DATE: 20021021 DOCKET: C38727

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) - and - NELSON RUNNALLS (Appellant)

BEFORE: ROSENBERG, CRONK and GILLESE JJ.A.

COUNSEL: Nelson Runnalls In Person

Robert Kelly for the respondent

HEARD: September 23, 2002

On appeal from the decision of Justice R. G. Trainor of the Superior Court of Justice dated May 1, 2002, dismissing an appeal from conviction by Justice W.W. Cohen dated February 12, 2001.

E N D O R S E M E N T

[1] [1] The appellant appeals in person from the decision of Trainor J. dismissing his appeal from conviction by Cohen J. on a charge of assault. Trainor J. dismissed the appeal because the appellant, who was unrepresented, had been unable to perfect his appeal by obtaining the transcript. It appears that someone did in fact order the transcript the same day that the appeal was dismissed and the transcript was completed within two weeks thereafter. In the result, this court had the entire transcript of proceedings. Without conceding that the summary conviction appeal court erred in law in dismissing the appeal, Mr. Kelly invited this court to approach the appeal to this court as if it were sitting as the summary conviction appeal court. We adopted this suggestion and permitted Mr. Runnalls to argue any grounds of appeal that might have been open to him in the summary conviction appeal court.

[1] [2] In his oral and written submissions, the appellant raised numerous grounds of appeal, several of which concern the competence of his counsel. Most of the other grounds raised by the appellant concern the credibility of the Crown witnesses, especially that of the complainant, Mr. Third. We did not call upon the Crown to respond to any of those issues.

[2] [3] This was a very simple case. In summary, the complainant became concerned that his ex-wife was in danger from the appellant. Accordingly, he drove over to his ex-wife’s residence and picked her up in his truck. As the complainant was driving back home with his ex-wife, the appellant jumped out into the middle of the street to try and stop the truck. The complainant drove around him and drove the few blocks to his residence. About five to ten minutes later, the complainant noticed the appellant sneaking around his truck. The complainant became concerned that the appellant was going to damage his truck. He confronted the appellant and the appellant lunged at him. The appellant is considerably smaller than the complainant and the appellant was also very impaired by alcohol. The complainant easily gained control of the appellant and the appellant agreed to leave. However, he again lunged at the complainant. The complainant again fended off the attack.

[3] [4] The appellant’s defence was self-defence. He alleged that the complainant had a knife and attacked him.

[4] [5] We have reviewed the transcript of the trial proceedings and are satisfied that the appellant’s trial counsel conducted the proceedings with the requisite degree of skill and competence. We also see no merit to the appellant’s various allegations concerning the trial judge’s approach to the case. For example, the fact that the trial judge did not expressly mention the doctrine of the presumption of innocence was of no consequence given that the trial judge referred to the decision in R. v. W. (D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and directed himself accordingly.

[5] [6] In the result, we only called upon Crown counsel to respond to one of the issues raised by the appellant. The appellant testified in chief that he had suffered a head injury in 1993. As he put it, this affected his brain and “some poor reasoning derived from it”. In cross-examination, Crown counsel (not Mr. Kelly) briefly examined the appellant to suggest that he knew he should not have been drinking in view of this injury. It is apparent that the appellant became upset about those questions.

[6] [7] The appellant challenged the propriety of that line of questioning and the trial judge’s use of this evidence in the following part of his reasons:

What concerned the court was the emotion shown by Mr. Runnalls while testifying. He has had brain damage in the past, caused by a vicious motor vehicle accident, and he consumed approximately 12 drinks on the day in question. Based on his own evidence when cross-examined each drink contained approximately one and one half ounces. This is 18 ounces of rye. That is a lot of alcohol.

When the Crown asked him if his recollection would be impaired because of the consumption of alcohol and his prior accident, he became visibly and emotionally upset.

[7] [8] We are satisfied that the cross-examination was not improper. The appellant raised the issue himself in examination-in-chief. It was open to Crown counsel to explore the impact of the appellant’s injury on the appellant’s ability to perceive and recall the relevant events, particularly given the appellant’s own evidence concerning his consumption of alcohol.

[8] [9] We are also satisfied that the trial judge did not misuse this evidence nor place undue emphasis on the appellant’s demeanour. As we have said, the appellant raised the head injury issue, apparently to help explain his demeanour in court. The trial judge was entitled to take into account the impact of alcohol on the appellant’s recollection of events and, in our view, that is all that he did in the impugned passage. The trial judge did not focus exclusively on the appellant’s demeanour to resolve the issues in the case. To the contrary, he rejected the appellant’s version of events because that version was so implausible.

[9] [10] Accordingly, while leave to appeal is granted, the appeal is dismissed.

Signed: “Marc Rosenberg J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”