R. v. Beres, 2023 BCSC 1953

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Beres, 2023 BCSC 1953 Date: 20230921 Docket: 26708-1 Registry: Nelson Rex v. Csaba Beres Before: The Honourable Mr. Justice Giaschi On appeal from: Provincial Court of British Columbia, June 15, 2022 ( R. v. Beres , Nelson Docket No. 26708-1-

K) Oral Reasons for Judgment Counsel for the Crown/Respondent: O.J. Dudley Counsel for the Accused/Appellant: T. Rauch-Davis Place and Date of Trial/Hearing: Nelson, B.C. September 12, 2023 Place and Date of Judgment: Nelson, B.C. September 21, 2023 Table of Contents Introduction .. 3 The Trial .. 3 The Reasons .. 4 Issues .. 6 Standard of Review .. 7 Misuse of Demeanour Evidence .. 7 Principles . 8 Discussion . 9 Misapprehension of Evidence .. 11 Principles . 11 Discussion . 12 Inadequate Assistance .. 14 Principles . 14 Discussion . 15 Conclusion .. 19 Introduction

[ 1 ] THE COURT: On June 5, 2022, Judge R. Brown of the Provincial Court found the appellant, who was self-represented at the trial, guilty of assault contrary to s. 265 of the Criminal Code . He was subsequently sentenced on May 18, 2023, to six months in prison less one day. [ 2 ] The appellant appeals against his conviction and seeks an acquittal or, alternatively, a new trial. The Trial [ 3 ] The evidence at the trial consisted of the viva voce testimony of the complainant and the appellant. [ 4 ] In

summary, the complainant testified that she met the appellant in Calgary, that she had known him for approximately four years, and that they had an on-and-off relationship for approximately two years. They moved to Nakusp in February 2020. The appellant had a trailer in Nakusp and the complainant rented an apartment. [ 5 ] In relation to the events of July 9, 2020, the complainant testified that she went for a walk and noticed the appellant in an argument with another person. She brought him back to her apartment to calm down. She testified that after a couple of hours, they drove to his trailer to feed his dogs.

After an hour or so, they decided to return to her apartment. She got into the truck on the driver’s side and the appellant sat on the passenger side. She testified that he then started screaming at her and began assaulting her. She provided detailed evidence of the assault and identified various photographs of her alleged injuries. [ 6 ] At the conclusion of the complainant's evidence, the trial judge explained to the appellant that he was entitled to cross-examine the complainant.

The appellant declined to do so. [ 7 ] The appellant was advised by the trial judge that he could give evidence if he wanted, but was not required to do so. The appellant elected to give evidence. His evidence was brief and veered towards apparent irrelevancies. The trial judge attempted to focus and clarify his evidence with little result. In

summary, the appellant testified he did not assault the complainant and that she was not telling the truth. He gave evidence in-chief that the complainant had told him her injuries were from a fall down stairs. At the conclusion of his evidence in-chief, the appellant was cross-examined. [ 8 ] The trial was punctuated by various disturbances caused by the appellant which are addressed in the reasons of the trial judge and which I will discuss further. [ 9 ] In reasons rendered on June 15, 2022, the appellant was found guilty of assault.

The Reasons [ 10 ] The trial judge commenced his reasons by summarizing the evidence of the complainant. He wrote that she testified that the appellant suddenly became irate and began assaulting her.

She testified that he held her hair, pulled her hair, bit her nose, punched her head against the steering wheel, spit on her, head-butted her, and punched her in the face. [ 11 ] After summarizing the evidence of the complainant, the trial judge turned to the evidence of the appellant. [ 12 ] The judge noted at para. 6 that the appellant denied assaulting the complainant and he instructed himself on the W.(D.) formula for assessing credibility. [ 13 ] Paragraphs 7 and 8 of the reasons are particularly relevant to this appeal and I set them out in full as follows: [7] The accused during his cross-examination was argumentative.

He repeatedly refused to provide a direct answer to simple questions. He displayed hostility and strong indicators in his voice, tone and body language of sudden anger. During the evidence of the complainant in chief, the accused who was seated at counsel table simply stood up and exited the courtroom and then returned. On another occasion when the complainant was testifying in chief the accused stood up again and started walking out of the courtroom. That issue was resolved by having the afternoon break.

Following the accused's evidence in chief the accused suddenly exited the witness stand and walked to a seat at counsel table. He repeatedly refused the court directions to return to the witness stand to permit the prosecutor to proceed with cross-examination. That issue was resolved by the court permitting the accused to remain at counsel table while the prosecutor proceeded with the cross-examination. [8] Immediately before cross-examination began the accused, while sitting at counsel table, turned his body with his arms crossed and stared continuously at the complainant who remained in the courtroom.

During the continuous stare by the accused at the complainant the accused displayed a raw anger. When he was asked by the court not to stare at the complainant he responded, "Where do you want me to look?" During the cross-examination the accused with his arms crossed again stared at this complainant displaying a clear anger towards her. [ 14 ] At para. 9, the judge noted the appellant was evasive and failed to answer simple questions. He provided several examples, namely:

a) Not recalling going to his trailer on July 9;

b) Responding "I suppose" when asked if he lived in the trailer;

c) He did not know if the complainant went to his trailer in the summer of 2020 and did not know if she drove the truck on this occasion;

d) He answered “maybe” when pressed on whether the complainant ever drove his truck; and

e) He had no recollection of whether the complainant's practice was to close the bathroom door when she used the bathroom, although they had been friends for years and he occasionally stayed at her apartment. [ 15 ] At para. 10, the judge addressed the appellant's evidence that he was told by the complainant she had suffered her injuries falling down stairs. Paragraph 10 is as follows: [10] The accused stated the complainant told him her injuries were a result of a fall down stairs while she was in Vancouver. He had no idea when she told him that, but they were in her apartment when she made that statement.

He did not ask her for particulars such as when and where in relation to the time and cause of the injuries. He testified he was concerned that others would see the injuries and think he did it. Further, he stated they had arguments in the past that were loud enough for a neighbour to hear.

He said he thereafter stopped spending time with the complainant because people might think he caused the complainant's injuries. [ 16 ] At para. 11, the trial judge stated he disbelieved the accused and that his evidence did not give rise to a reasonable doubt. [ 17 ] At para. 12, the judge provided his reasons for believing the complainant and accepting her versions of events. Paragraph 12 provides: [12] The complainant provided her detailed evidence in a clear and unwavering fashion. She was consistent in her version of events.

The sudden and intense anger displayed by the accused in the courtroom is consistent with her testimony that what she observed on the date in question namely a sudden and intense anger by the accused towards her. The pictures of her depict facial injuries that were consistent with being repeatedly punched in the face and having her head pushed into the steering wheel and being head-butted.

The lack of injuries to the other parts of her body and all the injuries being to her face and head is consistent with the injuries being caused by the particular assaults as described by the complainant and inconsistent with a fall down a flight of stairs. A fall down a flight of stairs would in all probability result in injuries to other areas of the body in addition to the face and head, such as the torso, arms and legs. I accept the complainant's version of events. [ 18 ] Finally at para. 13, the judge concluded that he was satisfied beyond a reasonable doubt the accused was guilty of assault.

Issues [ 19 ] The appellant raises three grounds of appeal:

a) The trial judge erred in law by misusing the appellant's demeanour;

b) The trial judge made a palpable and overriding error by misapprehending the evidence that the complainant had told the appellant she suffered her injuries from falling down stairs; and

c) The trial judge erred by failing to provide sufficient assistance to the self-represented appellant which resulted in a miscarriage of justice. Standard of Review [ 20 ] The appeal on this matter is pursuant s. 813 of

Part XXVII of the Criminal Code . Pursuant to s. 822 of the Criminal Code , ss. 683 - 689 of the Criminal Code apply, excepting ss. 683(3) and 686(5) . [ 21 ] Section 686(1)(

a) provides that an appeal may be allowed where: (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by . . . evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; [ 22 ] Section 686(1)(

b) provides, inter alia , that the court may dismiss the appeal where: (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), [or] (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred . . .

Misuse of Demeanour Evidence [ 23 ] The appellant, while acknowledging that a judge is entitled to consider the demeanour of a witness when assessing credibility, submits that the trial judge misused such evidence in this case and thereby erred in law. The appellant particularly submits:

a) The trial judge placed too great a reliance on the demeanour of the appellant;

b) The trial judge improperly used “out-of-box” demeanour in the assessment of credibility; and

c) The trial judge improperly used the appellant's demeanour as propensity evidence. [ 24 ] The Crown submits that while the judge commented on the appellant's behaviour and demeanour, he did not unduly rely on demeanour in his credibility assessment. Principles [ 25 ] The credibility assessments of a trial judge are owed considerable deference by an appellate court. It is only when the reasons demonstrate an error of principle in the assessment of credibility or show that credibility has been assessed arbitrarily or using irrelevant criteria, that intervention may be required: R. v.

S.S.S. , 2020 BCCA 180 at paras. 24-26 . [ 26 ] The use of demeanour in credibility assessments was addressed by the Ontario Court of Appeal in R. v. Hemsworth , 2016 ONCA 85 . The court cautioned against the over-reliance on demeanour evidence because it is of limited value, and further noted that demeanour cannot be the exclusive determinant of credibility: Hemsworth at paras. 44-45 . [ 27 ] The authorities draw a distinction between credibility assessments based on the demeanour of a witness in the witness box and their observed demeanour outside the box. In R. v.

T.M. , 2014 ONCA 854 , at para. 65 , the Ontario Court of Appeal stated the demeanour of an accused outside the witness box should not be part of a credibility assessment unless the case is one in which “the accused put in issue their normal reaction to stressful situations or serious allegations”. However, the court said, modest reliance on demeanour outside the witness box was not, in that case, grounds for overturning the trial judgment where other cogent reasons were given for rejecting the accused's evidence.

Discussion [ 28 ] The appellant submits that the trial judge placed “great reliance” on the demeanour of the appellant in assessing his credibility. In particular, the appellant says the trial judge's credibility assessment was compromised by:

a) His observations of the appellant leaving the courtroom twice while the complainant was testifying [out of box demeanour] and his failing to remain in the witness box after giving his evidence in-chief;

b) His observations of the accused staring at the complainant while under cross-examination and while at the counsel table [in-box and out of box demeanour]; and

c) His observation of the accused displaying “sudden and intense anger”, “raw anger”, and “clear anger”. [ 29 ] Concerning the trial judge's comments related to the accused leaving the courtroom on several occasions and failing to remain in the witness box for cross-examination, I do not agree that these matters were, in fact, something the trial judge took into account in assessing credibility.

The appellant places great weight on the ordering and placement of the paragraphs in the transcript of the reasons. [ 30 ] More specifically, in paragraph 7, the trial judge notes the accused was argumentative, refused to directly answer simple questions, and displayed hostility and strong indicators of sudden anger.

The judge then, in the same paragraph, comments on the accused leaving the courtroom twice and refusing to remain in the witness box for cross-examination. [ 31 ] The accused relies on the order of the sentences and the lack of a new paragraph as connecting the comments about the accused leaving the courtroom and failing to remain in the witness box with the immediately prior comment of the accused displaying hostility and anger.

I do not read the reasons in this way. [ 32 ] In my view, it is clear that the trial judge was addressing two distinct things in paragraph 7, and when the reasons were transcribed, a paragraph return was omitted. In the first half of paragraph 7, the trial judge is addressing credibility. In the second half of the paragraph, he is addressing the courtroom disruptions. Importantly, the trial judge does not state directly or indirectly that the courtroom disruptions affected his credibility assessment of the accused.

He merely states how the disruptions were addressed and resolved. [ 33 ] It is clear that the trial judge did comment on the appellant's demeanour and relied on that demeanour to some extent. In particular, the trial judge relied on demeanour in finding the appellant displayed “anger”. However, the trial judge did not solely or excessively rely on demeanour in his credibility assessment.

He noted that the complainant gave her evidence in a clear, consistent, and unwavering fashion, a conclusion which is borne out by my reading of the transcript. [ 34 ] In contrast, he found that the accused was argumentative, evasive, and failed to respond to simple questions, a conclusion that is borne out by the specific examples the trial judge gave and by my overall review of the transcript. [ 35 ] In my view, the judge's reliance on demeanour evidence was not material to his overall assessment of credibility. As in R. v. T.M. , at most he placed modest reliance on demeanour.

Far more important to his credibility assessment was the accused's evasiveness and argumentative nature. Further, and again as in R. v. T.M. , the judge's acceptance of the detailed, clear, and consistent evidence of the complainant was a compelling reason for his rejection of the accused's evidence. [ 36 ] The appellant says that the trial judge improperly used evidence of demeanour as similar fact or propensity evidence.

This submission relates to paragraph 7of the reasons, where the trial judge said: …The sudden and intense anger displayed by the accused in the courtroom is consistent with her testimony that what she observed on the date in question namely a sudden and intense anger by the accused towards her... [ 37 ] I agree that this was an error on the part of the trial judge. However, I do not agree that it was material. Reading the reasons as a

whole, the verdict was reached on the basis that the complainant's evidence was detailed, clear, and consistent, whereas the appellant's evidence was not credible because he was argumentative, evasive, and did not answer questions. [ 38 ] Additionally, I would add that the appellant's narrative of what transpired on the day of the alleged assault was woefully inadequate and incomplete. The reliance of the trial judge on similar fact or propensity evidence was not material and did not affect the reasonableness of the verdict, nor did it result in a miscarriage of justice.

Misapprehension of Evidence Principles [ 39 ] I am referred to R. v. Rogers , 2022 BCCA 346 at paras. 36-39 , for the legal principles relating to misapprehension of evidence and miscarriage of justice. The applicable principles may be summarized as follows:

a) The law is clear that where an appellant can demonstrate that his conviction depends on a misapprehension of the evidence and that misapprehension goes to “the substance rather than to the detail” of the trial court's reasons, a miscarriage of justice will be found;

b) Once the “stringent standard” has been met, it is not necessary for the appellant to show, in addition, that the verdict “cannot be supported by the evidence” within the meaning of s. 686(1)(a)(i);

c) Where a material misapprehension of evidence is found, the appeal must be allowed if it cannot be said that the trial judge would necessarily have reached the same conclusion absent the demonstrated errors;

d) The essential question in cases where a miscarriage of justice is raised, is whether the irregularity in question was “severe enough to render the trial unfair or to create the appearance of unfairness”;

e) Factors to consider in determining whether a miscarriage of justice has occurred include but are not limited to: i. whether the irregularity pertained to a central question in the case against the accused, ii. the relative gravity of the irregularity, iii. whether the trial is judge alone or judge and jury, iv. the possibility the irregularity was remedied at trial, v. the effect of the irregularity on trial fairness or the appearance of trial fairness, and vi. the attitude of defence counsel when confronted with the irregularity.

Discussion [ 40 ] This ground of appeal relates to paragraphs 10 and 12 of the reasons. At para. 10, the trial judge wrote “the accused stated the complainant told him her injuries were a result of a fall down stairs”. At para. 12, the trial judge addressed the complainant's injuries and found her injuries were consistent with the assault as described and not consistent with a fall down a flight of stairs. [ 41 ] The appellant submits that the trial judge misapprehended the evidence regarding the complainant's statement to him that she had fallen down stairs.

He says the trial judge dealt with the evidence as though the appellant had put forward the fall down the stairs as an alternative explanation for the complainant's injuries. The appellant submits the evidence at trial was that he did not believe the complainant when she told him she had fallen down stairs. The appellant submits the trial judge failed to consider the statement as a prior inconsistent statement and instead considered it for the truth of its contents. [ 42 ] The appellant was the only person at the trial to give evidence of a statement made by the complainant that she had fallen down stairs.

He initially gave such evidence when testifying in chief. His evidence in chief was that the complainant periodically took trips to Calgary and Vancouver, and that Vancouver was where she had met her ex-husband, who had supposedly beaten her for 30 years. He testified that she took a trip to Vancouver, came home with injuries to her face, and told him she had fallen down stairs. That evidence is at page 39 of the transcript, lines 35 to 42. [ 43 ] I note that during his evidence in-chief, the appellant did not say anything about not believing the claimant when she told him she had fallen down stairs.

Nor did he testify that she had met her ex-husband on the trip to Vancouver that preceded her injuries. In fact, there was no evidence of this at all. [ 44 ] The complainant's alleged statement about falling down stairs was addressed in cross-examination. It was put to the appellant that he knew the complainant's facial injuries looked bad. He replied that he was told by the claimant she fell off some stairs. He was then cross-examined in more detail on this alleged statement. He did not know when the statement was made, but later said it was made in the apartment after she returned from a trip to Vancouver.

When asked what exactly she said, he replied that he asked her what happened and she said she fell down the stairs. He was then questioned on whether he asked her how or when she fell down the stairs. He replied that he did not, as he assumed he knew what had happened, since she had told him she had been beaten for 30 years in her marriage. He was then asked what he did when he was told she had fallen down stairs. He replied that he did not believe it. He then agreed he did not ask her any other questions. This can be found in the transcript at pages 51 to 52, lines 30 and ending at line 39.

[ 45 ] It is clear from the reasons that the trial judge did not reference the appellant's evidence in cross-examination where he said he did not believe the complainant. Further, para. 12 of the reasons suggest the trial judge was addressing a fall down stairs as an alternative possible cause of the complainant's injuries. However, it does not follow that the trial judge misapprehended the evidence. The appellant twice testified to the complainant making the statement about falling down stairs without indicating he did not believe her.

The trial judge was entitled to base his factual findings on this testimony and to disregard the later testimony where the appellant testified that he did not believe the complainant. [ 46 ] In any event, even if there was a misapprehension of the evidence, it did not result in a miscarriage of justice. The trial judge dealt with this evidence to address what he thought was a theory being put forward by the appellant.

If the appellant's theory was that the complainant's injuries were caused by her ex-husband during the trip to Vancouver, a theory he did not address in his submissions, there was no actual evidence supporting this theory. There was no evidence of when the complainant went to Vancouver. There was no evidence she actually visited her ex-husband at the time. The theory is wholly unsupported and a proper consideration of it could not have affected the result.

Inadequate Assistance Principles [ 47 ] The nature and scope of a trial judge's duty to provide a self-represented accused with assistance to ensure trial fairness was summarized by Justice Dickson in R. v. Woolsey , 2021 BCCA 253 at paras. 48- 52 . I summarize the more salient points as follows:

a) a trial judge is obliged to provide a self-represented accused in a criminal case with sufficient assistance to ensure trial fairness;

b) the onus on a trial judge to assist is a heavy one, but is circumscribed;

c) the duty is limited to what is reasonable;

d) the judge must take care not to overstep the role of impartial arbiter and become an advocate, the judge should not assist the self-represented accused with trial tactics, should not provide the accused with advice on tactical decisions, and must respect an unrepresented accused's strategy in conducting [the] defence;

e) the trial judge must balance the need to assist with the need to remain neutral, how far a trial judge should go in assisting an accused is a matter of judicial discretion; and

f) where a self-represented accused contends that a judge failed to provide needed assistance, two questions arise for determination: i. whether there was such a failure and, if so, ii. whether that failure gave rise to a miscarriage of justice. Discussion [ 48 ] The appellant submits that the trial judge failed in the discharge of his duty to provide adequate assistance, resulting in a miscarriage of justice. More specifically, the appellant submits the trial judge should have warned or advised the appellant: 1) on the law with respect to demeanour; 2) on the rule in Browne v.

Dunn ; 3) on what constitutes proper evidence at a trial; and 4) that if he testified, he would be subject to cross-examination. [ 49 ] The appellant further submits that the trial judge erred in telling the appellant during cross-examination not to engage in an exchange. I will address these specific submissions, but will first set out the assistance the trial judge did provide the appellant. [ 50 ] At the commencement of the trial, the judge explained the process to the appellant. He explained:

a) that the Crown must prove its case beyond a reasonable doubt and that there was no burden on the appellant at all;

b) that the appellant could cross-examine the Crown witnesses if he wished;

c) that at the end of the Crown's case, he could testify if he wished;

d) that evidence consisted of statements made under oath or affirmation from the witness box; and

e) that statements by the appellant made outside the witness box were not evidence. [ 51 ] During the course of the complainant's examination in chief, the appellant abruptly announced he was going to the washroom. The trial judge allowed him to do so, and kindly and patiently advised him that one ordinarily asks permission. [ 52 ] At the conclusion of the complainant's evidence in chief, the trial judge reminded the appellant that he had the right to cross-

examine the complainant. The appellant declined to do so. The trial judge then again reminded the accused that he had the right to testify, but was not obliged to do so. [ 53 ] During the appellant's evidence in chief, the trial judge attempted to assist the appellant in getting out his side of the story and events.

The trial judge also noted that the appellant was testifying from prepared notes and allowed him to do so. [ 54 ] At the conclusion of the appellant's evidence in chief, the appellant declared that he was done and returned to the counsel table, despite being told that the Crown had the right to cross-examine him.

The trial judge's patient and measured response was to allow the appellant to answer questions from outside the witness box, even though the appellant advised that he may or may not answer the questions. [ 55 ] At the conclusion of the cross-examination of the appellant, the trial judge explained that the appellant had the right to explain or respond to matters that were raised in cross-examination. [ 56 ] In relation to submissions, the trial judge explained to the appellant that this was where he should tell the court why the complainant should not be believed.

The appellant responded that the judge could believe the complainant's story or not, and complained that he had been cut off during his evidence. The trial judge's response was to invite the appellant to return to the witness box and to tell the court what he wished. The appellant declined the invitation and responded, "It doesn't matter what I say". The trial judge twice more invited the appellant to take the witness box, but the appellant declined. [ 57 ] The trial judge again advised the appellant that he should explain why the complainant should not be believed.

The appellant replied he did not want to influence the judge's decision. The judge told him that that was exactly what he should do. In response, the appellant made very brief submissions to the effect that the complainant's evidence was not believable. [ 58 ] Finally, at the conclusion of the Crown's submissions, the trial judge explained to the appellant that he had a right of reply. The appellant essentially replied that it was all a lie. [ 59 ] The trial transcript discloses that the trial judge explained the trial process to the appellant and was exceptionally patient and accommodating.

Further, the transcripts disclose that the judge was prepared to bend the rules for the appellant and did bend the rules to ensure the appellant understood the process and procedure and had the opportunity to fully and fairly present his case. It further appears from the record that the appellant, for the most part, ignored the advice provided by the judge and did very little to put his case to the court. [ 60 ] I now address the specific submissions of lack of assistance. [ 61 ] The appellant submits the trial judge should have warned or advised the appellant of the law with respect to demeanour.

I have been provided with no authority that sets out such a proposition and do not accept that it is necessary for a trial judge to do so. [ 62 ] The appellant submits that the trial judge should have warned or advised the appellant of the rule in Browne v. Dunn . Again, the appellant has provided no authority that sets out such a proposition. [ 63 ] In any event, the trial judge did not rely on the rule in Browne v. Dunn . He did not reject outright the appellant's evidence of the complainant's alleged statement about falling down the stairs, which he could have.

Rather, he rejected the appellant's evidence of the making of the statement by the complainant. [ 64 ] The appellant submits the trial judge should have advised the appellant of what constitutes proper evidence at trial. In my view, the transcripts disclose that the trial judge did precisely this. He explained that evidence was what the appellant testified to in the witness box. [ 65 ] The appellant submits that the trial judge failed to explain to the appellant that if he testified, he would be subject to cross- examination.

Although I agree that the trial judge did not specifically advise the appellant he would be subject to cross-examination if he elected to testify, the appellant was advised that he had the right to cross-examine the Crown's witnesses and that he had the right to elect whether to testify at the conclusion of the Crown's case. I am not satisfied that there was an additional obligation on the trial judge to advise the accused that if he elected to testify, he would be subject to cross-examination.

I have been provided with no authority supporting such a proposition. [ 66 ] Finally, the appellant submits that the trial judge erred in telling the appellant not to engage in an exchange on cross-examination. This is in reference to the judge's comments to the appellant during his cross-examination. In cross-examination, it was put to the appellant that the complainant drove the appellant's truck to his trailer in July 2020. In response, the appellant replied, "You suggest that. We don't know." The trial judge then intervened and explained to the appellant that the Crown asks questions and he was to answer.

The trial judge further explained that he was not to engage in some type of “logical exchange” with the Crown that becomes an argument. In my view, this was not an error on the part of the trial judge.

He was merely instructing the appellant to answer the Crown's questions without engaging in a debate, something which trial judges are often called upon to do with witnesses. [ 67 ] To be successful on this ground of appeal, the appellant is required to establish both that there was a failure to provide needed assistance, and that the failure gave rise to a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code . In my view, the appellant has wholly failed to meet the first part of the test.

The record discloses that the trial judge explained the trial process to the appellant and was exceptionally patient and accommodating. The trial judge was prepared to bend the rules and did bend the rules to ensure the appellant had the opportunity to fully and fairly present his case. [ 68 ] It further appears from the record that the appellant, for the most part, ignored the advice provided by the judge and wrongly assumed that whatever he said would make no difference to the result.

Conclusion [ 69 ] In the result, the appeal is dismissed. “Giaschi J.”