R. v. Taylor

R. v. Taylor Court Court of Appeal Date 1995-06-22 Citation 1995 NSCA 142 Docket CAC 108837 Judge/Registrar/Adjudicator Bateman, Nancy J. (Honourable Justice) (CA); Hallett, J. Doane (Honourable Justice) (CA); Pugsley, Ronald N. (Honourable Justice) Document Type Decision Decision Content C.A.C. No. 108837 NOVA SCOTIA COURT OF APPEAL Cite as: R. v. Taylor, 1995 NSCA 142 Hallett, Pugsley and Bateman, JJ.A. BETWEEN: JAMES WALTER TAYLOR ) The Appellant appeared in person ) Appellant ) ) ) - and - ) ) ) Robert Hagell ) for the Respondent ) HER MAJESTY THE QUEEN ) ) Respondent ) ) ) Appeal Heard: ) June 12, 1995 ) ) Judgment Delivered: ) June 22, 1995 ) ) ) THE COURT: The appeal is allowed. The judgment of the summary conviction appeal court judge is set aside, the conviction quashed and a new trial directed, per reasons of Pugsley, J.A., Hallett and Bateman, JJ.A. concurring. Pugsley, J.A.: James Taylor, a 61-year old Canada Pensioner, appeals from the decision of the summary conviction appeal court judge affirming the decision of the provincial court judge who found Mr. Taylor guilty of the offence of entering on premises where entry was prohibited by notice contrary to s. 3(1)(e) of the Protection of Property Act, C. 363, R.S.N.S. (1989). This section reads: 3 (1) Every person who, without legal justification, whether conferred by an enactment or otherwise, or without the permission of the occupier or a person authorized by the occupier, the proof of which rests upon the person asserting justification or permission, (e) enters on premises where entry is prohibited by notice; is guilty of an offence and on summary conviction is liable to a fine of not more than five hundred dollars. Background Mr. Taylor entered a not guilty plea on October 6, 1993 and the matter was set for trial on January 31, 1994. Prior to any evidence being called, Mr. Taylor requested time to retain a lawyer. The transcript discloses: The Court: James Walter Taylor, that's a trial. You're here and going to represent yourself, Mr. Taylor? Mr. Taylor: I have to ask for time to bring a lawyer in to ... (not discernible). The Court: To do what? Mr. Taylor: To take it to trial at a later date. The Court: Well ... Mr. Taylor: 'Cause I'm ... (not discernible). The Court: I set it for trial, you appeared on October the 6th, and I set it for trial today. Why should we set it over for another date? Mr. Taylor: Because the police were supposed to investigate that fella over there, and they didn't call me until the 28th. The Court: Sorry, we're going to have a trial this afternoon. That doesn't sound like a suitable excuse to me. Mr. Taylor: Well, I didn't have time to get a lawyer. I was waiting for them to give me an answer. The Court: You had lots of time to get a lawyer, as far as I'm concerned. Mr. Taylor: I had talked to a lawyer... The Court: We don't both talk at once, and when there's a problem, I speak first and you listen. on October the 6th, I set your date for trial. You had October, November, December and January. That's four months. (emphasis added) The Crown called four witnesses, including Douglas Cormier, store manager with Sobey's Food Warehouse in the Amherst Mall. Mr. Cormier testified that: - On September 8, 1993 his wife drove the family car to the mall to pick him up. She related to him that she was being followed by Mr. Taylor. As a result of her concern, Mr. Cormier "went to the filing cabinet, got out one of our notices, the Protection of Property Act, and filled it out"; -- The police were called to effect service. The police suggested "it would be more effective to have a notice served by the mall rather than by Sobey's. So I went back into the mall office ... and Mr. MacFarlane is well aware of all the problems that we've had and he was in agreement that, yes the mall would serve notice. And so they prepared the notice in front of me. I witnessed it and I carried it out personally while the police waited and proceeded to give it to Mr. Taylor ..."(emphasis added). The original exhibits tendered at trial were inadvertently thrown out on the mistaken assumption no appeal had been filed. I have assumed, for the purposes of this appeal, that the notice contained in the Appeal Book, purportedly served on Mr. Taylor on September 9th, 1993, is a photostat of the original notice in fact served. To: James Taylor Chapman Settlement R.R.#1, Northport, N.S. Take Notice that on or after the 18 day of January , 19 93 pursuant to Section 3(2) of An Act to Protect Property, as assented to b[e] the Lieutenant Governor of the Province of Nova Scotia on June 26, 1982, you are hereby notified that you are not to enter, or be on the property of Atlantic Shopping Centres Limited operating under the trade name of Amherst Centre Mall located at 142 South Albion Street, Amherst, Nova Scotia for a period not less than six months. Your failure to comply with this Notice will result in prosecution under Section 3 (1) which states in part; "Every person, who, without legal justification, whether conferred by an enactment or otherwise, or without the permission of the occupier or a person authorized by the occupier, the proof of which rests upon the person asserting justification or permission, (e) enters on premises where entry is prohibited by notice; or (f) engages in an activity which is prohibited on the premises by notice, is guilty of an offence and on summary conviction is liable to a fine of not more than five hundred dollars." Dated at Amherst, Nova Scotia on the 18 day of January , 1993, by Doug Cormier a designated agent/or Owner. Signed: (Sandy MacFarlane) Manager It is pertinent that the events related by Mr. Cormier occurred on September 8, 1993; yet the notice is dated January 18, 1993, and further directs Mr. Taylor that he is "not to enter or be on the property of Atlantic Shopping Centres...for a period of not less than six months" (i.e. after the 18th day of January, 1993). The obvious problem presented by the dates in the notice was not the subject of remarks by Mr. Taylor, Crown counsel or the trial judge. After the Crown had closed its case the transcript reveals: The Court: Any further witnesses, Mr. Fairbanks? Mr. Fairbanks: No, Your Honour, that's the evidence for the crown. The Court: Would you recall Mr. Cormier for me? I have a question for him. You're still sworn, Mr. Cormier. Doug Cormier: recalled, testified Examination by the Court The Court: You're the manager of Sobey's stores, located in the mall, the Amherst Centre Mall in Amherst? A. Yes, that's right. Q. And the mall has a parking lot for the use of customers using the mall adjacent to it, is that correct? A. Yes. Q. And that's bounded by Robert Angus Drive and Albion Street, and a field probably owned by Mr. McInnis? A. That's right, sir. Q. And whose property is that, that parking lot? A. Sobeys leased properties. Q. In other words, it's owned by a Sobeys company? A. Yes, that's right. Q. And do they also own the mall? A. Yes, they do. Q. That same company? A. Yes. Q. I see, and they are a private company? A. Yes, they are. Q. Right, so is any part of that parking lot owned by the general public? A. No,sir, that's [a] private parking lot. The Court: I see, okay, thank you. Mr. Taylor was permitted to cross-examine all Crown witnesses, including Mr. Cormier after the above exchange. It is evident from an examination of the transcript that Mr. Taylor expressed difficulty in asking questions. It is obvious, as well, that on a number of occasions, the trial judge became exasperated with Mr. Taylor's apparent confusion between asking questions and giving evidence. As an example: The Court: Do you have any questions you want to ask the witness? Mr. Taylor: I don't know how to ask the questions, like I say. The Court: Okay, have a seat. Mr. Taylor: I do know that I went into his store and he attacked me and ... The Court: You may step down, Mr. Cormier. Mr. Taylor: I wanted to ask him a question. The Court: Well, then, you better get on with it instead of fooling around. Have a seat, Mr. Cormier. Mr. Taylor: Well, I'm trying to think of how to do it. When I went into his store on that day to ask a question, I went to ask a question and he went crazy and assaulted me in the store. I had my wallet in my hand, trying to talk to the man. He went nuts. Didn't you? Doug Cormier: No. Mr.Taylor: You did so. There, see, he won't answer the question, will he? The Court: Well, he answered it. Mr. Taylor: Well, I'm saying he's lying. The Court: Okay Mr. Taylor: I got the proof. I have two police officers seen him on top of me trying to break what's left of my good arm. The Court: I see, any further questions? Mr. Taylor: I don't know how to question him the right way, so I don't know. The Court: You did a pretty good job that time. Mr. Taylor: I'm just making you guys mad at me is all I'm doing. That's why I wanted to get a lawyer. After Mr. Taylor's "cross-examination" of Mr. Cormier was concluded, the following occurred: The Court: Mr. Taylor, the crown is finished presenting its case. At this point, you may give evidence yourself, or call witnesses, if you have them here. You can do either, neither, or both, it's up to you. What's your pleasure? Mr. Taylor: I don't know what you mean by the witnesses. The Court: Okay, do you want to give evidence? Do you want to go up and be sworn and give evidence? Mr. Taylor: If it's possible, yeah. The Court: It's very possible. Mr. Taylor: Well, how do I give the evidence? I don't know how to give it. Do I ask myself the questions, or who asks me the questions? The Court: You just go up there and you'll find out. I just want you to understand one thing. You don't have to give evidence, it's up to you. Do you hear me, Mr. Taylor? Mr. Taylor: Huh? The Court: Do you understand that you are not compelled to give evidence, it's up to you, right? Mr. Taylor: Right. The Court: Okay, go ahead. James Taylor, sworn, testified. Crown Submission It is the submission of the Crown that the appeal be allowed and a new trial ordered because the trial judge failed to clearly explain to Mr. Taylor that he had a right to call witnesses. "Further, he should have been asked if he had any witnesses available." Opinion This matter comes before this Court as an appeal from the decision of the summary conviction appeal judge pursuant to s. 839 of the Criminal Code. Such an appeal requires leave of this Court and is limited to grounds that involve "a question of law alone". There were only two issues raised before the summary conviction appeal court judge: 1. Mr. Taylor did not have adequate time to seek counsel; 2. Mr. Taylor was discriminated against by the manager of the store property in question when he excluded him from that property. In the course of dismissing the appeal, the summary conviction appeal court judge concluded with respect to the first ground: I note that the appellant had four months to retain legal counsel.Given the nature of the offence, and the fact that the appellant had time to seek counsel, I am satisfied that the trial judge did not err in exercising his discretion when refusing to grant the appellant a further adjournment to retain counsel. This conclusion, ignores Mr. Taylor's request for an adjournment to seek counsel arising out of the failure of the police "to give me an answer". The trial judge made no inquiry to determine the reasonableness of this excuse. The decision whether to grant or refuse a request for adjournment because an accused is not represented by counsel in a criminal trial, is a discretionary one, but one that must be based on reasons well founded in the law (R. v. Barrette, [1977] 2 S.C.R. 121). As a general rule, an accused should be refused an adjournment if he has not acted diligently and honestly in attempting to obtain counsel and it can be inferred from the circumstances that he failed to avail himself of the opportunity to do so for the purpose of delaying the proceedings (R. v. Manhas, [1980] 1 S.C.R. 591). The failure of the trial judge to enquire into the reasonableness of Mr. Taylor's delay because of the failure of the police to give him an answer, constitutes, in my respectful opinion, an error of law. This error was continued when the summary conviction appeal court judge dismissed this ground of appeal. This error is sufficient to persuade me the appeal should be granted; however, I do wish to comment on another matter that occurred during the course of this trial. This Court in R. v. Kennie (1993) 121 N.S.R. (2d) 91 approved the following comments by Justice Griffiths of the Ontario Court of Appeal in R. v. McGibbon (1989) 45 C.C.C. (3d) 334 at 347: Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination of cross-examination witnesses must of necessity be a matter of discretion. While the authorities make it clear that a trial judge may "question witnesses to clear up ambiguities, explore some matter which the answers of a witness have left vague, or, indeed, he may put questions which should have been put to bring out some relevant matter, but which have been omitted" (R. v. Valley (1986) 26 C.C.C. (3d) 207 at 230), the decision of the trial judge, after the Crown closed its case, to recall Mr. Cormier to give evidence on points the trial judge obviously felt were critical, constituted, in my respectful opinion, an unwarranted and unfair interference in the trial process. (Re Jenset v. The Queen (1986) 24 C.C.C. (3d) 193.) This action might be seen by a reasonable person to be in sharp contrast with the failure of the trial judge to comment on the inapplicability of the dates contained in the notice served on Mr. Taylor. Every trial should be conducted in a fair and impartial manner, giving the accused sufficient opportunity to make full answer and defence. Every trial, viewed in a reasonable perspective, must appear to meet this standard. In my respectful opinion, after a review of the totality of this proceeding, this trial does not meet the standard (R. v. Campbell (1981), 49 N.S.R. (2d) 307). The comments of Lamer, J. on behalf of the Court in Brouillard v. The Queen (1985) 17 C.C.C. (3d) 193 at p. 195 are particularly apposite: The role of a trial judge is sometimes very demanding, owing to the nature of the case and the conduct of the litigants (parties). Like anyone, a judge may occasionally lose patience. He may then step down from his judge's bench and assume the role of counsel. When this happens, and, a fortiori, when this happens to the detriment of an accused, it is important that a new trial be ordered, even when the verdict of guilty is not unreasonable having regard to the evidence, and the judge has not erred with respect to the law applicable to the case and has not incorrectly assessed the facts. The reason for this is well known. It is one of the most fundamental principles of our case-law, the best-known formulation of which is to be found in Lord Hewart C.J.'s judgment in R. v. Sussex Justices, Ex. p. McCarthy [1924] 1 K.B. 256 at p. 259: "[it] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done". I would grant leave, allow the appeal, set aside the judgment of the summary conviction appeal court judge, quash the conviction and direct a new trial. Pugsley, J.A. Concurred in: Hallett, J.A. Bateman, J.A. C.A.C.No. 108837 NOVA SCOTIA COURT OF APPEAL BETWEEN: JAMES WALTER TAYLOR ) ) Appellant ) ) ) - and - ) REASONS FOR ) JUDGMENT BY: ) ) PUGSLEY, J.A. HER MAJESTY THE QUEEN ) Respondent ) ) ) ) )