".

[23] Mr. Chemama then tried to reach for something under the couch, giving A.O. the distinct impression that it was a weapon, and he said to her, "If you don't shut up, I'm gonna tape your mouth and no one is going to hear you", while keeping the gloves and the sunglasses on the whole time – except for one brief exception when the glasses fell from Mr. Chemama’s face while grabbing A.O., but he then quickly put on a new pair.

[24] Mr. Chemama also warned A.O. that he would take her insurance card number to find her, something he apparently forgot to do. When A.O. screamed and asked to let her go, Mr. Chemama tried to cover her mouth. Then a light came on and an older lady, whom Mr. Chemama identified as his mother, came into the room, exchanged a few words with him in a foreign language, then she left.

[25] Finally, upon A.O. yelling "Police, police, police!" a colleague of hers, their driver and the janitor of the building came to her rescue.[2]

[16]           On November 11, 2013, the appellant was found guilty of six of the nine charges. He was subsequently declared a dangerous offender and received an indeterminate sentence on July 8, 2016.

The Appeals: Procedural History

[17]           It is useful to review the history of the appeal file. Proceedings in appeal began in 2012. The appellant was at times represented by counsel, but he was mostly unrepresented. A brief outline of the appeal proceedings will be helpful.

[18]           In September 2013, at the appellant’s request, a judge of the Court granted a motion for the appointment of Mtre Daniel Brodsky, or a member of his office, pursuant to s. 684 Cr. C.[3] In March 2014, Mtre Brodsky appeared and additional time was granted to arrange for legal representation.[4] In April 2014, Mtre Brodsky declined to represent the appellant because he would not agree to the schedule of fees under Quebec’s legal aid program.[5] The matter came back before the Court in June and had not progressed. The Court ordered that an amicus curiae be appointed in the appeals from conviction and sentence for both the Leblond Trial and the Buffoni Trial, and referred the matter to the case management service in criminal matters. Mtre Paul Skolnik was subsequently appointed amicus curiae in appeal.

[19]           The appellant sought leave to appeal to the Supreme Court. A judge of the Court, at the request of the appellant and without objection from the Crown, stayed the procedures on appeal pending the Supreme Court decision. The judge denied the appellant’s other motion seeking his release. In January 2015, the Supreme Court dismissed the application for leave to appeal.[6]

[20]           In February 2015, the appellant submitted new motions, which were subsequently heard by the then Chief Justice of Quebec. He presented an application for “Emergency notice of application for direction of review section 680 (1) Cr. C. in respect of a judgment” denying his release from custody during the appeal proceedings, a “Notice of Application under section 24(1) and 52” of the Charter, a “Notice of motion concerning the appointment of Me Daniel Brodsky” and an “Application for release pending appeal”. He also asked for the Chief Justice’s recusation. All applications were denied. The appellant again sought leave to appeal to the Supreme Court, without success.[7]

[21]           In July 2018, the appellant filed another motion to have Mtre Daniel Brodsky appointed pursuant to ss. 672.24 and 684 Cr.C. This was denied by the Court, which noted that the appellant had been formally denied legal aid on May 25, 2018 and that there was no new evidence justifying the appointment of counsel at the state’s expense.

[22]           In November 2018, the appellant again asked a judge of the Court to appoint Mtre Brodsky.[8] At the hearing, Mtre Brodsky reiterated that he would not agree to the schedule of fees paid under Québec’s legal aid program. The judge noted that a review of the legal aid decision was denied on September 25, 2018. It stated that the initial refusal was justified because the appellant had refused or neglected to supply information or documents required for the determination of his eligibility to legal aid and had not provided sufficient reasons to excuse that failure.

[23]           Again, in April 2019, the appellant brought a similar application to the Court, which again denied it, and declared that it lacked jurisdiction to grant the relief sought in various Charter applications for abuse of process.[9]

[24]           In view of the appellant’s repetitive procedures[10], the Court declared the appellant to be a vexatious litigant in appeal.[11]

[25]           The appeal amicus, with the respondent’s help, gathered all relevant documentation and submitted the grounds for appeal he considered most meritorious. The appellant finally retained the services of Mtre Daniel Brodsky, and concurred with “the facts and submissions set out in the facta of the Amicus Curiae”[12], argued various motions and filed and argued one additional ground of appeal invoking unreasonable delays.

[26]           Finally, subsequently to the hearing of the appeals, on July 28, the Supreme Court rendered its decision R. v. Kahsai[13]. Given the potential impact of that decision on the appeal, the Court suspended its deliberations and invited the appeal amicus, the respondent and the appellant to submit written observations. The final observations were received on September 15, 2023. The Court resumed its deliberations.

[27]           The Court will first deal with the new submissions resulting from the Kahsai decision and will then successively address each of the appeal files, namely those regarding the Leblond Trial, the Buffoni Trial and the sentencing, together with their respective grounds of appeal. It will subsequently deal with the motions argued by the appellant within the context of the appeal hearings.

THE KASHAI DECISION

[28]           The appeal amicus, the Crown and the appellant agree that R. v. Kahsai did not invalidate the principles laid out in Ontario v. Criminal Lawyers' Association of Ontario[14], the decision that governed the Buffoni Trial. While they also agree that Kahsai confirmed that an amicus may exercise adversarial functions typically performed by defence counsel, they each further see the Supreme Court ruling as strengthening their respective positions.

[29]           The appeal amicus and the appellant contend that the trial judge did not consider appointing a trial amicus with a more partisan mandate. Buffoni J., relying on the decision of Ontario v. Criminal Lawyers’ Association of Ontario[15], as it was then understood, thus limited the mandate of the trial amicus to less than an adversarial role. The appellant and the appeal amicus therefore submit that by so doing, Buffoni J. deprived the appellant of the opportunity for a fair trial. The appeal amicus further argues that the absence of a more partisan and active trial amicus reinforces his grounds of appeal in the Buffoni Trial and more particularly grounds 1, 3 and 4. He also faults the judge in the Leblond Trial for not having appointed a trial amicus when he excluded the appellant from the courtroom.

[30]           Generally, the Crown argues that R. v. Kahsai recognizes that the trial judge is best positioned to tailor the amicus’ mandate. It more specifically substantiates its position that no principle prevented a trial amicus from being appointed pursuant to s. 486.3 Cr.C. That said, the Crown argues that the record does not support the view that a more robust adversarial role for the trial amicus would have had an impact in this case.

[31]           The Court does not deem necessary to discuss the details of what the Kashai decision authorizes and the limits of what an amicus may or may not do.

[32]           For the purposes of these appeals, the Court will simply read that decision as the parties do and conclude that the trial judge could have given the trial amicus a more robust partisan role. It is difficult to criticize the trial judge in this case for not having done so, since, at the time of the trial, Ontario v. Criminal Lawyers' Association of Ontario did not seem to favour such a direction. In any case, with all due respect for the contrary opinion, that is not the real issue in these appeals.

[33]           Contrary to the appeal amicus’ and appellant’s submissions, in the opinion of the Court, the record does not show that the appellant really sought counsel to represent him during his trials. Although he did indeed express a wish to be represented on many occasions, with the benefit of a six-year record, it is obvious that the appellant did not genuinely seek to be represented by counsel. These reasons will shed some light on that assertion, but what an amicus would have done at trial in this case, whatever his or her mandate, is far from clear considering the appellant’s general demeanour throughout his two trials. From the very beginning, the appellant adamantly insisted that the trial amicus which had been appointed was not his counsel and he maintained and reaffirmed this on several occasions. The appellant consistently refused, with a few exceptions, to cooperate with counsel even where he had himself retained their services. Many lawyers tried to help, some did become counsel of record, but they all eventually withdrew or were never heard from again. There is simply nothing in the record that would support the proposition that a trial amicus with a more robust mandate would have bolstered a proposed defence to the charges or provided new insight into the various questions of fact or of law in issue at trial.

[34]           Appointing a trial amicus is not a panacea and is always optional as a “trial judge is under no obligation to appoint an amicus at a particular point in the proceeding or with particular adversarial functions”.[16] It is part of a judicial tool-box[17], which a trial judge may use, but is not compelled to use. It is true that in the circumstances of the Leblond Trial, the appointment of an amicus may have been appropriate, but, in any event, it would not have truly provided a solution to the underlying problems caused by the appellant’s demeanour throughout these proceedings. That is because a trial amicus must be able to obtain information from the accused so that his or her interventions may be useful. It appears that this prerequisite was lacking in both trials.

[35]           The Court agrees with the Crown that even though the mandate of the trial amicus did not involve an adversarial role, the trial amicus did provide observations with respect to certain matters, such as the juror incident and the admissibility of similar fact evidence. Two complainants were not cross-examined, but the trial amicus explained that being kept in the dark about any possible defence made his work impossible and risked causing prejudice to the accused. The appeal amicus does not indicate how the trial amicus could have acted differently in these circumstances and he certainly does not articulate what exactly the trial amicus could have done without the appellant’s cooperation, besides submitting, somewhat perfunctorily, that the appellant had a good defence to advance at trial.

[36]           Keeping in mind that two cases are never identical, the fact that an amicus is appointed in one case with one type of mandate does not create a precedent for the appointment of an amicus in another case with an identical mandate. Though an accused is entitled to a fair trial, this does not entail that his trial must be perfect.[18]

[37]           The Court thus concludes that the Kashai decision has no impact on the appellant’s trials.

THE VERDICT APPEAL IN THE LEBLOND TRIAL (500-10-005357-130)

The Leblond Trial: Procedural Highlights

[38]           In view of the first ground of appeal raised by the appeal amicus, it is useful to start at the very beginning of the proceedings and review the way in which the trial unfolded.

[39]           The appellant was represented by an experienced defence counsel for his first appearance on December 14, 2010. In accordance with the practice in Montreal, the appellant “reserved” his right to elect. In the legal sense, he was thus deemed to have elected to be tried by a court composed of a judge and jury. It should be mentioned that other cases involving the appellant, but not these appeals, were on the court’s docket for bail and preliminary inquiry[19]. All were then postponed to January 14.

[40]           On January 14, 2011, the cases went before Judge Lori Renée Weitzman (as she then was, now a member of this Court). An experienced defence counsel was still representing the appellant. Although they had to deal with multiple cases, the parties proceeded with the preliminary inquiry in the “obstruction of justice case”, which would lead to the Leblond Trial and eventually form part of this appeal.

[41]           The parties had agreed that only the investigator would testify, and that completed the prosecution's case.[20] Judge Weitzman then asked the appellant’s counsel if his client wished to make any submissions or had anything else to add. He answered “no”.[21] The appellant was ordered to stand trial and the bail hearing was set for March 4, 2011.

[42]           By March 4, 2011, the appellant’s counsel had withdrawn from the case and the appellant was thus self-represented from then on. Having waived bail[22], the appellant forcefully insisted on having a “speedy trial” and the Leblond Trial was set for March 31, 2011. Judge Weitzman repeatedly explained to the appellant the inconsistency of requesting a post-trial bail hearing, but to no avail. Faced with the appellant's stubbornness, and despite her misgivings, the judge finally agreed to the appellant's request. Consequently, the decision on the bail hearing in the Buffoni Trial proceedings was thus postponed to May 31, 2011.[23]

[43]           On March 31, 2011, without formally appearing as counsel in file 500-01-049364-109 (the Leblond Trial), Mtre Beaudouin-Côté was present to assist the appellant.[24] As is customary in Quebec, he was acting in an informal capacity as amicus curiae. The judge questioned the parties on the inconsistency of not dealing with bail prior to the trial. Mtre Beaudouin-Côté confirmed that the appellant was refusing to have a bail hearing[25]. The appellant reiterated, through Mtre Beaudouin-Côté, that he wanted to be tried as soon as possible.[26] He nevertheless asked that the trial be postponed to May 19, 2011.[27]

[44]           On May 19, 2011, after consulting with Mtre Beaudoin-Côté, the appellant asked for a continuance to allow counsel to perhaps officially represent him[28], but reiterated that he wanted a speedy trial date.[29] The trial was set for June 15, 2011.

[45]           The trial did in fact proceed on June 15, 2011. After the police officer’s testimony, Ms. Z testified. The appellant became disorganized and disruptive. He asked the judge to remove him from the courtroom. Reluctantly, the judge agreed, and the appellant was removed. Ms. Z finished testifying while the appellant was outside the courtroom. The appellant was called back into the courtroom so the witness could make an in-court identification[30]. When brought back, he forcefully demanded to leave the courtroom, saying that he did not understand what was going on and that he needed a lawyer. The witness identified him and the Crown closed its case.

[46]           The appellant wanted to speak with a lawyer and said to the trial judge: “I think His Honour is… you’re anti-Semitic against me […] and this is, huh, obviously a Nazi Germany type of trial here…”

[47]           The trial was then adjourned to the next day to allow the appellant to evaluate his options.

[48]           The following day, June 16, 2011, the appellant informed Judge Leblond that he had filed a writ of prohibition before the Superior Court. After the appellant made somewhat confused comments, Judge Leblond expressed concerns regarding the appellant’s fitness to stand trial. As provided for in section 672.24 Cr.C., he suspended the proceedings so that counsel could be appointed to represent the appellant.[31]

[49]           However, pursuant to the Superior Court rules at the time, the writ of prohibition suspended the trial proceedings.[32] The trial was thus suspended, including on the issue of the appellant’s fitness to stand trial.

[50]           It is worth noting that two counsel acted for the appellant while the Superior Court was seized with the writ application. Mtre Longueville appeared before Judge Leblond in July 2011 to update him on the proceedings before the Superior Court. Mtre Giroux acted as counsel for the appellant in Superior Court.

[51]           The Superior Court heard the writ of prohibition on December 19, 2011. It dismissed it two days later[33]. The appellant immediately appealed that refusal to this Court, but abandoned that appeal in September 2012.[34] He was not represented by counsel at the time.

[52]           The Leblond trial resumed on November 21, 2012, at which time the appellant announced that he would not present a defence. Although he was not represented by counsel, he clearly stated that he had received advice from counsel.[35]

[53]           He then abandoned a Rowbotham application[36], but presented various other motions, which were dismissed. In the Crown’s final submissions on December 6, 2012, Crown counsel acknowledged that the evidence did not establish beyond a reasonable doubt the fear element needed for a conviction on the second count and invited Judge Leblond to acquit the appellant on that count only.[37] The appellant was found guilty on January 28, 2013 of count 1, attempting to obstruct justice. In May 2013, he received a four-year prison sentence, which was fully served by the time the present appeals were heard.

[54]           On January 30, 2013, the appellant produced a notice of appeal in file
500-10-005357-130.

Grounds of Appeal

[55]           In regard to the Leblond Trial, four questions are raised by the appeal amicus:

(1) Did the trial judge lack jurisdiction in the absence of a re-election compliant with the mandatory provisions of s. 561 Cr.C.?

(2) Did the trial judge err in law in not proceeding with a preliminary assessment of the appellant’s fitness to stand trial after stating himself that he had doubts about his fitness to stand trial and then not deciding the issue?

(3) Did the trial judge err in removing the appellant from the courtroom without considering alternatives that would have allowed the proper continuation of the trial while ensuring the accused’s right to a fair hearing?

(4) Did the trial judge fail to ensure a fair trial by not rendering sufficient assistance to the appellant as a self-represented accused?

[56]           Grounds 3 and 4 will be addressed together.

(1) Did the trial judge lack jurisdiction in the absence of a re-election compliant with the mandatory provisions of s. 561 Cr.C.?

Additional Facts

[57]           As mentioned above, the January 14, 2011, hearing before Judge Weitzman ended with a discussion about the possibility to re-elect, but in fact, no re-election was made.

[58]           Indeed, when asked about re-election, counsel for the appellant tried to have the voluntary examination postponed to the March date. The judge was surprised, given that counsel had nothing to say when the Crown had closed its case and the appellant was ordered to stand trial.

[59]           In any event, to facilitate a solution, the Crown announced that it would consent to a re-election, on March 4, 2010, for a “judge and jury” trial.[38] Thus, defence counsel re-elected for a trial before judge alone and explained to his client that “the Crown consents that upon the 4th of March, (inaudible) jury trial he will consent to do reelecting for judge and jury, that way..., ... (inaudible) jurisdiction in this Court for the time being. In other words, you're not losing any of your rights. You will be allowed a jury trial, if that’s what you want.”[39]

[60]           However, after a short discussion, it seems that everybody agreed that the file was still at the “preliminary inquiry stage” since bail issues needed to be addressed under s. 523(2)(b) Cr.C.[40] The re-election was withdrawn, and the case was simply postponed for the continuation of the bail hearing following the preliminary inquiry.[41]

[61]           The appellant was represented by counsel until March 4, 2011, when counsel asked and obtained permission to withdraw, despite the appellant’s objection. At the time, the bail hearing had to be completed with the cross examination of the police officer. The only questions the appellant asked were related to his mother's arrest on the morning of the bail hearing. That line of questioning prompted objections and was ruled irrelevant. The appellant explained that he wanted to bring to light a conspiracy between the police and the Crown to arrest his mother on the day of his bail hearing, preventing her from presenting herself as a surety, and that the questions were relevant to the fact that the officer was misleading the court. In his final question, the appellant asked the officer when his mother would be released, which led to another objection. He accepted the objection and said, “Your Honour, I'm done with this witness.”[42]

[62]           The appellant then said to the judge: “Your Honour, since I don't have counsel, I'm just going to waive the bail. […] And set a speedy trial.”[43]

[63]           On the docket that day were two cases that were eventually included in the Buffoni Trial as well as other unrelated cases. All of them were relevant to bail and some of them had to be set for trial. It should be added that the judge then patiently explained the various options open to the appellant, and she explained what a “pro forma” hearing was and that it would allow him to obtain advice from counsel.[44] The appellant refused, repeatedly affirming his firm request for a “speedy trial”.

[64]           The appellant displayed adequate knowledge of procedural matters. Notably, he realized himself that an offense in another case was an “indictable” offense. He then openly wondered whether he shouldn't proceed by way of preliminary inquiry instead.[45]

[65]           The “obstruction of justice” case was brought up again by the appellant. He reiterated that he wanted a “speedy trial” for the two counts of obstructing justice. He was aware of the charges. He said that he needed twenty minutes, and he announced his alibi, i.e. that he was “in custody at the time” and that “the phones are collect calls.”[46]

Position of the Parties

[66]           The appeal amicus reminds the Court that, in 2011, pursuant to ss. 561(5) and 561(7) Cr.C., re-election required “(1) a notice in writing, (2) the obligation to read the indictment and (3) the duty of the Provincial Court judge before which the accused appears to put the formal wording of s. 561(7) Cr.C. to the accused.” The formal wording has not materially changed since 2011 and requires that the accused be put to his re-election in the following words or in words to the same effect: “You have given notice of your intention to re-elect the mode of your trial. You now have the option to do so. How do you intend to re-elect?”

[67]           The appeal amicus cites Korponay[47] and argues that the procedure followed was not compliant with the strict requirements of s. 561 Cr.C.

[68]           In Korponay, the Supreme Court noted that the notice given by the accused creates the obligation to set the re-election procedure in motion, all the more so when the accused is in custody, in order for him to have a timely opportunity to re-elect if he so wishes.[48] In turn, the judge shall cause notice to be given to the accused of a time and place for the re-election. The Supreme Court indicated that “[this] is to ensure that [the accused] will know where and when to attend to re-elect. An accused who does in fact agree to a time and place to attend would clearly and unequivocally be waiving that notice”[49]. Finally, the section requires “the use of certain words, […] to ensure that an accused is properly informed of the choice he has made and the one he now proposes to adopt.” [50]

[69]           That said, the appeal amicus acknowledges that non-compliance is not always fatal to jurisdiction.[51]

[70]           However, the appeal amicus submits that there was no notice in writing and that the judge who received the re-election never read the indictment to the appellant, nor did she put the formal wording of s. 561(7) Cr.C. to him. The appellant was not represented by counsel, and everything happened quickly in a busy hearing day during which multiple cases were heard. Therefore, there was a risk that the appellant did not appreciate in which case he was re-electing and the consequences of his re-election.

[71]           The Crown argues that the re-election was informed, even though the appellant was not represented by counsel. First, no notice was required, since it was agreed that on that date the appellant would have the opportunity to re-elect. The question of re-election was discussed as early as January 14 and, on March 4, the appellant insisted on re-electing so that he could have a speedy trial.[52] It is clear that the appellant understood the charges. He had completed his preliminary inquiry, and the other cases of sexual assault, meanwhile, continued to proceed before judge and jury, indicating knowledge of both procedural avenues. The Crown sees a similarity between the appellant’s situation and the case of Horn.[53]

[72]           Finally, contrary to what the appeal amicus argues, the Crown is of the opinion that s. 686(1)(b)(iv) Cr.C., the curative proviso, applies if required, citing the Supreme Court in R. v. Esseghaier.[54] According to the Crown, the appellant was tried by a court of competent jurisdiction over the offence and suffered no prejudice.

Discussion

[73]           The appeal amicus is correct in stating that the procedure provided in s. 561 Cr.C. was not strictly followed. However, the Court is of the view that the procedure was substantially complied with.

[74]           First, the Court agrees with the Crown that notices were not necessary. All parties knew that the appellant was expected to re-elect on that date. In addition, the prosecution had already given its consent.

[75]           Second, contrary to what the appeal amicus suggests, there is no doubt that the appellant knew the difference between a trial before a judge and jury and a trial before a judge without a jury. Indeed, the Buffoni Trial cases were proceeding to trial before a judge and jury. Further, the Court is convinced that the appellant was not misled about the consequences of his choice in the Leblond Trial. In January 2011, on his behalf, his counsel opted for a “judge alone” trial. According to the transcripts, the appellant was informed that he had until March 4 to re-elect for a jury trial, given the prosecution's commitment to consent.

[76]           Third, the appellant fully understood the charges. In discussions, the proceedings were referred to as the “obstruction of justice” case, and the appellant offered an alibi which was relevant and coherent with the charges brought against him.

[77]           Fourth, between March and the trial in June, the appellant showed no sign of surprise nor did he otherwise seek to have a judge and jury trial. The Court agrees that the situation here is similar to the one contemplated in Horn, where the absence of any protest was a significant factor.[55]

[78]           Moreover, the appellant cannot claim any prejudice from the situation.

[79]           Consequently, the Court will not allow this ground of appeal.

(2) Did the trial judge err in law in not proceeding with a preliminary assessment of the appellant’s fitness to stand trial after stating himself that he had doubts about his fitness to stand trial and then not deciding the issue?

Additional facts

[80]           The Court has already alluded to some saliant facts about this ground of appeal which turns on the appellant’s demeanour during the Leblond Trial. On the second day of the trial, Judge Leblond did voice concerns about the appellant’s fitness to stand trial. The appellant protested that he was fit. The trial judge nevertheless stated that he was “considering to have reasonable grounds to believe that he was unfit to stand trial” and that he was required to order that the appellant be represented by counsel, pursuant to s. 672.24 Cr.C. The judge made arrangements for Legal Aid duty counsel to be present.

[81]           The judge then adjourned proceedings until representation could be provided. After the lunch break, Legal Aid counsel appeared and told Judge Leblond that the appellant had another lawyer, Mtre Longueville[56], who appeared. She informed the Court of the writ of prohibition filed that morning.[57] In a brief exchange, she and Crown counsel both informed Judge Leblond that they did not share his concern regarding the appellant’s fitness to stand trial.[58] As mentioned, the Superior Court rules at the time provided for a suspension of the trial.[59] The trial was therefore suspended, including the issue of fitness to stand trial.

Position of the Parties

[82]           From the appeal amicus’ perspective, once the trial judge expressed his concerns about the appellant’s fitness to stand trial, he had to decide the issue.[60]

[83]           The Crown acknowledged that on June 16, 2011, Judge Leblond questioned the appellant's fitness to stand trial, given his disruptive behaviour, and intended to request an assessment on that issue. However, Judge Leblond could not proceed further since the writ suspended the trial, and he noted that Mtre Longueville reassured him as to the appellant’s fitness to stand trial. When the trial later resumed, the appellant’s conduct was adequate and there was no reason to doubt his fitness to stand trial. Indeed, the fitness of an accused may change over the course of a trial. The Crown further argues that disorderly conduct does not per se constitute reasonable grounds justifying an assessment of the fitness to stand trial.[61]

Discussion

[84]           This ground is unfounded and must be dismissed. First, although the trial judge expressed concern, he clearly wished to have the observations of counsel before drawing a conclusion as to the existence of reasonable grounds to believe the accused was unfit to stand trial.

[85]           Second, the trial was suspended by the appellant himself when he filed a writ of prohibition in the Superior Court. In the Court’s view, the fact that the appellant did so, by himself and then retained counsel for this purpose, strongly suggests that he was, indeed, fit to stand trial. It’s hardly surprising, then, that Judge Leblond didn't revisit that issue when the trial resumed more than a year later, in November 2012.

(3) Did the trial judge err in removing the appellant from the courtroom without considering alternatives that would have allowed the proper continuation of the trial while ensuring the accused’s right to a fair hearing?

(4) Did the trial judge fail to ensure a fair trial by not rendering sufficient assistance to the appellant as a self-represented accused?

[86]           In the Court's view, these two grounds are better addressed together. Obviously, they raise serious questions about the conduct of trials involving unrepresented litigants. This reality, more often seen before trial courts, poses significant challenges for judges and the judicial system. Ensuring a fair trial for an accused and the respect of his or her fundamental rights is sometimes difficult when dealing with unruly unrepresented litigants.

[87]           The challenge is even greater when, as in this case, the accused adopts an unequivocally stubborn and belligerent attitude to the point of undermining any effort a judge might make to ensure a proper trial. Nevertheless, it is the responsibility of trial judges to take reasonable steps in ensuring that the accused receives a trial that is respectful of his or her fundamental rights.[62] What to do and how to do it remains a subject of discussion at the highest levels of the judiciary, as the appropriate measures must be tailored to the circumstances of each case.[63]

[88]           The Court recognizes that the way in which the trial began, without any explanation of the procedure, raises serious questions. A miscarriage of justice does not arise solely from prejudice to the accused; it also arises when public confidence in the administration of justice is undermined.[64] Moreover, the appellant's exclusion from the courtroom during the trial, with no means of following the proceedings remotely, also raises serious questions.

[89]           Nevertheless, context must always be considered. The present case illustrates an extraordinary, extremely difficult situation, largely caused – if not entirely – by an individual who now complains that his trial was not fair.

Additional Facts

[90]           The dynamics of the trial are important. The appellant’s decision to proceed to trial in the absence of counsel, which is his strict legal right, nevertheless explains, in part at least, how subsequent events unfolded at trial.

[91]           The reason for which the events unfolded as they did is simple: the appellant did not truly wish his trial to proceed and used every means at his disposal to bring about this result, invoking the right to counsel and delays in contradictory ways, always placing the trial judge in an impossible situation. The appellant “seemed determined to derail” his trial, an expression used in Kashai[65] and alluded to by the parties before us.

[92]           The trial was to be held on May 19, 2011. On that day, the Crown was ready to proceed; two police officers and two civilian witnesses were present and ready to testify.[66] In no uncertain terms, with counsel present, the appellant asked for a postponement, but, at the same time, pressured the Court to grant him a “speedy trial”:

THE COURT: So, Mr. Chemama, is that your wish that your case be postponed so that Mr. Beaudoin-Côté could probably enter the file the next time and in the meantime get aware of all the evidence in your file?

Mr. CHEMAMA: It is, your Honour.

THE COURT: That's what you want?

Mr. CHEMAMA: Yes, it's right, your Honour, and also if I could get a speedy trial date because (inaudible) once. So...

[93]           The Court granted that request. The trial was adjourned to June 15, 2011, one month later. Judge Leblond was presiding, and the witnesses were again present and ready to testify. The trial was delayed to the afternoon because of a general security alert within the courthouse. As soon as he arrived in the courtroom, the appellant again asked for a postponement, claiming that his counsel was not present, and blaming the Crown for the previous postponement. The Crown rightly informed Judge Leblond that it was the appellant that had asked to postpone the trial while simultaneously seeking a speedy trial. Crown counsel stated that no counsel acting for the appellant had contacted him that morning.[67]

[94]           The appellant then resorted to a somewhat convoluted argument concerning the presence of a lawyer, a “Mtre Jason Stillman”. Insisting that the trial was set for 9:30 a.m., the appellant said that he had retained the mysteriously absent “Mtre Stillman” for the morning only, and that the latter had left around noon. However, he claimed that he had never seen him. He also invoked his right to be tried within a reasonable time. He said: “I was the one who requested a speedy trial, not the Crown. The first time the Crown, the Crown adjourned it. So I want to be clear just for 11b) issues, it’s prejudicial”.[68]

[95]           The trial judge made efforts to understand the appellant’s position. During the discussion, the appellant said:

PAR MONSIEUR CHEMAMA : And Your Honour, huh, now, in the afternoon, huh, while I may require a counselor, I mean I still don’t waive my right to… to… to… delay this, like to adjourn this, but I mean…

PAR LA COUR : Excuse me you still don’t waive what?[69]

PAR MONSIEUR CHEMAMA : Huh… huh, a speedy… It would mean that I would like to have a speedy trial date on this and try to seek counsel because…[70]

[96]           He then went on to say that the trial could not proceed because he had numerous Charter applications and “that this is not a one day, this will probably [be] a two-day trial because there’s numerous Charter applications… numerous expert witnesses that could be on this… this was supposed to be scheduled in the morning.”[71]

[97]           When the judge said that the mysterious Mtre Stillman must have known that the trial could be delayed during the day, the appellant answered that he had “retained him financially only in the morning”.[72]

[98]           Further, no Charter motion had been served for presentation at the trial. On that matter, the Crown was prepared to accept any document from the appellant, without the necessity of being formally served.[73] The appellant immediately produced documents to argue his motion.

[99]           At this point, it was 2:45 p.m. Judge Leblond asked the appellant what his intentions were. The appellant said he would try to have a lawyer present to take his case.

[100]      Judge Leblond asked for a recap of the proceedings in the case. The Crown attorney accurately explained the progression of the case, with the appellant objecting to almost all his assertions.[74] Judge Leblond listened to the appellant, who pleaded unreasonable delays and argued that he had not waived bail. In response, the Crown said that only about six months had elapsed since the arraignment, that the appellant was represented at the time by experienced counsel and that he, with counsel, had waived the bail hearing.

[101]      Judge Leblond read aloud from the Court record the various waivers made by the appellant, entries that the appellant objected to as being inaccurate.[75] Considering this and the delays, Judge Leblond set aside the motion based on unreasonable delay.[76] The appellant expressed his surprise and said that he had not yet presented his evidence on the motion, thereby demonstrating his general knowledge of procedure.

[102]      At that point, the appellant resorted to a claim that he could not understand the English uttered by the judge.[77] Rightly, the judge paid no attention to this recrimination. He further read from the appellant’s motion to have witnesses and expert witnesses from outside the province and the country called by the defence. When the judge observed that a continuance of the trial would necessarily be sometime in July, the appellant answered that he wanted a “quicker date. That’s way too far”.[78]

[103]      The appellant immediately followed up with an objection to the presence of the police officer in the courtroom, pointing out that on the previous date, Judge Rheault had ordered the exclusion of witnesses.[79] Judge Leblond took notice of that remark. He understood that the appellant wanted to explain something outside the presence of the witnesses and excluded them from the courtroom.[80] The appellant gave a logical explanation about identification issues, including pre-trial identification and the question of whether there were surveillance cameras on site[81], all of which, according to the appellant, would result in inadmissible evidence and a violation of section 7 of the Charter.[82]

[104]      After ascertaining that the appellant understood the difference between admissibility and credibility of the evidence, Judge Leblond again set aside the motion.[83]

[105]      Following this, to shed light on the case for the judge’s benefit, the Crown made some opening remarks, which led to a host of objections by the appellant, notably that the remarks dealt with evidence that had not been previously disclosed and that they were prejudicial. The appellant then told Judge Leblond that he would ask for the prosecutor's recusal and that this would provide him with grounds of appeal.[84]

[106]      After listening to the appellant, the trial judge was satisfied that the appellant was not diligent in having a lawyer present and that nothing prevented the trial from commencing.[85] This decision was based on the appellant’s conduct during the proceedings, and the judge apparently attributed full responsibility to the appellant.

[107]      The trial judge gave no instructions to the appellant regarding the charges or the procedure at trial.

[108]      As mentioned above, the first witness was the police officer. Asked if he had any questions, the appellant answered that he wanted a lawyer, that he was recusing the judge and that he had no questions for the witness.

[109]      The second witness was Ms. Z. Before she testified, the appellant begged the judge to be remove from the courtroom. The judge was reluctant to exclude the appellant. From the transcripts, it appears that the appellant became talkative, endlessly repeating that he wanted the assistance of a lawyer, that he was confused, that he did not understand what was going on. Judge Leblond, after repeatedly asking him to remain quiet, to no avail, then asked the appellant to decide between remaining quiet or being removed. The appellant answered:

Is, Your Honour allowing me to speak now? For the record, I object to the Crown… the… the Justice referring this… This Judge used to be a defense counsel and then all of a sudden, for twenty-five (25), twenty years, and clearly is biased against every… I’ve seen numerous of his judgments clearly biased… (inaudible)…. Court of Appeal already. I’ve already did the research on you, Your Honour. Clearly, Your Honour is biased against me.[86]

[110]      The appellant was removed from the courtroom and Ms. Z testified. Brought back in the courtroom for identification, the appellant had no questions for the witness, claiming that all he wanted was to postpone the trial an retain counsel.

[111]      As mentioned above, the trial was then suspended for almost one year because of a prerogative writ filed with the Superior Court. The appellant never cross-examined the witnesses and he declined to do so when the trial resumed on November 21, 2012.

[112]      Indeed, on that date, although not represented by counsel, but after consulting with one, the appellant offered no cross-examination of the two witnesses and no defence. He said:

THE COURT: Okay. And today, officially, you’re saying that it won’t be… You will not ask to cross-examine them, even if the Crown was ready to offer you in cross-examination.

Mr. ERICH SHIMON CHEMAMA: Yes. After reviewing the evidence and consulting with counsel, I don’t need to.[87]

[…|

Mr. ERICH SHIMON CHEMAMA: Well, it’s my understanding, since the Crown closed the case, I still haven’t moved yet for a directed verdict, but I can say for the record I will not be calling evidence, for the record.

THE COURT: Okay. You will not call evidence…

Mr. ERICH SHIMON CHEMAMA: No.

THE COURT: … in the case…

Mr. ERICH SHIMON CHEMAMA: No evidence. And I’m asking the Crown, according to the Code, the Crown has to give its submissions first, so…[88]

[…]

Mr. ERICH SHIMON CHEMAMA: After reviewing the transcripts, receiving the transcripts recently…

THE COURT: That’s fine.

Mr. ERICH SHIMON CHEMAMA: … and consulting with counsel…

THE COURT: I just want to be sure, for the purpose… for the benefit of the record.

Mr. ERICH SHIMON CHEMAMA: Yes. Yes.

THE COURT: So, you have no witnesses and yourself will not testify.

Mr. ERICH SHIMON CHEMAMA: I will not testify, after receiving the transcripts recently.[89]

Position of the Parties

[113]      The appeal amicus does not take issue with the fact that the trial judge proceeded with the trial, but disputes the removal of the appellant from the courtroom. He argues that this was unreasonable and further argues that the trial judge should have considered less drastic alternatives including “a short adjournment to allow the Appellant to calm down, additional warnings and the possibility to allow the Appellant to participate in the trial through videoconference.”[90] In essence, the appeal amicus submits that there was no reason why alternatives to a complete removal were not considered, that the removal was ultimately unreasonable and resulted in an unfair trial and a miscarriage of justice.

[114]      The appeal amicus also faults the trial judge for not having warned the appellant against self-representation and for failing to explain “the procedural steps of the trial, the choices open to him or the elements of the offence” even when he began to have grounds to believe that the appellant was indeed unfit.[91] The possibility of appointing a trial amicus was never discussed. In the appeal amicus’ view, absolutely no form of meaningful guidance or assistance was given to the appellant at any time during the trial.

[115]      In response, the Crown begins by quoting the Saskatchewan Court of Appeal which noted that an accused has “no license to paralyze the trial process on the one hand, and on the other complain he had not been given a fair trial.”[92] The decision taken to exclude him was within the trial judge’s management powers and is owed deference on appeal.[93]

[116]      Second, the appellant was offered the opportunity to cross-examine the witnesses upon resumption of the trial, having had the benefit of transcripts, but announced that he declined to do so, adding that he did not intend to testify or call evidence in his defence. In the Crown’s view, the appellant’s decisions precluded any prejudice that might have resulted from his absence from the courtroom. Therefore, this ground of appeal should be dismissed.

Discussion

[117]      As in Breton, it can be said that the appellant was “gaming the system” before Judge Leblond.[94] The appellant had been in contact with and assisted by many lawyers since he first appeared to face these charges. When a self-represented accused appears at trial, the judge has an obligation to ascertain that he understands the importance of legal representation.[95] In the case at hand, the trial judge could rightly comprehend that the appellant had firmly decided not to be represented at trial.[96]

[118]      The appeal amicus is correct in saying that the appellant “would relitigate the same issue over and over and would not stay silent when required by the judge to do so.”[97] But there is more. Viewing the situation globally, it is obvious that the appellant actively tried to derail the trial and that the experienced trial judge could reasonably conclude that the appellant would remain obstructive and disrespectful, no matter what the judge did.

[119]      As an example, the appellant’s claim that he had retained counsel for the morning only was not credible in light of his further statement that he had expected the trial to probably last two days.

[120]      However, the Court agrees with the appeal amicus that alternatives to a complete removal must always be considered. The words of Proulx J.A, for the Court, are still apt and remind us that exclusion is an exceptional measure of last resort:

As in Canada, the American courts have taken the position that any limitation on such fundamental rights as the right to be present, to present his case and to be heard, can happen only after a trial court has looked "for corrective measures that do least injury to these rights consistent with the preservation of an orderly court atmosphere" (Badger v. Cardwell, supra).

To conclude on this study of the principles in issue, I find that where, in exceptional cases, despite efforts by a trial judge to avoid the inevitable, an accused still persists in his disruptive conduct and therefore, abuses his rights, he can lose these rights. In such a case, the trial judge in the exercise of his discretion, can take the appropriate measures to ensure the proper march of the trial…[98]

[121]      That said, the Court does not agree with the appeal amicus that it was unreasonable for the trial judge to exclude the appellant in the circumstances of this case. Judge Leblond had attempted to understand the appellant’s situation, but it rapidly became obvious to him — as it would to any reasonable observer — given the history of the proceedings, that nothing short of postponing the trial for the fallacious reason of obtaining the services of a lawyer would have satisfied the appellant, causing prejudice to the complainants and straining the limited resources of the judicial system. Considering all the circumstances, the trial judge did not err in excluding the appellant from the courtroom and proceeding with the trial.

[122]      However, the Court agrees that despite these difficulties, the trial judge should have taken steps to provide a video link for the appellant. It was an error to not even contemplate that alternative. It was also an error for the trial judge to not explain to the appellant, a self-represented accused, the basics of the trial procedures.

[123]      In other circumstances, these errors could have resulted in an order for a new trial. In this case however, the appellant returned before the trial judge in November, and with the assistance of counsel acting outside the courtroom, he waived any cross-examination of the witnesses and declared to have no defence to present. This was a reasoned and deliberate decision on the part of the appellant, taken many months after the initial hearing and with the assistance of counsel.

[124]      Consequently, the Court dismisses this ground of appeal.

THE SENTENCE APPEAL IN THE LEBLOND TRIAL (500-10-005444-136)

[125]      The sentence in this case was fully served. Furthermore, for the reasons set out below, the Court holds that the dangerous offender appeal is dismissed and that the sentence of indeterminate detention is justified. The verdict leading to the sentence imposed by judge Leblond does not impact on the indeterminate sentence, and therefore the appeal of that first sentence is therefore moot.

THE VERDICT APPEAL IN THE BUFFONI TRIAL (500-10-005556-145)

[126]      The Buffoni Trial was a difficult jury trial. These reasons will elaborate on the procedural highlights, some of which were already described above.

Grounds of Appeal

[127]      With respect to the verdict in the Buffoni Trial, the appeal amicus submits six grounds of appeal:

(1) Did the trial judge err in law by discharging juror #12 under section 544 Cr.c. without conducting a proper inquiry and without involving the appellant?

(2) Did the trial judge err in law in assessing the accused’s fitness to stand trial without directing the issue to the jury as provided by section 672.26 Cr.c.?

(3) Did the trial judge err in law by designating the amicus curiae at trial as designated counsel under section 486.3 Cr.c. to cross-examine the three complainants?

(4) Did the trial judge err in law and in fact in allowing the use of similar facts evidence on the issue of identification?

(5) Did the trial judge err in his instructions to the jury on the use that they could make of similar fact evidence?

(6) Did the trial judge err in his instructions to the jury on the issue of identification?

[128]      They will now be dealt with in order, adding facts where necessary.

Question #1: Did the trial judge err in law by discharging juror #12 under section 544 Cr.C. without conducting a proper inquiry and without involving the appellant?

[129]      The appellant always adopted the same approach throughout the proceedings. When the jury was present, he continually made remarks designed to elicit sympathy, and he repeatedly described himself to the jury as a defenseless defendant who understood nothing of the proceedings and who simply wanted legal representation.

[130]      On the eighth day of the trial, the trial judge was confronted with the reaction of a jury member following an incident that forced the judge to exclude the appellant from the courtroom due to his disruptive behavior. The appellant was placed in an adjoining room from which he could follow the trial via a two-way audio and video link to the courtroom. A headset was provided to the appellant, but he threatened to break the equipment. The trial judge warned him that he would not be provided with a second headset if he broke the equipment voluntarily. The appellant broke the headset and then, on camera, with the jury now present, signaled to the jury members that he couldn't hear the proceedings.

[131]      This shocked juror no. 12 to the point where he asked to speak to the judge. Brought to the courtroom, he essentially expressed his discomfort at seeing such a seemingly helpless defendant who was claiming to be unable to defend himself, which he believed to be the case. Juror no. 12 informed the trial judge that he could not take part in the trial, which he considered unfair, given what he perceived to be the appellant’s flagrant inability to defend himself. For juror no. 12, to continue as a member of the jury would be to participate in an injustice. He admitted to having discussed the situation and his state of mind with the other members of the jury.

[132]      Juror no. 12 was asked to leave the courtroom so that the judge could consult with the parties, which he did outside the presence of the remaining jurors. The trial amicus suggested that this juror be discharged and that the other members of the jury be questioned to determine whether they had any concerns about the fairness of the trial. He stated that “if the debate between them is “is this a fair trial or an unfair trial?”, we have a problem.”[99]

[133]      The Crown agreed to dismiss juror no. 12 but disagreed that the other members of the jury should be questioned on this issue. For the Crown, “unless there’s a manifestation from another juror to step forward with the same problems, about with regards to his own serenity to continue, I don’t think this question should be told to the Jury. This is between them.”[100]

[134]      They agreed that the jury should be instructed to set aside the discussions they had about the situation of juror no. 12.[101]

[135]      At this point, the trial judge tried to have the appellant participate in the discussions, but the latter was agitated and no longer had a headset to communicate, having destroyed it. The trial amicus suggested bringing him into the courtroom and then warning him again to behave properly, but this did not seem to convince the trial judge, since this was not the first time that the appellant had engaged in disruptive behavior. The Crown argued that the appellant had placed himself in that situation.

[136]      The trial judge decided to discharge juror no. 12 without hearing the appellant. He then cautioned the jury not to jump to conclusions, to listen to all the evidence and to disregard the incident. The trial amicus and Crown counsel agreed that these instructions were appropriate.

[137]      As to the remaining members of the jury, besides making a general reference to their duty, the trial judge cautioned them that there was “absolutely no adverse inference that [they] should draw from” the incident and “[t]he fact that someone does strange things is not relevant to whether that person is guilty or not of the charges […] but sometimes people make choices, and they have to live by them, but that doesn’t mean that they are guilty.”[102]

[138]      No one disputes on appeal that juror no. 12 was properly discharged. The concerns he had expressed about his own perceptions and prejudices regarding the appellant's behavior disqualified him as an impartial member of the jury.

Position of the Parties

[139]      According to the appeal amicus, “there is a serious argument to be made that the trial judge did not fulfill his duties by only questioning juror no. 12 and ignoring the broader issue of a potential contamination of the jury as a whole.”[103] He submits that the trial judge overlooked the impact of juror no. 12's comments on the other jurors and should have questioned the other jurors on the matter and conducted a broader inquiry.[104] That omission, the appeal amicus suggests, may have affected the impartiality of the jury and the fairness of the trial.

[140]      Moreover, the appeal amicus claims that, because the discharge of a juror was a vitally important issue, the trial judge should have brought the appellant back in the courtroom, even though he had been excluded because of his disruptive conduct.[105]

[141]      The Crown submits that the appellant’s exclusion from the courtroom was obviously required and necessary, and that the trial judge did grant the appellant an opportunity to participate in the hearing.[106] By destroying his headset, the appellant waived his right to make submissions on the issue of his exclusion from the courtroom.

[142]      The Crown further insists that the decision to conduct an inquiry pursuant to s. 644(1) Cr.C. is discretionary and warrants deference from appeal courts.[107] The decision to exclude the juror is not challenged by the appeal amicus, which demonstrates that the inquiry undertaken by the trial judge was sufficient as it clearly confirmed that juror no. 12 was biased and had to be discharged.[108] Juror no. 12 never alluded to the fact that other jurors shared his impressions of the injustice he perceived[109], and therefore, there was no reason to question the entire jury.[110]

Discussion

[143]      The trial judge had discretion in deciding how to deal with issues such as this one during the trial and this Court owes deference to his decisions on such issues.[111] The discharge of jurors under s. 644(1) Cr.C. is indeed a discretionary decision that “ought to be respected unless the record discloses a reasonable possibility that the accused’s right to a fair trial was precluded”.[112]

[144]      There is no question that a trial judge, after taking steps to ascertain the nature of the problem, has the discretion to discharge a juror when that juror is unwilling to properly fulfil his or her role.[113]

[145]      The trial judge did so here within the parameters of the case law, notably by holding a public hearing, in the presence of the parties, but to the exclusion of the other members of the jury, while inviting the parties to put any questions to him. It is up to the trial judge to determine whether the information he or she receives is sufficient to decide to excuse a juror, or whether a more extensive investigation is necessary.[114]

[146]      The trial judge did not have a duty to question the rest of the jury because nothing before him indicated that they too were questioning the fairness of the trial.[115]

[147]      As for the exclusion of the appellant from the courtroom, there is no doubt that inquiry into a juror’s impartiality is an integral part of the trial and that an accused has the right to be present.[116] The Criminal Code, however, provides that he may be excluded and the proceedings may continue in his absence where he conducts himself inappropriately by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible.[117]

[148]      There is also no doubt that the exclusion of an accused remains an option of last resort, or as the Court once wrote: «[l]a discrétion conférée à l’article 650 C.cr. doit être exercée à l’enseigne de la retenue et de la stricte nécessité" » / [translation] “the discretion conferred by s. 650 Cr.C. must be exercised with restraint and strict necessity.”[118]

[149]      Again, the trial judge tried to obtain the appellant’s opinion on the jury inquiry, but this turned out to be impossible because of the appellant’s disruptive behaviour.[119] The trial judge was in the best position to decide whether to exclude the appellant. He did try to accommodate the appellant by giving him “the full means and opportunity to acquire direct knowledge of the proceedings in all matters affecting his vital interests”[120], but his conduct was outside the practical limits that could be accepted and accommodated by the judicial system.[121]

[150]      This ground of appeal is therefore dismissed.

Question #2: Did the trial judge err in law in assessing the accused’s fitness to stand trial without directing the issue to the jury as provided by section 672.26 Cr.C.?

Position of the Parties

[151]      The question raised by this ground of appeal is whether the judge usurped the role of the jury on the issue of the appellant’s fitness to stand trial. In the appeal amicus’ view, the trial judge had reasonable grounds to believe that the appellant was unfit, and s. 672.23 Cr.C. requires that this issue be decided by a jury. However, according to the appeal amicus, the trial judge decided the issue himself. In the Crown's view, the trial judge could have used the result of the assessment to determine whether there were reasonable grounds to believe that the person was unfit. In this case, the reports filed removed any doubt as to the appellant’s fitness to stand trial, and therefore the issue did not have to be submitted to the jury.

[152]      To understand this argument and the trial judge's decisions, it is useful to refer to the past circumstances of the proceedings.

[153]      On June 12, 2012, before Martin J. of the Superior Court, the Crown applied for an arrest warrant to compel the appellant to appear to answer the charges it had just filed in a direct indictment, which consolidated the three sexual assault cases. In the afternoon, as the appellant was appearing, he asked that his then lawyer, Mtre Serge Lamontagne[122], be called. He explained to the judge that he had a motion to recuse him from the case.

[154]      The Crown raised a conflict of interest that would have prevented Mtre Lamontagne from representing the appellant. Mtre Lamontagne, who appeared before the judge that day at the appellant’s request, remained silent, but he reappeared in the case in December.

[155]      On December 21, 2012, at a pre-trial conference before Buffoni J., Mtre Lamontagne presented himself as amicus curiae, to the judge's surprise. Mtre Lamontagne said he had been assisting the appellant for several months. As is often the case before Quebec criminal courts, lawyers appear as "friends of the court" in the sense that they wish to provide constructive assistance. The Crown no longer raised the issue of conflict.

[156]      Mtre Lamontagne came forward to request a psychiatric evaluation of the appellant, both in terms of fitness and criminal responsibility, while asserting that he himself had no opinion on the subject. He wanted the judge to have the benefit of expert insight before commencing a jury trial, pointing to the appellant's general behavioral instability.

[157]      The Crown contested this request. Crown counsel explained that a previous assessment, at the end of 2011, had concluded that the appellant was fit to stand trial.[123]

[158]      He also explained that Vincent J. had ordered, at the appellant’s request[124], that he be offered psychiatric consultation in custody, but that the appellant had not availed himself of this. He added that the proceedings demonstrated that the appellant was, overall, structured and able to present his arguments - in short, that he appeared objectively capable of defending himself, that he seemed to understand the context and was oriented in time and space. So, despite his bluster and outbursts, the appellant was nevertheless fit to stand trial.

Discussion

[159]      The judge then observed that it had been a year since the last assessment and that the appellant was now threatening suicide, which led him to question the appellant's condition.

[160]      The question raised by this ground of appeal is whether a judge conducting a preliminary inquiry on an accused’s fitness to stand trial usurps the role of the jury.

[161]      Aware that the trial was due to begin the following February, the trial judge explained to counsel that if, for the purposes of discussion, there was a basis for assessing fitness, it might not be appropriate to immediately request an assessment of criminal responsibility, which would require more time to prepare.[125] The trial judge went on to explain that because of the appellant’s behaviour before his colleague Martin J., he had serious doubts and would be inclined to ask for an assessment of his fitness in order to have a better understanding of the appellant’s state of mind.[126] Because it was near the Christmas holiday season, the case was postponed to January 10, 2013.

[162]      On January 10, 2013, when questioned about the presence or absence of a lawyer, the appellant replied that Mtre Lamontage was representing him.[127] The parties were then in possession of a report by Dr. Bouchard of the Institut Philippe-Pinel. That report was inconclusive on fitness due to the appellant’s refusal to participate in the assessment.[128]

[163]      While the judge and the parties were discussing the next step, the appellant asked to be given a copy of the Criminal Code since he wanted to read the section relevant to the issue at hand and, at that point, in addition to justifying Mtre Lamontagne’s presence as amicus curiae, he said the following:

BY THE COURT: Because the report says . . .

BY THE ACCUSED: Your Honour, I understand . . . just for the record, he's amicus curiae. I just want to see the Criminal Code for a second please, just to . . . I know he's not the lawyer on record. I just want to look at the Code. I'm not sure where he's . . . may I see the Code . . . look at the Code, Mr. Landry?

BY THE COURT: Can you . . . can you . . . you don't carry the Code with you?

BY Me SERGE LAMONTAGNE: I didn't bring . . . it was . . .

BY THE ACCUSED: May I ask Mr. Landry…

BY Me SERGE LAMONTAGNE: . . . a drink- and- driving case which was continued, so I didn't bring my Code for that.

BY THE COURT: Okay.

[…]

BY THE ACCUSED: Yeah. I'll be very brief. And I just wanted to check in one (1) section, Your Honour, just to . . . what Your Honour (inaudible) to.

[…]

BY THE ACCUSED: And Your Honour could also ... this fitness could be at any time during the trial, even after the jury has given its verdict technically, if you want to really go into the legal grounds. And also, it could be also an appellant issue. That's another issue. But if section 672.23, if I understand (inaudible) :

" Where the Court has reasonable grounds, at any stage… "

If you look at 672.23(1):

" . . . before a verdict is rendered, to believe that the accused is unfit to stand trial (…) may direct, of its own motion or on application…" et cetera.

BY THE COURT: Yes.

BY THE ACCUSED: And also, Your Honour, Your Honour mentioned the burden, but the burden is (inaudible) of probability, it's not a… it's not a… it's very thin as Your Honour would know. I mean, I could… the jurisprudence, I 'm not sure in Quebec, but the . . .

[…|

BY THE ACCUSED: Very, very . . . okay, and Your Honour , but . . . my understanding is he wants to postpone the trial . . .he want's to postpone what exactly, the fitness issue? My understanding? Because . . .

BY THE COURT: Well, your lawyer can explain that to you . . .

BY THE ACCUSED: Yeah, I'm sorry.

[164]      The judge explained that he had not yet made up his mind as to reasonable grounds for believing that the appellant was unfit.[129] The author of the report, Dr. Bouchard, did not conclude on fitness because of the appellant’s lack of participation in the assessment. For this reason, the judge questioned the presence of reasonable grounds, and stated that if he was to eventually conclude that they existed, the matter would have to be submitted to the jury for a decision on fitness.[130] The lawyers agreed.[131]

[165]      On January 14, 2013, in the presence of all parties including Mtre Lamontagne, who still declared himself to be acting as amicus curiae, the judge considered whether there were reasonable grounds to carry out an inquiry on the issue of fitness. At this point, a second report by Dr. Bouchard, dated January 11, 2013, was available and in this report, or an addendum to the first report, the author concluded the following:

OPINION MÉDICOLÉGALE CONCERNANT DE [sic] L'APTITUDE À COMPARAÎTRE

Monsieur collabore peu avec l’interlocutrice et adopte une attitude défensive, obstructive. Il est toutefois en mesure de discuter des accusations qui pèsent contre lui, sans les nommer, en nous expliquant qu'elles ont été réduites à la baisse. Monsieur connaît le rôle des principaux protagonistes en présence à la cour. Il discute du processus judiciaire, d'un verdict possible de non responsabilité criminelle. Il discute de points de droit, citant la jurisprudence.

Ainsi, nous ne pouvons mettre en évidence de facteur qui pourrait nous amener à penser qu'il y a des contre-indications psychiatriques à ce que monsieur puisse comparaitre.

C'est ainsi que nous témoignerions si nous devions être interrogée devant la cour.[132]

[166]      The appellant produced evidence, namely a letter from a psychiatrist, Doctor Blackstock, stating that he had met with him between 2005 and 2009. The Crown objected, saying it that it was not authentic. The appellant also wanted to cross-examine Dr. Bouchard. He explained:

Mtre LAMONTAGNE: Well, wait, wait, wait, okay. He wants to say something about...

Mr. CHEMAMA: Your Honour, just ...

THE COURT: What do you want to say about that?

Mr. CHEMAMA: Yes, your Honour. As maître Lamontagne stated and I apologize. I'm on a certain medication right now.

THE COURT: The only thing we are ...

Mr. CHEMAMA: Yes.

THE COURT: addressing now is whether it is for the Court to entertain the cross-examination of Doctor Bouchard. Is it Bouchard the name?

Mtre LANDRY: Bouchard, yes.

Mr. CHEMAMA: And, your Honour, if I can recollect, your Honour, on ... when you. . . when you. . . excuse me. When you ordered the assessment, the assessment was ordered and you received it on the 10th, after asking maître Landry to bring it to you and that based on the assessment, based on her limited, you know, evaluation, she concluded that ... that ... it's written she couldn't give no diagnostic, even ... and then she added an additional report which again, based on ... with no information, makes it another opinion, a couple of days later. So again, the ... in terms of ... not credibility, but in terms of two different reports, two different opinions, clearly it shows the inconsistencies in terms of the psychiatrist's opinions in terms of that, in terms ...

THE COURT: Don' t you think the Court can address that issue, without having the psychiatrist present?

Mr. CHEMAMA: Right. No ... yes, of course, you're right but ...

THE COURT: Okay. Good.

Mr. CHEMAMA: my ... the other psychiatrist has the entire medical records and when I refer to Doctor Blackstock. He has the entire medical records in Ontario and ...

THE COURT: That's on the argument on the merits.[133]

[167]      The appellant then testified. Besides the fact that he seemed very much in control of the multiple proceedings in which he was involved in before different courts, he was confronted with the fact that the exact same letter from Doctor Blackstock dated January 8, 2013, had also been filed before Judge Galarneau, in file 500-01-066338-119, but that it bore an earlier date. Then, trying to explain that he did not remember the motion before Judge Galarneau, the appellant said that “all procedures were filed by [a] paralegal in Toronto” and that he “could call the paralegal as [a] witness, if that would help”.[134] He later affirmed that he had “numerous paralegals” working on his files.[135]

[168]      In addition to Mtre Lamontagne’s representations, the appellant submitted his arguments to the judge, and responded to the judge’s questions in a very appropriate and logical manner, as evidenced by fifteen pages of the transcripts, thus showing his understanding of the surroundings and, further, his general capacity to act for himself.[136]

[169]      Buffoni J. noted that behaviour in his ruling, particularly that the appellant was articulate and showed “an eloquent illustration of his being fit to stand trial”.[137]

[170]      In so doing, the trial judge made no finding as to fitness, but found rather that there were no reasonable grounds for ordering that the fitness issue be determined by the jury.

[171]      In R. v. Morrissey, the Ontario Court of Appeal characterized the essence of fitness to stand trial as “[m]eaningful presence and meaningful participation at the trial.”[138] To meaningfully participate, an accused must be able to understand “the nature of the proceedings”[139], the “possible consequences, and enough to recount to counsel the necessary facts relating to the offence”[140]. However, the accused does not have to meet any test of analytical capacity nor “to be capable of making rational decisions beneficial to him in his relationship with counsel.”[141] Also, “[t]he presence of a delusion does not in itself render an accused unfit; [t]he fact [that] an accused suffers from a mental disorder does not in itself render an accused unfit; and [a]n accused who is fit must be permitted to conduct his own defence even if it means he may act to his own detriment.”[142]

[172]      Pursuant to s. 672.11 Cr.C., if a judge has reasonable grounds to believe that an assessment order is necessary to determine whether the accused is fit to stand trial, he may order an assessment of his mental condition if he “has reasonable grounds to believe that such evidence is necessary to determine whether the accused is unfit to stand trial”:

[173]      Section 672.11 Cr.C. is the provision that authorizes the taking of evidence regarding fitness. Reasonable grounds do not relate to fitness itself, but go, rather, to the appropriateness of obtaining evidence on the issue of fitness.

[174]      Indeed, the Court of appeal of Alberta wrote that “it is necessary to examine the ‘totality of circumstances’ or the ‘constellation of facts’ before the trial judge on the application in order to determine whether, as a question of law, reasonable grounds exis[t].”[143] Reasonable grounds have been characterized by the Supreme Court as “the point where credibly-based probability replaces suspicion.”[144]

[175]      The Nova Scotia Supreme Court described the possibility of a preliminary stage to help the judge analyze whether there exist reasonable grounds to believe that an accused in unfit:

[176]      Next, if the judge has reasonable grounds to believe that the accused is unfit to stand trial, he or she may order that this question be decided by the jury. Reasonable grounds then relate to fitness itself, after weighing all the circumstances, including the assessment report, if any:

[177]      The question raised here by the appeal amicus is whether conducting a preliminary inquiry on an accused’s fitness to stand trial usurps the role of the jury or interferes with its jurisdiction under s. 672.26 Cr.C.

[178]      On the contrary, nothing prohibited the trial judge from taking the approach he did in this case, which was consistent with the ends of justice. To hold otherwise, would be to ignore the facts as they appear in the record, which explain the judge's approach, namely, to satisfy himself as to the presence or absence of reasonable grounds to question the appellant’s fitness to stand trial.

[179]      First, the judge was acting on a motion by the appellant himself or by his "lawyer" / “amicus” Mtre Lamontagne, but, in any case, Buffoni J. had not at that time acquired reasonable grounds to believe that the appellant was unfit to stand trial. Insofar as a party presented him with a motion for a jury to decide the question of fitness, the judge had to hear arguments on this preliminary issue. Second, adding a psychiatric evaluation to the case was not only relevant, it was also sensible. The appellant had the opportunity to present his own expert opinion, which he attempted to do in the form of a letter from Dr. Blackstone. The judge, who only had doubts at the time, ordered an assessment to help him decide whether the issue of fitness to stand trial should be submitted to a jury.

[180]      The judge was right to cautiously dismiss the Crown's objection to the motion itself, and he was right to offer an opportunity to demonstrate reasonable grounds to believe that the appellant was unfit to stand trial.

[181]      Ultimately, the expert reports and all the admissible evidence submitted, including that which related to the appellant’s behaviour, led the judge to conclude that there were no reasonable grounds to believe that the appellant was unfit to stand trial. No error in this regard can be held against the trial judge.

[182]      This ground is dismissed.

Question #3: Did the trial judge err in law by designating the amicus curiae at trial as designated counsel under section 486.3 Cr.C. to cross-examine the three complainants?

[183]      On January 18, 2013, early in the process, and at the request of the Crown, the trial amicus was appointed to ensure a fair trial for the appellant.

[184]      The Crown was already considering the possibility of also allowing the trial amicus to cross-examine the complainants. This was not part of the trial amicus’ general mandate.

[185]      At the time of the trial judge's appointment of a trial amicus, the appellant had filed a motion for the appointment of a state-funded lawyer of his choice (a Rowbotham application). In this regard, the trial judge noted that the appellant did not wish to defend himself without counsel and, clearly, had not yet found a lawyer who would accept this mandate. The appellant proposed that the judge suspend his Rowbotham application. The judge concluded:[146]

Mr. Chemama, in view of his upcoming trial on nine counts, in fact there are three sets of charges of sexual assault, confinement and death threats, made a... what we call a Rowbotham application to have a State funded counsel to represent him. The Crown moved to appoint an amicus curiae.

On January 16th, two days ago, the date set to hear the two motions, Mr. Chemama said that he was not totally ready to proceed on his motion and proposed that the Crown proceeds first on the amicus application. Today, the 18th of January, the hearing of the amicus application was concluded since Mr. Chemama still has not, after several months, shown that an attorney in whom he has confidence is actually available and willing to represent him, it is advisable to rule on the amicus application now and leave the Rowbotham application pending until Mr. Chemama finds a suitable attorney for himself.

[186]      The judge appointed a trial amicus because, in his opinion, that would best serve the administration of justice and the appellant’s interests, as the fairness of the proceedings would be preserved. In the context of this decision and the trial amicus’ mandate, he specified that while the trial amicus did not act on behalf of the appellant and did not receive instructions from the appellant, the appellant could consult the trial amicus to help resolve any issues he might raise.

[187]      Mtre Bérichon was appointed as trial amicus. When unavailable, his associate Mtre Trempe would then act as a substitute trial amicus.

[188]      As for cross-examination of the complainants, the parties considered that the trial amicus could be appointed to cross-examine.

[189]      After some discussion, all agreed that it would be preferable if the trial amicus was not specifically authorized to cross-examine the complainants, but that he nevertheless be authorized to put questions to them, while indicating to the jury that he was not acting for the appellant.[147] At that point, the appellant was excluded from the courtroom in light of his unacceptable behavior.

[190]      During the testimony of two complainants, while Mtre Bérichon was acting at trial, the appellant refused to speak to him. As a result, Mtre Bérichon explained that he had never discussed his defense with the appellant. He chose not to cross-examine the complainants, since he had no clue as to the relevance of the questions. The situation was repeated with Mtre Trempe who replaced Mtre Bérichon for the third complainant. Mtre Trempe cross-examined, briefly, the third complainant to complete the narrative. In fact, the appellant blamed him for this by stating that this initiative was contrary to his interests and that it had been prejudicial to him.[148]

[191]       However, as was known, the appellant had a personality conflict with the trial amicus, which culminated in his allegation of ineffective assistance with respect to the trial amicus[149] and an attempt to disqualify him.[150]

Position of the Parties

[192]      The appeal amicus argues that the appointment of the trial amicus as designated counsel under s. 486.3 Cr.C. was a mistake because of the serious conflict between the appellant and the trial amicus Mtre Bérichon. The animosity between the two explains the appellant's failure to cooperate and was therefore not a waiver of his right to cross-examine, as the trial judge concluded.

[193]      The appeal amicus insists that the result was unfair because the complainants’ testimonies were not challenged through effective cross-examination. Moreover, the trial amicus should not have been appointed under s. 486.3 Cr.C. because of his poor interpersonal relationship with the appellant.

[194]      Again, the appeal amicus says that:

Appointing the Amicus as designated counsel, without hearing the Appellant on the matter after the Appellant had made allegations of incompetence and then finding that by refusing to collaborate with the Amicus the Appellant had waived his right to cross-examine the complainants rendered the proceedings unfair as the Appellant never made an explicit or implicit waiver of his right to cross-examine the complainants.

[195]      The Crown points out that as early as January 14, 2013, the appellant announced in no uncertain terms that he would never cooperate with any court-appointed lawyer. He said at the time:

For the record, I’m not going to. . . I’m retaining counsel but if you want appoint, you could appoint but I’m not going to work with anybody that you appoint, if you …

[196]      In the Crown's view, the appellant’s attitude was more a matter of strategy designed to hinder the progress of the trial.

[197]      The Crown's description of the facts accurately reflects their view of the record:[151]

From the outset, the Appellant announced that if an amicus were appointed, he would not work with him and would refuse to enter the courtroom. After his appointment as Trial Amicus, Mtre Bérichon agreed, on February 8, 2013, to act as counsel for the Appellant. Four hours later, the Appellant fired him for “lack of confidence”, despite stating in court, three days prior, that he was “willing to work with Me Bérichon” and was “comfortable with him”. On February 18, 2013, the Appellant repeated that he worked “well with Me Bérichon” and wanted him to stay on as Trial Amicus. Later that same day, the Appellant told the court that he had problems with Mtre Bérichon against whom he filed a complaint to the Bar, adding that he had a breakdown with Mtre Bérichon who is in conflict of interest because he previously acted as his lawyer. The Appellant filed letters and motions against Mtre Bérichon that the trial judge refused to place on the docket, but nevertheless worked with him on some pre-trial motions. Throughout the proceedings and the trial, the Appellant repeatedly complained about Mtre Bérichon’s inefficiency and incompetence, allegations that are contradicted by a mere reading of the record. And when, on August 26, 2013, the Appellant asked for a change of Trial Amicus because he got into a “violent fight in jail” with Mtre Bérichon to a point of having to file a criminal charge against him, the trial judge simply brushed off his request.

The Appellant used the same tactic when Mtre Bérichon had to be replaced by Mtre Luc Trempe. At the first appearance of Mtre Trempe in the record, on June 10, 2013, he called him an incompetent counsel while claiming that Mtre Bérichon’s absence caused him a prejudice. That same day, he specifically asked for Mtre Bérichon’s assistance. When no Trial Amicus was present for some pre-trial hearings, the Appellant complained that he needed assistance. He even lamented, on June 17, 2013, Mtre Bérichon’s involvement in another trial. When Mtre Trempe replaced Mtre Bérichon during the trial, the Appellant mentioned falsely before the jury that, contrary to Mtre Bérichon, Mtre Trempe does not know the file, and continued to call him incompetent and biased. He even mentioned to the jury that the trial judge “picked him off the street” and instructed them to disregard what he says.

Discussion

[198]      The appeal amicus does not raise the question of whether a trial amicus can fulfill both this role and that of counsel appointed under s. 486.3 Cr.C. The Court, therefore, does not have to rule on this question. The question is whether, under the circumstances, it was an error to do so in this case. Furthermore, the appeal amicus does not argue that the trial judge erred in denying the appellant the opportunity to cross-examine the complainants himself. The appeal amicus’ argument is essentially based on the absence of cross-examination caused by the appellant's exclusion from discussions on the appointment of counsel and the enmity between him and the trial amicus.

[199]      The difficult circumstances of the trial are the result of the appellant's behavioral choices. In these unusual circumstances, the Court cannot accept that, on the one hand, the trial judge abused his authority by excluding the appellant and that, on the other hand, a genuine conflict prevented the appellant from collaborating with the trial amicus.

[200]      In fact, there is nothing to suggest that the appellant would have agreed to collaborate with another lawyer. The Court agrees with the Crown that the trial judge attempted, after the testimony of complainants O.M. and A.O.[152], to have the appellant meet the trial amicus, but to no avail. It is unlikely that the appellant would have accepted any lawyer to conduct the cross-examination of the complainants. Clearly, the appellant made bad choices during the trial. He cannot now complain about the consequences of those choices.

[201]      This ground is dismissed.

Question #4: Did the trial judge err in law and in fact in allowing the use of similar fact evidence on the issue of identification?

[202]      As noted by the appeal amicus, early on at the pre-trial stage, the Crown announced its intention to file an application to lead evidence of similar facts between counts of the indictment. At the time, in June, the Crown had filed a provisional version of that application at the same time as the possibility of a severance application was discussed.

[203]      On October 28, 2013, after the witnesses had testified, the Crown presented its application to lead evidence of similar facts.[153] The provisional version of that application had been tailored to the evidence at trial.[154] Although the appellant claimed it was an entirely different application, he nevertheless had prepared a ten-page handwritten response dated October 26, 2013. That response reflected a good understanding of the proceedings, and it was a cogent argument on the admissibility of similar facts. It is worth mentioning that the changes to the Crown’s application, required by the evidence, were not substantial and this is not challenged on appeal.

[204]      The application to lead evidence of similar facts identified several “issues in question” namely to: (1) “prove that the perpetrator of the alleged acts and the accused is one and the same person”; (2) “establish a system or a modus operandi of the accused”; and (3) “rebut a defense of innocent intention or honest but mistaken belief of consent and provide evidence of the mens rea of the accused.”[155]

[205]      The Crown proposed that the “method the perpetrator employed as well as the setting and some of the accessories he used, together bear a unique signature, or at the very least, a striking similarity.”[156] The application contained a list of similarities between the three events and between pairs of events.

[206]      Crown counsel correctly stated the law and argued similarities and dissimilarities[157], inviting Buffoni J. to find that the dissimilarities were not sufficiently substantial to affect the improbability of coincidence. While Crown counsel conceded that the three events were not carbon copies of each other, and it was argued that there were considerable common and recurring features to suggest a high degree of similarity, if not a striking degree of similarity.[158] Reviewing the Handy criteria, Crown counsel insisted that the three complainants did not know each other and that there were no intervening events.[159] Crown counsel then directed the trial judge’s attention to the probative value of the evidence that outweighed its prejudicial effect.

[207]      The appellant mostly read his ten-page written response and, after being warned that it was unnecessary to read the document aloud, Buffoni J. interrupted him. The substitute trial amicus, Mtre Trempe, then made some submissions, indicating that he agreed for the most part with the Crown's position, though he nevertheless urged the trial judge to be cautious about the admissibility of this evidence.

[208]      The trial judge's decision was handed down summarily and laconically, stating “For the reasons set out in the Crown’s application and the oral argument by the Crown and the amicus, the application is granted, according to its conclusions.”

Position of the Parties

[209]      Central to the appeal amicus’ argument is the absence of reasons by the trial judge other than referring to the Crown’s application, as well as the failure of the trial judge to exercise his gatekeeper function by failing to balance the probative value of the evidence and its prejudicial effect. The appeal amicus asserts that the facts were not so similar that the probative value necessarily outweighed the prejudicial effect. The trial judge should have weighed these factors, but he failed to do so.

[210]      With respect to the nature of the evidence, the appeal amicus agrees with the observations of the trial amicus who urged the trial judge to mitigate the potential prejudice and submitted that some of the similarities on which the Crown relied were too generic to support the high degree of similarity required to prove identity through similar fact evidence, such as the fact that they took place in the borough of St-Laurent, or that the complainants were escorts.[160]

[211]      According to the appeal amicus, prejudice should have been a real source of concern in these circumstances. Since the trial judge failed to weigh the probative value and the prejudicial effect of the evidence, there is no need for this Court to confer the usual degree of deference owed to the judge’s exercise of discretion.

[212]      The error goes to the crux of the case, identification, as none of the three complainants identified the appellant. The appeal amicus acknowledges that the appellant was acquitted of the charges with respect to one complainant, but nevertheless argues that the jury might very well have used the similar fact evidence to find him guilty in connection with the two other assaults involving the two other complainants. Relying on the Ontario Court of Appeal cases[161] Paul and Backhouse, the appeal amicus suggests that the curative proviso should not be applied.

[213]      The Crown disagrees. Crown counsel argues that there was a high degree of similarity between the three events and that the trial judge was justified in granting the application. The trial judge’s brief reasons must moreover be considered in terms of the application itself, but also with the observations of the Crown and those of the trial amicus.

[214]      According to the Crown, the evidence showed a high degree of similarity. Citing Casseus[162] and Nicholas[163], Crown counsel asserts that while a trademark or unique signature may be sufficient, it is not mandatory and that a series of significant similarities, taken together, may render the coincidence objectively improbable.

[215]      Crown counsel draws attention to the prior decision of Buffoni J. dismissing the severance application. In challenging the application of the law to the facts, the Crown argues that the appeal amicus takes the “mechanical approach” specifically rejected by the Supreme Court in Shearing.[164] In Crown counsel’s view, the cumulative effect of the similar facts presented established the high degree of similarity required to lead similar fact evidence with respect to identification.

[216]      The Crown also rejects the appeal amicus’ argument that a reasoning prejudice emerges from the similar fact evidence which was not adequately addressed by the trial judge. In adopting the Crown’s application in his reasons, Buffoni J. accepted that the probative value outweighed any prejudicial effect. The trial amicus also discussed the prejudicial nature of the evidence and urged the judge to be cautious in how he explained the use of the evidence with respect to proof of identity.

[217]      The moral prejudice was neutralized by the fact that all three assaults were included in the same indictment, that this evidence had to be produced and that the jury was instructed on the prohibition against thinking in terms of a general propensity or character evidence. Further, there was no realistic danger of reasoning prejudice in the case. The judge’s final instructions explained in simple terms how and for what purpose the jury could use the similar fact evidence.

[218]      In any event, the Crown affirms that the curative proviso of s. 686(1)(b)(iii) Cr.C. should be applied, if need be. The error was harmless as to the identity issue. The Appellant’s DNA was found on the anal/rectal swabs sampled from one of the victims and his genetic profile could also match the male profile obtained from the vaginal swab obtained from the same victim (O.M.). Regarding the other victim (A.O.), the Crown contends that the circumstantial evidence was overwhelming, and that the only reasonable conclusion was that the appellant was the perpetrator of the crimes.

Discussion

[219]      The Court agrees with the Crown that the appeal amicus takes a somewhat mechanical approach to the issues, regarding both the sufficiency of reasons and the admissibility of the similar facts.

[220]      That said, the Court agrees with the appeal amicus that the trial judge could have better explained why he was admitting the similar fact evidence. By limiting himself to extrinsic references to the law and the parties' arguments, he complicated the task of both the parties and that of the Court in appeal.

[221]      While it is understandable, and the Court agrees, that succinct reasons be given forthwith in order to settle an issue and get on with the trial[165], the Court would however hold that, in certain cases, and above all in those where the law specifically requires evidentiary rulings, more detailed reasons may be expected to be filed before or within a reasonable time after the end of the trial, depending on the circumstances.

[222]      Indeed, the Supreme Court in Sheppard noted that “where that function [of giving reasons] goes unperformed, the judgment itself may be vulnerable to be reversed on appeal”.[166] However, the scope of the reasons must be appropriate to the complexity of the legal issue and the complexity of facts involved, considering the overall circumstances of each case and the dynamics of the trial.

[223]      With this in mind, it is possible to understand the trial judge’s decision in this case, considering the dynamics of the trial, the issues raised and the submissions of the parties.

[224]      When Buffoni J. dismissed the prior severance application, he specifically found that the three assaults presented differences, but that they were so strikingly similar that the likelihood of similar fact evidence being admitted was good or fairly good, and that the purposes for that evidence, namely: identity, modus operandi, setting aside the possible defence of innocent intention or honest belief, and eventually mens rea, were all valid.[167] Buffoni J. referred expressly to his decision in Cartier[168] as to the applicable law regarding identity and similar fact evidence.

[225]      Further, the Court agrees with the Crown that the trial judge did not limit his reasons to the Crown’s application. He also referred to the Crown’s and trial amicus’ observations as to the applicable law and its application in the context of the trial.

[226]      Finally, the Court agrees with the Crown that the judge’s “task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance”.[169] This Court agreed in Casseus that it is “the manner in which the acts were committed that must measure up to this demanding standard of similarity when the evidence is proposed for admission on the issue of identity.”[170]

[227]      The Court is not convinced that the trial judge erred in any of the ways presented by the appeal amicus. This ground is dismissed.

Question #5: Did the trial judge err in his instructions to the jury on the use that they could make of similar fact evidence?

Position of the Parties

[228]      The appeal amicus presents a subsidiary argument to the preceding ground of appeal and contends that if evidence of similar facts was admissible, then the trial judge failed in his duty to satisfactorily instruct the jury on the possible use of such evidence. The appeal amicus submits that the trial judge should have reviewed with the jury the similarities and the dissimilarities of the similar fact evidence. He should have also told the jury that they had to be satisfied that a similar fact occurred before making any use of it.

[229]      The Crown answers that the trial judge properly instructed the jury. He explained how the evidence could be used by the jury, both as it related to identity and to the witnesses’ credibility. Under the circumstances, it was fair for the trial judge not to insist upon the list of similarities and dissimilarities, since only the Crown had commented on these during final submissions. Crown counsel submits that the trial judge provided balanced instructions on this issue, avoiding unfairness. Taken as a whole, the instructions were adequate.

[230]      Further, citing Thomas, the Crown contends that a specific mention that the jury must first be satisfied that the similar facts had indeed occurred before making any use of them is an essential part of the final charge, it is not necessary when the similar facts are before the jury in a multi-count indictment.[171]

Discussion

[231]      In his instructions specific to “evidence of similar acts from other counts”, the trial judge stated that it was always incumbent on the Crown to prove guilt beyond reasonable doubt.[172]

[232]      The trial judge stressed to the jury members that unless they find that it is likely that the same person committed the similar offences, they must reach their verdict by considering the evidence relating to each count separately and ignore the evidence relating to any other count or counts.[173] Implicit in this instruction is that the act itself must have occurred.

[233]      Finally, the trial judge instructed the jury members that they could not use this evidence to conclude that the appellant was the type of person to commit the crimes charged[174] and he cautioned them not to conclude that because a given witness was telling the truth, the other witnesses must be telling the truth as well or, vice versa, that because one witness was not telling the truth, neither were the others.[175]

[234]      Buffoni J. further instructed the jury members that if they considered the facts to be so similar as to preclude a conclusion that different individuals committed two or more of the offences, then they could rely on those offences as part of the evidence of the appellant's identity as the perpetrator. He stated that if that is accepted, the jury “can consider the evidence relating to each of those similar offences in deciding whether the Crown has proved beyond a reasonable doubt that Mr. Chemama is the person who committed the other similar offences”.[176] He did not limit the identification issue to the similar facts evidence and insisted that the similar facts were circumstantial evidence with respect to identification.[177]