DATE: 20050405

DOCKET: C40357

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CHRIS GONSALVES (Appellant)

BEFORE:

WEILER, BORINS and ARMSTRONG JJ.A.

COUNSEL:

Lawrence Ben-Eliezer

for the appellant

Shelley Hallett

for the respondent

HEARD & RELEASED ORALLY:

April 1, 2005

On appeal from the conviction entered on June 16, 2003 by Justice Bruce C. Hawkins of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

[1] The appellant appeals his convictions for aggravated assault and assault with a weapon. He raises three grounds of appeal. First he alleges that after discharging his counsel, he was denied an adjournment to obtain counsel who could be ready in time for his trial. Second, he alleges that the trial judge failed to provide the minimum assistance as required by R v. Tran (2001), 156 C.C.C. (3d) 1. Third the appellant alleges that the trial judge erred in one aspect of his charge to the jury.

[2] We agree that the appeal should be allowed on the first two grounds raised. On the first ground of appeal, the trial judge erred in principle in the manner in which he exercised his discretion in denying the adjournment sought. The appellant discharged his counsel when he lost confidence in him as the counsel did not appear to be prepared for trial. He immediately retained another lawyer who was not prepared to proceed until two months later. The trial judge refused an adjournment and his brief reasons for doing so do not appear to indicate what his conclusion was as to whether the appellant would receive a fair trial without the assistance of counsel. Although the witnesses in this case were reluctant to testify, this was the first trial date and there is no suggestion on the record or finding that the appellant was trying to delay his trial.

[3] On the second ground of appeal, while the trial judge did provide some assistance to the unrepresented appellant, and while we recognize that a contextual approach is required, the trial judge did not provide the appellant with the minimum level of assistance as described in Tran. For example, at the outset of the trial he did not provide an explanation to the appellant of the court proceedings and how they would unfold. He did not tell the appellant that he was entitled to object to evidence led by Crown counsel. He made no reference to the preliminary hearing transcript and how the appellant could use it in cross-examination. He did not adequately explain the purpose of cross-examination of a witness and how to conduct it. He did not explain the purpose of the voir dires respecting the police officers’ and security persons’ notes. He did not explain the factors an accused should consider before testifying on his own behalf. The result is that the appellant did not receive a fair trial.

[4] In view of our disposition of the first two grounds of appeal it is not necessary to address the third ground of appeal.

[5] Accordingly the appeal is allowed, the convictions are quashed and a new trial is ordered.

“K. M. Weiler J.A.”

“Stephen Borins J.A.”

“Robert P. Armstrong J.A.”