DATE: 20040419

DOCKET: C38376

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – BILLIE TURNER (Appellant)

BEFORE: WEILER, CRONK and GILLESE JJ.A.

COUNSEL: Billie Turner

the appellant in person

P. Andras Schreck

duty counsel for the appellant

Riun Shandler

for the respondent

HEARD: March 22, 2004

On appeal from the judgment of Justice John Hamilton of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated May 17, 2002 dismissing an appeal from the conviction entered by Justice A.M. Bonkalo of the Ontario Court of Justice dated January 12, 2000 and the sentence imposed by Justice Bonkalo on March 28, 2000.

E N D O R S E M E N T

[1] The appellant was convicted of one count of criminal harassment and received a suspended sentence, followed by three years probation. The harassment charge arose from the appellant’s interactions with a female employee of a coffee shop. The trial judge found that the appellant repeatedly contacted the complainant by telephone on a daily basis and forwarded unsolicited gifts to her, despite clear warnings that he was not to do so and that he was to leave the complainant alone.

[1] On January 12, 2000, following a five day trial, the appellant was convicted of criminal harassment by Bonkalo J. of the Ontario Court of Justice. On March 28, 2000 he received a suspended sentence, followed by three years probation. His appeal from his conviction and sentence was dismissed by Hamilton J. of the Superior Court of Justice, sitting as a summary conviction appeal judge, on May 17, 2002. He appeals to this court from that dismissal.

I. Background

[2] The appellant was unrepresented by counsel before the summary conviction appeal court and appears to have been represented by counsel for only part of his trial.

[3] Before this court, counsel for the appellant argues that the procedures followed by the trial judge in relation to a number of witness subpoenas served by the appellant prior to trial were improper and had the effect of wrongfully rendering the subpoenas ineffective, thereby compromising trial fairness and preventing the appellant from conducting his defence at trial as he saw fit. He also argues that the summary conviction appeal judge erred by declining to hear the appellant’s submissions concerning the trial subpoenas that he had served.

(1) Events at Trial

[4] The appellant personally served approximately thirty-nine persons with subpoenas to attend as witnesses at his trial. Many of these persons attended court on the first day of the appellant’s trial in response to the subpoenas.

[5] At the commencement of the trial, and before the appellant was arraigned on the charge against him, Crown counsel (not counsel on this appeal) objected to the subpoenas on the basis that they had been served by the appellant personally, rather than by a peace officer. Before the trial judge ruled on this objection, Crown counsel told the trial judge that several of the prospective witnesses who were in attendance in court had informed him that they had no relevant evidence to offer the court in respect of the charge against the appellant. As well, a lawyer who attended court on behalf of some of the prospective witnesses filed affidavits sworn by his clients in which they claimed that they had no material evidence to give concerning the charge against the appellant.

[6] The trial judge asked the appellant to explain why he intended to call each prospective witness. The appellant did so. Thereafter, the trial judge asked the lawyer who had appeared on behalf of some of the witnesses to speak privately with all the witnesses subpoenaed by the appellant to determine from them whether they had any material and relevant information to provide at the appellant’s trial, and if they were able to give evidence concerning the appellant’s reputation in the community. The lawyer spoke to the witnesses and prepared a spreadsheet setting out their responses to his questions.

[7] Based on the information gathered by the lawyer at the trial judge’s request, the trial judge released six witnesses. Approximately eight additional prospective witnesses were released by the trial judge when Crown counsel indicated that the Crown would concede the character evidence that the witnesses were in a position to give. Nine other prospective witnesses were bound over by the trial judge, to attend court on another date as necessary. Finally, eleven witnesses were released on the basis that the appellant could re-apply at a later date to have the witnesses return to court based on their original subpoenas, if he wished to do so. The remaining witnesses testified at the appellant’s trial.

[8] Crown counsel did not move before trial to quash any of the subpoenas; nor did he seek an adjournment of the trial to permit such a motion to be brought.

(2) Proceedings before Summary Conviction Appeal Judge

[9] Prior to his summary conviction appeal, the appellant again served various persons with subpoenas, including a lawyer who had previously acted for him at his trial and whose conduct was challenged by the appellant. At the outset of the proceedings before the summary conviction appeal judge, Crown counsel drew the court’s attention to the fact that the appellant had served subpoenas in relation to his summary conviction appeal and that the subpoenaed lawyer was present in court. The following exchange then took place:

THE COURT: Well, let’s get on with the appeal first. We don’t need to deal with these, because, as far as I’m concerned, they’re going nowhere with regard to the appeal.

[CROWN COUNSEL]: All right.

THE COURT: Too much time has been stalled in this appeal from subpoenaing. You subpoenaed 38 your first time round.

MR. TURNER: Out of necessity, Your Honour.

THE COURT: No, just out of abuse of process. People have been treating you with kid gloves, so get on with your appeal.

MR. TURNER: In the circumstances, Your Honour, I’m not quite sure how to begin.

THE COURT: Well, it’s your appeal. You get going.

MR. TURNER: Thank you. …

[10] Shortly thereafter, during the course of the appellant’s submissions to the summary conviction appeal judge, the appellant sought to explain the basis for the trial subpoenas that he had served. The summary conviction appeal judge declined to hear from the appellant on this issue:

THE COURT: See, that’s what your whole issue is about when anyone speaks to you. You subpoena Bregman from Second Cup. You subpoena everybody involved from Second Cup. You subpoenaed 34 witnesses. You have now subpoenaed people from the Attorney General’s department. You subpoenaed Honickman.

MR. TURNER: Absolutely.

THE COURT: Didn’t you subpoena him as well to your trial and the trial judge said, don’t subpoena Honickman any more?

MR. TURNER: No, the judge said nobody else from the Second Cup.

THE COURT: I’m sorry. Right, she said something about Honickman didn’t want - - or she indicated something to the effect, don’t - - no more subpoenas until you go through the Court - -

MR. TURNER: Well, if you will, Your Honour, I will articulate the purpose and the function of every one of the witnesses that I did subpoena at this time.

THE COURT: Well, that’s not the issue. That’s not going to be argued here. The issue here is, was the trial judge correct in convicting you [emphasis added].

[11] The appellant then made several additional submissions in support of his contention that the trial judge had erred in convicting him. In the course of those submissions, the summary conviction appeal judge observed to the appellant in respect of his trial, “Now, here’s the problem. On the record, you subpoenaed everybody.” The summary conviction appeal judge then pointed out to the appellant that he had subpoenaed the complainant to attend at his trial after she had been cross-examined by the counsel who was then acting for the appellant. In the course of his remarks, the summary conviction appeal judge commented, “You then have her subpoenaed again for your case. I mean, you just hand subpoenas out like they’re M & M’s.”

[12] Later, when the appellant returned during his submissions to the subject of the trial subpoenas, the following discussion ensued:

MR. TURNER: Your Honour, I was preoccupied with my grandfather’s death. The day one was eaten up and the - - sorry - - the content of the subpoenas, day one was entirely chewed up when Mr. Cunningham - -

THE COURT: Naturally any judge would do that because you subpoenaed 34 people to court.

MR. TURNER: Rightfully so, and I’ll articulate who those people are and what their function is.

THE COURT: They did that, and most of them you wanted there to say what a good guy you are.

MR. TURNER: I doubt that. …

[emphasis added]

[13] At no time did the appellant clearly inform the summary conviction appeal judge that he was challenging the procedures adopted by the trial judge in relation to the trial subpoenas. On several occasions, however, he alluded to the trial subpoenas and attempted to explain his purpose in serving them and the relevance of the evidence he sought to call at trial from the subpoenaed witnesses. He was not permitted to complete those submissions.

II. Discussion

[14] Crown counsel on this appeal concedes that the procedures followed by the trial judge were unorthodox in relation to the witnesses subpoenaed for trial by the appellant. We agree. Crown counsel argues, however, on various grounds, that the challenged procedures were proper in the circumstances and that the trial judge had jurisdiction to control the process of the court by excusing witnesses whose attendance in court was not required or necessary for the proper conduct of the appellant’s trial.

[15] It is unnecessary for the disposition of this appeal to determine the propriety of the procedures employed by the trial judge concerning the numerous witnesses subpoenaed by the appellant at trial. The threshold issue on this appeal is whether the summary convictions appeal judge erred in declining to hear submissions from the appellant regarding the trial subpoenas and the steps taken by the trial judge with respect to those subpoenas. In our view, the summary conviction appeal judge did err in this regard, with the result that the appellant’s conviction appeal should be allowed and a new hearing before the summary conviction appeal court should be ordered. We reach this conclusion for the following reasons.

[16] As we have said, the appellant was not represented by counsel on his summary conviction appeal. The transcript from that proceeding indicates that the appellant’s submissions before the summary conviction appeal judge were prolix and, in many instances, unfocused and somewhat incoherent. No doubt for that reason, the summary conviction appeal judge attempted to narrow the matters in issue and to assist the appellant in directing his submissions to those issues that the summary conviction appeal judge viewed as helpful to the court. Nonetheless, one of the underlying issues on the appellant’s summary conviction appeal concerned the fairness of his trial. An important aspect of the fairness of the trial involved the propriety of the procedures employed by the trial judge in the face of multiple subpoenas served by the appellant for the purpose of trial. The record indicates that, virtually from the outset, the summary conviction appeal judge was disapproving of the appellant’s conduct in serving the trial subpoenas and that he did not wish to hear from the appellant on the issue.

[17] In our view, the appellant’s submissions concerning the trial subpoenas should have been entertained by the summary conviction appeal judge. Simply put, the appellant was entitled to raise the basis for the trial subpoenas, the propriety of the procedures used by the trial judge concerning the subpoenaed witnesses, and the potential prejudice to him arising therefrom as a ground of appeal before the summary conviction appeal judge. Although the appellant did not clearly enunciate his challenge of those procedures before the summary conviction appeal judge, he did raise as issues the propriety and purpose of the trial subpoenas that he had served. Had he been permitted to make his submissions regarding the subpoenas to the summary conviction appeal judge, the real thrust of his attack on this aspect of the trial proceeding may well have become apparent. By declining to hear the appellant, the summary conviction appeal judge foreclosed this possibility.

[18] Crown counsel on this appeal argues that the summary conviction appeal judge’s refusal to hear submissions on the purpose and the function of the subpoenas served by the appellant may have referred to the subpoenas served in relation to the appellant’s summary conviction appeal, as distinct from the subpoenas relating to his trial. In our view, however, when the transcript of the proceedings before the summary conviction appeal judge is read as a whole, it is apparent from the appellant’s remarks that he, at least, was directing many of his comments to the subpoenas served by him for the purpose of the trial.

[19] The Crown acknowledged in oral argument before this court that the appellant attempted to raise the propriety of the trial subpoenas as an issue before the summary conviction appeal judge. Although we agree with Crown counsel that the propriety and purpose of the trial subpoenas were not the main focus of the appellant’s position before the summary conviction appeal judge, we are also of the view that, together with the trial judge’s response to the subpoenas, they may have assumed greater prominence and clearer legal significance had the appellant been permitted to develop and present his submissions on these issues.

III. Disposition

[20] Accordingly, for the reasons given, the conviction appeal is allowed and a new hearing is directed before the summary conviction appeal court. Consequently, it is unnecessary to address the appellant’s appeal against sentence.

“Karen M. Weiler J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”