WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486. (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.

(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b) justice system participants who are involved in the proceedings are protected.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

CITATION: R. v. R.K., 2010 ONCA 757

DATE: 20101109

DOCKET: C46296

COURT OF APPEAL FOR ONTARIO

Sharpe, MacFarland and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.K.

Appellant

Stephen Proudlove and Alice Barton, for the appellant

Alex Hrybinsky, for the respondent

Heard & released orally: October 27, 2010

On appeal from the conviction and sentence imposed by Justice R.N. Weekes of the Superior Court of Justice dated November 29, 2005 and September 27, 2006.

ENDORSEMENT

[1] The appellant submits that he was denied a fair trial as he was unfairly put to trial without legal representation or amicus curiae and because the trial judge failed to adequately assist him during the trial as an unrepresented accused.

[2] In our view the trial judge did not err in proceeding with the trial despite the appellant’s failure to be represented by counsel. By the time the trial commenced, the trial had been before the Superior Court for almost two years. During this period he had, at various times, been represented by three different lawyers and there had been some 17 appearances to set dates, hold a pre-trial and for various adjournments of the trial date to allow the appellant to retain new counsel.

[3] The last of the lawyers to represent the appellant was Mr. Zenobio who successfully applied to be removed from the record a little over two months before the trial was scheduled to commence. Mr. Zenobio sought to be removed from the record as the appellant had filed a complaint against him with the Law Society.

[4] At the assignment court held in the week before the trial was scheduled to commence, the appellant confirmed that he had a legal aid certificate but he advised the court that he had yet to locate a lawyer available to represent him on the scheduled trial dates. The judge asked whether he wished to seek an adjournment to allow him time to retain counsel or wished to proceed with the trial unrepresented.

[5] Although the appellant clearly expressed his desire to be represented at trial, he was equally insistent that he did not want to delay the trial further. He had been in custody for more than two and a half years and was still in custody at that time. In the end, the appellant said “let’s get the show on the road”.

[6] At trial the following week, the Crown introduced an application to appoint counsel for the appellant for the limited purpose of cross-examining the complainant. The appellant initially objected and said that he wanted counsel appointed for the whole of the trial. In the course of submissions on the application, the trial judge was struggling to understand what the appellant was asking for. In the end, the appellant consented to the Crown’s application and appeared content to proceed with the trial.

[7] The trial judge then adjourned the trial for five days to allow the appellant to review disclosure and, thereafter, the trial proceeded as scheduled.

[8] In the circumstances, we see no error in the trial judge proceeding with the trial. The appellant was in possession of a legal aid certificate and could have retained counsel had he been prepared to seek further adjournment. The appellant however clearly preferred to proceed without counsel rather than spending additional time in custody awaiting trial.

[9] The second basis for the appeal is that the trial judge did not provide sufficient assistance to the appellant in the course of the trial. There is no issue as to the adequacy of the trial judge’s assistance at the outset of the trial. At the outset, the trial judge explained the trial process, the elements of the offence and other concepts such as continuity, a voir dire and the police officer’s use of his notes to refresh his memory.

[10] The concerns raised are that the trial judge did not provide adequate assistance with respect to a number of specific matters that arose in the course of the trial. On the central issue of the trial, being a cross-examination of the complainant on the issue of credibility, the appellant had the benefit of counsel appointed by the court. Arguably the trial judge could, at various points of time, have explained matters in greater detail. However, we note that when the trial judge did offer assistance, the appellant was either resistant or simply did not follow the advice he was given.

[11] When viewed as a whole, we are not persuaded that on the facts of this case the manner in which the trial was conducted and assistance provided resulted in an unfair trial.

[12] For these reasons, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“J. MacFarland J.A.”

“Paul Rouleau J.A.”