R. v. Al-Enzi

R. v. Al-Enzi Collection Decisions of the Court of Appeal Date 2014-07-31 Neutral citation 2014 ONCA 569 Docket numbers C52834 Judges Laskin, John Ivan; Goudge, Stephen Thomas; Watt, David Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Al-Enzi, 2014 ONCA 569 DATE: 20140731 DOCKET: C52834 Laskin, Goudge and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Nawaf Barerh Al-Enzi Appellant Marie Henein and Matthew Gourlay, for the appellant Jamie Klukach and Gavin MacDonald, for the respondent Heard: February 26 and 27, 2014 On appeal from the conviction entered on September 26, 2010 by Justice Roydon Joseph Kealey of the Superior Court of Justice, sitting with a jury. Laskin J.A.: A. Introduction [1] On the night of August 18, 2006, Mohamed Zalal, an Ottawa-area drug dealer, was murdered. The appellant Nawaf Al-Enzi, Mahmoud Kayem and Ali Abdul-Hussein were charged with his murder. Abdul-Hussein made a deal with the Crown and gave a statement to the police in which he said that Al-Enzi shot Zalal in a car driven by Kayem. The Crown then proceeded jointly against Al-Enzi and Kayem, charging each with first degree murder. Both pleaded not guilty and blamed the other. Al-Enzi claimed that he was elsewhere when the murder occurred. [2] When the trial began, both Al-Enzi and Kayem were represented by experienced and competent defence counsel. Midway through the trial, the Crown’s main witness, Abdul-Hussein, recanted his statement to the police. He was then cross-examined. Before his cross-examination was finished, Al-Enzi’s counsel withdrew from the case, leaving Al-Enzi unrepresented. [3] The trial judge adjourned the trial for nearly four months so Al-Enzi could find another lawyer. But, despite an extensive search throughout the province, no defence lawyer was prepared to step into the middle of a first degree murder trial. [4] Al-Enzi sought a severance or a mistrial so that he could be represented by counsel at a new trial. The trial judge refused either remedy. Instead, he ruled that the trial should proceed and appointed amicus curiae, with whom Al-Enzi had no relationship, to assist him during the rest of the trial. Neither accused testified or called any evidence. Kayem, represented throughout the trial, was acquitted; Al-Enzi was convicted and sentenced to the mandatory term of life imprisonment with no eligibility for parole for 25 years. [5] Al-Enzi appeals his conviction on two grounds. His first and main ground is that the trial judge’s refusal to grant a severance or a mistrial caused a miscarriage of justice. Al-Enzi submits that his right to be represented by counsel outweighed the importance of a joint trial. He argues that the trial judge’s ruling deprived him of a fair trial, both in appearance and in reality. [6] Al-Enzi’s second ground of appeal is that the trial judge erred by admitting private telephone conversations between Al-Enzi and his wife, in breach of the spousal privilege rule. This evidence was important to the Crown’s case, and Al-Enzi argues that its erroneous admission prejudiced him. [7] In response, the Crown first submits that in the light of the antagonistic defences of the two accused, the trial judge exercised his discretion reasonably by ordering the joint trial to proceed and appointing amicus in an expanded role to assist Al-Enzi. Second, the trial judge admitted only conversations that were facilitated by three-way calls, and therefore were not privileged. Alternatively, if the trial judge erred, his error was harmless because the calls he admitted formed a relatively insignificant part of the Crown’s case. [8] I agree with Al-Enzi’s main ground of appeal. I would therefore allow his appeal, set aside his conviction for first degree murder, and order a new trial. B. The Crown’s theory AND the positions of the two accused (1) The relationship among the individuals involved [9] The victim Zalal and Al-Enzi were distant cousins, though not close. Both were in the drug trade. Abdul-Hussein is Al-Enzi’s brother-in-law. During the summer of 2006, Abdul-Hussein and Kayem became friends. Through that friendship, Kayem knew Al-Enzi. (2) The Crown’s theory about how Zalal was murdered [10] According to the Crown, Zalal was murdered over a 9mm handgun. The handgun belonged to Zalal but he had been in jail, and while there, he loaned the gun to Al-Enzi. [11] Zalal was released from jail during the day on August 18 and demanded his gun back. Al-Enzi liked the gun and did not want to return it. The Crown alleged that Al-Enzi and his friends, Abdul-Hussein and Kayem, lured Zalal into a car on the pretext that he would get his gun back. Kayem drove and Abdul-Hussein sat in the back seat behind him; Zalal sat in the front passenger seat, and Al-Enzi sat behind him in the back seat. They drove east from Ottawa along Highway 417 late at night. Al-Enzi took out the gun Zalal had given him and shot Zalal in the back of the head. Kayem kept driving. Eventually they dumped Zalal’s body in a field, where it was discovered the next day. [12] In June 2008, nearly two years after the killing and after a lengthy police investigation, Abdul-Hussein, Kayem and Al-Enzi were charged with Zalal’s murder. (3) The positions of the accused [13] Originally, Kayem was charged separately, and Abdul-Hussein and Al-Enzi were charged jointly. After his arrest, Kayem was confronted with his DNA on a cigarette butt left at the scene. He then gave a statement in which he admitted that he was present at the murder but claimed that he had no advance knowledge of it. He said that Al-Enzi was the killer. After his preliminary inquiry, Kayem was committed for trial separately. [14] At the end of the preliminary inquiry for Abdul-Hussein and Al-Enzi, Abdul-Hussein made a deal with the Crown. He gave a KGB statement[1] to the police and pleaded guilty to accessory after the fact, for which he received a sentence of time served. In his statement, he also pointed to Al-Enzi as the killer. Like Kayem, he said that he was present for the murder but knew nothing about it in advance. He also said Kayem was shocked and surprised when Al-Enzi shot Zalal. After the police obtained Abdul-Hussein’s statement, the Crown decided to proceed jointly against Kayem and Al-Enzi. [15] Al-Enzi gave a statement to the police in which he said that he had been nowhere near the scene of the murder. He claimed that he had gone to the Exhibition with his wife and then to a nightclub in Gatineau. C. Background to the main ground of appeal [16] The question of the appropriate remedy after the withdrawal of Al-Enzi’s counsel must be sensitive to the context. It calls for a case-specific inquiry into the surrounding facts. It thus becomes necessary to review these facts in some detail. I begin with a list of the important points disclosed by that review. · Kayem and Al-Enzi blamed each other for Zalal’s murder. · When Al-Enzi’s counsel, Gary Barnes, withdrew, Kayem’s interest and the Crown’s interest were aligned: both sought to show Abdul-Hussein’s police statement inculpating Al-Enzi was truthful and his recantation at trial was fabricated. · Barnes’s withdrawal was required by the Law Society’s Rules of Professional Conduct. · Although Barnes’s withdrawal was mandatory, he gave uncontested statements that Al-Enzi was not to be blamed. · By the time of Barnes’s withdrawal, the Crown had mounted a formidable case against Al-Enzi: the risk of conviction was high. · Al-Enzi, his family, Barnes and the Legal Aid Office all diligently searched throughout the province for a new lawyer. · Over 100 lawyers were contacted and not one was willing to take on Al-Enzi’s defence in the middle of the trial. · Al-Enzi had never met and had no relationship with the amicus appointed by the trial judge. · After Barnes’s withdrawal and for the remainder of the trial, Al-Enzi continued to ask for his own lawyer. · Three more weeks of motions and evidence took place after Barnes’s withdrawal. During that time, the Crown led more evidence to strengthen its case against Al-Enzi. (1) The trial proceedings [17] As I have said, after the Crown obtained Abdul-Hussein’s police statement, it proceeded jointly against Al-Enzi and Kayem. Al-Enzi was represented by Gary Barnes. Kayem was represented by Leonard Shore and Patrick McCann. All three were experienced Ottawa defence counsel. The trial began in April 2010 and concluded in September 2010. [18] The timeline of the trial was as follows: · April 14: Pre-trial motions begin. They include the spousal privilege voir dire (which is not concluded before the trial begins) · April 29: The jury begins to hear evidence · May 18: Barnes withdraws · May 18 - Aug 31: The trial adjourns to permit Al-Enzi to retain counsel · May 31 – June 2 – The severance application is argued and the trial judge reserves his ruling · August 6: The trial judge dismisses the severance application and appoints amicus · August 31: The spousal privilege voir dire resumes · September 7: The trial resumes before the jury · September 17: The Crown closes its case · September 22: Al-Enzi, amicus, counsel for Kayem and the Crown address the jury · September 23: The jury begins its deliberations · September 26: The jury returns its verdict [19] May 18, the date Barnes withdrew, was a pivotal moment in the trial. By then, the jury had been hearing evidence for three weeks. The Crown had called seven witnesses. Its last witness before Barnes’s withdrawal was its main witness, Abdul-Hussein. [20] When the Crown called Abdul-Hussein to testify, he recanted his police statement. He said that he had been coerced into giving it to get out of jail and that he had essentially adopted Kayem’s statement to the police. The Crown, of course, applied to have Abdul-Hussein’s police statement admitted for its truth. The trial judge granted the application. Abdul-Hussein was then cross-examined by the Crown, by Barnes for Al-Enzi and by counsel for Kayem. Kayem’s counsel had nearly completed his cross-examination when Barnes asked to withdraw as counsel for Al-Enzi. (2) Barnes’s withdrawal (i) The withdrawal [21] On the morning of May 18, Barnes advised the court that issues had arisen between him and Al-Enzi that made it impossible for him to continue to act for his client. He asked to withdraw as counsel. He said that the “major issue” between him and Al-Enzi was a matter of ethics. He had conferred with the Law Society and was instructed that “he must apply to be removed from the record” under rule 2.09(7) of the Rules of Professional Conduct, which governs situations of mandatory withdrawal. He undertook to help Al-Enzi find another lawyer. (ii) The positions of the parties [22] Crown counsel did not oppose Barnes’s application, but said that the Crown would not consent to proceeding against an unrepresented accused on a first degree murder charge. At the same time, Crown counsel opposed a severance. He asked that Al-Enzi be instructed to retain counsel within a specified period. [23] Counsel for Kayem also said that the Crown could not proceed against an unrepresented accused. They said, however, that the prosecution need not proceed as a joint trial. They opposed a mistrial for both accused because it would severely prejudice Kayem. [24] By this time, the interests of Kayem and Al-Enzi were diametrically opposed. Kayem was aligned with the Crown. Both sought to discredit Abdul-Hussein’s recantation and demonstrate the truth of his original statement to the police. That statement suggested Kayem had not knowingly participated in Zalal’s murder. Abdul-Hussein had been effectively cross-examined on his recantation and Kayem did not want to lose the fruits of that cross-examination. Moreover, he had retained his counsel privately and had been in custody for two years. He wanted the trial to continue against him. [25] Al-Enzi, on the other hand, wanted to discredit Abdul-Hussein’s police statement and affirm the veracity of his recantation. And Al-Enzi wanted a new lawyer to represent him – indeed, he blurted out that it was going to take a year to find one. At the very least, he wanted a severance and a new trial. [26] The trial judge sent the jury away. He granted Barnes’s application to withdraw and said that he would hear an application for severance. In the meantime, he adjourned the trial to permit Al-Enzi to find another lawyer. (iii) Al-Enzi is not to be blamed for Barnes’s withdrawal [27] Because Barnes withdrew under the mandatory withdrawal rule of the Law Society’s Rules of Professional Conduct, the Crown (both at trial and on appeal), and, as I will discuss, even the trial judge, suggested that Al-Enzi should be faulted for his counsel’s withdrawal. [28] The only evidence on the record, however, came from Barnes. And, at several of the court appearances after his withdrawal, Barnes unequivocally stated to the court that Al-Enzi was blameless. He was not to be faulted for his lawyer’s withdrawal. On July 8, for example, Barnes asserted that this was a “no fault situation” – “nothing can impugned against Mr. Al-Enzi about it.” No evidence on the record contradicted Barnes’s assertions. (3) The unsuccessful attempts to find another lawyer (i) Initial positions [29] The trial judge was optimistic that Al-Enzi could find new counsel. He decided he would hear submissions on severance and reserve judgment on the application, and would monitor Al-Enzi’s progress in retaining new counsel by regular court attendances over the summer. The trial judge did not regard the case as terribly complex. He later expressed incredulity that no counsel would take the matter on. [30] From the moment Barnes withdrew, counsel for Kayem were highly skeptical that Al-Enzi would find another lawyer to take on the case in the middle of the trial. On May 18, McCann said it was “pie-in-the-sky hopes” and “highly, highly unlikely” that Al-Enzi could find another lawyer. A week later, Shore told the court that “no lawyer worth his salt is going to come” and “we are all dreaming in technicolour” to think that any serious lawyer would come in mid-trial. [31] Craig Fleming from the Toronto office of Legal Aid Ontario, which had been asked to assist in finding a new lawyer, had a similar view. On May 31, he told the trial judge that he had a “grave concern on an ethical basis” whether a lawyer could walk into a trial of this magnitude and complexity and provide competent representation. [32] The views of Kayem’s counsel and Fleming proved to be prophetic. (ii) Lawrence Greenspon is willing to act for Al-Enzi, but not mid-trial [33] On May 25, a week after his withdrawal, Barnes told the court that Al-Enzi had spoken to Lawrence Greenspon, a senior Ottawa lawyer. Greenspon was interested in taking the case, and Al-Enzi wanted him. Shore did not believe Greenspon would come in mid-trial. The trial judge responded that the trial was going ahead in September. Al-Enzi and Greenspon were not going to control the process. If Al-Enzi could not get a lawyer, amicus would be appointed. [34] On May 27, Greenspon appeared. He told the court that he expected to be retained but that he was not prepared to pick up the case in the middle of trial when he had not selected the jury or seen the evidence. He would take the case only if a new trial was granted. [35] The trial judge said that he would not grant a mistrial. He was “not losing this trial.” If he did not grant a severance, the trial would go forward with an amicus. (iii) The search for counsel [36] Barnes, the Legal Aid Office, Al-Enzi himself and Al-Enzi’s family all tried to find a lawyer to take on the case in the middle of the trial. The record is clear that they searched diligently and that although Al-Enzi preferred Greenspon, he was willing to accept another lawyer. [37] The record is also clear on the results of the search. Despite everyone’s diligent efforts over the course of several months, not a single lawyer was prepared to take on Al-Enzi’s defence in the middle of the trial. I set out here a brief summary of these efforts: · Ms. Champagne, a lawyer from the Ottawa office of Legal Aid, canvassed almost everyone on the “extremely serious matters” list in her region and contacted the major case management unit in Toronto. She received the identical response from everyone: no one was willing to pick up the case in the middle of the trial. · Barnes made similar inquiries. He expanded the search to lawyers on the “extremely serious matters” list for all of eastern Ontario. He, too, was told no one would step in. · Eventually, Barnes contacted the Criminal Lawyers’ Association and lawyers in Toronto and across eastern and southern Ontario. There, too, he had no success finding a lawyer willing to take on Al-Enzi’s defence. · Al-Enzi and his family contacted lawyers throughout the province. Barnes confirmed that Al-Enzi and his family had actively searched for a lawyer. Their efforts were also unsuccessful. [38] All told, over 100 lawyers were contacted. Nobody was willing to act. (iv) The provisional appointment of amicus [39] In late June at one of the attendances to update the trial judge, Barnes said that two lawyers who had spoken to him were willing to act as amicus. One was Clay Powell, a lawyer with many years’ experience at the criminal bar, both as a Crown counsel and as a defence lawyer. [40] The Crown asked that amicus be appointed immediately. Barnes objected. He argued that appointing amicus was inappropriate because Al-Enzi wanted to retain his own lawyer and had done nothing blameworthy to prolong the proceedings. Indeed, he had done everything in his power to find another lawyer and had not stopped looking. Barnes contended a severance was the most effective way to prevent Al-Enzi from being prejudiced. [41] The trial judge disagreed with Barnes. He gave an oral ruling appointing Powell as amicus provisionally. He did not define Powell’s role but did say that solicitor-client privilege would attach to Powell’s communications with Al-Enzi. The question whether Powell was to be appointed for the balance of the trial was deferred for further argument. Up until Powell’s provisional appointment, Al-Enzi had never met or even spoken to him. [42] The trial judge then addressed Al-Enzi directly and told him that his time to find counsel was “drawing down.” The trial was going to continue on September 7. Al-Enzi replied that he did not want amicus; he wanted his own lawyer. (v) Greenspon and Fleming [43] During the search for new counsel, two related matters arose: whether Greenspon’s offer to act if a severance were granted deterred other counsel from taking on the case; and whether Fleming from the Legal Aid Office was willing to act for Al-Enzi. I will deal briefly with the evidence on each of these matters. [44] At one of the many court appearances during the summer of 2010, Crown counsel claimed that Greenspon’s involvement had dissuaded other defence lawyers from stepping in. The trial judge apparently held the same view. During the argument on the provisional appointment of amicus, he observed that Greenspon’s willingness to act only if a new trial was granted had “poisoned” the process. [45] The record, however, does not bear this out. Even before Greenspon’s name surfaced, Barnes, Al-Enzi and even the Legal Aid Office had tried unsuccessfully to find another lawyer. This was hardly surprising. Kayem’s very experienced defence counsel had told the trial judge that the court was “dreaming in technicolour” to think another lawyer would step in. [46] Barnes did acknowledge that some lawyers he had contacted were turned off when told that Greenspon was prepared to take the case if the trial began anew. But Barnes also said that the lawyers he had spoken to had given several other reasons for declining to act: they had no involvement in jury selection, no involvement in the various pre-trial motions and no opportunity to cross-examine the important witnesses who had already testified. As I read the record, the trial judge’s observation that Greenspon’s involvement had poisoned the entire process is not supportable. [47] At one of the court appearances during the summer, Fleming seemed to suggest that he would be willing to act as defence counsel if Al-Enzi agreed. In this court, the Crown submitted that Al-Enzi chose not to avail himself of Mr. Fleming’s willingness to represent him for the continuation of the trial. [48] Unfortunately, the record is unclear on whether Fleming actually extended the offer, and if so, whether Al-Enzi declined it. Instead, the matter seems to have been left hanging. That Fleming would have been willing to act seems quite inconsistent with his initial comment to the court: he would have “grave concern on an ethical basis” whether a lawyer could step into the trial and adequately represent Al-Enzi. Moreover, in his many comments on the search for counsel and in his severance ruling, the trial judge does not advert to Fleming’s supposed willingness to act. On this record, therefore, no reliable inference can be drawn that Fleming was prepared to act for Al-Enzi. (4) The Crown’s case against Al-Enzi [49] When Barnes withdrew, unquestionably the Crown had already put forward a formidable case against Al-Enzi. Its principal evidence consisted of the following: (i) Abdul-Hussein’s police statement: In his statement, Abdul-Hussein described in some detail how Al-Enzi shot Zalal and disposed of his body. Although Abdul-Hussein recanted his statement at trial, both the Crown and Kayem’s counsel had effectively cross-examined Abdul-Hussein on the implausibility of his recantation. (ii) Kayem’s police statement: it substantially corroborated Abdul-Hussein’s statement. (iii) Forensic evidence: Zalal was killed by a single gunshot wound to the head. The Crown claimed that he was shot while sitting in the passenger seat of the car. Blood staining on Zalal’s clothing was shown to be consistent with his being in a seated position when shot and then slumping forward with his head down. (iv) Telephone records: Phone records for August 18, the day of the murder, showed 17 telephone calls between Al-Enzi and Kayem, a level of communication that was allegedly unusual for them. Additionally, phone records of the relevant service towers were consistent with Abdul-Hussein’s description of the movement of the perpetrators on August 18. (v) Al-Enzi’s intercepted telephone calls: After Zalal was killed, Kayem went to Dubai. While he was there, Al-Enzi spoke with him on the phone many times. During their calls, Al-Enzi repeatedly told Kayem that the police knew nothing and that if they said nothing they would be alright. He tried to persuade Kayem to stay in Dubai, but also told him that if he came back he should resist breaking down. [50] The Crown also relied on intercepted telephone calls between Al-Enzi and various friends and family members, which took place while Al-Enzi was in jail. The calls with Al-Enzi’s wife contained what the Crown alleged were conversations about how to keep Kayem in Dubai and keep her brother, Abdul-Hussein, from talking to the police. Early in the trial, Barnes had applied to exclude these conversations on the ground of spousal privilege. That application had not been completed when Barnes withdrew. It was dealt with when the trial resumed. The trial judge ruled that the calls were admissible. (5) The severance ruling and the appointment of amicus [51] The severance application took place between May 31 and June 2. As he said he would, the trial judge reserved his ruling. He gave his ruling on August 6. He dismissed the application and appointed Powell as amicus in an expanded role to assist Al-Enzi. [52] In his ruling, the trial judge framed the question he had to resolve this way: [T]he question is, in all the circumstances present in this case, should Mr. Al-Enzi’s right to be represented by counsel of his choice prevail over the Crown’s right to have the one trier of fact deal with jointly accused persons, and Mr. Kayem’s right to the continuance of his trial now rather than later[?] [53] The trial judge then gave three reasons why he was ordering the trial to proceed jointly against both accused: · “[T]he overwhelming public interest in joint trials where the accused blame one another.” · “Al-Enzi is without counsel by his own doing, having directly or indirectly made it necessary for Mr. Barnes to withdraw from the case.” · “[T]he very substantial criminal record of Mr. Al-Enzi” shows that “[h]e is no neophyte, but rather it would seem he is quite familiar with the criminal justice system and retaining lawyers to defend him.” [54] The trial judge therefore concluded that the trial would continue against both accused before the jury on September 7, though Al-Enzi would be without counsel. [55] Then, to “assure trial fairness” for Al-Enzi, the trial judge appointed Powell as amicus in an expanded role. This expanded role included: · Consulting with and taking instructions from Al-Enzi, and assisting in the cross-examination of the remaining witnesses; · Leading any evidence Al-Enzi chose to call; and · Making any appropriate submissions to the court and final submissions to the jury on Al-Enzi’s behalf. [56] In addition, the trial judge affirmed that communications between Al-Enzi and Powell “shall be cloaked with the usual solicitor-client privilege.” (6) The resumption and completion of the trial [57] On August 31, the court reconvened for the voir dire on the issue of spousal privilege for the intercepted telephone calls between Al-Enzi (who was in jail at the time of the phone calls) and his wife. Powell was present during the voir dire and the trial judge told Al-Enzi that Powell was available to assist him. Al-Enzi replied that Powell was the “court’s lawyer, not my lawyer. I don’t have a lawyer. I’m forced to represent myself. I don’t know how to do that.” [58] On September 7, the trial resumed before the jury. The jurors were given transcripts of the evidence to date to refresh their memory. After Kayem’s counsel completed his cross-examination of Abdul-Hussein, the Crown called more witnesses to strengthen its case against Al-Enzi. Powell did cross-examine these witnesses. Throughout the remainder of the trial, however, Al-Enzi continued to assert his right to counsel and express his dissatisfaction with the role of amicus. He did on occasion act as his own counsel, usually by objecting to the Crown’s evidence. [59] Neither Kayem nor Al-Enzi called a defence. Powell and Al-Enzi gave closing addresses to the jury. Both were brief. [60] The jury began its deliberations on September 23 and gave its verdict on September 26. It convicted Al-Enzi and acquitted Kayem. D. Did the trial judge’s refusal to grant a severance or a mistrial cause a miscarriage of justice? (1) The legal context [61] The legal context for analyzing this main ground of appeal is well established and uncontroversial. Section 591(3) of the Criminal Code sets out the test for severance: the court may order that two accused be tried separately “where it is satisfied that the interests of justice so require”. This provision confers broad discretion on a trial judge. In exercising that discretion, the trial judge must take account of the interest of each accused and of the public, represented by the Crown: see R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.), at para. 85, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 583. [62] When, as in this case, two persons are accused of committing a crime in concert, there is a presumption in favour of trying the accused together. That presumption applies with particular force when two accused mount a cut-throat defence and blame each other, as Kayem and Al-Enzi did: see Suzack, at paras. 87-89. Thus, in cases in which two accused engage in cut-throat tactics, only exceptionally should they be tried separately. [63] Similar considerations apply to decisions on applications for a mistrial. In determining whether to grant a mistrial, a trial judge must consider whether there is a real danger of prejudice to the accused or of a miscarriage of justice if the trial were to continue: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 74. As with decisions on severance applications, the trial judge must balance the interests of the accused against other considerations, including the public interest: Burke, at para. 75. [64] Because severance decisions (and decisions refusing a mistrial) are discretionary, they are entitled to deference on appeal. An appellate court is justified in intervening only if the trial judge exercised this discretion unreasonably or acted on a wrong principle. [65] In this part of my reasons, I will focus on the trial judge’s severance decision because severance was the subject of a formal application and ruling, while the possibility of a mistrial was only referred to in passing. Nonetheless, the two remedies engage similar considerations. (2) The trial judge’s severance ruling [66] Once Barnes withdrew as counsel for Al-Enzi in the middle of the trial, the trial judge faced a difficult decision about how to proceed. He had to consider Al-Enzi’s interest; he had to consider Kayem’s interest; he had to consider the Crown’s interest; and he had to consider the strong presumption in favour of joint trials when two accused are alleged to have acted in concert and put forward antagonistic defences. There is indeed some merit to Ms. Klukach’s submission that in weighing these considerations and denying severance, the trial judge did not err. [67] However, for reasons I will discuss, I have concluded that the trial judge’s severance ruling cannot stand. He asked himself the wrong question and thus acted on a wrong principle. And he exercised his discretion unreasonably by relying on two unsupportable considerations and by failing to take into account other highly relevant considerations. [68] This is one of those exceptional cases in which the interests of justice demand that Al-Enzi be given a new trial so that he can be defended throughout by his own counsel. The appointment of amicus, even with an expanded mandate, was not an adequate substitute. The trial judge’s ruling thus deprived Al-Enzi of the reality and appearance of a fair trial and produced a miscarriage of justice. [69] Although it is not necessary to decide whether a severance or a mistrial was the appropriate remedy, an order for severance would likely have been preferable. It would have preserved the proceedings against Kayem and would have put the two accused in the position they were in when they were first charged – with separate trials. The availability of Abdul-Hussein’s police statement implicating Al-Enzi would have diminished any prejudice to the Crown. [70] In his severance ruling, the trial judge said that the question he had to decide was whether Al-Enzi’s right to be represented by counsel of his choice prevailed over the Crown’s right to proceed jointly against the two accused with antagonistic defences and Kayem’s right to continue the trial. This was not the right question. The trial judge thought he had two options: preserving the joint trial or giving Al-Enzi his counsel of choice at a new and separate trial. But this was not a case in which an accused insisted on counsel of choice. This case was about a choice between counsel or no counsel. Although Al-Enzi did want Greenspon to act for him, he would have accepted another lawyer. And the critical fact is that no lawyer was willing to take on his defence in the middle of a first degree murder trial – a fact the trial judge seemed unwilling to accept or even recognize. [71] The right question – the question the trial judge ought to have asked himself – is this: would requiring Al-Enzi to proceed without counsel but with the assistance of amicus strike a reasonable balance between Al-Enzi’s right to a fair trial, the Crown’s interest in a joint trial and Kayem’s interest in the continuation of this trial? That question should have led, in my view, to a very different answer from the one given by the trial judge. [72] The trial judge compounded this error by giving two unsupportable reasons for his ruling and by failing to take into account other important considerations. As I have said, the trial judge gave three reasons for his ruling: the public has an overwhelming interest in joint trials when two accused blame each other for the crime; Al-Enzi caused Barnes to withdraw; and Al-Enzi was familiar with the criminal justice system from his extensive criminal record. [73] As Al-Enzi and Kayem mounted cut-throat defences, the strong presumption in favour of joint trials was an important consideration on the severance application. Indeed, it seemed to dominate the trial judge’s thinking in the weeks leading up to his severance ruling. More than once, he commented on his “overriding obligation” to preserve the integrity of the joint trial. As important as this consideration was, however, it was not the exclusive consideration. And I do not agree with the other two reasons given by the trial judge. [74] For the first of these reasons – that Al-Enzi caused Barnes’s withdrawal and thus was to blame for it – the trial judge relied on rule 2.09(7) of the Law Society’s Rules of Professional Conduct, which prompted Barnes’s application. The Rule states: Mandatory Withdrawal (7) Subject to the rules about criminal proceedings and the direction of the tribunal, a lawyer shall withdraw if (a) discharged by the client, (b) the lawyer is instructed by the client to do something inconsistent with the lawyer’s duty to the tribunal and, following explanation, the client persists in such instructions, (c) the client is guilty of dishonourable conduct in the proceedings or is taking a position solely to harass or maliciously injure another, (d) it becomes clear that the lawyer’s continued employment will lead to a breach of these rules, (d.1) the lawyer is required to do so pursuant to subrules 2.02(5.1) or (5.2) (dishonesty, fraud, etc. when client an organization), or (e) the lawyer is not competent to handle the matter. [75] As Al-Enzi did not discharge Barnes, his application would have been based on any one or more of subsections (b), (c) and (d). All three of these subsections speak explicitly or implicitly of dishonourable conduct by the client. Because they do, it seems tempting to infer that Al-Enzi should be blamed for Barnes’s withdrawal. [76] But that is not a fair inference to draw for two reasons. First, Barnes stated unequivocally to the court several times that Al-Enzi should not be blamed for his withdrawal. It is, Barnes said, a “no-fault situation” – “nothing can be impugned against Mr. Al-Enzi about it”. Barnes was not contradicted on his statements, and no one has questioned his credibility. Indeed, he acted admirably throughout these proceedings. [77] Second, to attribute blame here is rank speculation, not fair inference, in the absence of any evidence about what occurred between Al-Enzi and Barnes. Solicitor-client privilege prevented Barnes from disclosing his discussions with Al-Enzi to the court. There is simply no evidence on the record of any dishonourable conduct on the part of Al-Enzi or of any attempt by him to manipulate the proceedings. He did not fire Barnes and he did not want Barnes to withdraw. [78] The second of the trial judge’s reasons with which I disagree is his reliance on Al-Enzi’s criminal record. In some cases, that might be a legitimate consideration. But not in this case. Al-Enzi’s criminal record and therefore his apparent familiarity with the criminal justice system had little significance in the light of the complexity of this case and the seriousness of the charge. Moreover, the record does not show that Al-Enzi was using his knowledge of the criminal justice system to manipulate the proceedings against him. [79] Thus, of the three reasons given by the trial judge for denying severance, only the first, the presumption in favour of joint trials, was a fair consideration. Other considerations not referred to by the trial judge should have been taken into account in the exercise of his discretion. They include: · The trial was complex, both legally and factually. And the admissibility and use of dozens of wiretaps remained to be decided when Barnes withdrew. · A charge of first degree murder is the most serious charge in Canadian law. Although the right to counsel at trial is not an absolute right, representation by counsel is generally essential to a fair trial, and that is especially so when an accused is charged with a serious offence and the trial is likely to be complex. See R. v. Bitternose, 2009 SKCA 54, 244 C.C.C. (3d) 218; and R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.). · The Crown and Kayem, both represented by experienced counsel, were aligned in interest against Al-Enzi. If a severance were refused, Al-Enzi would have to face these adversaries unrepresented. · The Crown’s case against Al-Enzi was formidable, heightening his need to be represented. · Al-Enzi was “not particularly literate” and was not conversant with the use of computers,[2] making it difficult for him to defend himself without assistance. · Although Al-Enzi was represented for part of the trial, including for the cross-examination of Abdul-Hussein, the Crown’s main witness, other important parts of the trial had not taken place when Barnes withdrew. The Crown still had considerable evidence to lead to buttress its case against Al-Enzi, and closing jury addresses had yet to be given. · There was no evidence that Al-Enzi was attempting to frustrate the proceedings or, as Crown counsel at trial charged, to “engineer a severance”. Moreover, Al-Enzi had no history of discharging or precipitating the withdrawal of his lawyers. · Al-Enzi and others trying to help him made sincere and diligent efforts to find a lawyer to replace Barnes. · The evidence uniformly showed that not a single lawyer in the province would take over the defence of a first degree murder charge in the middle of the trial. · While severance would mean losing the advantage of a joint trial, the Crown still had Abdul-Hussein’s police statement implicating Al-Enzi in Zalal’s murder. [80] These considerations argued forcefully for a severance, unless an amicus to assist Al-Enzi for the rest of the trial was an adequate substitute. (3) Amicus was not an adequate substitute for counsel for Al-Enzi [81] The traditional role of amicus was to assist the court, typically by making submissions on points of law. Only indirectly did the traditional amicus assist a party. The trial judge, however, did not appoint amicus in a traditional role. He appointed Powell in an expanded role more akin to the role of defence counsel. That expanded role fits uncomfortably with the Supreme Court of Canada’s recent decision in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 49-56. However, this trial took place before the Supreme Court’s decision, and thus the trial judge did not have the benefit of that decision. [82] Even with an expanded mandate, however, amicus was not an adequate substitute for defence counsel. Al-Enzi needed a person fully familiar with his case, a person in whom he had full trust and confidence. The solicitor/client relationship is built on intangible characteristics, not transferable to a person appointed by the court – certainly not a person with whom the client has had no relationship: see R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.); and R. v. Rafferty, 2013 ONCA 741, [2013] O.J. No. 5550. Both the actual fairness and perceived fairness of criminal proceedings against an accused partly depend on this relationship. Courts zealously guard one’s right to be represented by a lawyer at a criminal trial. Only in rare cases do courts limit this right. In my view, this was not one of those rare cases. [83] In saying all of this, I do not criticize Powell or his performance as amicus. Any amicus would have fallen short. Powell himself recognized this. He refused to take on the duties of Al-Enzi’s defence counsel mid-stream; yet the trial judge expected him to discharge these very duties in fulfilling the expanded role of amicus. It is telling that on several occasions during the trial, Powell commented that he had not had sufficient time to fully familiarize himself with the facts of the case. This comment alone should have signalled to the trial judge that the appointment of amicus, even in an expanded role, could not assure Al-Enzi’s right to a fair trial. And the most telling evidence of all that amicus was not an adequate substitute for defence counsel – not one person was willing to take this case on as defence counsel. [84] The Crown makes two submissions in support of its contention that the refusal of a severance and the appointment of amicus did not cause an injustice: Al-Enzi’s right to a fair trial was not prejudiced because Powell performed admirably once he was appointed; and this court has upheld first degree murder convictions at least twice in cases in which the accused was unrepresented for part of the trial and had only amicus to assist him: see R. v. Amos, 2012 ONCA 334, 292 O.A.C. 298, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 160; and R. v. Phung, 2012 ONCA 720, [2012] O.J. No. 5058, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 97. I do not accept either of the Crown’s submissions. [85] It seems to me that an inquiry into Powell’s performance and whether it did or did not prejudice the fairness of Al-Enzi’s trial is neither a desirable nor a relevant inquiry: see McCallen, at pp. 78-80. This is a case in which the accused was deprived of counsel, not a case in which he claimed to be ineffectively represented by counsel. In a claim of ineffective representation the issue of prejudice is central to an appeal court’s determination of whether a miscarriage of justice has occurred. See R. v. Joanisse, [1995] 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347; and R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29. When, however, an accused is deprived of the right to counsel altogether, that deprivation almost always gives rise to the appearance of unfairness. No demonstration of actual prejudice is therefore needed. [86] In McCallen, at pp. 78-80, O’Connor J.A. rejected the Crown’s argument that an accused had to show actual prejudice from the denial of a right to counsel of choice. The denial itself created a perception of unfairness and resulted in a miscarriage of justice. That perception is even stronger here, when Al-Enzi was deprived not just of counsel of his choice, but of counsel altogether. He was left unrepresented, facing two well-represented adversaries—the Crown and Kayem—who were lined up against him. Forcing him to proceed without a lawyer was unfair and produced a miscarriage of justice. [87] There is a related reason why it is not desirable to try to assess whether Al-Enzi was prejudiced. To do so when he was unrepresented would require the court to attempt to guess how the trial might have played out if he had been represented. As Rosenberg J.A. said in R. v. Rushlow, 2009 ONCA 461, 245 C.C.C. (3d) 505, at paras. 39-40: “the court must, however, be wary of speculating as to how the case might have been different had counsel been appointed …. [P]ondering the utility of assistance of defence counsel in a complex case is an inherently dangerous exercise.” In short, one can never really know what would have happened if Al-Enzi had had his own counsel throughout the trial. [88] Finally I come to this court’s decisions in Amos and Phung. As I said at the beginning of these reasons, deciding whether the refusal of a severance caused an injustice calls for a case-specific review of the record that is sensitive to the context giving rise to the refusal. The facts and context in both Amos and Phung were very different from the facts and context in this case. Most strikingly, the accused in both Amos and Phung were blatantly trying to manipulate the proceedings. No such finding can be made here. The evidence points to the opposite conclusion. [89] In Amos, the appellant and two others were jointly tried for first degree murder. At the end of the Crown’s case, the appellant’s counsel applied to be removed from the record, and the trial judge granted the application. The appellant then sought an adjournment to retain new counsel. The trial judge refused the adjournment. He found that the request was a “sham” and appointed the appellant’s former counsel as amicus. The appellant was convicted. On the appeal, he argued that the trial judge erred in refusing an adjournment and in appointing as amicus a lawyer in whom he had lost confidence. [90] This court dismissed the appeal. Watt J.A., writing for the panel, held that there was an adequate evidentiary foundation for the trial judge’s finding of a “sham” request for an adjournment. In particular, the appellant ignored the trial judge’s offer of assistance to find a new counsel. Instead the appellant called only one lawyer – the lawyer he had fired after the preliminary inquiry because of her lack of experience with murder cases. Additionally, in asking to be removed from the record, the appellant’s lawyer told the court that he could not “in good conscience” follow his client’s instructions, suggesting those instructions were inconsistent with the lawyer’s professional ethical obligations. [91] By contrast, Al-Enzi and others searched extensively for a replacement counsel, contacting over 100 lawyers. Also, Barnes did not impute any unethical behaviour to Al-Enzi; he said that Al-Enzi was blameless. Amos does not assist the Crown. [92] In Phung, the appellant and another were charged with first degree murder and attempted murder. Midway through the trial, the appellant fired his lawyer and sought an adjournment to retain new counsel. The trial judge refused to adjourn the trial. He described the appellant’s conduct as “patent manipulation.” Indeed, the accused had been overheard saying that he “[had] to get this judge off the panel”, and he had asked two separate court officers if he would obtain a mistrial if he fired his lawyer. This was powerful evidence that the accused was attempting to engineer a mistrial, and it is understandable why the trial judge denied that request. [93] Instead, with the appellant’s consent, the trial judge appointed two amici to assist him, one of whom had argued his request for an adjournment. The appellant was convicted of both murder and attempted murder. One of his grounds of appeal was that the trial judge erred by refusing an adjournment and forcing him to proceed unrepresented. This court rejected this argument (and the other grounds of appeal) and dismissed the appeal. [94] The panel noted that the trial judge’s refusal to grant an adjournment was rooted in his finding that the appellant was trying to “manipulate the process and delay the proceeding.” In the panel’s view, “that considered and pivotal finding is unassailable.” In addition, the panel held that the appellant had not shown how his trial was unfair or appeared to be unfair because he represented himself, but with the assistance of an amicus whose appointment he consented to. [95] By contrast, Al-Enzi did not fire his lawyer and he did not try to manipulate or delay the proceedings. And he did not consent to Powell’s appointment as amicus. Throughout the trial, he said repeatedly that he wanted his own lawyer. Phung, too, does not assist the Crown. [96] For all these reasons, I conclude that the trial judge exercised his discretion unreasonably by denying Al-Enzi a severance or a mistrial so that he could retain a lawyer to represent him at a new trial. The appointment of amicus, even with an expanded mandate, was not an adequate substitute for counsel for Al-Enzi. The trial judge’s denial of a severance or a mistrial deprived Al-Enzi of a fair trial, both in appearance and in reality. It produced a miscarriage of justice. E. Conclusion [97] I would allow the appeal, set aside Al-Enzi’s conviction for first degree murder, and order a new trial. It is thus unnecessary to consider Al-Enzi’s other ground of appeal concerning the admissibility of the telephone conversations between him and his wife. [98] I would like to thank all counsel for their advocacy on this difficult appeal. Released: July 31, 2014 “JL” “John Laskin J.A.” “I agree S.T. Goudge J.A.” “I agree David Watt J.A.” [1] A KGB statement is a previous inconsistent out-of-court statement that, although hearsay, is admissible for the truth of its contents because it is both necessary and reliable: see R. v. K.G.B., [1993] 1 S.C.R. 740. [2] Al-Enzi’s unfamiliarity with computers put him at an additional disadvantage because during the trial, everybody in the courtroom – the police, Crown counsel and Kayem’s counsel – were using computers to facilitate their work.