DATE: 20041013

DOCKET: C39166

COURT OF APPEAL FOR ONTARIO

RE:

JOSEPH JALAKH and ALAIN JALAKH both by their Litigation Guardian, TONI JALAKH and the said TONI JALAKH personally and JANINE JALAKH (Plaintiffs/Appellants) – and – GEORGE ZIMMERMAN (Defendant/Respondent)

BEFORE:

LABROSSE, GOUDGE AND BLAIR JJ.A.

COUNSEL:

Joseph Obagi and Elizabeth Quigley

for the appellant

Bryan Carroll

for the respondent

HEARD:

September 17, 2004

RELEASED

ORALLY:

September 17, 2004

On appeal from the judgment of Justice Catherine Aitken of the Superior Court of Appeal dated October 30, 2002.

E N D O R S E M E N T

[1] The appellant challenges the fairness of this trial on three basis. First he says that Chadwick J. erred in discharging the appellant’s counsel from the record in mid trial. We do not agree. Assuming that that order can be appealed to this court, there was ample evidence before the motion judge to justify the exercise of his discretion to do so.

[2] Second, the appellant says that it was unfair for the trial judge not to declare a mistrial at that point. Again we see no reviewable error. The trial judge adjourned the trial for two weeks after the removal of counsel to permit the appellant to prepare to act for himself or to retain other counsel. The appellant insisted on proceeding and on representing himself. There was no reason for the trial judge to conclude that the appellant was mentally incompetent to do so. Indeed, that was essentially conceded here and there was no fresh evidence filed in this court to demonstrate otherwise. In these circumstances it was quite open to the trial judge to conclude that, following the adjournment, the appellant was able to act for himself and to proceed with the trial basis.

[3] Third, the appellant says that the trial judge erred by relying heavily on her observations of the appellant’s conduct in court, but outside the witness box, in coming to her conclusion on credibility. Again, we disagree. While her assessment of his intellect as demonstrated in his conduct of his own case was a small part of the reason for the trial judge’s conclusion on credibility, there was ample additional basis offered by her for the conclusion she reached. This does not represent reversible error. See R. v. Ownes (1986), 1986 4690 (ON CA), 33 C.C.C. (3d) 275.

[4] This unfortunate case demonstrates the challenges presented to the administration of justice by unrepresented litigants, but in all the circumstances here we do not think the appellant received an unfair trial. The appeal must be dismissed. No order as to costs.

“J.M. Labrosse J.A.”

“S.T. Goudge J.A.”

“R.A. Blair J.A.”