Spataro v. R.

Criminal law—Trial—Discharge of counsel—Refusal of trial judge to allow discharge—No error.

The appellant was indicted on six counts of arson and related offences. He was convicted on five counts. He was represented by counsel at the preliminary hearing. The same counsel appeared for him at the trial. The first day was taken up by two motions, one for severance of the counts and the other, for a change of venue. Both motions were denied. Counsel participated in the selection of the jury. The next morning, before any evidence was called, the appellant requested a postponement of the trial and a change of counsel. The trial judge stated that he would not permit the accused to discharge his counsel at the last minute and would not permit counsel to withdraw. Counsel represented the accused throughout the rest of the trial, cross-examined, lead the accused’s own evidence, addressed the jury and spoke as to sentence. The conviction was affirmed by a majority judgment of the Court of appeal. The accused appealed to this Court.

Held (Spence and Laskin JJ. dissenting): The appeal should be dismissed.

Per Martland, Judson and Ritchie JJ: There was no request by the accused or by counsel representing him that the accused should be permitted to defend himself. The request was for a change of counsel and a postponement of trial until new counsel could be retained. With all that had happened, the accused was not entitled to this. If he wished to discharge counsel at this stage, he had the right to proceed with the trial and conduct his own defence. The ruling made by the trial judge was in the accused’s own interest. There was no unequivocal discharge of counsel, there was a manoeuvre to frustrate the ruling of the trial judge that there would be no change of venue and no severance of the counts and, finally, there was a

[Page 254]

reaffirmation of the retainer. The evidence against the accused was overwhelming.

Per Spence J., dissenting: The intention of the appellant to discharge his counsel was made clear and unequivocal. It was within the discretion of the trial judge to refuse to permit any postponement of the trial. However, the refusal to permit any litigant to discharge his counsel whether during the course of a proceeding in Court or on another occasion is a very different matter. The breach of the accused’s right to make full answer and defence and of his fundamental right to the conduct of his own trial is a miscarriage of justice and not a mere error in law, and therefore, s. 592(1)(b)(iii) cannot be applied.

Per Laskin J., dissenting: It was the trial judge’s duty to consider the request of the accused even if in the result the accused might have to conduct his own defence. It is not suggested that an accused has an absolute right to interrupt and delay a trial by a belated desire to be represented by another counsel, but neither has a trial judge an absolute right to force an accused to continue with his counsel. The trial judge dealt with this issue in too peremptory a manner, and in consequence, erred in a material matter going to the rights of the accused.

APPEAL from a judgement of the Court of appeal for Ontario[1], affirming the conviction of the appellant. Appeal dismissed, Spence and Laskin JJ. dissenting.

C.R. Thomson, for the appellant.

D.A. McKenzie, for the respondent.

The judgment of Martland, Judson and Ritchie JJ. was delivered by

JUDSON J.—This case, which involves an attempt by an accused person to have his trial postponed and an opportunity to retain fresh counsel, must be unique on its facts. The appellant was indicted on six counts of arson and related offences. He was convicted on five counts. He was represented by counsel at the

[Page 255]

preliminary hearing. The same counsel appeared for him at the trial. The first day was taken up by two motions, one for a severance of the counts, and the other for a change of venue. Both motions were denied. The jury panel was called and the jury selected, counsel for the accused participating in the selection of the jury. The remainder of the panel was then discharged.

The next morning, before any evidence was called, the following exchange took place between counsel and the accused on one side and the Bench on the other:

MR. MACKAY: Your Honour, I wonder if I might have some time?

THE COURT: Take whatever time you need. You take whatever time you require. We will adjourn if Mr. MacKay wants to consult with his client about some matter.

THE ACCUSED: I want a postponement.

THE COURT: Oh, well, the case now is being tried, Mr. Spataro. I mean, there will be no… (interrupted.)

THE ACCUSED: (Interrupting) Change of lawyer.

THE COURT: I beg your pardon? Mr. MacKay?

MR. MACKAY: Had we better adjourn for ten minutes?

…

MR. MACKAY: Just before the Jury return I wonder if Mr. Spataro might be… oh, I see… just one moment…

THE COURT: Yes, Mr. MacKay, you take your time. —(Mr. MacKay and accused off the record.)

MR. MACKAY: Your Honour, Mr. Spataro instructs me that he wishes to discharge me. He is not prepared to accept my advice on a matter.

THE COURT: Mr. Spataro?

MR. MACKAY: Under the circumstances I’d ask Your Honour’s permission to withdraw from the matter. I don’t know if I am following these… those rules that are set out.

THE COURT: I may say, so far as Spataro, you have been acting for him all along and, Mr. Spataro, I don’t permit the accused to discharge his coun-

[Page 256]

sel at the last minute and I don’t permit counsel to withdraw and so the case will go on and Mr. MacKay will act for you. That is my order.

MR. MACKAY: Your Honour, for the sake of the record I am not precise on what those new rules of the Law Society are.

THE COURT: So far as withdrawing it must be done in such time as to notify the Crown Attorney’s office and all other officials.

MR. MACKAY: For the sake of the record might I… I think I should perhaps object to that.

THE COURT: Oh, that’s fine. Oh, yes, that is perfectly all right, Mr. MacKay. It’s on the record.

It is apparent from this exchange that the first request made by the accused was for a postponement. Then he mentioned change of counsel. Then there was a clear statement by counsel that his client had informed him that he wished to discharge him, the client not being prepared to accept his advice on a matter. This is all that we know about the reason for the request. The request was not one either by counsel or the accused that the accused wished to conduct his own defence. It was in essence a further request for a postponement which had been involved in the motion for a change of venue.

After this incident, counsel represented the accused throughout the rest of the six-day trial and made representations as to sentence on another date. On the third day of the trial, counsel renewed his motion for a change of venue and for a halt to the proceedings. The accused permitted counsel to cross-examine, to lead the accused’s own evidence, to address the jury and, finally, to speak as to sentence.

Following conviction and sentence, the accused retained the same counsel to act for him on an appeal to the Supreme Court of Ontario. Due to a misunderstanding between the accused and his counsel, this appeal was not

[Page 257]

instituted. The next step was a prisoner’s appeal, prepared with the assistance of a Legal Aid Counsel. Later, this was converted into a solicitor’s appeal by the withdrawal of the prisoner’s appeal and the filing and service of a new Notice of Appeal by the new solicitor. Neither Notice of Appeal mentioned the matter now complained of. It appeared for the first time in the appellant’s factum filed in the Court of Appeal.

The Court of Appeal[2] was divided but in the result the appeal was dismissed. Jessup J.A. held that there was error in law in the ruling of the learned trial judge that he would not permit the accused to discharge his counsel at the last minute and would not permit counsel to withdraw. However, he was satisfied that there was no substantial wrong or miscarriage of justice and applied s. 592(1)(b)(iii) of the Criminal Code.

Kelly J.A. agreed with Jessup J.A., that there would have been error in the judge’s ruling if he had refused to permit the accused to terminate the retainer of counsel but he held that there had never been an unequivocal discharge of counsel by the accused and that in effect he had reaffirmed the retainer and continued to be represented by him throughout the trial. I agree with this assessment of the situation which confronted the trial judge.

Brooke J.A., dissenting, held that the accused had the right to proceed without this particular person as his counsel, that this right was wrongly denied him, and that there had been a mistrial.

There was no request by the accused or by counsel representing him that the accused should be permitted to defend himself. My opinion is that the request was for a change of counsel and a postponement of trial until new counsel could be retained. With all that had happened, the accused was not entitled to this. If he wished to discharge counsel at this stage,

[Page 258]

he had the right to proceed with the trial and conduct his own defence.

I am satisfied, after consideration of the whole record, that the ruling made by the trial judge was in the accused’s own interest. This accused was totally incapable of adequate self‑representation in a trial of this magnitude, and had he been told that he must conduct his own defence and that this was his only alternative, I feel sure that an Appellate Court would have had reason to question whether justice had been done. No criticism can be made of the manner in which counsel conducted the defence. It is so stated by Kelly J.A., in the Court of Appeal. We are not faced here with problems which arise when counsel is assigned at the last minute and the accused takes the position that counsel is inadequately instructed and prepared or that he is dissatisfied for good reason with the conduct of his defence.

In the circumstances of this case, I would hold, first, that there was no unequivocal discharge of counsel; second, that what happened was a manoeuvre to frustrate the ruling of the trial judge that there would be no change of venue (which would involve a postponement of the trial) and no severance of the counts; and third, that there was a reaffirmation of the retainer. The words used by the learned trial judge must be understood in relation to the particular situation with which he was confronted. He obviously decided that the application was not made in good faith but for the purpose of delay, and I agree with him. The right of defence is not a licence to obstruct the course of justice and the trial judge was right that this was the real issue.

The determination of this appeal is not helped by the decision in R. v. Barnes[3]. This was a plain case of improper judicial interference with

[Page 259]

the conduct of the defence. During the course of that trial, the judge, in the absence of the jury, said that the accused was plainly guilty and that the time of the court was being wasted. He went on to comment on the growing frequency of hopeless defences and invited defending counsel to reconsider his position. Under this outburst, counsel disclosed the advice that he had given to his client and asked for leave to withdraw. The judge then said that any other counsel would be bound to give the same advice to the accused. He asked the accused whether he wished present counsel to defend him or whether he would prefer to defend himself. He said that he would defend himself and asked for a short adjournment. Being refused the adjournment, he then agreed to continue to be represented by his present counsel and maintained his plea of not guilty. The jury, which had been excluded while all this was going on, brought in a verdict of guilty.

The Court of Appeal set aside the conviction and refused to apply the proviso, counsel for the prosecution himself having expressed doubts as to the propriety of applying it in such a case as this. The ratio of the Court of Appeal on the point that is of concern in Spataro’s present appeal was that the conduct of the judge had made it impossible for defending counsel to do justice to the defence; that the judge had attempted to interfere with the independance of counsel in advising his client and, finally, that counsel had been compelled to disclose what advice he had in fact given to the accused with the consequence that the relation of confidence between counsel and client had been destroyed. There is, in Spataro’s case, no interference from the Bench with counsel in the performance of his duty to his client.

The problem with which we are faced in this appeal is very similar to the one in Vescio v. The King[4]. Counsel for the accused had represented

[Page 260]

him at a long preliminary hearing. When the accused was arraigned, counsel moved to have the trial adjourned to the next assize and said that he was contemplating a motion for a change of venue. The trial judge refused the motion. Counsel then withdrew from the case and the judge said that he would appoint someone if the accused did not appoint counsel within a day or two. The trial judge did make this appointment and fixed a date for the trial. On this date, another counsel appeared stating that he was “appearing on behalf of the accused, retained by his family”. He was not heard. It is clear from the record that his function was to ask for a further adjournment. The trial proceeded with the assigned counsel acting for the accused. The verdict of the jury was guilty.

The reasons delivered in this Court clearly show that there was no good reason for delaying the trial. They approve of the determination of the trial judge not to allow the judicial process to be frustrated by the tactics of counsel to bring about a delay. They contain a finding that when these tactics failed, there was a ratification of the counsel chosen by the Court. Vescio’s case goes further than the present case, where there was an attempt at delay which was recognized for what it was worth. The trial then proceeded with the same counsel who had represented the accused from the very beginning.

The evidence against the accused was overwhelming. If it had been necessary to apply s. 592(1) (b)(iii) in order to decide this appeal, I would have done so.

I should mention that after the judgment of the Court of Appeal dismissing the appeal had been entered, Kelly J.A., not knowing that this had been done, delivered fresh reasons, holding that the learned trial judge had made an error in

[Page 261]

law and that the case was not within the proviso. The reasons that are before us on this appeal are those delivered from the Bench orally at the conclusion of the hearing. The judgment of the Court of Appeal was properly entered and I agree with the reasons given by Kelly J.A. from the Bench.

I would dismiss the appeal.

SPENCE J. (dissenting)—This is an appeal by the accused from the judgment of the Court of Appeal for Ontario[5] pronounced on April 27, 1971, whereby that Court dismissed the appeal of the accused from his conviction on April 15, 1970, at the General Sessions of the Peace in the County of York.

The accused had been convicted on five serious charges connected with attempted arson and had been sentenced to a total imprisonment of fourteen years in the penitentiary. Although there were various grounds of appeal urged before the Court of Appeal for Ontario that Court considered only one ground and the appeal to this Court is only in reference to that one ground.

The trial commenced before W.M. Martin, Co.Ct. J., on April 7, 1970, and continued through that day. On April 8, 1970, or so soon as the Court opened, the following circumstances occurred and I quote from the evidence:

MR. MACKAY: Your Honour, I wonder if the Jury may be just held for the moment.

THE COURT: Yes, surely, you want to see your client? Do you want to see your client?

MR. MACKAY: Your Honour, I wonder if I might have some time?

THE COURT: Take whatever time you need. You take whatever time you require. We will adjourn if Mr. MacKay wants to consult with his client about some matter.

THE ACCUSED: I want a postponement.

[Page 262]

THE COURT: Oh, well, the case now is being tried, Mr. Spataro. I mean, there will be no… (interrupted.)

THE ACCUSED: (Interrupting) Change of lawyer.

THE COURT: I beg your pardon? Mr. MacKay?

MR. MACKAY: Had we better adjourn for ten minutes?

THE COURT: There is a lady in distress.

MR. MACKAY: Matron, would you assist that lady, please.

THE COURT: Tell the Jury there has been a short delay.

MR. MACKAY: Just before the Jury return I wonder if Mr. Spataro might be… oh, I see… just one moment…

THE COURT: Yes, Mr. MacKay, you take your time.

….(Mr. MacKay and accused off the record.)

MR. MACKAY: Your Honour, Mr. Spataro instructs me that he wishes to discharge me. He is not prepared to accept my advice on a matter.

THE COURT: Mr. Spataro?

MR. MACKAY: Under the circumstances I’d ask Your Honour’s permission to withdraw from the matter. I don’t know if I am following these… those rules that are set out.

THE COURT: I may say, so far as Spataro, you have been acting for him all along and, Mr. Spataro, I don’t permit the accused to discharge his counsel at the last minute and I don’t permit counsel to withdraw and so the case will go on and Mr. MacKay will act for you. This is my order.

MR. MACKAY: Your Honour, for the sake of the record I am not precise on what those new rules of the Law Society are.

THE COURT: So far as withdrawing it must be done in such time as to notify the Crown Attorney’s office and all other officials.

MR. MACKAY: For the sake of the record might I… I think I should perhaps object to that.

THE COURT: Oh, that’s fine. Oh, yes, that is perfectly all right, Mr. MacKay. It’s on the record.

The trial thereafter continued with Mr. MacKay continuing to act as counsel for the accused and to cross-examine witnesses and make submissions throughout the trial. At the

[Page 263]

close of the evidence for the Crown, Mr. MacKay determined to adduce evidence and called the accused as the only defence witness. Mr. MacKay addressed the jury on behalf of the accused and after the accused was convicted made representations as to sentence on his behalf.

Following the conviction and sentence, it would appear from the legal aid file that the accused was advised by Mr. MacKay that he had sufficient grounds for appeal and he therefore expected that Mr. MacKay would take an appeal on his behalf. Upon discovering that Mr. MacKay had not done so, the accused filed a notice of appeal on a printed form without aid of counsel. In that notice of appeal, the only grounds of appeal set out by the accused were these:

1. The conviction was against the evidence and the weight of the evidence.

2. The Trial Judge failed to fairly and adequately put to the jury, the defence of the appellant.

3. The sentence imposed was unduly excessive and harsh.

Thereafter, the present counsel was retained, applied for leave to withdraw the notice of appeal filed by the accused and for an extension of time to file a new notice of appeal. On receiving such leave, counsel proceeded to file a notice of appeal to the Court of Appeal dated October 5, 1970, and again the ground of appeal dealt with in the Court of Appeal and urged in this court was not mentioned.

Upon the appeal coming before the Court of Appeal for argument, the other grounds set out in the notice of appeal filed by counsel were urged in vain. The various members of the Court of Appeal then considered whether the appeal by the accused should be allowed on the ground that the learned trial judge had refused to permit the accused to discharge his counsel during the course of the trial and had refused to permit the said counsel to withdraw. All three members of the Court of Appeal were agreed that if such was the effect of the learned trial

[Page 264]

judge’s ruling then it was a serious error in law. Jessup J.A. said in an oral judgment given at the conclusion of the argument:

I have no doubt that the learned trial Judge seriously erred in law when he purported to direct counsel for the accused that he could not withdraw from the case, notwithstanding the fact that the accused, his client, apparently wished to discharge him.

And Kelly J.A. in his oral reasons given at the close of the trial, concurring with Jessup J.A., said:

While I am in agreement with my brother Jessup that it would have been a serious error for the trial Judge to have refused to permit the accused to terminate the retainer of his counsel at trial, as I read the transcript there was never an unequivocal discharge of counsel by the accused.

Brooke J.A., again in an oral judgment at the close of the trial, dissenting, based his judgment upon such error in law.

Despite his statement as to the error, Jessup J.A. was of the opinion that the appeal should be dismissed on the basis of the proviso contained in s. 592(1)(b)(iii) of the Criminal Code, now R.S.C. 1970, c. C-34, s. 613(1)(b)(iii). Kelly J.A. was of the opinion that the appeal should be dismissed for the reasons which I have already quoted, i.e., that the record did not demonstrate that the appellant had unequivocally discharged his counsel.

On May 26, 1971, evidently in ignorance of the fact that the formal judgment dismissing the appeal had been issued by the Registrar on April 27, 1971, Kelly J.A. gave written reasons for judgment which he commenced with the paragraph:

At the conclusion of the argument I indicated that I was of the view that the appeal should be dismissed, giving orally my reasons for that conclusion. In the interim, as a result of further consideration, I have decided that, in dismissing the appeal, I was in error and that, for the reasons that follow, the appeal against conviction should be allowed.

Counsel for the Attorney General in this Court urged as his first ground in the opposing of the appeal that the accused had not

[Page 265]

unequivocally discharged his counsel, that is, he adopted the position taken by Kelly J.A. in his oral reasons delivered at the close of the argument. With respect, I am in agreement with the conclusion expressed by Kelly J.A. in his written reasons, unfortunately delivered after the formal judgment had been issued and which, therefore, were quite ineffective, when he said:

While I was originally of the opinion that the accused could be taken to have re-affirmed his earlier choice of Mr. MacKay, on further consideration I find myself unable to say that, in the absence of the mis-statement to him of the law, he would voluntarily have elected to proceed with the trial represented by counsel whom he had expressed the wish to discharge.

I have quoted above, the words of both the accused and his counsel at the trial. It is true the words of the accused were very brief, i.e., “Change of lawyer”, but the matter was put accurately by his counsel when he said:

MR. MACKAY: Your Honour, Mr. Spataro instructs me that he wishes to discharge me. He is not prepared to accept my advice on a matter.

Under such circumstances, there can be no doubt that the intention of the appellant to discharge his counsel was made clear and unequivocal on that occasion and the learned trial judge’s ruling which was as clear and unequivocal:

…I don’t permit the accused to discharge his counsel at the last minute and I don’t permit counsel to withdraw and so the case will go on and Mr. MacKay will act for you. This is my order.

It is true that the trial proceeded in the ordinary fashion with Mr. MacKay acting as counsel for the accused throughout and doing so, as Jessup J.A. noted, with outstanding skill and ability. However, there is little else that the appellant or Mr. MacKay, as his counsel, could have done. For Mr. MacKay to have attempted to withdraw after the judge’s ruling would have

[Page 266]

left him open to immediate proceedings for contempt of court and counsel would have every reason to expect such a result were he to attempt to withdraw. As for the appellant, he was a prisoner in the box and the trial was proceeding. He was plainly told that he could not discharge his counsel and that the counsel would continue to represent him and the trial would proceed. I do not think it could have been expected of him that he continue to interrupt the trial by raising objections to the learned trial judge’s ruling.

It was also alleged by counsel for the Attorney General that the subsequent procedures indicated that the accused had become reconciled to his counsel Mr. MacKay and therefore must be taken in some fashion to have withdrawn his discharge of such counsel and reaffirmed his retainer. As I have pointed out, the accused himself gave evidence and it was said during argument that his course in doing so was approved by the accused himself. Once the continued services of Mr. MacKay had been forced upon the accused then one would expect that Mr. MacKay would advise the accused and the accused acting on his advice determined to give evidence in his own defence. I see, in the accused’s giving evidence, no indication that he had recanted from his previous decision to discharge his counsel but that his decision had simply been overruled by the learned trial judge. Counsel for the appellant in this Court made an affidavit, which was sworn on September 30, 1970 in support of an application permitting late service and filing and setting down of the appeal to the Court of Appeal for Ontario, and paragraph 6 of that affidavit declared:

6. The information in the Legal Aid file indicates that Mr. Spataro was advised by his trial counsel that he had sufficient grounds for appeal. Mr. Spataro apparently expected that an appeal would be taken but no appeal was taken…

Counsel for the Attorney General argued that the circumstances that the appellant had accepted the services of Mr. MacKay and had

[Page 267]

instructed him to proceed to an appeal to the Court of Appeal confirms his submission that the appellant had never unequivocally discharged Mr. MacKay. I cannot accede to such submission. The question is whether the appellant had discharged Mr. MacKay during the trial and not whether he had re-retained him to present the appeal and the paragraph of the affidavit which I have quoted goes no further than to say that Mr. MacKay had advised that there were sufficient grounds for appeal and that the appellant presumed an appeal would be taken on his behalf. Even if one could read into the paragraph a statement that Mr. MacKay had been retained to conduct that appeal but had failed to do so, and Mr. MacKay’s failure to file an appeal would indicate he did not so understand those instructions, then it is more than possible that the appellant would consider that the person best able to act for him on the appeal was the counsel who had appeared at the trial and who would be familiar with the situation in reference to the other grounds of appeal as he had been present when those grounds of appeal arose during the trial despite the fact that he was present only on the order of the learned trial judge and against the plain words of his client who had sought to discharge him.

The evidence may be taken to indicate that the reason that the accused sought to discharge his counsel was that he desired a postponement of the trial although the evidence which I have quoted, and which was the only evidence on the subject, merely leaves that to be conjecture and it might well be that the accused had other serious disagreement with his counsel. It is true that it was perfectly within the discretion of the learned trial judge to refuse to permit any postponement of a trial which already had gone a full day, for which the jury had already been chosen and sworn, and where counsel had submitted and obtained rulings on two different applications. The refusal to permit postponement, however, is one thing and is a decision quite within the discretion of the learned trial judge, a discretion which will not be interfered

[Page 268]

with at trial unless it was reached without regard for proper principles. The refusal to permit any litigant to discharge his counsel whether during the course of a proceeding in Court or on another occasion is a very different matter. With respect, I agree with Brooke J. when he said:

In any event, I think it is fundamental in our law that the accused man has this right.

Keith J., in Regina v. Mulligan[6], put the matter succinctly when he said:

The case before me raises one of considerable difficulty inasmuch as the courts over many cases and many years have reiterated the right of an accused to be represented by counsel of his own choice.

In Regina v. Barnes[7], Parker L.C.J. said at p. 107:

However, the matter does not rest there, because in the result the appellant was forced to continue with counsel in whom he had lost confidence, and counsel who himself felt that it was in the appellant’s best interests that he should no longer continue to act. It is clear that in those circumstances counsel would be gravely handicapped in conducting the defence, especially before a judge who had expressed his strong view as to the appellant’s guilt, and as to the waste of time involved in fighting the case.

The latter elements have no application to the present appeal.

For these reasons, I have come to the conclusion that I agree with the unanimous views of the members of the Court of Appeal that the refusal to permit an accused man to discharge his counsel was a serious error in law and I agree with the view expressed by Brooke J.A. at the close of the argument and Kelly J.A. in his later written reasons that there can be no doubt this accused did attempt during the trial to discharge his counsel and was prevented from doing so by the ruling of the learned trial judge. I, therefore, am of the opinion that only one question remains, that is, whether such a fault at trial may be corrected under the provisions of s.

[Page 269]

592(1)(b)(iii) of the Criminal Code as it was then known.

In Regina v. Barnes, supra, the learned Chief Justice Parker considered the application of a like section in the United Kingdom statute, the Criminal Appeal Act of 1968. That provision read:

Provided that the court may, notwithstanding that they are of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred.

And at p. 107-8 said:

Having said that, the Court has anxiously considered whether to apply the proviso on the basis that it is difficult to think that the result of the trial would have been any different had counsel not suffered from these added difficulties. Very frankly, counsel for the prosecution expressed doubts as to the propriety of applying the proviso in such a case as this, and the Court shares his doubts. There are cases, of which this is one, in which the principles involved are more important than the case itself.

The appeal was quashed.

A detailed reference to the section in the Criminal Code is of considerable importance. By its words, it is limited in its application to cases in which any ground mentioned in subparagraph (a)(ii) of the same section might be applied in deciding in favour of the appellant. Subparagraph (a)(ii) reads:

the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law,

In my view, the action of the learned trial judge in this case was not a wrong decision on a question of law but was rather an action within subparagraph (iii) of the same subsection (a), i.e., “on any ground there was a miscarriage of justice”.

As was noted by Brooke J.A. in his oral reasons for judgment, the course taken by the learned trial judge not only goes to the accused’s right to make full answer and defence but also to the accused’s fundamental right to the conduct of his own trial. A breach of the accused’s right to make full answer and defence

[Page 270]

and of his fundamental right to the conduct of his own trial is a miscarriage of justice and not a mere error in law, and therefore s. 592(1)(b)(iii) cannot be applied because it is only applicable to errors in law when no substantial wrong or miscarriage of justice has occurred. Moreover even if the subsection could be applied, I am unable to understand how an appellate court could say that no substantial miscarriage of justice had occurred. Had the accused been permitted to act for himself, having discharged his counsel, or to have obtained the services of some other counsel who would proceed with the trial immediately, not requiring a postponement, no one could tell what the course of the trial might have been. It might well have been that the accused without the aid of Mr. MacKay’s advice or with the advice of some other counsel would have determined that he should not give evidence in his own defence and subject himself to a searching cross-examination and, therefore, the result of a trial which would have been carried on in such a different fashion can only be conjecture.

As I summarized the series of cases in this Court upon that section in Colpitts v. The Queen[8] I adopted the test:

The onus is upon the Crown to satisfy the Court that the jury, charged as it should have been, could not, as reasonable men, have done otherwise than find the appellant guilty.

I am of the opinion that the Crown cannot discharge that onus when we are called upon to conjecture the course of a trial if the accused had represented himself, as he was entitled to do, or had obtained other counsel to replace the counsel he had discharged.

I, therefore, would allow the appeal, quash the conviction and direct a new trial.

[Page 271]

LASKIN J. (dissenting)—I agree with my brother Spence, both as to his analysis of the facts, arising under the portion of the transcript reproduced in his reasons and in those of my brother Judson, and as to the application of the “harmless error” proviso of the then s.592(1)(b)(iii) of the Criminal Code. There are two points that I wish to take, more by way of emphasis than by addition to what has been set out in the reasons of my brothers Spence and Judson.

First, it is not doubted that we are entitled to look at the second set of reasons delivered by Kelly J.A. in the Ontario Court of Appeal when they were before us as part of the record on appeal. Of course, the order in appeal was not affected by them; but in my consideration of whether that order was a proper one in this case, I find the second set of reasons delivered by Kelly J.A. more compelling than the first. It is shibboleth only that an appeal is from the order and not from the reasons; the latter, where they exist, illumine the order. Kelly J.A. is not alone in having second thoughts about a matter in appeal; they are endemic in the judicial office. Although it is rare to have them available (along with the first thoughts) in the same case, an illustration is provided by the reasons of Kerwin J. in Boucher v. The King[9] where, upon application of the accused, a rehearing took place and that judge modified his previous position. The former Chief Justice of this Court exhibited this kind of courage in Regina v. Drybones[10], when he receded from a position that he took as Cartwright J. In Robertson and Rosetanni v. The Queen[11].

The second point I take has to do with the dilemma posed by an accused’s right to be represented by a counsel of his choice and the effect on the orderly conduct of a trial if he

[Page 272]

exercises that right irresponsibly after his trial has begun. In the present case, the trial judge either saw no such dilemma or, if he did, made no attempt to explore the situation in order to determine whether or how the dilemma could be resolved. In my opinion, it was his duty to consider the request of the accused even if in the result the accused might have to conduct his own defence. I do not suggest that an accused has an absolute right to interrupt and delay a trial by a belated desire to be represented by another counsel; but neither has a trial judge an absolute right to force an accused to continue with his counsel irrespective of circumstances that, if considered, would reasonably entitle him to discharge that counsel, albeit at the risk of carrying on alone!

In my view, the trial judge dealt with the issue in too peremptory a manner, and in consequence, erred in a material matter going to the rights of an accused person.

Like my brother Spence, I would allow the appeal, quash the conviction and order a new trial.

Appeal dismissed, SPENCE and LASKIN JJ. dissenting.

Solicitor for the appellant: C.R. Thomson, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

[1] [1971] 3 O.R. 419, 4 C.C.C. (2d) 215.

[2] [1971] 3 O.R. 419, 4 C.C.C. (2d) 215.

[3] (1970), 55 Cr. App. R. 100.

[4] [1949] S.C.R. 139, 92 C.C.C. 161, [1949] 1 D.L.R. 720.

[5] [1971] 3 O.R. 419, 4 C.C.C. (2d) 215.

[6] (1971), 14 Crim. L.Q. 113 at 115, 15 C.R.N.S. 382.

[7] (1970), 55 Cr. App. R. 100.

[8] [1965] S.C.R. 739, [1966] 1 C.C.C. 146, 52 D.L.R. (2d) 416.

[9] [1951] S.C.R. 265, 99 C.C.C. 1, [1951] 2 D.L.R. 369.

[10] [1970] S.C.R. 282 at 286, 287, 3 C.C.C. 355, 9 D.L.R. (3d) 473.

[11] [1963] S.C.R. 651, [1964] 1 C.C.C. 1, 41 D.L.R. (2d) 485.