COURT OF APPEAL FOR ONTARIO

DATE: 20060426

DOCKET: C43967

RE: HER MAJESTY THE QUEEN (Respondent) v. GIOVANNI MARZOCCHI (Appellant)

BEFORE: MCMURTRY C.J.O., DOHERTY and MOLDAVER JJ.A.

COUNSEL:

G. Peter Abrahams for the appellant

Shawn Porter for the respondent

HEARD: April 19, 2006

RELEASED ORALLY: April 19, 2006

On appeal from the order of Justice J.R. McIsaac of the Superior Court of Justice dated July 18, 2005.

E N D O R S E M E N T

[1] This is an appeal from the order of the Summary Conviction Appeal Court. That court held that an initial refusal of an adjournment, even if an improper exercise of discretion, had not resulted in any miscarriage of justice insofar as the trial of the criminal harassment charge was concerned. The Summary Conviction Appeal Court indicated that as matters turned out, the trial was adjourned for almost four months before the Crown called any evidence on the harassment charge. The appellant made no efforts to retain counsel in that four-month time period, but instead returned to court and requested a further adjournment. That adjournment was denied. The trial proceeded and the complainant on the harassment charge, testified. The appellant cross-examined her at some length, but did not complete his cross-examination. The matter was adjourned for another month. The appellant appeared on the return date with counsel who indicated that he would be prepared to act for the appellant for the rest of the trial if it was adjourned so that counsel could obtain transcripts of the earlier proceedings. The trial judge refused that adjournment and the matter proceeded without counsel.

[2] Criminal courts are sensitive to an accused’s right to legal representation. Courts must, however, take into account other aspects of the due administration of justice when faced with requests for adjournments so that an accused may retain counsel: see R. v. Hazout and Hazout (2005), 199 C.C.C. (3d) 474 (Ont. C.A.). Accepting without necessarily agreeing with the Crown’s concession that the refusal of the adjournment on the first trial date was an inappropriate exercise of the trial judge’s discretion, it is clear that the appellant had ample opportunity to retain and instruct counsel before the trial resumed some four months later.

[3] In the brief proceedings on the first day, one witness did give some evidence describing the complainant’s demeanour at the time of the alleged harassment. It does not appear to us that this evidence was contentious or particularly significant in the context of the rest of the evidence relating to the harassment charge. Assuming that cross-examination of this witness by counsel may have somehow been helpful to the appellant, we are entirely satisfied that had he acted with any diligence and retained counsel by the next trial date some four months later, the trial judge would have permitted counsel to recall that witness for additional cross-examination.

[4] The refusal of the adjournment in March, absent a suitable explanation for the appellant’s failure to retain counsel in the intervening four months was fully justified, as was the refusal of the adjournment a month later to allow counsel to obtain transcripts of the earlier proceedings. By the time the appellant finally retained a lawyer to come to court with him, the complainant had attended for trial on at least three occasions. She was in the middle of a lengthy and difficult cross-examination. From her perspective, a further adjournment would have extended her ordeal and seemed akin to a continuation of the harassment she was complaining of at the hands of the appellant.

[5] The refusal of the adjournment requests occasioned no miscarriage of justice in relation to the criminal harassment charge.

[6] It was also argued that the trial judge did not provide adequate assistance to the accused in the course of the trial. We were not referred to any specific instance where the trial judge failed to provide the necessary assistance. This ground of appeal fails.

[7] The appellant also seeks leave to appeal sentence. We see no error in law in the sentence imposed.

[8] Leave to appeal is granted and the appeal is dismissed.

“R.R. McMurtry C.J.O.”

“Doherty J.A.”

“M.J. Moldaver J.A.”