DATE: 20020527
DOCKET: C36289

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. THOMAS MESSENGER (Appellant)

BEFORE:

O’CONNOR A.C.J.O., CRONK and ARMSTRONG JJ.A.

COUNSEL:

Thomas Messenger, in person

Marie Comiskey,

for the Respondent

HEARD:

May 21, 2002

On appeal from the decision of Justice P.H. Howden dated April 30, 2001.

E N D O R S E M E N T

[1] [1] Approximately one month prior to the date set for his trial, the appellant’s previous counsel successfully applied to be removed as solicitor of record. At that time, the appellant was told by the court that:

a) his trial would proceed on the scheduled date,

b) it was up to the appellant to have counsel available on the trial date,

c) his new counsel should not accept the case unless he or she was prepared to deal with it on the scheduled trial date, and

d) no adjournment of the trial would be granted because his lawyer had a commitment elsewhere.

[1] [2] On the day of his trial, the appellant sought an adjournment on the basis that he had been unable to obtain a copy of the Crown disclosure from his previous counsel and that he wished to obtain new counsel. The trial judge refused his request, finding that the parties had been informed that the trial was to proceed peremptorily and that the appellant had been “extremely neglectful in endeavouring to obtain counsel”. The appellant was then provided with a further copy of the Crown disclosure. When he did not specify how long he wished to have to review the disclosure, the trial judge provided him with 30 minutes within which to do so. The trial then commenced with the appellant representing himself, and the Crown completed its case. The matter was then adjourned for about one month. It then proceeded for one more day and was then again adjourned for approximately three and one-half months.

[2] [3] Prior to the resumption of the trial, the appellant applied for prohibition, arguing that his right to a fair trial had been infringed by the denial of his adjournment request and late disclosure. The trial was adjourned pending resolution of the appellant’s prohibition application. By decision dated April 30, 2001, Justice Howden:

a) denied the application for prohibition on the basis that the refusal to grant an adjournment was a decision within the discretion of the trial judge,

b) refused to grant a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms because the appellant had not established any Charter breach, and

c) denied a request by the appellant that an agent be permitted to argue his prohibition application on his behalf.

The appellant appeals from that decision.

[3] [4] The applications judge stated:

In my view, the normal remedy for Rulings of this nature, as well as any Ruling during a trial, is to appeal at the end of the trial if there is some reason to.

We agree. Rather than disrupting the trial by bringing a prohibition application on the third day of his trial, the appellant should have waited until the end of the trial to appeal the ruling to which he objected, including the refusal to grant him an adjournment. Prerogative remedies are discretionary in nature. Only in exceptional circumstances should they be sought, or granted, during the course of a trial. The criminal trial process cannot be subject to unwarranted disruption at the unilateral election of an accused. Moreover, in this case, despite two lengthy adjournments during the course of the trial and a full month between the time when the appellant was informed that the trial date was peremptory and the date of commencement of the trial, the appellant did not obtain counsel.

[4] [5] Before this court, the appellant again sought leave to have a non-lawyer represent him as his agent. That request was denied. The appellant had a clear right to represent himself on this appeal, or to obtain counsel for that purpose. There is no authority, however, for the appearance in this court of a non-lawyer agent on behalf of a litigant. (Jackson v. Ontario (Attorney General), [1998] O.J. No. 1281 (O.C.A.)).

[5] [6] For these reasons, the appeal is dismissed.

“Dennis O’Connor A.C.J.O.”

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”