DATE: 20021021 DOCKET: C36551

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– JONATHAN MIANSKUM (a.k.a. MIANSCUM) (Appellant)

BEFORE: FINLAYSON, MOLDAVER and FELDMAN JJ.A.

COUNSEL: Daniel A. Stein for the appellant

Ian D. Scott for the respondent

HEARD: October 10, 2002

RELEASED ORALLY: October 10, 2002

On appeal from conviction by Justice Douglas Belch of the Superior Court of Ontario on April 13, 2000.

E N D O R S E M E N T

[1] [1] The appellant appeals from his conviction for sexual assault primarily on the basis that the court should have intervened, either during the Assignment Court process or during the trial, to appoint counsel to represent him because he was not provided with counsel through Legal Aid.

[2] [2] We are not persuaded that in the circumstances of this case, the court was obliged to appoint counsel as now suggested. The record discloses that the appellant originally had a lawyer through Legal Aid who had conducted the preliminary inquiry and had made appearances in Superior Court on his behalf. However, because the appellant was uncooperative with the lawyer and failed to provide him with the information he needed to prepare and present the case, the lawyer was obliged to have himself removed from the record. The appellant was personally served with notice of the lawyer’s motion but did not attend court to respond to it.

[3] [3] As a result of the removal of the appellant’s lawyer from the record, he was obliged to reapply for legal aid and was required to provide financial information which, the record discloses, he did not do fully. Eventually, Legal Aid determined that he did not qualify for legal aid based on the information as to his family income that the Kingston Legal Aid office had in hand.

[4] [4] Following the removal of counsel from the record, the appellant made numerous appearances in Assignment Court to have a date set for trial. The record discloses that the Assignment Court judge made every effort to encourage and assist the appellant to retain a new lawyer and to obtain legal aid for that purpose. The record discloses that the appellant did not file the necessary financial information with Legal Aid, that he indicated at one point that he and his father would pay for a lawyer, and that he did not diligently seek to retain a lawyer to act for him despite the numerous entreaties of the court.

[5] [5] When it was clear that the appellant would be acting for himself, the court considered s. 486(2.3) of the Criminal Code and determined that although the section did not apply because the complainant was over the age of 18 years, the court would order counsel to be appointed to conduct the cross-examination of the complainant on behalf of the appellant. Although this was done primarily to protect the complainant from direct confrontation with the appellant, her alleged assailant, it also effectively provided the appellant with counsel to conduct one of the critical portions of the trial from his point of view. Furthermore, during the trial itself, the trial judge provided the appellant with appropriate assistance and instruction and granted him indulgences as required along the way.

[6] [6] The trial judge also carefully considered and addressed in detail on the mistrial motion any alleged unfairness to the appellant for not having counsel provided to him. The trial judge noted in his decision on the mistrial motion, that at the opening of the trial, after he had reviewed with the appellant the entire history of the Assignment Court proceedings including the appellant’s failure to obtain counsel or legal aid and his indication to the Assignment Court judge that he would be representing himself, the appellant did not request an adjournment in order to make a further attempt to obtain counsel. The trial judge also noted that at the opening of trial, the appellant was present with senior counsel who was there to cross-examine the complainant.

[7] [7] With this history, in our view, neither the Assignment Court judge nor the trial judge erred in failing to make further inquiries regarding the appellant’s financial circumstances or those of his spouse or as to whether Legal Aid was correct or incorrect in its decision to deny him legal aid for the trial. Both judges made significant efforts to assist the appellant to understand his situation and to take the necessary steps to clarify his position with Legal Aid and to attempt to retain another lawyer. We would therefore not give effect to this ground of appeal.

[8] [8] The appellant also submits that the trial judge made several errors in the admission of evidence.

[9] [9] First, he submits that the trial judge erred in admitting the evidence of the Crown’s expert on aboriginal healing practices. In our view, the trial judge made no error in the exercise of his discretion to admit the expert evidence. In particular, because the second charge required proof that the appellant was in a position of trust, community practices and standards regarding healing were relevant. Furthermore, we are satisfied that the expert had sufficient expertise to be qualified to give the evidence.

[10] [10] The appellant’s third submission is that the trial judge erred in admitting into evidence and relying on certain hearsay evidence, certain opinion evidence and some bad character evidence of four witnesses. In our view, while the trial judge may have erred in admitting this evidence, the evidence was not significant and the error does not warrant a new trial in this case. It is clear from the trial judge’s comprehensive reasons that he considered the evidence as a whole in coming to his decision and that he addressed all of the issues raised by the appellant in his defence, including proof beyond a reasonable doubt, consent, honest but mistaken belief in consent, and the issue of trust. To the extent that the trial judge may have erred in taking into account Ms. Lentz’s opinion evidence, we are satisfied that it did not impact significantly on his ultimate conclusion. We would therefore dismiss the appeal.

Signed: “G.D. Finlayson J.A.”

“M.J. Moldaver J.A.”

“K.N. Feldman J.A.”