DATE: 20050428

DOCKET: C36479

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JONATHAN WOOD (Appellant)

BEFORE:

WEILER, ROSENBERG and LANG JJ.A.

COUNSEL:

Dirk Derstine

for the appellant

Lucy Cecchetto

for the respondent

HEARD:

April 19, 2005

On appeal from conviction by Justice William J. Festeryga of the Superior Court of Justice, sitting with a jury, dated April 6, 2001, and sentence imposed dated May 28, 2001.

E N D O R S E M E N T

[1] The appellant appeals from his conviction on three counts of criminal negligence causing death, one count of criminal negligence causing bodily harm[^1] and from the sentence of nine years imprisonment. The appellant was convicted following a trial before Festeryga J. and a jury. The appellant was not represented at trial and his grounds of appeal from conviction centre around that fact.

[2] On June 19, 1998, the appellant, who was driving without a valid driver’s licence and with a blood alcohol level twice the limit of .08, drove at high speed westbound in the eastbound lanes of one of the major 400 series highways near Hamilton. He collided head on with a vehicle containing four persons. In the collision, the three passengers were killed and the driver received serious and permanent injuries. The appellant also received serious injuries.

[3] Before embarking on the drive that led to this collision, the appellant had attended a bar and had talked to a friend and employee at this club. The friend, Clyde Phillips, refused to serve the appellant alcohol and told him he would drive him home. Instead, the appellant left. He entered an exit ramp on to the highway and continued for some time despite attempts by other motorists, who honked and flashed their lights, to alert him that he was driving the wrong way.

THE CONVICTION APPEAL

[4] As indicated, the collision that led to the charges occurred in June 1998. The case was adjourned several times in the Ontario Court of Justice, usually because of the appellant’s medical condition, until the appellant waived his preliminary inquiry in August 1999. A month later, the appellant’s first counsel removed himself from the record because he had joined the Crown Attorney’s office. The appellant retained new counsel and the first trial date was set for May 1, 2000. That date was adjourned because the appellant had to undergo serious surgery. A second trial date was set for September 5, 2000. Only days before that trial date, the appellant discharged his counsel. In a letter to that counsel the appellant stated, “I do not feel confident in the level of service currently provided by your office.” The judge presiding at that time refused the appellant’s request for an adjournment. On the actual trial date, the appellant renewed his request for an adjournment. He filed a letter in which he set out his reasons for discharging counsel. These complaints centred on his belief that the counsel was too concerned about his relationship with the Crown’s office and had not properly prepared. He also indicated in the letter that he had contacted several counsel including Ken Anders. The presiding judge granted the adjournment.

[5] The appellant retained Mr. Anders and a new trial date of April 2, 2001 was set. On March 15, 2001, on instructions from the appellant, Mr. Anders brought an application to change the venue of the trial from Hamilton. This application was dismissed. On March 22, 2001, the appellant wrote Mr. Anders complaining of his conduct of the case and indicating, inter alia, that he would bring to the trial judge’s attention Mr. Ander’s lack of preparation. He accused counsel of unethical behaviour. In the letter, the appellant refers to the work that he has personally done to prepare the case and demonstrates a familiarity with court proceedings and court terminology.

[6] On March 27, 2002, Mr. Anders brought an application to be removed from the record. After hearing submissions from Mr. Anders and Crown counsel, Mr. Fox, and from the appellant, Festeryga J. removed counsel from the record and stated that the trial would proceed as scheduled. The appellant renewed his request for an adjournment on the trial date but this was refused. The appellant submits that the trial judge erred in refusing the adjournment and forcing the appellant on to trial without counsel.

[7] A trial judge’s right to control the trial process includes a wide discretion to grant or refuse adjournments. The exercise of that discretion is entitled to deference on appeal unless the appellant demonstrates an error in principle or that the trial judge did not exercise his discretion judicially. Further, whether or not an accused acted diligently and honestly in exercising his right to counsel or whether the accused sought to manipulate the system to his advantage by orchestrating delay is a finding of fact that is entitled to deference in the absence of palpable and overriding error. The trial judge found that the appellant was manipulating the system in an attempt to avoid a trial. That finding is supported by the record that was before the trial judge and the amplified record contained in the additional evidence filed by both parties. In accordance with R. v. W. (W.) (1995), 1995 3505 (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.), we have considered additional evidence.

[8] Before Festeryga J., Mr. Anders sought to be removed from the record on the basis that there had been a complete breakdown of the relationship between solicitor and client. Mr. Anders had been in practice for twenty-seven years, twenty-five of it doing exclusively criminal law and was a former Crown Attorney. While he was of the opinion that the appellant’s case raised complex triable issues, he stated, “There is really a tremendous amount of dissatisfaction and suspicion in his mind regarding whether or not I’ve given it my best for him, which I have. But in his mind, he doesn’t believe that.” The appellant had been threatening to report him to the Law Society at various times in their relationship and had recently committed that intention to writing in the March 22 letter.

[9] Mr. Derstine, on behalf of the appellant, submits that despite this letter the appellant did not want Mr. Anders removed from the record as he was conscious of the fact that he might be forced on to trial without counsel. The trial judge drew the contrary conclusion and we agree with his assessment of the matter. The tone and content of the letter make it obvious that the appellant had no intention of proceeding to trial with Mr. Anders. He would accomplish that either by forcing counsel to remove himself from the record or he would manufacture a crisis at the opening of the trial. Either way he obviously expected that this would lead to an adjournment, as it had back in September 2000.

[10] The trial judge found as follows:

I am of the view that there is a pattern of delay in this matter and you have been a part of that pattern. You have discharged counsel before and the fact that Mr. Anders brought this motion, fits into the pattern.

What you and Mr. Anders have been talking about, I do not know- that is solicitor and client privilege - but obviously he has been set up, in my view, to try to get a further adjournment.

[11] That assessment was open to the trial judge based on the materials that were before him. In his reasons, the trial judge stated that he was relying on the endorsements on the indictment in addition to the submissions. The appellant submits that the judge’s reliance on counsel’s submissions and the indictment was in error. On the prior applications for adjournment there were affidavits as to the reasons for the prior adjournments in the court file that the trial judge did not consider. Had he done so, the appellant submits that the trial judge would have appreciated that he lost a counsel because that counsel went to the Crown Attorney’s office and, further, that the first trial date had to be postponed due to the appellant’s injuries. Had he properly considered all of the factors, the appellant submits that the judge would have allowed Mr. Anders to remove himself from the record but that he ought to have granted him an adjournment to find counsel in this case. Alternatively, he ought not to have allowed Mr. Anders to remove himself from the record.

[12] We disagree. Through Mr. Fox’s submissions the trial judge was apprised of the fact that the appellant’s first solicitor had removed himself after obtaining other employment. Mr. Fox also quoted from a letter dated September 2, 2000 from Mr. Wood, which describe his reasons for discharging his second counsel shortly before the September trial date. The trial judge knew that another lawyer assisted the appellant at the time he obtained that adjournment, and that after the adjournment was obtained, he retained Mr. Anders.

[13] Through Mr. Anders’ submissions the trial judge was apprised that the appellant was not singularly to blame for their differences and that Mr. Anders was not certain that it was the appellant’s intention to delay.

[14] The trial judge was apprised of the essential facts necessary for him to act judicially on the material before him. He was not required to review the entire court file in this case.

[15] The additional material tendered by the appellant, the responding material from the Crown and the cross-examinations on the various affidavits confirm the trial judge’s view that the appellant was attempting to manipulate the system. One example will suffice. On this appeal, the appellant has sworn an affidavit in support of his application to admit fresh evidence in which he indicates that he was dissatisfied with Mr. Anders because he failed to show up to represent him on unrelated fraud charges in November 2000 (i.e. five months before the date set for trial on the motor vehicle charges). The appellant claimed that he had retained a lawyer who could not be present. The trial judge refused to adjourn the case and forced him to go to trial. The appellant claimed that he could not proceed without counsel and refused to participate in the proceedings.

[16] Mr. Anders’ evidence is that he was never retained to represent the appellant on those charges. The first time that any mention was made of this allegation against counsel was in the fresh evidence, years after these events. The appellant now asserts that this was one of the reasons he lost confidence in Mr. Anders. However, he made no mention of this issue in his March 22 letter, nor in another letter he produced to the trial judge on the trial date, even though these letters contain a litany of complaints about counsel’s conduct. The appellant’s claim that he had retained Mr. Anders on the fraud charges is incredible and is part of the pattern of attempting to manipulate his counsel and the system.

[17] The appellant also submits that he did not have a copy of the written notice of Mr. Anders’ motion to be removed from the record. However, the appellant was present for the application and knew what it was about. He had come prepared with a letter, which he filed with the court.

[18] To conclude, it was open to the trial judge to draw the inference he did that the appellant was attempting to delay the trial by causing a breakdown in his relationship with this experienced trial counsel. The trial judge did not err in denying the appellant’s application for an adjournment after Mr. Anders was removed from the record. We would not give effect to this ground of appeal.

[19] The appellant’s other major ground of appeal from conviction is that, having forced the appellant on without counsel, the trial judge failed to ensure that the appellant had a fair trial. The trial judge explained how the trial would proceed and was conscious of the need to protect the appellant’s rights. He intervened on several occasions to ensure that questionable Crown evidence was not admitted. As he had done in the earlier fraud trial, in virtually identical language, the appellant refused to participate in the trial. He claimed to not understand the simplest of explanations. The various letters written by the appellant that now form part of the record, together with his cross-examination, demonstrate that this stance was contrived.

[20] Counsel for the appellant points to two incidents as demonstrative of the fact that the appellant did not receive a fair trial. The appellant submits that there was a genuine issue as to the admissibility of the analysis of the appellant’s blood samples that were seized from the hospital. While the appellant consented to giving blood for medical purposes, he submits there was no evidence led at the appellant’s trial that he consented to its use for determining his blood alcohol concentration at the time of the accident. He relies upon this court’s decision in R. v. Tran (2001), 2001 5555 (ON CA), 55 O.R. (3d) 161. However, in Tran it was apparent on the trial record that there was a serious issue as to the validity of the search warrant used to seize the blood samples. That was not the case here. There was nothing to show that the search warrants were improperly granted. On appeal, the appellant has not filed any material to impugn the validity of the warrant or to show that this was even a live issue.

[21] The other matter concerns the testimony of the appellant’s friend, Mr. Phillips. Prior to trial, the Crown had disclosed a one-page statement Mr. Phillips had given to police. Just prior to the trial, Crown counsel was able to obtain a lengthier (five page) statement Phillips had given to an insurance adjuster. On March 27, the appellant refused to accept a copy of this letter and so Crown counsel handed it to him just prior to Mr. Phillips’ testifying. At the time, Crown counsel stated that the statement was similar to the earlier police statement except that it contained some irrelevant material. The appellant has not provided us with either statement and the appellant’s submission that he was deprived of a fair trial because of this incident lacks any evidentiary support.

[22] We are satisfied that the trial judge provided the appellant with the level of assistance required.

[23] Accordingly, the appeal from conviction is dismissed.

THE SENTENCE APPEAL

[24] We agree with the appellant’s submissions that the trial judge erred in principle with respect to his treatment of the appellant’s alleged lack of remorse. We are also of the view that the trial judge’s comment that the appellant’s rehabilitation was doubtful was based on a statement in the psychological report that was taken out of context. We are, however, of the opinion that the sentence is fit. Where the offences involve not only reckless conduct but also the consumption of alcohol, the sentences have increased over the years in order to recognize the need for deterrence and denunciation.

[25] This was a particularly serious example of criminal negligence. As indicated, the appellant’s ability to drive was impaired and he had a high blood alcohol level. He ignored the advice of his friend not to drive. He drove without a licence the wrong way on a high-speed 400 series highway. He ignored the attempts of other motorists to warn him. The appellant has a serious criminal record, albeit not for driving offences, that includes prior penitentiary sentences and convictions for crimes of violence. He killed three people and caused serious and permanent injuries to another. His conduct has devastated the families of the victims and of the survivor. A sentence of nine years imprisonment was appropriate.

[26] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

Signed: “K.M. Weiler J. A.”

“Marc Rosenberg J.A.”

“S.E. Lang J.A.”

[^1]: The appellant was also found guilty of charges of impaired driving causing death and causing bodily harm and “over 80”. The trial judge entered conditional stays on those charges.