R. v. R., J.

R. v. R., J. Collection Decisions of the Court of Appeal Date 1998-09-22 Docket numbers C24490 Judges Finlayson, George Duncan; Labrosse, Jean-Marc; Borins, Stephen Subject Criminal Decision Content DATE: 19980922 DOCKET: C24490 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) and J.R. (Appellant) BEFORE: FINLAYSON, LABROSSE and BORINS JJ.A. COUNSEL: Nicholas Xynnis, for the appellant Howard Leibovich, for the respondent HEARD: September 11, 1998 ENDORSEMENT [1] This appeal against conviction turns on whether a trial judge's refusal to grant an adjournment to an un-represented accused has resulted in the denial of the accused's right to a fair trial. [2] After a trial before The Honourable Mr. Justice Dilks and jury, the appellant was convicted on January 19, 1996 of one count of sexual interference, one count of invitation to sexual touching, and one count of sexual assault. The complainant on all three counts was his daughter. On April 29, 1996, the appellant was sentenced to three years incarceration. He now appeals his conviction on a number of grounds; however, the dispositive issue is that of the trial judge's decision to not grant two adjournments sought by the accused. [3] The appellant's preliminary inquiry was held on December 12, 1994, at which he was committed to stand trial. On January 11, 1995 he attended at his judicial pre-trial in the Ontario Court (General Division), at which a trial date was set for June 5, 1995. On May 30, 1995, the appellant's counsel at that time was removed as counsel of record, an application to adjourn the trial was granted, and the matter was adjourned to June 27, 1995 to set a new trial date. On June 27, 1995, a new trial date of January 15, 1996 was set and marked to proceed "with or without counsel". [4] On January 15, 1996, lawyer Howard Fletcher appeared before Mr. Justice Dilks seeking an adjournment of the appellant's trial. He stated that he had only been contacted by appellant's mother the week before, and that he had only met the appellant himself the night before. He explained that he had not yet been retained, and would not go on the record at that time, but that he expected to be retained in short order. Mr. Fletcher also indicated that he would be able to conduct the trial in two months' time, that is, in March of 1996. [5] The appellant's mother, H.R., testified on the application. She said that, in the preceding six weeks, she had contacted at least four Toronto lawyers on behalf of her son, but that they were too expensive. She also testified that the appellant had contacted some lawyers in Kitchener, but had failed to retain anyone in that city. [6] Mr. Justice Dilks denied the application for an adjournment. In his reasons he made reference to the fact that the appellant had the opportunity since June 27, 1995 to obtain the services of counsel, and that he had been warned at that time that the matter would proceed with or without counsel. The trial was then adjourned until the next day, January 18, 1996. [7] After jury selection on the morning of January 18, 1996, the trial was adjourned until 2:15 that afternoon, in order that another lawyer could attend before Mr. Justice Dilks on behalf of the appellant. Mr. Abrahams then appeared before the trial judge seeking an adjournment of the trial. He indicated that should an adjournment be granted, he would be prepared to go on the record as the appellant's counsel. [8] Mr. Justice Dilks denied this request. He indicated, however, that he was willing to give Mr. Abrahams until 10:00 a.m. the following morning to prepare for the trial. Mr. Abrahams replied that he would not be able to attend then, but suggested that he might be available two weeks hence. In addition, Mr. Abrahams stated that he was prepared to re-elect to have the trial proceed by judge alone. Mr. Justice Dilks also declined to grant Mr. Abrahams' request. [9] The appellant represented himself throughout the proceedings. Although he did not testify himself, he examined his own witnesses, and cross-examined his daughter, the complainant, who was the Crown's only witness. This cross-examination took the better part of one afternoon and the following morning, and comprises some 70 pages of transcript. As it happened, just prior to the trial date the complainant had made additional allegations against her father, which allegations asserted that the appellant had performed oral sex upon her. These allegations had not been made previously. The appellant only became aware of these allegations during the course of the trial itself, and was put into the position of having to cross-examine his daughter on this point. [10] We are all of the opinion that the trial judge was not apprised of, or did not fully appreciate, that his refusal to grant an adjournment meant that the appellant, without the assistance of counsel, was facing fresh allegations of a most serious nature. Although Crown counsel would have been aware of the new allegations, they were not disclosed to the trial judge or to the appellant until after the trial had started. [11] The appellant did have a lawyer present before the trial judge who stated that he was prepared to go on the record as trial counsel in the event that an adjournment was given, that he was prepared to re-elect trial before a judge alone and he was prepared to proceed in a matter of weeks. It is apparent from this position that the appellant was prepared to give up a fundamental right to a trial by jury and that he was in no way attempting to unnecessarily delay his trial. [12] We feel that in the circumstances of this case some leniency should have been accorded to the appellant who, as the father of the complainant on a charge of sexual assault, was obliged personally to confront his daughter on the witness stand and cross-examine her on details of her allegations about his misconduct. This was a situation that should be avoided if it is at all possible. [13] Under all the circumstances, we are not satisfied that the appellant received a fair trial. Accordingly, we are allowing the appeal, setting aside the conviction and ordering a new trial.