R v. Downey, 2011 ABQB 805

Court of Queen ’ s Bench of Alberta Citation: R v. Downey, 2011 ABQB 805 Date: 20111219 Docket: 091170795P1 Registry: Ft. McMurray Between: Christopher Downey Appellant - and - Her Majesty the Queen in Right of Alberta Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W. A. Tilleman _______________________________________________________ Appeal from the Decision by The Honourable Judge Jacques Convicted on the 15 th day of February, 2011 (2011 ABPC, Docket: 091170795P1) Appeal [ 1 ] The Appellant appeals his conviction and sentence from an assault charge. Background

[ 2 ] Briefly, the accused was charged with assaulting the complainant at a bar in Fort McMurray in August 2009. Following a variety of initial appearances including those of duty counsel and agent for the accused’s first counsel Ms. Beyat, a trial date was set for October 25, 2010. [ 3 ] Before the first trial could proceed, the first counsel Ms. Beyat sought to get herself off the record due to her inability to communicate with her client, Mr. Downey. Thus, on August 25, 2010, Ms. Beyat sought to get off the record and that motion was granted. A fall trial date would be set for Mr.

Downey. [ 4 ] Tracking down Mr. Downey led to a summons being issued and his first trial date of October 2010 being moved to February 2011. In moving the date to February, Judge Cleary, a different judge than the trial Judge, stressed the importance of the accused being ready. [ 5 ] In the interim, the accused had a meeting with his new counsel, Mr. Yoo, sometime in December. Ultimately, he called Mr. Yoo again in February and this time retained him just a few days before trial. Trial [ 6 ] At trial held on February 15, 2011, Mr.

Yoo told the judge he had been recently retained, and that to “make full Defence” inter alia to review disclosure, he needed an adjournment. Mr. Yoo further stated: MR. YOO: Your Honour, I – I – I can advise the Court that Mr. Downey did not know that he – his former counsel got off the record, and there was actually a Warrant issued, I – I believe, for him to attend court, and that’s how he found out. And then from – from what he’s told me, a court date was set on – for the – on the day that he appeared in court. THE COURT: Mm-hm. MR. YOO: He did contact me in December.

He has been going through some personal financial problems recently, and that’s why I have only been retained just in the last week – last week. MR. MAHON: Your Honour, I don’t – I’m not – MR. YOO: He – he did – he did come and see me in December. [ 7 ] Crown counsel told the court: MR. MAHON: So, he should have been well aware of the trial date.

If he wasn’t he may – I have great skepticism that he wasn’t aware of his obligations, and I’m certainly confident that the judge on that date would have indicated that if he was setting a trial without a – a counsel, he ought to pick a date when he could have counsel appear, and he ought to take steps immediately to retain counsel, if he chose to. MR YOO: Your Honour, no. I – it was set on that date, on September 29 th , and he didn’t have counsel advising him on that date, Your Honour.

[8] In deciding not to grant the adjournment, the learned trial Judge first went through the various endorsements and then stated: “...This is no fault of Mr. Yoo’s. He cannot control when people walk into his office, but under all those circumstances, to delayretaining a lawyer until four days before the trial, over a weekend I might add, so that the poor lawyer has not got a hope of properlypreparing for the trial, and then seeking an adjournment, is the height of negligence. The accused has the constitutional right to make fullanswer in defence, and part of that includes the right to retain a lawyer.

But, constitutional rights have to be exercised with due diligence.The accused cannot, simply by his own laches, delay hiring a lawyer until it is too late, on his multiply delayed trial day, and then say,oh, I just hired my lawyer, and he needs time to prepare. That is not an exercise of his constitutional rights, but an abuse of them. Under the circumstance, there will absolutely be no adjournment today, and the accused’s trial will go ahead. The thing remains, becauseI know Mr. Yoo is both a capable and conscientious lawyer, Mr.

Yoo, whether under the circumstances where it might be difficult foryou to actually do a good, professional job of it, whether you wish to stay on record and run the trial today or not.” [9] Ultimately, and no doubt being frustrated with the delay including by their nine endorsements, the judge stated the accusedwas “ ... on his own with respect to this matter.” And the trial proceeded accordingly. [10] In result, Judge Jacques convicted the accused and sentenced him to pay $575.00 within 90 days. The Law [11] Both counsel argued the applicable law is our Court of Appeal’s decision in R. v.

White 2010 ABCA 66, 474 A.R. 310, forthe proposition that whether an adjournment or a postponement should be granted is a discretionary matter for the trial judge; and thatthe discretion is reviewable on appeal if it has not been exercised judicially. Whether the judicial exercise is proper includes aconsideration of relevant factors and circumstances and of course the realities of each case. Those realities include, significantly, thepersonality and skills of the accused.

See White paras. 14-16. [12] In arguing White, both counsel, at my request, canvassed individually the nine factors reiterated in White (at para. 17) thatwere cited by the Alberta Court of Appeal now known as the Beals factors [(1994) (NS CA), 126 N.S.R. (2d) 130(N.S.C.A.)] Those factors are: 1. The decision whether to grant or refuse a request for an adjournment because an accused is not represented by counsel in acriminal trial is a discretionary one but one that must be based on reasons well-founded in the law. (Barrette v. R., (SCC), [1977] 2 S.C.R. 121). 2.

An accused has a constitutional right to a fair trial. Representation by counsel at trial is generally essential to a fair trial if anaccused is charged with a serious offence and a complex trial can be anticipated. (R. v. Rowbotham (1988), (ON CA),41 C.C.C. (3d) 1). 3. The right to counsel at trial is not absolute. (R. v. Richard and Sassano (1992), 55 O.A.C. 43); there is no constitutional right tobe represented by a state funded counsel at trial. (R. v. Rowbotham, supra, and R. v. Prosper (1992), (NS CA), 113N.S.R. (2d) 156 N.S.C.A. 4.

The right of an accused to retain counsel to represent the accused at trial must be exercised honestly and diligently so as not todelay a scheduled trial. (R. v. Richard and Sassano, supra). 5. Each application for an adjournment on the ground that the accused will not have counsel at trial must be decided on its facts.Relevant facts to be taken into account by the trial judge are: (

a) whether or not there have been prior adjournments due to the

unavailability of counsel and the accused was warned well in advance of trial that the trial would be proceeding on the scheduled datewith or without counsel. (R. v. McGibbon (1988), (ON CA), 45 C.C.C. (3d) 334); (

b) the accused's criminal recordwhich reflects on the accused's degree of familiarity with the criminal justice system and legal aid programmes R. v. Richard andSassano. supra, (

c) whether the charge against the accused is simple or complex which fact impacts on the critical question whether ornot the accused can get a fair trial without counsel Barrette v. R., supra (

d) the public interest in the orderly and expeditiousadministration of justice. (R. v. B.(J.E.) (1990), (NS CA), 52 C.C.C. (3d) 224 and R. v. Richard and Sassano, supra);(

e) if the accused has been refused legal aid and when the refusal was communicated to the accused. 6. As a general rule an accused should not be refused an adjournment if the fact that he is without counsel on the scheduled trialdates is not his fault but that of his counsel and he had no complicity in the matter. (Barrette v. R., supra). 7.

As a general rule an accused should be refused an adjournment if he has not acted diligently and honestly in attempting to obtaincounsel and it can be inferred from the circumstances that he failed to avail himself of the opportunity to do so for the purpose ofdelaying the proceedings. (Manhas v. R. (1980), (SCC), 17 C.R. (3d) 331). 8.

On an appeal from a refusal it would appear that a court of appeal will not find the learned trial judge erred notwithstanding hisreasons may not be fully articulated if the record discloses evidence from which it can be inferred that the absence of counsel wasbrought about by the accused for the purpose of delaying the proceedings. (Barrette v. R., supra; Manhas v. R., supra; R. v. Richardand Sassano, supra). 9.

The scope of review by an appeal court of a refusal, notwithstanding it involves the review of the exercise of a discretionarypower, is wide as the consequences of a refusal are to deprive an accused of his right to be represented by counsel. On appeal theappellant must show that in refusing the adjournment the trial judge deprived the appellant of his right to make full answer and defenceand thus made an error in principle which constituted a miscarriage of justice. (Barrette v. R. and Manhas v. R., supra).

Analysis [13] The first issue to decide before addressing the nine Beals factors is whether the accused had counsel when the trial began. Onthis important point, and I say this with the greatest of respect, the trial judge appeared confused. To illustrate this point, Mr. Yoo toldthe judge he was contacted in December and was in fact retained albeit a few days before trial. This was clear from Mr. Yoo to the court[transcript p. 2, lines 15-17; p. 3, lines 7-9].

In my opinion, it was also clear to the court at one point because the learned judge suggesteda difficulty for counsel of running the trial and meeting standards expected from counsel. Under the circumstance, there will absolutely be no adjournment today, and the accused’s trial will go ahead. The thing remains, becauseI know Mr. Yoo is both a capable and conscientious lawyer, Mr.

Yoo, whether under the circumstances where it might be difficult foryou to actually do a good, professional job of it, whether you wish to stay on record and run the trial today or not. [14] Surprisingly, after an adjournment where the new counsel tried to get off the record or face the immediate trial, the judge whopreviously said he was on the record, said this: THE COURT: Okay. I do not know that you ever went on record. Did you? MR YOO: Yes. Well, if – if I ever was on the record, I’d take – THE COURT: You are not on record at this point in time, so Mr.

Downey is on his own with respect to this matter. [15] In result, at the beginning of trial, the accused thought he was represented by counsel; further, the counsel thought he was

counsel for the accused, and even after the conviction, the accused continued to speak about his counsel because he told the judge he hada lawyer and he wanted to “adjourn” to “ ... just to talk to my lawyer about it”: Sentencing submissions of the accused, transcript, p. 49,lines 23-27. It seems clear, then, that the accused who ran the trial himself had counsel but he could not talk to his counsel aboutanything during trial or, and notwithstanding his requests, during sentencing. Finally, the same counsel, Mr.

Yoo, is still his counselbecause he argued his appeal. [16] One of the White concerns in deciding to grant an adjournment, and assuming the accused was unrepresented which the judgeerroneously concluded, is the personality and skills of the accused. The skills issue was raised squarely and immediately by this accusedonce the trial quickly began. In fact, the accused asked Crown counsel for advice on a point of procedure (probably his sentence), whothen deferred to the judge.

The point is, the accused wanted to speak to a lawyer, and, his question’s relevance is to the sophistication ofthe accused because when the accused first asked questions regarding sentence, there had been no trial, no evidence, and of course noconviction. [17] Turning to the Beals factors enumerated in White, counsel for the appellant at para. 29 of his submission argued:

a) The accused was not negligent in obtaining counsel and there is no evidence he was purposely delaying the proceedings;

b) The trial was unfair as the accused, self-represented, was not able to properly cross-examine the Crown’s witnesses on priorinconsistent statements;

c) The accused did retain counsel prior to trial and there is no evidence that he was not honest and diligent in obtaining counselgiven his financial situation;

d) The accused was given only 4 months to obtain new counsel for the trial;

e) The accused was unfamiliar with the criminal process;

f) The accused’s denial of an adjournment to be represented by his counsel should be reviewed with a wide scope given he wasdeprived of his right to make full answer and defence to the charge. [18] In reply, Crown counsel stated this trial was not complex, and the reasons given by the trial judge were fully set out at p. 4 ofthe transcript, lines 1-41. I agree that the trial was relatively simple and the charge of assault on

summary conviction relatively minor butit is still a crime of violence. Also, I disagree that the trial judge exercised his discretion judicially as required by White. Among otherthings, if the accused did not act as diligently as he should have, he nevertheless acted honestly. And while the judge warned him inOctober to be ready, the judge did not unconditionally say the trial would be going ahead with or without counsel.

Finally, there is noevidence the accused failed to avail himself of counsel for the purpose of delaying proceedings. [19] To be clear, I do not think White requires the trial judge to individually focus on every one of the nine Beals factors. I do,though, think White tells us the focus of the adjournment discretion should go into some depth, limited as it may be, beyond the court’svalid concern with the expeditiousness of the trial and limited court resources. See also R. v.

Tortora 2010 BCCA 547, paras. 23-24.Further, I do think the Alberta Court of Appeal in White and Hodgson, infra, tells trial judges to be alert to the law and issues regardingthe accused’s failure to have counsel present. Some of those concerns or lack of concern would be increasingly obvious during the trialitself. See e.g., R. v . Hodgson, 2004 ABCA 183, 348 A.R. 383, para. 4. [20] I find that the trial judge erred in failing to grant an adjournment.

I am troubled by: (1) a judge concluding an accused had nocounsel when he did; (2) a judge seeing obvious concerns such as an accused beginning his trial by asking Crown counsel and the judgefor advice; (3) concerns raised by the Appellant over the accused’s unassisted cross-examination; (4) other important procedural issues,for example, when it came time for Mr.

Downey who had testified to sum-up his own case, the judge told him: “Okay, Now theoretically[you] should sum up his first but perhaps [Crown] can set the example of how summing up is done so –” So, the Crown went first, andin doing so, argued not only the facts but also the critical law on whether W.D. applied and on that point the Crown wasn’t sure. Eventhough the accused testified, the Crown said: “We’re not really in a W.D. situation per se because we – it’s not just two – one person’sword against another. We have three other witnesses that observe to some extent what took place or Mr.

Downey’s demeanour withrespect to the officer. Measured against that we have Mr. Downey who gave his evidence. And I won’t address how he asked hisquestions because I think it would be unfair to a self-represented person.” And,

(5) I do not believe there would be real difficulties infinding a relatively quick date for trial because the transcripts show this trial was anticipated to be less than a ½ day trial. [21] I am convinced the Appellant who had no criminal record knew nothing about R. v. W.(D.), (SCC), [1991] 1S.C.R. 742 but far more important, the transcript shows that he wanted to talk to his lawyer before and after the evidence, and he neverhad that opportunity.

Conclusion [ 22 ] Applying our Court of Appeal's decision in White , Mr. Downey's appeal is allowed, his conviction is set aside, and a new trial is ordered. Heard on the 28 th day of November, 2011. Dated at the City of Ft. McMurray, Alberta this 19 th day of December, 2011. W. A. Tilleman J.C.Q.B.A. Appearances: Mr. Yoo for the Appellant Ms. Melina Cham for the Respondent