R. v. John, 2008 ONCA 791

CITATION: R. v. John, 2008 ONCA 791

DATE: 20081124

DOCKET: C47888

COURT OF APPEAL FOR ONTARIO

Gillese, Armstrong and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darren John

Appellant

Darren John, acting in person

Margaret Bojanowska, duty counsel

Andreea Baiasu, for the respondent

Heard: November 17, 2008

On appeal from the judgment of Justice Nola E. Garton of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated September 28, 2007, with reasons reported at [2007] O.J. No. 3713, which dismissed the appellant’s appeal from conviction and sentence by Justice B.M. Kelly of the Ontario Court of Justice, dated January 7, 2005.

ENDORSEMENT

[1] The appellant seeks leave to appeal to this court and, if leave is granted, appeals from the summary conviction appeal court judge’s dismissal of his appeal from both his conviction and sentence for criminal harassment and uttering threats. The appellant argues that his rights under s. 11(b) of the Charter and his right to a fair trial were violated by both the ineffective assistance of trial counsel and by the trial judge allowing the Crown to reopen its case. The appellant further submits that the trial judge made certain factual errors and did not properly weigh the evidence presented at trial. In our view, except for the appellant’s submission regarding the purported violation of his s. 11(b) Charter rights, none of the appellant’s allegations meet the test for granting leave to appeal to this court.

[2] The factual issues raised by the appellant do not appear to have been argued before the summary conviction appeal judge and do not raise a question of law. In any event, these issues neither undermine the conviction nor do they constitute reviewable error.

[3] The allegations regarding the ineffective assistance of trial counsel and the trial judge’s ruling which permitted the Crown to reopen its case were fully addressed by the summary conviction appeal judge. We see no error in the summary conviction appeal judge’s analysis, and no question of law arising from that decision is in issue. In our view, the interests of justice do not require that leave be granted on these grounds.

[4] The s. 11(b) issue does, however, raise an issue of law that warrants granting leave to appeal to this court. This issue stems from the fact that, on the day of trial, the appellant appeared without his lawyer, who was unavailable that day but had arranged for substitute counsel to represent the appellant at trial. The appellant’s lawyer also advised the appellant to bring a s. 11(b) application but, because the necessary transcripts were not available at the time, an adjournment would have to be requested. However, despite his lawyer’s arrangement for alternate trial counsel, the appellant refused the assistance of the substitute counsel and elected instead to proceed unrepresented to trial without bringing a s. 11(b) application.

[5] Duty counsel argues before us that the trial judge should have either found a way to proceed with the s. 11(b) application without the benefit of the transcripts or, alternatively, to refer the appellant to duty counsel in order to receive proper advice before electing to proceed with the trial without making a s. 11(b) application.

[6] We reject these submissions. The s. 11(b) application could not proceed that day because the necessary transcripts were not available. Accordingly, the trial judge stated that he would grant an adjournment and expressly warned the appellant that he “would be ill-advised to go ahead” with the trial that day. The trial judge strongly encouraged the appellant to adjourn the matter so as to enable him to pursue the s. 11(b) application at a later date.

[7] Further, as found by the summary conviction appeal judge, the appellant had received legal advice and, accordingly, was well aware of his s. 11(b) rights as well as his options – either to proceed that day without a s. 11(b) application or, to adjourn the matter to a later date. In the circumstances, it was not necessary, in our view, for the trial judge to refer the appellant to duty counsel with respect to the s. 11(b) issue.

[8] Moreover, there is no suggestion that the appellant would have suffered any prejudice if the matter had been adjourned to a later date. The appellant chose to proceed as he did, despite warnings to the contrary and, therefore cannot now argue that the trial judge should have prevented him from doing so.

[9] In the result, leave to appeal is granted with respect to the s. 11(b) issue only, while leave to appeal on the other issues is denied. For the reasons set out above, however, the appellant’s appeal on the s. 11(b) issue is dismissed.

“E.E. Gillese J.A.”

“R.P. Armstrong J.A.”

“Paul Rouleau J.A.”