ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-123-AP
DATE: 2012/07/11

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

KHRISTY SAWATIS (formerly KHRISTINE ROWE)
Appellant

Elaine Evans, for the Crown
Shannon B. McPherson, for the Appellant

HEARD: July 4, 2012 (in Cornwall)

REASONS FOR DECISION

ON SUMMARY CONVICTION APPEAL

McNAMARA J.

[ 1 ] This is an Appeal by Khristy Sawatis (formerly Khristine Rowe) of her conviction of wilfully obstructing a peace officer contrary to s. 129 (a) of the Criminal Code of Canada and one count of assault contrary to s. 266 of the Criminal Code made by the Honourable Justice Adams of the Ontario Court of Justice on September 13, 2010.

Background Facts

[ 2 ] On December 18, 2006 the Appellant, a Status Indian, attended at the Canada Border Services Customs office located at the Port of Cornwall, Ontario to lodge a complaint. Upon leaving the Customs Office she observed a friend parked within a restricted customs compound area and went over to his vehicle. One of the customs officers gave evidence of certain observations he made and in consequence of those observations he approached the appellant and advised her he wished to search her. There then ensued a series of events about which there were serious conflicts on the evidence as to exactly what occurred.

[ 3 ] The Appellant was arrested and charged, amongst other things, with assaulting an officer and obstruction. Subsequent to arrest the Appellant was taken back to the Customs office and placed in a holding cell.

[ 4 ] In due course, a Constable from the Akwesasne Mohawk Police arrived and transported the Appellant from the Customs Office through New York State to the Akwesasne Mohawk Police Station located at St. Regis, Quebec.

[ 5 ] The evidentiary portion of the trial took place on September 15, 2008. There then ensued a number of other court attendances subsequent to that date dealing with various matters including a Certiorari Application brought by the Appellant. As indicated earlier, on September 13, 2010 the Appellant was found guilty on one count of assault and one count of obstruction and sentenced that same day to two fines, $100 on the assault charge and $50 for obstruct a peace officer. The Appellant was self-represented throughout.

Grounds of Appeal

[ 6 ] The Appellant appeals her conviction and sentence on three grounds:

(a) that the trial Judge erred in failing to provide the self-represented Appellant with the minimum level of assistance necessary to ensure a fair trial;

(b) that the trial Judge erred in not assisting or finding a s. 7 Charter breach in relation to the unlawful actions of the police in removing the Appellant from Canada and onto foreign soil during the course of her arrest, contrary to s. 6 of the Charter ;

(c) that the learned trial Judge erred in sentencing the self-represented Appellant by neglecting to conduct a Gladue analysis.

Analysis

[ 7 ] There is no dispute that the primary ground of appeal is that set forth in paragraph (a) above, namely that the trial Judge failed to provide this self-represented Appellant with the minimum level of assistance necessary to ensure a fair trial.

[ 8 ] On that issue, it is the position of the Appellant that when dealing with a self-represented accused there is a positive duty on the trial Judge to ensure that the accused has a fair trial. In order to ensure that duty is met, they submit the Court must provide assistance to the self-represented individual and guide the accused, where necessary, throughout the trial so that a just result is achieved.

[ 9 ] The essence of the Crown’s argument is that where an accused is unrepresented, the trial Judge’s responsibility is indeed to ensure the accused has a fair trial. That involves providing the accused with reasonable assistance such that the defence is brought out with full force and effect. They submit further, however, that the extent of such assistance is within the discretion of the trial Judge, and that discretion is owed a high degree of deference by a reviewing Court. They submit that the type of assistance required will vary depending on the circumstances of each case, largely turning on the ability of the accused to advance the defence without assistance.

[ 10 ] In my view, there is no issue that in Ontario a self-represented accused is entitled to a level of assistance from the Court. A leading authority on the point is the decision of the Ontario Court of Appeal in R. v. Tran , [2001] O.R. (3d) 161, where at para. 31 Borins J.A. stated in part as follows:

Although the amount of assistance which a trial judge should provide an unrepresented defendant is a matter for his or her discretion, and although a trial judge is not required to become the defendant's advocate, there is a minimum level of assistance that is required in order to ensure that the defendant obtains a fair trial. This minimum level of assistance was not provided by the trial judge in this case.

[ 11 ] Later at para. 33 he went on:

It was incumbent upon the trial judge to recognize that the task of conducting a fair trial for this unrepresented defendant would require a significant degree of instruction and vigilance on his part. At this stage of the trial, to satisfy the minimum requirement of providing assistance for the appellant, the trial judge should have explained to the appellant the course which the trial was to take, beginning with his arraignment, followed by the Crown Attorney calling her witnesses, his right to cross-examine the witnesses and to object to irrelevant evidence, his right to call witnesses and to testify, the risks inherent in testifying and not testifying, and finally, the right to make closing argument. Regrettably, throughout the trial Hamilton J. appeared insensitive to the appellant's right to a fair trial and failed to fulfill his duty to ensure that the appellant received a fair trial.

[ 12 ] Subsequent Courts have interpreted the Tran decision to have set a minimum level of assistance to apply to self-represented defendants. In R. v. Moreno-Baches , [2002] O.J. No. 4480 , Juriansz J., as he then was, put the matter as follows at para. 6:

The phrases in paragraph 31 “an unrepresented defendant”, “a trial judge”, and “his or her discretion” (emphasis added) make apparent that the court was not writing about only the case before it. Paragraph 31 clearly refers to a “minimum level of assistance” that applies generally. There is no reason to think that the court had something different in mind when it wrote about “the minimum requirement” two paragraphs later. I conclude that in Tran the Court of Appeal prescribed a minimum requirement for the assistance a trial judge must provide an unrepresented accused in a criminal case.

[ 13 ] Ms. Evans, in her very forceful submissions on behalf of the Crown, submits that the actions of the trial Judge must be carefully evaluated in light of the sophistication of the accused, the seriousness of the offence, the nature of the defence, et cetera , and that what is reasonable in terms of the scope of assistance to be provided by the trial Judge must be viewed through that lens. She submits that the assistance to be rendered does not extend to providing the kind of advice counsel might provide, and to determine whether or not a reasonable level of assistance was provided one must look at the complete trial record. She relies on decisions such as R. v. Phillips , 2003 ABCA 4 () , 320 A.R. 172 (Alta. C.A.) in support of her submissions.

[ 14 ] While there is merit to the Crown submissions, one only need compare what the trial Judge did in the Phillips case as opposed to what occurred here. At para. 31 of that decision the Alberta Court of Appeal reviews, with approval, the steps taken by the trial Judge to assist the unrepresented accused:

At the commencement of the trial, the judge explained to Phillips the presumption of innocence, the right to remain silent, the right to cross-examine witnesses, and the right to call witnesses in Phillips' defence (AB 84/44-85/4). The trial judge outlined the trial process (AB 85/24-30) and provided detailed suggestions about how to cross-examine both regular and expert witnesses (AB 85/35-86/14). Phillips indicated that he intended to call one witness and the trial judge made arrangements to have her attend (86/36-39). Phillips then asked for and received clarification about his ability to testify in his own defence (AB 87/8-24). The judge also indicated to Phillips, again before the crown opened its case, that he was prepared to provide further assistance, but that he was handicapped in giving advice because of his lack of knowledge of the case (AB 85/6-15). The trial judge told Phillips that he would be in a better position to provide guidance during the course of the trial if Phillips chose to disclose his defence, although he noted that Phillips did not have to say anything, and might feel that it would be better not to disclose his defence in front of the crown (AB 85/15-23). Phillips did not take the judge up on his offer until just before his jury address. The defence he eventually advanced was to challenge his identification as the shooter.

[ 15 ] A review of the transcripts in this matter demonstrates that virtually none of that occurred here. At the outset of the trial, the Appellant filed various documents mostly unrelated to the proceedings at hand, there was a discussion about excluding witnesses, there was a reluctance on the part of the Appellant to approach the microphone, and the trial Judge raised with the Appellant the issue whether or not she had spoken to duty counsel. They then proceeded directly into the evidence. There was no discussion about the elements of the offences, the course the trial would take, the order of witnesses and the right to cross-examine, nor anything else for that matter. Further, and significantly, when the Appellant indicated she was going to give evidence, there was no discussion about the jeopardy inherent in testifying and not testifying.

[ 16 ] The Crown suggests that the Appellant deliberately chose to focus not on the gravamen of the case at bar but rather on extraneous issues or irrelevant matters. That may be true, but we are left to speculate whether or not that would have been the case had the Appellant been provided with at least a minimum level of assistance, for example an explanation of the elements of the offences with which she was charged.

[ 17 ] I accept that sophistication of an accused is a relevant consideration when examining the level of assistance required to be rendered an accused, but in my view it does not alter that a minimum level of assistance must be provided, and that did not happen here. In those circumstances a new trial is required.

[ 18 ] Having determined on the first ground of appeal that a new trial is required, I find it unnecessary to deal with the other grounds of appeal.

The Hon. Mr. Justice James McNamara

Released: July 11, 2012

COURT FILE NO.: CR-10-123-AP
DATE: 2012/07/11

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:
HER MAJESTY THE QUEEN
Respondent

– and –

KHRISTY SAWATIS (formerly KHRISTINE ROWE)
Appellant

REASONS FOR DECISION
ON SUMMARY CONVICTION APPEAL

McNamara J.

Released: July 11, 2012