Agnew Johnston

Agnew Johnston: Fall Guy!!!

DATE: 20000927

DOCKET: C28238

COURT OF APPEAL FOR ONTARIO

LABROSSE, GOUDGE and SHARPE JJ.A.

BETWEEN: )

) Alan D. Gold,

HER MAJESTY THE QUEEN ) for the appellant

)

Respondent )

)

- and - ) J. A. Ramsay,

) for the respondent

AGNEW JOHNSTON )

)

Appellant )

) Heard: September 6, 2000

)

On appeal from his conviction by the Honourable Mr. Justice E. Then, sitting without a jury, on September 20, 1996 and from the sentence imposed on November 20, 1996

LABROSSE J.A.:

[1] On September 20, 1996, the appellant was found guilty on charges of obtaining, and attempting to obtain for consideration, the sexual services of a person under the age of eighteen years contrary to s. 212(4) of the Criminal Code. He was also acquitted of three other similar charges.

[2] The alleged events involved two juvenile street prostitutes, one of whom had been a complainant at a rape trial in which the appellant had acted as assistant Crown Attorney. The appellant testified and denied that any of the sexual activities took place. The trial judge gave extensive and considered reasons for finding the appellant guilty and he imposed a sentence of three months’ imprisonment on the first charge and two months’ imprisonment to be served consecutively on the second charge.

[3] The appellant appeals his conviction and sentence.

[4] The appeal raises the following issues:

1. The admissibility of the appellant’s statement;

2. The fresh evidence application; and

3. Harsh and excessive sentence.

1. The admissibility of the appellant’s statement.

[5] In February 1994, the police had interviewed the appellant with respect to a matter totally different from the present offences, namely, an investigation into the murder of a prostitute. At the time, the appellant gave the police a statement and, at his trial, the Crown sought to introduce the statement into evidence. Trial counsel for the appellant, Mr. Peter Ross, was prepared to concede the voluntariness of the statement but not its admissibility because it was not relevant and tended to show that the appellant was predisposed to committing these types of offences. Counsel wanted the trial judge to exercise his discretion to exclude the statement on the basis that its prejudicial effect exceeded its probative value.

[6] The trial judge held a voir dire and considered that numerous parts of the statement were relevant to the issues in this case. He concluded that its probative value outweighed its prejudicial effect and admitted the statement into evidence.

[7] On appeal, counsel for the appellant, Mr. Gold, submitted that the statement only had “trifling” probative value and that it should have been excluded because of marked prejudicial value.

[8] The statement supported the evidence of Crown witnesses on elements of the offence and was clearly relevant. Furthermore, the appellant was tried without a jury, the statement was not used by the trial judge for any improper purpose and there was no realistic risk of prejudice. There is no basis for interfering with the trial judge’s exercise of his discretion in admitting the statement in evidence.

2. The fresh evidence application.

[9] Extensive fresh evidence is tendered consisting of affidavits and transcripts of cross-examinations of the appellant, colleagues and friends of the appellant and his counsel, police officers, Crown counsel, articling students and a Provincial Court Judge. The appellant seeks to have the fresh evidence admitted and considered on the hearing of the appeal. It is submitted that this evidence establishes a miscarriage of justice based upon the lack of appearance of fairness and, as a result, the conviction of the appellant should be quashed and a new trial should be ordered.

[10] The trial of the appellant was scheduled to commence on July 2, 1996.

[11] In the pre-trial motions commenced before the trial judge on March 6, 1996, the defence sought a stay of proceedings on the ground that the appellant had been unfairly singled out for prosecution while other prominent citizens of Thunder Bay, who had engaged in similar activities as the appellant, had not been charged. The trial judge found “not one iota” of evidence to support this motion and dismissed it.

[12] In late June 1996, the defence sought to renew the motion for a stay for selective prosecution based on the affidavit of a Thunder Bay police officer that prominent citizens, including two members of the judiciary, had engaged in similar activities and had not been charged.

[13] On June 24, 1996, Provincial Court Judge Sargent heard about the police officer’s affidavit on the local news and, the next day, he obtained a copy and read it. On June 25 or 26, the appellant’s counsel, Peter Ross, appeared before Judge Sargent on a pre-trial in an unrelated case. He said they had known each other for some forty years, they went fishing together and they were almost like family. Judge Sargent spoke to Mr. Ross, alone. He told Mr. Ross that since the affidavit did not name the two members of the judiciary, in effect, all judges in the region were being accused.

[14] Much of the fresh evidence is to the effect that the deponents of the affidavits were told by Mr. Ross that he, in turn, had been told by Judge Sargent that he “would never practice in this town again”. Judge Sargent deposed that he never said that. He did not threaten Mr. Ross but told him that, in the circumstances, he could not appear before him until the motion had been disposed of. There had also been reference to a libel suit by Provincial Court judges. (I note that the possibility of a libel suit against Mr. Ross does not make sense. He was not the deponent of the affidavit in support of the motion. He was counsel on the motion.) There is no affidavit from Mr. Ross: he died on March 30, 1998. All the affidavits tendered as fresh evidence were sworn subsequent to Mr. Ross’ death.

[15] The hearing of the renewed pre-trial motion for a stay started on Wednesday, June 26, 1996 at 3:15 p.m. Mr. Ross was seeking an adjournment. He advised the trial judge that he was in an extremely difficult position with his client on this motion, as a result of third-party representations. He said he had a conflict between his own personal position and that of his client, and that his client was aware of his difficulties. He could only speak of generalities and was not in a position to disclose the nature of the conflict. He had sought advice from many sources and wished to seek more advice from senior counsel. He wanted the motion adjourned to July 2, 1996 (the date set for the trial).

[16] Crown counsel took the position that there was no proper basis for an adjournment. No reason was being given. He was concerned that there would be another delay. There had already been numerous adjournments. Mr. Ross was the appellant’s fourth counsel since the charges had been laid. Crown witnesses were ready to testify on July 2 and counsel was against any further adjournments or anything that would delay the beginning of the trial.

[17] At some point that afternoon, Mr. Ross and Crown counsel met the trial judge in chambers. It is likely that the meeting took place between the submissions of counsel with respect to the adjournment and the ruling of the trial judge. The only account of this meeting is the evidence of Crown counsel. He does not remember the meeting, but he made notes which show that it took place. They read as follows:

- Peter went to Prov. Ct. for a p.t. at Prov. Ct.

- P.J.O are upset

- Say better that Peter not appear before them considering libel action against him b/c of affidavit

- In precarious position re client

- Want independent legal advice

- Feels he is [in a] conflict position

- Want no more to do w. motion

- In p should have been

The meaning of the last line cannot be explained.

[18] The record clearly demonstrates that Mr. Ross was never prepared to put this matter on the record.

[19] At 4:45 p.m., the trial judge gave his ruling on the request for an adjournment. He noted that Mr. Ross had said that his conflict was specifically with the motion, but not with respect to the conduct of the trial generally. He also noted that Mr. Ross did not wish to indicate the nature of the conflict that had prompted the request for an adjournment. There had already been numerous adjournments and he did not wish to delay the commencement of the trial. He refused the adjournment.

[20] Following the ruling, submissions were made to the trial judge on the admissibility of certain portions of the affidavit of the police officer. Mr. Ross made it clear that it was not relevant for the purpose of the motion “that any names be used by the witness under any circumstances”. At the outset of the hearing of the motion, he stated:

I obviously feel under a bit of duress to proceed. But I understand once again we’re dealing [with], as I have [said] throughout these proceedings on numerous occasions, the Law Society rules as to what my obligations are. That I have only one course to follow. And for that reason, I will continue to do what I can. I have my client’s instructions…

[21] The police officer who had sworn the affidavit was the only witness called on the motion. He described by occupation the prominent citizens he had seen picking up prostitutes. (At the original motion in March 1996, Mr. Ross had already made the decision to proceed without naming the prominent citizens. They had been described by occupation.)

[22] On June 27, 1996, the trial judge ruled that the new evidence tendered did not support the allegation of selective prosecution. He held that, in certain aspects, the evidence tended to support the results of the March 1996 motion and that there was no basis for a stay of proceedings. The motion was dismissed.

[23] On June 28, 1996, Judge Sargent faxed the following note to Mr. Ross:

Pursuant to our recent conversation in chambers, as I undertook, I have discussed the matter with the other members of our Bench, and we unanimously agree that you should continue to be most welcome in our courts.

According to Judge Sargent, he and Mr. Ross continued to be friends and nothing changed in their relationship.

[24] The appellant raises two issues on this application: an appearance of judicial interference in the conduct of the defence and the appropriateness and legal effect of a discussion held in chambers during the course of a pre-trial motion involving the trial judge, defence counsel and Crown counsel.

[25] With respect to the first issue, Mr. Gold argued that the comments made by Judge Sargent to the appellant’s counsel constitute interference in the conduct of the defence. While Mr. Gold did not argue actual prejudice, he said that this interference affects the appearance of justice, particularly the appearance of a fair trial, and a new trial ought to be ordered.

[26] The appellant’s contention that the comments made by Judge Sargent to the appellant’s counsel constitute interference in the conduct of the defence, either with respect to the motion or the trial, is simply not supported on the evidence. The appellant was not an unsophisticated accused person. He was an experienced defence lawyer and assistant Crown Attorney. He knew about the meeting between Judge Sargent and his counsel. He knew that his counsel was upset and saw himself in a conflict situation. The appellant then consulted senior defence counsel to get legal advice. An offer was made to find new counsel. He did not accept the offer. He chose not to ask for a mistrial, as suggested to him by other counsel.

[27] There is no doubt that Mr. Ross’ meeting with Judge Sargent put pressure on him and that he was upset. Much of the fresh evidence, in the form of hearsay, is to this effect. He also consulted with other defence counsel. Although he wanted the appellant to fire him, the appellant refused to do so and Mr. Ross was quite aware of his obligations as the appellant’s counsel. Mr. Ross never told the trial judge that he wanted to be relieved as counsel for the appellant. There is no allegation of lack of competence on his part and there is no evidence that anything that happened caused Mr. Ross to change his course of action.

[28] Neither the appellant nor his counsel were prepared to put on the record why counsel felt that he was in a conflict situation.

[29] The meeting between Judge Sargent and Mr. Ross could have had no effect on the motion based on selective prosecution. The new evidence was already before the trial judge and the motion proceeded on the basis of that evidence. The conversation with Judge Sargent, whatever its content, had no impact on Mr. Ross’ conduct of the motion. Nor did it have any effect on the trial. In these circumstances, there was no appearance of unfairness nor of an attempt to interfere with the conduct of the defence.

[30] With respect to the second issue, it is submitted that the meeting in chambers without the presence or knowledge of the appellant, on June 26, 1996, is contrary to the Criminal Code and affects the appearance of justice. Accordingly, it is argued that a new trial ought to be ordered.

[31] It has not been advanced on behalf of the Crown that the pre-trial motions were not part of the trial. There is no question that an accused person has the right to be present at proceedings in which his vital interests are affected and each case must depend on a consideration of its own facts: see R. v. Chaudhary (No. 1) (1989), 31 OAC 241 (Ont. C.A.).

[32] The meeting in the trial judge’s chambers took place in the context of a request that had just been made in court for an adjournment of a pre-trial motion, based on an alleged conflict, the nature of which counsel refused to disclose. The appellant was informed by his counsel that he had met in chambers with the trial judge and Crown counsel. He made no complaint.

[33] In reviewing what had been said in chambers, the trial judge would have known from the affidavit in support of the motion that reference had been made to provincial court judges. It would not come as a great surprise that they were unhappy. It had already been stated on the record that counsel felt that he had a conflict and that he had sought independent legal advice. As the nature of the conflict was not being revealed, the fact that counsel wanted no more to do with the motion was something between counsel and his client. Nothing that was said in chambers could have prejudiced the appellant with respect to the motion and even less with respect to the trial.

[34] The trial judge made his ruling from the submissions made on the record.

[35] In R. v. Cloutier (1988), 43 C.C.C. (3d) 35 (Ont. C.A.), this court considered the issue where there had been a violation of the accused’s right to be present at his trial. Goodman J.A. speaking for the court said at p. 51:

In my opinion the concluding words of s. 613 [now 686] (1)(b)(iv) make it clear that, although an appellant need not show that he has suffered prejudice in order to deprive the Crown of the curative provisions thereof, if the Court of Appeal is of the opinion that the appellant suffered no prejudice from the exclusion of the appellant from some stage of his trial, it may dismiss the appeal. Parliament has made it clear that in determining whether the appellant has suffered prejudice by reason of his exclusion, it is the opinion of the Court of Appeal that prevails and not the perception of the appellant that he has suffered any prejudice. I interpret the words “suffered no prejudice thereby” to mean in the context of s. 577(1) [now s. 650(1)] that the exclusion of the appellant did not affect the outcome of the trial adversely to him. Although prejudice may be inferred from such exclusion the Court of Appeal is entitled to consider all of the circumstances in reaching an opinion as to whether the appellant, in fact, suffered prejudice thereby.

Assuming that on the facts of the present case it can be said that the appellant’s right to be present as guaranteed by the Criminal Code was violated, I would have no hesitation in applying the curative proviso. This ground of appeal fails and the application to admit the fresh evidence is dismissed.

3. Harsh and excessive sentence.

[36] The trial judge again gave extensive and considered reasons in imposing the sentence. He considered the proper principles of sentencing articulated in s. 718 of the Criminal Code and he assessed the aggravating and mitigating factors in order to strike a fair and appropriate balance.

[37] In particular, the trial judge paid importance to the evidence of the appellant’s good character and reputation in the community. He considered the devastating consequences that the charges and the trial had had on the appellant: he lost his privacy, he lost his job as a Crown Attorney, his career as a lawyer was in jeopardy, he was experiencing financial difficulties and had disgraced his family. The trial judge also recognized that, during the course of these offences, the appellant had been affected by severe depression and alcoholism.

[38] On the other hand, the trial judge considered that these offences were not an isolated incident. They were serious offences involving the sexual exploitation of young persons and the exploitation was done by the appellant, a Crown Attorney, who swore to uphold the very law that he intentionally breached.

[39] In the circumstances, the trial judge concluded that the objective of deterrence, particularly general deterrence, demanded a term of incarceration.

[40] In my view, the trial judge made no error in principle and he imposed a fit sentence. There is no basis to interfere.

[41] Accordingly, the appeals against conviction and sentence are both dismissed. At the request of the Crown, I have endorsed the record to the effect that the evidence of William Poshtar may be unsealed for use by the court, without affecting his probation order or the terms of his civil settlement.

(signed) “J. M. Labrosse J.A.”

(signed) “I agree S. T. Goudge J.A.”

(signed) “I agree Robert J. Sharpe J.A.”

RELEASED: September 27, 2000