Case: R. v. Cordeiro-Calouro, 2019 ONCA 1002

Keywords: adjournment; fair trial; R. v. McManus, 2017 ONCA 188

Synopsis:

The Appellant, Mr. Rui Alberto Cordeiro-Calouro, is charged with dangerous driving causing death and dangerous driving causing bodily harm. On the date of trial (which had been marked “with or without counsel” due to the Appellant’s financial constraints), counsel goes on the record for the Appellant to seek 4 week adjournment to give time to prepare; waives s. 11(b) Charter issues. Crown counsel opposes. The Trial Judge refuses the Appellant’s request for adjournment and orders the trial to proceed with the Appellant unrepresented. The Appellant is convicted. The Court of Appeal finds the Appellant did not receive a fair trial.

Importance:

As noted by the Court of Appeal, when an accused person requests an adjournment, the trial judge faces two conflicting interests:

  • the accused’s right to counsel, including counsel of choice; and
  • the avoidance of delay. (See para. 6).

Citing para. 31 in R. v. Hazout, (2005), 199 C.C.C. (3d) 474 (Ont. C.A.), leave to appeal dismissed, [2005] S.C.C.A. No. 412, [2005] S.C.C.A. No. 501, the Court of Appeal noted that an appellate court may intervene with a Trial Judge’s balancing of these interests “…if the refusal of an adjournment deprives an accused of a fair trial or the appearance of a fair trial”. (See para. 6).

When does the denial of an adjournment deprive an accused person of a fair trial? For the Court of Appeal, this case provides an example – the resulting trial was “anything but fair to the Appellant” (See para. 13) and the denial of the adjournment in this case “…opened the door to various errors in the manner in which this legally-complex trial was conducted that contributed to its unfairness”. (See para. 7).

The Trial Judge ordered the trial to proceed and told the Appellant to review two banker’s boxes of disclosure, knowing that the Appellant could not read or write. As indicated by the Court of Appeal “…the counsel, who had asked for the adjournment but been refused, took it upon himself to write to the trial judge and advise him, both of the fact that the appellant could not read or write, and that English was not the appellant’s first language”. As the Court of Appeal says, “Notwithstanding this knowledge, the trial judge failed to take any steps…” (See para. 8).

And, the decision on whether the offence would be proven in this case “…turned, to a large degree, on the expert evidence”. (See para. 9). After it was determined the Appellant could not read his expert’s proposed questions for the cross-examination of the Crown’s expert, the Trial Judge “directed” the defence expert undertake the cross-examination himself, even though the expert said he wasn’t a “jurist”, and “was not sure what questions he was allowed to ask”. (See para. 9).

The Court of Appeal found “no proper legal basis” for the expert-on-expert cross-examination direction, and that:

The trial judge also appears to have forgotten the fundamental principle that experts are supposed to be non-partisan: R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 67. It is hard to see how the defence expert could be expected to uphold his duty to be non-partisan once he was placed in the position of having to become the advocate for the appellant through cross-examination of the Crown’s expert. (See para. 10).

In its conclusion, the Court of Appeal added “…we are troubled by the failure of Crown counsel to intervene to ensure that the obvious problems with the manner in which the trial was proceeding were identified and corrected,” (See para. 13) adding “As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice. (Also para. 13). Further, the Court of Appeal specifically acknowledged the counsel who wrote to the Trial Judge:

Before concluding, we would add that the counsel, who wrote to the trial judge to draw his attention to the deficiencies from which the appellant suffered in terms of being unrepresented, is to be commended for taking the step that he did. His actions were in the best spirit of the conduct of members of the Bar and were in the interests of justice. (See para. 15).

New trial ordered. (See para. 14).

Counsel for the Appellant: Alan Gold and Alex Palamarek (Alan D. Gold Professional Corporation, Toronto)

Counsel for the Respondent: Alexander Alvaro and Jennifer Trehearne (Crown Law Office Criminal, Toronto)

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