R v Hamiane, 2016 ABQB 409

Court of Queen’s Bench of Alberta Citation: R v Hamiane, 2016 ABQB 409 Date: 20160720 Docket: 141481085S1 Registry: Wetaskiwin Between: Her Majesty the Queen Respondent - and - Merzak Hamiane Appellant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Appeal from the Conviction by The Honourable Judge J.L. Dixon Dated the 25 th day of November, 2015 ( Docket: 141481085P1) Introduction

[ 1 ] This is a

summary conviction appeal from Mr. Hamiane’s conviction for dangerous driving. [ 2 ] Mr. Hamiane was self-represented at his trial. English is not his first language. His counsel withdrew before the commencement of the trial, and Mr. Hamiane chose to proceed with the trial self-represented, but with the assistance of a French translator. No Arabic translator was sought or was available at the time. Mr. Hamiane now argues that he should have had an Arabic translator provided to him for the purposes of the trial. [ 3 ] Mr.

Hamiane argues now that the conviction should be set aside because the trial judge did not inquire enough as to his wish to retain a lawyer, and also because the trial judge did not adequately explain the trial process to him. Further, Mr. Hamiane argues that the trial judge did not adequately instruct him on the applicable law and indeed misled him on the nature and extent of permitted cross- examination. [ 4 ] He argues that trial fairness was compromised and the only way of remedying the prejudice to him is for this Court to order a new trial. [ 5 ] Several issues thus arise in this appeal: 1.

What is the extent of a trial judge’s duty to be satisfied that a self-represented accused understands the right to counsel and the benefits of being represented by counsel? 2. What is the extent of a trial judge’s duty to advise a self-represented accused as to procedural issues, such as the purpose and scope of cross-examination? 3. What is the extent of a trial judge’s duty to be satisfied as to an accused’s linguistic abilities? Background [ 6 ] Mr. Hamiane is originally from Algeria. He is a professional driver. He was convicted of dangerous driving and fined $1,000.

He was not specifically prohibited from driving. [ 7 ] The first Crown witness was Corporal Fox. He conducted the stop of Mr. Hamiane’s vehicle, and arrested Mr. Hamiane. He gave little evidence as to Mr. Hamiane’s driving, as he was responding to a complaint made to him by Katrina Stewart Lund as to her observations of Mr. Hamiane’s driving while she followed him on Highway 2A from Wetaskiwin to Leduc. Corporal Fox testified that while he was following Mr.

Hamiane’s vehicle, he saw the vehicle cross the centre line. [ 8 ] Corporal Fox testified that he did not observe any alcohol impairment but “felt there was some level of possibly fatigue impairment” (p 12, ll 32-33). [ 9 ] Corporal Fox was not cross-examined. [ 10 ] Eric Lund testified next. He was the operator of the vehicle that followed Mr. Hamiane. He testified that he and his wife, Katrina Stewart Lund, were driving from Wetaskiwin to Leduc, and he saw a car “all over the road. It was zigzagging around in the lane” (p 16, ll 40-41). [ 11 ] Mr.

Lund stated “in at least two situations the entire car was on the wrong side of the road. There were many other situations where the car would be halfway over the centreline” (p 18, ll 6-7). He continued: “There were a couple of instances, two I believe, where the southbound traffic was forced to take evasive action into the shoulder to avoid a collision” (p 18, ll 15-16). [ 12 ] According to Mr.

Lund, the weather conditions were poor and the vehicle’s speed varied from about 50 kilometres per hour to nearly the speed limit of 100 kilometres per hour. [ 13 ] He also testified that “the car also made several trips very far to the other side, the right-hand side of the road, into our shoulder, the northbound shoulder” (p 19, ll 14-15). [ 14 ] When asked if he wished to cross-examine Mr. Lund, Mr. Hamiane replied that he disagreed with Mr. Lund on many things, and he would explain what happened when he testified. [ 15 ] Ms. Stewart Lund then testified as to what she had observed and why she called the RCMP.

She stated: The car was swerving dramatically. I saw it twice in very quick succession – is that all right – swerve extremely far to the right, past the white line. It was so far on to the shoulder that I was worried it was going into the ditch. And then immediately after the second time to the right it veered far to the left and the driver’s side tires crossed the yellow centreline” (p 26, ll 4-8). [ 16 ] She continued to give detailed evidence as to her observations of the vehicle as they followed it from Wetaskiwin to Leduc, describing variations in speed, un-signalled lane changes, and swerving.

She testified that the vehicle crossed both the centre line and the shoulder line on a number of occasions. [ 17 ] After Ms. Stewart Lund’s direct evidence was complete, the trial judge asked Mr. Hamiane if he wished to ask her any questions. [ 18 ] Mr. Hamiane asked questions about where Ms. Stewart Lund had seen him swerving or zigzagging. During this exchange, it was obvious that there were communication difficulties between Mr. Hamiane and Ms. Stewart Lund. The trial judge intervened and clarified both the question and the answer (pp 38-40).

[ 19 ] Mr. Hamiane also asked about Ms. Stewart Lund’s observations as to his speed. When she responded that she did not know, he asked no more questions of her. [ 20 ] The Crown then closed its case. [ 21 ] Mr. Hamiane testified. His evidence in chief was brief, and it is helpful to reproduce it in full: INTERPRETER: I worked until 6 or 7 PM. The road was slippery. I was driving at 30, 40, maximum 50 kilometres an hour. Okay. From Wetaskiwin -- between Wetaskiwin and Millet the roads are not very well -- it’s very slippery. They are covered with snow.

There’s lots of slipping between -- or sliding between Wetaskiwin and Millet. I couldn’t go faster than, for example, 50 kilometres an hour. On the road there was no -- every five or 10 minutes somebody would pass. Behind me there was just this one person. This man when I got -- when I was coming up to Millet, one kilometre before Millet, the road was downwards and there was a turn -- and the road turned, so I was driving at 40, 50. There was someone behind me, this person. There was just one vehicle behind me. When I arrived to -- INTERPRETER: Monsieur Hamiane, just one kilometre before Millet?

So I slowed down because the roads aren’t good there, they’re slippery. This person -- this person behind me signalled three or four times, maybe more. When she said that I swerved, I was only driving 40 or 50, so behind me they were activating their headlights quite a bit. They were flashing their headlights. THE ACCUSED: Flashing, yeah, flashing. INTERPRETER: Yes, they were flashing their headlights on me, and I thought they wanted to pass me, so several times I went to the right. I went to the right to allow them to pass. I went to the right for them to pass. They stayed behind me, so he didn’t want to pass.

He stayed behind me. After that there was no problem. I continued. At that point, after Millet, there are no more turns in the road, it’s just straight, so I was driving at 60, between 60 and 70. When I arrived to -- in Leduc, I found a police officer who had activated his -- sorry, the lights on top of the police car. He thought I was drunk. He observed me -- oh, he saw me in my work clothes full of paint. He looked, he observed me and determined that I wasn’t drunk. Then he went to the car that followed me. He stayed with them for about -- between 30 and 40 minutes.

Then he came with a little card with a -- about the law. He said, yes, you’re not drunk but I could charge you under this law. That’s the story. (Page 45, line 15 to Page 46, line 11) [ 22 ] Cross-examination established that Mr. Hamiane had left Calgary at 7:00 or 7:30 am that day and he had driven from Calgary to his place of work in Wetaskiwin. He worked all day in Wetaskiwin and left to drive to Edmonton at about 6:45 pm. [ 23 ] Mr. Hamiane explained that he saw a vehicle behind him flashing its lights at him. The lights distracted him. He moved to the right to allow the vehicle following him to pass.

He denied moving across the centre line. He said he was driving very slowly because of the road conditions. [ 24 ] He called no other evidence. [ 25 ] The Crown presented its argument. Mr. Hamiane then stated: I don’t have any comments. I just have a short story and I explained it. (Page 58, lines 2-3) [ 26 ] The trial judge rejected Mr. Hamiane’s recollection of his driving pattern, and accepted Ms. Stewart Lund’s evidence. The trial judge concluded that that “the Crown has proven that (Mr.

Hamiane) knew or ought to have known that something was affecting (his) ability to drive safely.” (p 58, ll 33-34) [ 27 ] She convicted Mr. Hamiane of both careless and dangerous driving, but entered a conditional stay on the careless driving charge. A $1,000 fine was imposed, together with a $300 victim fine surcharge. No driving prohibition was ordered. Authorities [ 28 ] Mr.

Hamiane submitted a number of authorities in support of his arguments: R v Phillips , 2003 ABCA 4 ; R v Khan , 2001 SCC 86 ; R v Karas , 2007 ABCA 362 ; Cold Lake First Nations v Alberta (Tourism, Parks and Recreation) , 2012 ABCA 36 ; R v Hardy , 1991 ABCA 342 ;

R v Rain, 1998 ABCA 315; R v Al-Enzi, 2014 ONCA 569; R v White, 2010 ABCA 66; R v Tran, (SCC), [1994] 2 SCR 951; R v Manaloto, 2002 ABQB 1091; Attorney General of Ontario v Cosimo Reale, [1975] 2 SCR 625; and R v Rushlow, 2009 ONCA 461. [29] The Crown submitted a number of authorities: R v Hardy, 1991 CarswellAlta 248 (A.B.C.A.); R v Rain, 1998 ABCA 315 , 1998 CarswellAlta 889 (A.B.C.A.); R v McGibbon, 1988 CarswellOnt 1047 (Ont CA); R v Taubler, 1987 CarswellOnt 800 (Ont CA); R v McBain, 2011 CarswellAlta 2164 (A.B.C.A.); R v S(BK), 1998 CarswellBC 479 (B.C.C.A.); R v Phillips, 2003 ABCA 4 , 2003 CarswellAlta 7 (A.B.C.A.); and R v Tran, (SCC), 1994 CarswellNS 24 (S.C.C.).

Positions of the Parties [30] Mr. Hamiane argues that the trial judge “failed to provide him with the minimum level of assistance required to ensure a fairtrial for a self-represented accused. This resulted in an unfair trial, which is a miscarriage of justice.” [31] Mr.

Hamiane submits that when determining the extent to which a trial judge is required to give assistance to a self-represented accused, the judge is to consider the totality of the circumstances of the case, including the seriousness of the charges, thedefences raised and the accused’s level of sophistication (R v Phillips, 2003 ABCA 4 at paras 22 - 28). [32] The Crown submits that the trial judge has discretion to determine what is necessary to ensure a fair trial, and that in this case,the trial judge appropriately exercised that discretion.

The Crown notes that the trial judge’s discretion should not be fettered orinterfered with, citing R v Hardy, 1991 CarswellAlta 238 at para 4 and Phillips at para 50. Standard of Review [33] The parties agree that the standard of review for trial fairness is correctness.

The determination as to whether counsel wasrequired to ensure a fair trial is a question of fact, following R v Phillips, 2003 ABCA 4 and Cold Lake First Nations v Alberta(Tourism, Parks and Recreation), 2012 ABCA 36 at para 20. [34] It is clear that an unfair trial results in a miscarriage of justice: R v Khan, 2001 SCC 86 at para 27; R v Karas, 2007 ABCA362 at para 53. Analysis 1.

What is the extent of a trial judge’s duty to be satisfied that a self-represented accused understands the right to counsel and the benefits of beingrepresented by counsel? [35] It will be helpful to quote the instances during the trial where the trial judge asked questions of Mr. Hamiane and intervenedto provide some assistance. [36] After the Crown prosecutor explained to the trial judge that Mr. Hamiane’s lawyer had withdrawn approximately four monthsbefore the trial, the trial judge asked Mr. Hamiane: COURT: All right. You wish to proceed today representing yourself, is that correct?

INTERPRETER: Yes. (Page 2, lines 38-41) [ 37 ] The Crown prosecutor then advised the trial judge that disclosure had been given to Mr. Hamiane’s former lawyer, but it had been returned to the Crown when the lawyer withdrew. The prosecutor gave Mr. Hamiane the disclosure that day, before court started. He advised the trial judge: MR. MACDONALD: I provided it to him today. I’m aware that the interpreter and him had a chance to go through one of the civilian statements and interpret that statement.

I advised him that he would have the right to make an application for adjournment if he wanted one, but that he opposed such application. He never vocalized any intention to do same, but it should be reflected on the record. COURT: All right. Hr. Hamiane, you’ve only received the information about the Crown’s evidence today. INTERPRETER: Yes. COURT: Often accused people get that information in advance, days or weeks in advance of the trial. Are you satisfied that you are able to proceed today even though you got disclosure today? INTERPRETER: Yes, no problem.

I just have a short story. (Page 3, lines 12-26) [ 38 ] The trial then proceeded. [ 39 ] It is not controversial that in most cases, accused are better served when they have lawyers. Lawyers understand legal issues and procedural issues, and they are experienced in identifying possible defences, examining witnesses and cross-examining opposing witnesses.

Some self-represented litigants are able to do a reasonable job in representing themselves, depending on a number of factors including how well they have prepared for doing so. [ 40 ] Regardless of the disadvantages of self-representation, an accused person has a right to refuse legal counsel and represent him- or herself. ( R v Rain , 1998 ABCA 315 at paras 36-37 ). [ 41 ] There are limited exceptions to that, as an amicus may be appointed in certain circumstances and a lawyer may be appointed to cross-examine key witnesses, especially in the context of sexual assault cases (see s 486.3(1) of the Criminal Code ). [ 42 ] Both parties acknowledge that legal representation is not a prerequisite for there to be a fair trial, citing Hardy at para 4 . [ 43 ] Whether Mr.

Hamiane’s trial was unfair because he was not represented by counsel is a question of fact. The onus is on him to show on a balance of probabilities that his Charter rights were infringed: Rain at para 68 . [ 44 ] The evidence on the relevant factors is scant. Mr. Hamiane presented no evidence as to his level of education or sophistication. He was working as a painter at the time of the charges. That says nothing about education or sophistication. [ 45 ] Mr. Hamiane had initially hired a lawyer.

The record indicates that he and his lawyer had not met in person, but face-to-face meetings are not necessary to receive legal advice. In this era of technology, in-person communications may indeed be the exception rather than the rule. Mr. Hamiane was aware of the trial date and he appeared with the intention of representing himself. [ 46 ] Mr. Hamiane did not ask for an adjournment to find a lawyer. The trial judge made inquiries as to Mr. Hamiane’s intentions, and the record indicates that Mr. Hamiane wanted to proceed to trial that day.

In his mind, he had a short story and he wanted to tell it. [ 47 ] Disclosure had apparently been provided to his former lawyer. Mr. Hamiane was shown the disclosure before the trial commenced. Mr. Hamiane apparently had the assistance of the French interpreter in reviewing the disclosure. There is nothing on the record to suggest that Mr. Hamiane did not understand the disclosure. The trial judge asked him specifically if he felt ready to proceed to trial as he had only seen the disclosure that day. Mr.

Hamiane said that it would not be a problem; he wanted to proceed. [ 48 ] There are no magic words a trial judge must use to be satisfied that the accused does not want to be represented by a lawyer. Mr. Hamiane argues that Cold Lake First Nations requires the trial judge at a minimum to ask if the accused wants a lawyer.

At para 32 of that case, the Court of Appeal stated: [32] While acknowledging the degree of assistance given by a judge to an unrepresented party is a matter of discretion, the chambers judge should have expressly advised the individual respondents of their right to be represented by a lawyer and explained that the assistance of a lawyer might be important to ensure their position was fully advanced to the court. The failure to do so resulted in the individual respondents being deprived of an effective opportunity to be heard.

This error of law was compounded by the failure to investigate the need for an interpreter in circumstances where it appeared that some or all of the individual respondents might require this aid. [ 49 ] In Cold Lake First Nations , the difficulties faced by the accused were compounded by the lack of an interpreter. It is also significant that the Court of Appeal raised concerns about the validity of the underlying order in that case and recognized that there were serious legal issues in that case. [ 50 ] In Rain , the trial judge recognized that the charges were complex and serious.

The Court of Appeal, however, concluded that the trial judge and the

summary conviction judge erred by making that finding. In that case, the accused was charged with drinking and driving offences. Expert evidence was led on the complexity of the charges Mr. Rain faced.

[51] Here, Mr. Hamiane faced two driving charges. The careless driving charge is a Criminal Code offence. There is nothing onthe record to suggest that Mr. Hamiane faced a risk of being sent to jail. There was no accident, no damage, no one was hurt, and Mr.Hamiane had no previous record. [52] While a conviction would lead to a criminal record, there was no indication at the trial that a criminal record would affect Mr.Hamiane differently than other people convicted of such offences. [53] The case does not disclose that there were any difficult legal issues.

No potential Charter arguments are obvious from therecord; dangerous and careless driving charges are neither rare nor novel. [54] The issue facing the trial judge was credibility. Clearly, a lawyer might have done better than Mr. Hamiane did in cross-examining the Crown witnesses. Mr. Hamiane’s disadvantage in representing himself was clearest during his cross-examination of theCrown’s witnesses. The transcript shows that he did not show any real understanding of the purpose of cross-examination or the topics hemight cross-examine on.

Nevertheless, skilled lawyers do not always weaken opposing witnesses’ credibility, and skilled lawyers do notalways win at trial. [55] Here, what the trial judge was presented with was a self-represented accused facing charges that would not likely result inanything more than a fine and driver’s licence suspension. These were not “serious” charges. [56] Mr. Hamiane had received some legal advice. He refused suggestions by the trial judge that he might look for another lawyerand he said he did not need any additional time to review disclosure. Mr.

Hamiane wanted to proceed that day. [57] There was nothing during the progress of the trial where it was or should have been obvious to the trial judge that Mr.Hamiane required assistance. It would not have been appropriate for the trial judge to enter the fray and cross-examine the Crownwitnesses as to credibility issues. She provided some assistance when it was clear that there were communication problems between Mr.Hamiane and the witnesses. [58] Mr.

Hamiane emphasizes the Court of Appeal’s discussion in R v White, 2010 ABCA 66 at para 17, where the Courtdiscusses a number of principles relating to adjournments for the purpose of obtaining counsel in criminal cases: 1. Granting or refusing an adjournment for the purpose of obtaining counsel is discretionary but a decision that must be based onreasons well-founded in the law; 2. There is a constitutional right to a fair trial; 3. Representation by counsel is generally essential to a fair trial where the charges are serious and a complex trial can be anticipated; 4.

The right to counsel at trial is not an absolute one; 5. The accused must exercise that right honestly and diligently; 6. Each application for an adjournment must be determined on its own facts; 7. Generally, an adjournment should not be refused if the accused has acted diligently and honestly, and the absence of counsel is notfor the purpose of delay; and 8. On appeal, the accused must show that the refusal deprived him or her of the right to make full answer and defence at trial. [59] Here, that case is of limited assistance as no adjournment was sought by Mr. Hamiane. It should also be noted that Mr.

Whitefaced a second degree murder charge. [60] In reviewing all of the circumstances, I cannot see that the trial judge should have done any more than she did to assist Mr.Hamiane regarding the use of counsel. This was not an appropriate case to appoint an amicus, or to make a Rowbotham order (R vRowbotham, (ONCA)), and I cannot see that the trial judge here had a discretion to refuse to allow Mr.

Hamiane toproceed as a self-represented litigant. [61] The point was made in R v McGibbon, 1988 CarswellOnt 1047 at para 31 that in the circumstances of that case, “the trialjudge had no right to force the appellant to retain counsel against his will”. [62] No error has been made out with respect to this ground of appeal. 2. What is the extent of a trial judge’s duty to advise a self-representedaccused as to procedural issues, such as the purpose and scope of cross-examination? [63] The trial judge gave a number of explanations to Mr.

Hamiane concerning the trial process. [64] Partway through the evidence of the first Crown witness, Corporal Fox, the trial judge stated: COURT: Mr. Hamiane, I’m going to permit Corporal Fox to refresh his memory from his notes. I suggest you look at his noteswhile he’s testifying. If you have questions based on the answers he provided, you can ask them during cross-examination. I overlooked describing the elements of a trial. Corporal Fox is the first of three Crown witnesses. For each witness Mr. MacDonald willask questions. After Mr. MacDonald is finished, you can ask questions.

The Crown has an obligation to prove these charges against you.

They must do so beyond a reasonable doubt. After the Crown closes its case, I will speak to you further about the Crown’s onus, and you can decide whether or not you will be leading any evidence. We’ll talk about that after the Crown’s case is closed. [ 65 ] After Corporal Fox’s direct evidence, Mr. Hamiane indicated that he wished to ask some questions. The trial judge stated: COURT: Please stand up, Mr. Hamiane. No, right there, sir. Thank you.

If you are going -- if you think the officer has not been clear and wish to ask him to clarify things like distance, then please ask him those questions now. (Page 13, lines 28-30) [ 66 ] Mr. Hamiane began to ask a question about Corporal Fox’s observations while he was following Mr. Hamiane’s vehicle. Before Corporal Fox answered, the trial judge stated: COURT: Okay. Mr. Hamiane, the first part of that question, how far did you follow me is a very appropriate question. All right. You don’t have to offer a "because" to explain why you’re asking them.

Think about what answers you want the Corporal to give you and ask questions which might get those answers. (Page 13, lines 37-40) [ 67 ] Following this brief exchange, Mr. Hamiane asked no more questions. [ 68 ] After Mr. Lund’s direct evidence was finished, the trial judge stated: COURT: -- this is your opportunity to ask Mr. Lund questions. If you want him to clarify any answers you can ask for that clarification. If later you are going to describe your driving pattern differently, it is important to ask Mr. Lund now if he agrees with your version. Do you understand?

INTERPRETER: But I’m not in agreement with what he said. If I could explain what happened. COURT: You will have an opportunity to give evidence after the Crown’s case if you wish, but if you are going to say something to me that’s different from what Mr. Lund said, then you need to ask him now. For instance if you wanted to -- if you thought the road conditions were an issue, you need to put it to Mr. Lund that the roads were bad. Do you understand? ACCUSED: Yes. COURT: So please ask Mr. Lund questions now.

INTERPRETER: I don’t have questions for him, but for example can I explain what -- but I can explain what happened for example. COURT: Before you give me an example you may want to give evidence explaining why you were driving like Mr. Lund described. Or you may disagree you were driving that way. If you disagree you were driving that way, then you should ask Mr. Lund about the things you disagree with. Do you understand? (Page 21, line 40 to Page 22, line 23) [ 69 ] After Ms. Stewart Lund’s direct evidence was complete, the trial judge asked Mr. Hamiane if he wished to ask her any questions.

She stated: If you later give evidence that contradicts then it will help you to put those differences to Ms. Stewart Lund now. So, if you have a different version this is your opportunity to ask this witness your version. (p 37, ll 19-21) [ 70 ] Mr. Hamiane asked questions about where Ms. Stewart Lund had seen him swerving or zigzagging, and it was obvious that there were communication difficulties between Mr. Hamiane and Ms. Stewart Lund. The trial judge intervened and clarified both the question and the answer (pp 38-40). [ 71 ] The Crown then closed its case.

At that stage, the trial judge stated: COURT: -- the Crown has an onus to prove these charges beyond a reasonable doubt. The elements of this offence of dangerous driving requires the Crown to prove a significant -- So, I’m explaining the Crown’s obligation. The Crown must prove beyond a reasonable doubt that you were driving, and that for this distance from Wetaskiwin to Leduc, your driving involved a significant – COURT: -- a significant or marked departure – (Page 41, lines 22-24, 34-36 & 40) COURT: -- of driving. Sorry.

I’ll say the whole thing, Madam Interpreter. (Page 42, line 3) [ 72 ] She repeated: COURT: Okay. The Crown must prove that the manner you were driving was dangerous to the public considering the circumstances at the time.

The Crown must also establish that you ought to have been aware of the risk and danger. That’s called the mental element. You do nothave an obligation to give evidence, and you don’t have to give an explanation, however, if I am satisfied beyond a reasonable doubt,that the Crown has established their case, and you do not give evidence, then you can’t give your explanation in submissions. For me toconsider your explanation it must be given under oath. Do you understand that? (Page 42, lines 17-25) [73] The trial judge had the Crown argue first.

As the Crown began to discuss WD (R v WD), (SCC), [1991] 1S.C.R. 742), the trial judge stated: COURT: All right. Mr. MacDonald, given Mr. Hamiane is representing himself and speaks a different language, I’ll justsummarize that test now. MR. MACDONALD: Perfect. COURT: I understand the test is -- INTERPRETER: Could I just have one moment, please? COURT: Certainly. -- that if I accept the evidence of Mr.

Hamiane, that he was driving safely for the road conditions, thathe pulled to the right to permit the vehicle behind him to pass, and that he never crossed the centreline, then I would have to acquit him,find him not guilty. Even if I don’t believe all of the evidence of Mr. Hamiane, if as a result of hearing the evidence of Mr. Hamiane Ifind -- I’m left with a doubt that his driving pattern was dangerous, or a doubt that he met the mental element, then I must acquit Mr.Hamiane. (Page 53, line 32 to Page 54, line 6) [74] Mr.

Hamiane argues that the directions given to him on cross-examination were “wrong in law” and that he was misinformed.According to counsel for Mr. Hamiane, the suggestions given to Mr. Hamiane were limited to clarifying questions that arose in thewitness’s direct examination. [75] Mr. Hamiane specifically takes issue with the suggested question to Mr. Lund: Is there anything you want to describe thathappened while you were driving that Mr. Lund might also have seen? If so, that is the kind of question you can ask.” [76] Counsel for Mr.

Hamiane suggests that the trial judge focused on Browne v Dunn, (1893) 1893 CanLII 65 (FOREP), 6 R. 67(HL), rather than emphasizing that cross-examination could be on “any subject which is relevant to any of the issues in the entire case”. [77] The trial judge did not give Mr. Hamiane a lecture on the purpose of cross-examination and how to effectively cross-examinea witness. The trial judge did not take over cross-examination herself, which would have been inappropriate. As observed in R v S(BK),1998 CarswellBC 479 (BCCA) at para 28, the trial judge is not to become the advocate for an unrepresented litigant.

See also R vMcBain, 2011 CarswellAlta 2164 (ABCA) at para 7, where the Alberta Court of Appeal warned against the trial judge “entering thearena” as counsel for either party. Trial judges are required to be even-handed in the handling of a trial. [78] This area should be analyzed in a similar fashion as the need for counsel. A number of circumstances must be considered,including the seriousness of the charges. [79] I can see the theoretical attractiveness of Mr. Hamiane’s arguments here. With a self-represented litigant, the trial judgemight, at the outset of the trial, describe in some detail the trial process.

The trial judge might then discuss the presumption of innocenceand the burden of proof on the Crown. The trial judge might then discuss the specific elements of the charges that the Crown mustprove. The trial judge might then discuss possible defences, including common Charter defences to charges like the ones facing theaccused. The trial judge might then give a lecture on cross-examination, focusing on the purpose, techniques and pitfalls, including acaution about Browne v Dunn. After that, the trial judge might give information on calling a defence, including whether the accusedshould testify.

That would necessarily involve a discussion about R v WD. [80] All of these steps might be necessary to ensure a fair trial where the accused faces serious charges, with potentially significantconsequences. A trial judge might choose in less serious cases to give some of this information.

But in less serious cases, such as thisone, a reviewing Court should be slow to fetter the discretion given to trial judges to assess the situations unfolding before them and todetermine the best course of action. [81] R v Taubler, 1987 CarswellOnt 800 (ONCA) indicates at para 41 that the trial judge there was not “under a duty to instructhim in detail on the techniques of proper cross-examination”.

At para 42, the Ontario Court of Appeal stated: While no doubt it will often be possible to mount an argument that a trial judge, having before him an unrepresented accused, could haveor should have given the accused more detailed or helpful advice and assistance than was in fact given as to how the accused shouldconduct and present his case in court, the force of such an argument must depend on the facts and circumstances. [82] This is not a situation where one size fits all.

With the growing number of self-represented litigants in the courts, there maywell be a need to provide better education to self-represented litigants on how to run an effective trial. Resources such as those on theAlberta Courts website are helpful, although I observe they would not have provided much assistance to Mr. Hamiane as they are only inEnglish. However, no resource for lay people will ever be as effective as having legal representation.

Only legally trained people canrecognize and analyze complex legal issues, and have the skills to effectively examine and cross-examine witnesses. [83] One of the challenges facing judges in assisting and educating self-represented litigants is the available time. Providing thetype of assistance described above is likely to take a long time. I question the effectiveness of a lengthy speech by the trial judge and the

ability of the listener to digest what is spoken and immediately put it into effect. Educators commonly believe that listening to a speech is an effective education technique for perhaps twenty minutes. After that, there are diminishing returns.

See for example Catherine Matheson, The educational value and effectiveness of lectures , The Clinical Teacher, Volume 5, Issue 4, page 218 (December 2008). [ 84 ] That speaks to the effectiveness of a trial judge lecturing non-lawyers as to legal issues and might call into question any instructions given in a traditional lecture mode. [ 85 ] Regardless of the mode of delivery, it is not the trial judge’s responsibility to turn the self-represented litigant into a lawyer, and it seems to me that if someone goes to court intending to represent him- or herself, there is some onus on the person to take advantage of existing resources to become familiar with court process and to learn something about the charges he or she faces. [ 86 ] I observe that since many of the cases cited by counsel were decided, there have been significant changes to the number of accused and other litigants representing themselves, as well as reductions in judicial resources.

It is unfortunate that at a time when the judicial system is stressed by increasing demands, available judicial resources are not keeping up with those demands. [ 87 ] In a civil litigation context, the Alberta Court of Appeal weighed in recently in Malton v Attia , 2016 ABCA 130 , referencing as well Williams v Williams , 2015 ABCA 246 . [ 88 ] The Court stated at para 31 in Malton : In Williams , this Court went on to note that promoting equal justice can mean that judges provide information about the law and evidentiary requirements to self-represented parties.

On the other hand, the Principles also state that self-represented litigants are expected to familiarize themselves with relevant legal practices and to prepare their own case. [ 89 ] The Court emphasized as well that assistance to self-represented litigants cannot be done in a way that breaches “either the appearance or reality of judicial neutrality”. (at para 32) [ 90 ] I recognize that Mr. Hamiane’s cross-examination of the three Crown witnesses was ineffective.

However, I do not attribute this to any lack of instruction by the trial judge, or any inadequate or even misstated information to him concerning cross-examination. The trial judge elected to provide some assistance to Mr. Hamiane. He was never cut off in his attempts to cross-examine, and the trial judge did complete one area for him, where the witness was having difficulty understanding the nature of the question. [ 91 ] I do not see that the trial judge made any significant error of law in relation to her explanation of cross-examination to Mr. Hamiane or her assistance from time to time with his questioning.

No amount of explanation was going to give Mr. Hamiane the skills to make a successful attack on the witnesses’ credibility. [ 92 ] Ultimately, I fail to see that any lack of precision or detail in the trial judge’s explanations about cross-examination caused any real difficulty in the proceedings, or impaired Mr. Hamiane’s ability to make full answer and defence. [ 93 ] The choice of the nature and level of assistance to be provided was within the discretion of the trial judge. As held in S(BK) at para 26, “how far the trial judge should go in doing so is necessarily a matter of discretion.

As in all cases involving the review of the exercise of judicial discretion, an appellate court should only intervene if the judge proceeded on a wrong principle or if a miscarriage of justice resulted”. [ 94 ] I am not satisfied in this case that the trial judge proceeded on any wrong principle, or that a miscarriage of justice resulted. [ 95 ] This ground of appeal is also unsuccessful. 3. What is the extent of a trial judge’s duty to be satisfied as to an accused’s linguistic abilities? [ 96 ] Mr. Hamiane argues that his s 14 Charter right was violated. That

section guarantees the assistance of an interpreter to an accused who does not speak the language of the proceedings. [ 97 ] The trial began with the Crown prosecutor advising that “English is not Mr. Hamiane’s first language. We have a French interpreter present today with us to assist.” [ 98 ] The trial judge asked: “Do you understand me, Mr. Hamiane?” He replied “Yeah, kind of, yeah” and then “Yeah, I speak French. I’m not sure.” (all at page 1) [ 99 ] The interpreter was then sworn in.

After some further preliminaries, the Crown prosecutor said “the accused’s primary language is not English or French, it’s actually Arabic. I want to be sure that he’s comfortable proceeding with a French trial.” [ 100 ] The trial judge said: Mr Hamiane, we could get an Arabic interpreter for you if you feel you require that for a fair trial.” [ 101 ] Mr. Hamiane responded “It’s not a problem. I can understand French.” The trial proceeded. (all at page 4) [ 102 ] After a question as to how long the Corporal had followed Mr.

Hamiane, the interpreter said “I’m just going to ask if he understood that because in different countries, a street, it doesn’t have the same name in French.” (p 14, ll 7-8) [ 103 ] There were no other instances during the trial where the interpreter suggested that there were any communication difficulties.

[104] Mr. Hamiane could have asked for and insisted on an Arabic interpreter, as that is his first language. He was given that choiceby the trial judge, but refused it. [105] There is no evidence that Mr. Hamiane did not understand what occurred in the proceedings. The transcript is relatively brief,but it is also clear from the transcript that the proceedings were slow, because of the need for translation. [106] What is absent from the record is any concern expressed by the interpreter that she was having difficulty communicating withMr. Hamiane, or that Mr.

Hamiane was having any difficulty understanding her. [107] This is not a case like R v Tran, (SCC), 1994 CarswellNS 24 (SCC) where the Supreme Court of Canada wassatisfied that the standard of

interpretation fell below what was required under s 14 of the Charter (at p 37). There, Mr. Tran faced asexual assault charge. [108] Mr. Hamiane argues that the trial judge did not get a sufficient waiver from him relating to the absence of an Arabic interpreter,citing R v Mandulato, 2010 ABQB 1091 at para 11, which is to the effect that to waive an interpreter, it must be done personally, clearlyand unequivocally. [109] There is some onus on an accused to seek out appropriate assistance.

A French interpreter was present and the record shows noproblems with her services or his understanding of the words spoken at the trial. Counsel for Mr. Hamiane argues that “the record isclear that the Appellant did not understand the purpose of cross-examination and struggled to understand what an effective questionwould be”. That speaks of Mr.

Hamiane’s lack of familiarity with legal process, not his lack of understanding as to what was being saidby the participants at the trial. [110] I am doubtful that any argument over the absence of an interpreter or the ineffectiveness of the interpreter can be successfullymade without evidence that the accused was unable to understand the proceedings. That evidence may come from the accused, theinterpreter, or it may be obvious from the record of the proceedings. There is no such evidence before me. [111] This ground of appeal is also unsuccessful. Conclusion [112] Despite Ms.

McClelland’s able arguments, she has not demonstrated that Mr. Hamiane’s trial was unfair. This is not a case likeCold Lake First Nations were it was obvious from the record that a significant defence was missed altogether. No procedural or legalunfairness has been made out. I am not satisfied that the trial judge should or could have done more to assist Mr. Hamiane. There was nomiscarriage of justice here. [113] The appeal must be dismissed. [114] Undoubtedly, wherever a person is self-represented at trial, it can be argued after the fact that more could have been done toassist the self-represented party.

Nevertheless, there is some responsibility on a self-represented litigant to make some effort to preparefor a trial or other court proceeding when he or she is not represented. If the litigant believes he or she needs legal assistance, the litiganthas some obligation to seek that assistance, and to seek an adjournment for the purposes of doing so. [115] What a self-represented litigant should not do is come to court unprepared, decline assistance when offered, conduct the trialand then seek a new trial when the first one does not go his or her way. Heard on the 2nd day of June, 2016.

Dated at the City of Edmonton, Alberta, this 20th day of July, 2016. Robert A. Graesser J.C.Q.B.A. Appearances:

Trent Wilson Crown Prosecutors’ Office for the Respondent Morgan McClelland Hatch McClelland Moore for the Appellant