Her Majesty the Queen v. Jayne [Indexed as: R. v. Jayne]

90 O.R. (3d) 37

Court of Appeal for Ontario,

O'Connor A.C.J.O., Blair and Lang JJ.A.

March 28, 2008

Criminal law -- Sentencing -- Accused receiving effective sentence of 4 1/2 years' imprisonment for aggravated assault and forcible confinement -- Accused having substantial criminal record -- Sentence not unfit.

Criminal law -- Trial -- Counsel -- Accused dismissing lawyer before trial and not seeking adjournment of trial to retain new counsel -- Accused an experienced and articulate criminal litigant and expressing confidence in his ability to represent himself -- Trial judge not obliged to force accused to retain counsel or to conduct lengthy inquiry into his reasons for deciding to represent himself -- Trial judge assisting accused with legal issues where required -- Appeal from conviction dismissed.

The accused, who was self-represented at trial, was convicted of aggravated assault and forcible confinement, and received an effective sentence of 4 1/2 years' imprisonment. He appealed his conviction and sentence.

Held, the appeal should be dismissed.

The trial judge did not err in failing to ensure that the accused was represented by counsel at trial. The accused, who had dismissed his lawyer earlier in the proceedings, was asked at a number of appearances if he wished to retain new counsel or to have the matter adjourned. The accused, who was in custody, clearly stated that he didn't want his case adjourned. The accused was an experienced criminal litigant who stated that he thought that no one would fight harder for him than he would. In the absence of any request for an adjournment or legal assistance, the trial judge was not obliged to force the accused to retain counsel or to conduct a lengthy inquiry into the reasons for his decision to represent himself. The trial judge adequately and fairly assisted the accused during the trial.

Considering the nature of the offence, which was a prolonged and violent assault on a vulnerable victim, and the accused's substantial criminal record, the sentence was not unfit. [page38 ]

APPEAL from the conviction entered on February 20, 2004, and the sentence imposed on March 9, 2004 by Hockin J., [2004] O.J. No. 1505 (S.C.J.).

Cases referred to R. v. McGibbon, 1988 CanLII 149 (ON CA), [1988] O.J. No. 1936, 31 O.A.C. 10, 45 C.C.C. (3d) 334, 6 W.C.B. (2d) 159 (C.A.) Statutes referred to Charter of Rights and Freedoms, s. 8 Criminal Code, R.S.C. 1985, c. C-46, s. 41(1)

Scott Reid, for appellant. Frank Au, for respondent.

[1] Endorsement by THE COURT (orally): -- The appellant appeals his convictions and sentence for the aggravated assault and forcible confinement of the complainant. The trial proceeded as a jury trial presided over by Hockin J.

[2] The appellant, who was self-represented at trial, argues a number of errors, beginning with the trial judge's alleged failure to ensure that the appellant was represented by counsel at trial. The appellant argues that his representation would have prevented alleged evidentiary errors respecting his conviction as well as errors respecting his sentence, which he argues was excessive.

[3] We disagree. The appellant neither sought an adjournment to retain counsel nor asked the trial judge for any assistance to do so. The appellant had been represented earlier in the proceedings, but after dismissing his counsel, he decided initially not to apply for a new legal aid lawyer and at a later appearance indicated that legal aid would not approve new counsel. In appearances leading up to the trial, it was suggested to the appellant that he retain counsel, pursue legal aid, seek the advice of duty counsel, or make a Canadian Charter of Rights and Freedoms application for representation.

[4] The appellant was an experienced criminal law litigant and an obviously articulate individual. He made it clear in his earlier appearances (including one before the trial judge) that he was going to represent himself and he expressed confidence in his ability to do so. He failed to answer responsively to the trial judge's two direct questions asking whether he wished to retain counsel. Because he was in custody, he did not want his trial delayed.

[5] In these circumstances, and in the absence of any request for an adjournment or legal assistance, the trial judge was not [page39 ]obliged to force a self-represented accused to retain counsel or to conduct a lengthy inquiry about the reasons for his decision to represent himself. See R. v. McGibbon, 1988 CanLII 149 (ON CA), [1988] O.J. No. 1936, 45 C.C.C. (3d) 334 (C.A.), at p. 346 C.C.C. Moreover, the appellant's confidence in his ability to represent himself persisted. In his opening address, the appellant specifically told the jury that he was representing himself because of "my firm belief that there is no one save oneself that will fight for my innocence greater than I". The appellant also rejected the trial judge's suggestion that he retain counsel for his sentencing.

[6] In our view, the trial judge adequately and fairly assisted the appellant during the trial in a number of ways, including by explaining the process to the appellant, explaining how to use the preliminary inquiry transcript, ensuring that the appellant had the opportunity to speak with witnesses, assisting the appellant with framing questions and in dealing with evidentiary matters. However, the appellant argues inadequate assistance in the areas of hearsay, the s. 8 Charter voir dire, the Corbett application and his "defence of property" theory. We would not give effect to these arguments.

[7] The trial judge provided the appellant with a plain language explanation regarding hearsay and made it clear that he would give further guidance if asked. We see no error when the trial judge stopped the appellant from adducing hearsay evidence and it was not incumbent upon him to review the law on hearsay again. The appellant chose not to proceed with his line of questioning. In any event, we are not persuaded that a greater grasp of the finer nuances of hearsay evidence, even if feasible, would have assisted the appellant.

[8] The trial judge was the one who raised the potential Charter violation and initiated the voir dire. He arranged for duty counsel to explain the voir dire to the appellant, after which the appellant declined the trial judge's offer to arrange for a more senior counsel to provide further advice. We see no error on the part of the trial judge.

[9] The trial judge raised the issue of a Corbett application despite the appellant's intention not to testify. He did so out of an abundance of caution explaining the purpose of the voir dire and that addressing the issue would ensure the appellant was fully informed if he changed his mind and decided to testify. The appellant engaged in discussion about his record and made no objection to the procedure. Accordingly, we would not give effect to this ground of appeal.

[10] Regarding the appellant's "defence of property" theory, there was no evidence that the complainant was an uninvited [page40 ]trespasser in the appellant's apartment. In our view, the appellant's girlfriend's evidence could not be seen to lend support to this defence and the trial judge did not err in not leaving the s. 41(1) defence [Criminal Code, R.S.C. 1985, c. C-46] with the jury because, on this record, there was no air of reality to that defence.

[11] Accordingly, in our view, the trial judge took all appropriate steps to ensure the appellant's fair trial.

[12] Finally, we see no basis for the appellant's argument that the effective sentence of 4 1/2 years was demonstrably unfit given the nature of the offence, which was a prolonged and violent assault on a vulnerable victim, and the circumstances of the offender, which included a substantial criminal record with lengthy prior custodial terms. In any event, the sentence appeal is moot.

[13] Accordingly, we would dismiss the appeal both as to conviction and sentence.

Appeal dismissed.