COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. DAVINDER SINGH (Appellant)
BEFORE: DOHERTY, FELDMAN and O’CONNOR JJ.A.
COUNSEL: Davinder Singh appearing in person
Gregory J. Tweney for the respondent
HEARD: January 25, 2000
On appeal from the order of Madam Justice Bellamy dated October 25, 1999.
E N D O R S E M E N T
[1] With one exception, we find no merit in the grounds of appeal. In particular, we are not satisfied that the appellant demonstrated a breach of s. 11(b) of the Charter on his motion brought before the trial judge.
[2] We are, however, satisfied that there is merit to one ground of appeal, and that the appeal must be allowed on that ground. The appellant was advised by his lawyer about two days prior to his scheduled trial date that his lawyer would make an application to be removed from the record on the trial date. The motion was based in part on the fact that the appellant had brought certain motions in relation to these charges on his own without consulting his lawyer.
[3] We need not explore the merits of counsel’s motion. We are prepared to assume that counsel was justified in bringing the motions and that he was properly ordered removed from the record. We are also prepared to assume that the appellant, by bringing motions on his own, was responsible for the motion and the position his lawyer took.
[4] There is no evidence that the appellant wanted to delay his trial. There is also no evidence that in bringing motions on his own, the appellant was engaged in a strategy which would lead to the removal of his counsel from the record thereby creating delay for the purpose of bringing a s. 11(b) motion.
[5] After the trial judge allowed counsel to be removed from the record, the appellant requested an adjournment so that he could obtain new counsel. The trial judge refused the request for two reasons. He was concerned with the length of time the matter had been before the courts (about 14 months). He also expressed the opinion that Mr. Singh would put any new lawyer in the same position that he had put his former lawyer by bringing motions on his own behalf.
[6] The trial judge’s first concern was a legitimate one. It could have been addressed, however, by way of a brief adjournment and a clear indication to the accused that any time allowed for the adjournment would be treated as waived by him for the purposes of any subsequent s. 11(b) motion.
[7] The second concern advanced by the trial judge was, in our view, not an appropriate one on this record. Mr. Singh had had the same lawyer throughout the proceedings. Certainly, it would appear that he was anxious to have the matter proceed. We think that it was an unjustified assumption that Mr. Singh would put any new lawyer he might retain in the same position as his former counsel. The trial judge’s assumption was unwarranted on this record.
[8] In our view, the interests of justice required that the appellant be granted a brief adjournment so that he might either obtain counsel or adequately prepare himself to act on his own behalf. The trial judge could have granted a brief adjournment and made it clear to the appellant that on the return date he would be expected to either have counsel prepared to proceed on that day or he would be expected to proceed on his own. The interests of all involved, including the complainants, could have been adequately protected by the granting of a brief adjournment.
[9] Leave to appeal is allowed, the decision of Bellamy J. is set aside, the convictions are quashed and a new trial is ordered.