COURT OF APPEAL FOR ONTARIO
Roberts, Miller and Gomery JJ.A.
BETWEEN
His Majesty the King
Respondent
and
J.W.
Appellant
J.W., acting in person
Megan Stephens, appearing as amicus curiae
Samuel Greene, for the respondent
Heard: June 12, 2026
On appeal from the conviction entered by Justice Carol A.R. Brewer of the Ontario Court of Justice, on September 15, 2023.
REASONS FOR DECISION
1The appellant, J.W., appeals his conviction for sexual assault.2 At the conclusion of appeal amicus’ submissions, we dismissed the appeal with reasons to follow. These are our reasons.
2The grounds of appeal pursued by appeal amicus are that (a) the case management judge failed to exercise his discretion judicially by declining to adjourn the trial to allow the appellant to retain new counsel; (b) this ruling created the unfairness of requiring the appellant to represent himself on short notice; and (c) the appointment of former counsel to the role of trial amicus and s. 486.3 counsel raised a potential conflict and a risk of misuse of confidential information while doing nothing to remedy the appearance of unfairness. Appeal amicus contends that, as a result, there was a miscarriage of justice which requires quashing the conviction and ordering a new trial.
3Notwithstanding the able submissions of appeal amicus, we are not persuaded that there is any basis to intervene.
Applicable legal principles
4We start by noting that an accused has no absolute right to a trial adjournment to retain new counsel because the right to counsel of choice is not absolute: R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56 (C.A.), at p. 68; R. v. Beals (E.W.), 1993 CanLII 5636 (NS CA), 1993 NSCA 215, 126 N.S.R. (2d) 130, at para. 29. The question is whether the refusal to adjourn a trial to allow an accused to retain counsel leads to trial unfairness in the circumstances of the particular case.
5There is a very high bar to establish a miscarriage of justice because of alleged trial unfairness. The threshold that the appellant has to meet was set out as follows by the Supreme Court of Canada in R. v. Kahsai, 2023 SCC 20, 483 D.L.R. (4th) 199, at para. 67:
To succeed on this appeal, [the appellant] must show that the amicus appointment in his trial created an irregularity so severe that it rendered the trial unfair in fact or in appearance. He will establish a miscarriage of justice if the gravity of the irregularity would create such a serious appearance of unfairness it would shake the public confidence in the administration of justice. This analysis is conducted from the perspective of a reasonable and objective person, having regard for the circumstances of the trial. It must also acknowledge that while the accused is entitled to a fair trial, they are not entitled to a perfect trial, and “it is inevitable that minor irregularities will occur from time to time”. [Citations omitted.]
Analysis
6The appellant has not met the high bar to establish a miscarriage of justice.
7First, we are not persuaded that the case management judge exercised his discretion unreasonably or unfairly by refusing to adjourn the trial in all the circumstances of this case. The case management judge had presided over the judicial pre-trial and was aware of all relevant circumstances including the consequences of an adjournment. These circumstances included that this was a serious offence, the appellant wanted a lawyer, there were limitations of the court resources, there were numerous witnesses, this was the appellant’s second requested adjournment, and there were some concerns that the appellant had not always attended court.
8As he was required to do, the case management judge balanced the appellant’s fair trial interests and the public interest in the timely and efficient administration of justice by having the trial take place in a timely manner. We see no unfairness or appearance of unfairness nor that the appellant was deprived of a fair trial. The appellant was on notice for several months that he may have to represent himself with the assistance of amicus and s. 486.3 counsel if he did not have his own lawyer.
9Further, the case management judge did not err by appointing the appellant’s former counsel as amicus and s. 486.3 counsel to assist in the trial process. The appellant was not adverse to his former counsel’s continued representation as his lawyer, indeed, in response to the court’s question to that effect, the appellant confirmed that he wished it. However, he did not want his former counsel to act merely as amicus, nor did he want to represent himself. Instead, the appellant expressed that he wanted “to retain full legal counsel and not have him quit” on him.
10The appellant suffered no prejudice as a result of the case management judge’s decision. There was no disclosure of any confidential information. The order appointing former counsel and setting out the ambit of his role was very broad. There was no question that the appellant’s former counsel had a deep knowledge of the matter, was completely prepared for the trial, and ably discharged his duties as amicus and s. 486.3 counsel. In particular, his cross-examination of the complainant was so effective that the trial judge concluded: “[g]iven my concerns about [the complainant’s] reliability, I cannot place any weight upon her version of events unless it is supported by other independent evidence.” Trial amicus also presented thorough and effective submissions on behalf of the appellant.
11There is no basis to interfere with the conviction which rested on solid evidence. Security footage established that a sexual assault had taken place. In determining that the appellant was the assailant, the trial judge relied on evidence that the appellant owned a Presto card found discarded at the scene, which contained a DNA mixture that the appellant was highly likely a significant contributor to; there was video surveillance evidence showing that the assailant had a tattoo of a Bahamian flag on their right hand which matched the appellant’s tattoo design and location; and the assailant carried the same distinctive backpack as the appellant.
Disposition
12For these reasons, the appeal is dismissed.
“L.B. Roberts J.A.”
“B.W. Miller J.A.”
“S. Gomery J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
- Prior to the appeal hearing, the appellant abandoned his sentence appeal.