COURT OF APPEAL FOR ONTARIO

DATE: 20000128

DOCKET: C31258/C33037

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.