Court of Appeal for Ontario

CITATION: R. v. Jarlkaganov, 2013 ONCA 646

DATE: 20131025

DOCKET: C54260

Doherty, Blair and Watt JJ.A.

Her Majesty the Queen

Respondent

and

Artur Jarlkaganov

Appellant

David Genis, for the appellant

Philippe G. Cowle, for the respondent

Heard: October 18, 2013

On appeal from the conviction entered by Justice Stephen E. Foster of the Ontario Court of Justice, dated June 1, 2011.

APPEAL BOOK ENDORSEMENT

[1] The appellant was unrepresented at trial. The trial judge worked diligently to ensure that the appellant received a fair trial. Counsel submits, however, that despite those efforts the appellant did not receive a fair trial. He relies on two points:

[2] First, he submits that the appellant did not understand the concept of wilful blindness. We disagree. The appellant’s own words demonstrate a clear understanding of the concept (see p. 15 of the June 1, 2011 transcript).

[3] Second, counsel submits that the appellant did not understand that the disclosure material provided by the Crown did not constitute evidence at the trial. The transcript does offer some support for the claim that the appellant did not understand that he could not rely on the material provided to him as disclosure as evidence. However, the appellant has not demonstrated that this confusion had any impact on the conduct of his defence or the fairness of the trial.

[4] In addition to the two arguments aimed at demonstrating that the unrepresented appellant did not receive a fair trial, counsel also argued that the trial judge erred in his application of wilful blindness. He submits that the trial judge treated it as an objective concept based on what the appellant should have known.

[5] One comment made by the trial judge in the course of explaining the Crown’s argument to the appellant supports counsel’s submission. However, considering the entirety of the record and the reasons, and the overwhelming nature of the Crown’s case, we are not prepared to say that the trial judge erred in his application of the wilful blindness doctrine.

[6] The appeal is dismissed.