DATE: 20060517
DOCKET: C42522

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. FABIAN MARTIN CONNORS (Appellant)

BEFORE:

O’CONNOR A.C.J.O., DOHERTY and MACFARLAND JJ.A.

COUNSEL:

Jennifer Gleitman

for the appellant

Hart Schwartz

for the respondent

HEARD & RELEASED ORALLY:

May 9, 2006

On appeal from the judgment of Justice Halikowski of the Ontario Court of Justice dated September 11, 2003.

ENDORSEMENT

[1] The appellant submits that the trial judge erred in refusing an adjournment when the appellant attended on the trial date with counsel who had just been retained a day or two before the trial date. Counsel requested an adjournment so that he might adequately prepare to defend the appellant. The appellant also submits that having forced the appellant on without counsel, the trial judge did not provide the assistance to the appellant needed to ensure a fair trial.

[2] We need not go into the procedural background of this case. It may well be that the trial judge should have made further inquiries as to the relevant circumstances and the length of the adjournment requested before refusing the adjournment. In the end however, we are satisfied that the refusal of the adjournment compromised neither the fairness of the trial nor the appearance of the fairness of the trial.

[3] After the trial judge refused an adjournment, the Crown called its case. The Crown called two witnesses – the complainant and his mother. The appellant cross-examined both witnesses. After the Crown’s case was complete, the trial judge adjourned the trial for four months. When the matter returned to court some four months later, the appellant had retained counsel. Counsel had been provided on the order of the court with a transcript of the earlier proceedings and a copy of the Crown’s disclosure.

[4] When the trial recommenced, the appellant testified with the assistance of counsel. Counsel was allowed a further adjournment of about six weeks so that he could recall the complainant’s mother who had testified during the case for the Crown. Counsel did not make any request to recall the complainant, the only other witness called by the Crown. Counsel did not challenge the ruling allowing what would appear to be a relatively unimportant amendment to the information. Counsel did not request a mistrial. Counsel did adduce further defence evidence and did make submissions on behalf of the appellant.

[5] No claims had been advanced in this court that defence counsel did not provide effective assistance to the appellant at trial. Indeed, the trial judge ultimately found that two of the three factual allegations made by the complainant had not been proved.

[6] Our review of the record does not suggest anything that counsel could reasonably have been expected to do that could have affected the result. Moreover, we are satisfied that the appearance of fairness was maintained. In that regard, we note that after refusing the adjournment, the trial judge did grant a lengthy adjournment at the end of the Crown’s case so that the appellant could retain counsel for the purpose of assisting him in his own defence. The trial judge took effective steps to ensure that counsel who was retained receive full disclosure and a transcript of the evidence of the two Crown witnesses. The trial judge not only allowed trial counsel to recall one of the Crown witnesses but granted a further adjournment so that the witness could be brought to court. We have no reason to think that the trial judge would have refused any reasonable request to further cross-examine the complainant had counsel believed it was necessary. The overall conduct of the proceedings overcomes any perceived unfairness flowing from the denial of the adjournment request after what might be described as an inadequate inquiry by the trial judge.

[7] In the result, the appeal is dismissed.

“Dennis O’Connor A.C.J.O.”

“Doherty J.A.”

“J. MacFarland J.A.”