R. v. Barry, 2018 NLSC 86

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Barry , 2018 NLSC 86 Date : April 19, 2018 Docket : 201706G0007 Her Majesty The Queen v. Keith Barry Before: Justice Garrett A. Handrigan On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 0816A00086 dated the 1st day of September, 2016. Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: April 6, 2018

Summary: A

summary conviction trial judge convicted Keith Barry of six offences, after he refused Mr. Barry’s application to adjourn the trial and held the trial in Mr. Barry’s absence. Mr. Barry appealed the convictions, claiming the trial judge did not act judicially when he refused to adjourn the trial. Mr. Barry also claimed that his ex parte trial was unfair and a serious miscarriage of justice. The Court dismissed the appeal. It found that the trial judge appropriately balanced the various interests affected by Mr. Barry’s request for a postponement when he refused to grant it and proceeded ex parte . It also found that Mr. Barry’s trial was fair and that no miscarriage of justice occurred.

Appearances: Daniel J. Vavasour Appearing on behalf of Her Majesty The Queen Donald J. MacBeath, Q.C. Appearing on behalf of Keith Barry Authorities Cited: CASES CONSIDERED: Furlong Estate v. Newfoundland Light & Power Co., 2005 NLCA 25; Green v. Green, 2005 NLCA 29;Southam Inc. v. Canada (Director of Investigation and Research), (SCC), [1997] 1 S.C.R. 748 (SCC); R. v. Hazout, (ON CA), [2005] 201 OAC 235, O.J. No. 3550 (Ont. C.A.); R. v. Meikle, 2005 BCSC 1398; R. v. Merdsoy (1994), (NL CA), 121 Nfld. & PEIR 181, N.J. No. 244 (Nfld. C.A.); R. v. Lee, (SCC), [1989] 2 S.C.R. 1384,S.C.J. No. 125 (SCC); R. v.

Keith Barry, [2016] N.J. No. 385 (NLPC). STATUTES CONSIDERED: Criminal Code, R.S.C., 1985, c. C-47; Liquor Control Act, R.S.N.L. 1990, c. L-18; Tobacco Control andVapour Products Act, S.N.L. 1993, c. T-4.1; Sex Offender Information Registration Act, SC 2004, c. 10. REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] On September 1, 2016, a Provincial Court Judge convicted Keith Barry of six offences that he committed at Marystown, NLon February 29, 2016: 1. touching for a sexual purpose (section 151 of the Criminal Code, R.S.C., 1985, c.

C-47); 2. inviting to touch for a sexual purpose (section 152 of the Criminal Code); 3. sexual assault (section 271 of the Criminal Code); 4. breach of probation (section 733.1 of the Criminal Code); 5. supplying liquor to a minor (section 76(1) of the Liquor Control Act, R.S.N.L. 1990, c. L-18); and 6. supplying cigarettes to a minor (section 4(1) of the Tobacco Control and Vapour Products Act, S.N.L. 1993, c. T-4.1). [2] On November 16, 2016, the same Provincial Court Judge sentenced Mr.

Barry to jail terms for each of the Criminal Codeoffences and fined him for the provincial offences; these being the sentences: 12 months in jail for each of the sexual offences, to beserved concurrently and 60 days for the breach of probation, to be served consecutively to the 12 months in jail for the sexual offences;and fines of $200 and $50 respectively for the liquor and tobacco-related offences. [3] The Judge also ordered Mr. Barry to pay $100 victim surcharges for the Criminal Code offences and credited him with thetime he spent in pre-trial custody, so that the net jail sentence was 249 days. Mr.

Barry was taken into custody on September 2, 2016 anddetained until June 9, 2017 when he was released, having served his sentence. [4] Finally, the Provincial Court judge made a suite of “ancillary orders” that Mr. Barry must comply with, including: • A

section 731 (of the Criminal Code) probation order, with the statutory and other specified conditions for two years from whenhe was released from custody; • A

section 161 (of the Criminal Code) order, prohibiting Mr. Barry from attending at a public park or public swimming area orother places frequented by persons under 16 years old; • A

section 490.012 (of the Criminal Code) order, directing Mr. Barry for his lifetime to comply with the Sex Offender InformationRegistration Act, SC 2004, c. 10; and • A

section 487.051 (of the Criminal Code) order, authorizing seizure of samples of bodily substances from Mr. Barry for DNAanalysis and his registration with the national DNA bank.

[5] On December 6, 2016, while Mr. Barry was serving his sentences, he drafted a notice of appeal against the convictions. Heclaimed that the complainant, the Crown’s main witness at the trial, “lied” and further that his lawyer “would not put evidence forwardat trial”. Jacqueline Warford, a classifications officer with the provincial Department of Justice and Public Safety faxed a copy of Mr.Barry’s notice of appeal to this Court on December 15, 2016 and the original was registered here on January 24, 2017. [6] Meanwhile, Mr.

Barry represented himself when he appeared in this Court for his appeal; first on April 17, 2017 and then onMay 5, 2017 and again on November 3, 2017, as I tried to obtain from Mr. Barry the documentation to perfect his appeal. I also calledthe matter on June 29, 2017 but Mr. Barry did not attend. On all of these dates, the Crown appeared by counsel. On November 3, 2017,I set aside January 5, 2018 to hear Mr. Barry’s appeal, whether he had counsel or not. [7] On December 27, 2017, Mr. Barry filed an Interlocutory Application (Inter Partes) under

section 684 of the Criminal Codeasking me to appoint counsel to represent him on his appeal. I heard Mr. Barry’s application on January 5, 2018 and reserved my rulinguntil January 12, 2018. On that date, I allowed Mr. Barry’s application and ordered that he be represented by counsel on his appeal. Ialso ordered the Attorney-General of Newfoundland and Labrador to pay the legal fees that his counsel charged and the expenses thathis counsel incurred to represent Mr. Barry on his appeal. [8] Subsequently, Mr. Barry named Donald A. MacBeath, Q.C. to represent him on the appeal. With the Crown’s consent, Igave Mr.

Barry leave to file an amended notice of appeal, which he did on February 7, 2018. Mr. Barry asks me to set aside theconvictions the trial judge registered against him on September 1, 2016 and order a new trial. I heard Mr. Barry’s appeal on Friday,April 6, 2018 and reserved my judgment until now. THE ISSUE [9] Mr. Barry’s appeal raises these issues: 1. What is the standard of review I will apply? 2. Did the trial judge err when he refused to adjourn Mr. Barry’s trial and proceed in his absence? 3. If not, did Mr. Barry have a fair trial?

The Law Standard of Review [10] The Newfoundland and Labrador Court of Appeal restated the standards of review that apply on appeal to questions of law,questions of fact, questions of mixed fact and law and inferences of fact when they are raised, almost a decade ago now. The restatementappears in Furlong Estate v. Newfoundland Light & Power Co., 2005 NLCA 25 and Green v. Green, 2005 NLCA 29.

These are thestandards that I will apply to this appeal: • For questions of law, correctness; • For questions of fact, "palpable and overriding error"; and • For questions of mixed fact and law and inferences of fact, generally "palpable and overriding error", but this may vary, dependingon the inferences or the mixture of fact and law. [11] Some brief elaboration of these standards will assist in the following discussion. "Correctness" is the standard that applies toquestions of law.

It is a lower standard than "palpable and overriding error" and permits appellate judges to substitute their own findingsfor those of trial judges, if the latter are mistaken about the law. [12] The search for "palpable and overriding error" in a trial judge's reasoning raises the bar considerably. Appeal courts invariablyshow great deference to trial judges on findings of fact, including the inferences to be drawn from the facts they find.

The reasons forthis deference are so obvious they need not be stated. [13] The Supreme Court of Canada explained the differences between questions of law, questions of fact and questions of mixed factand law in Southam Inc. v.

Canada (Director of Investigation and Research), (SCC), [1997] 1 S.C.R. 748 (SCC):“Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually tookplace between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests”: Southam,paragraph 35. [14] Decisions on requests for adjournment may involve either questions of law or questions of fact, but generally involve questionsof mixed fact and law.

However, deciding whether a trial judge exercised his discretion judicially always involves questions of law. Adjournment Statute [15] Section 803(1) of the Criminal Code provides that a “…summary conviction court may, in its discretion, before or during thetrial, adjourn the trial to a time and place to be appointed and stated in the presence of the parties or their counsel or agents” [Underliningmine].

If the Crown does not appear and the accused is present, the Court, after determining that the Crown had “due notice”, “…maydismiss the information or may adjourn the trial to some other time on such terms as it considers proper”:

Section 799 of the CriminalCode. [16] If the accused does not appear “after having been notified of…[the time and place appointed for the trial]…”, the Court has two

options: It “(

a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or(b) [it] may, if it thinks fit, issue a warrant in Form 7 for the arrest of that defendant and adjourn the trial to await their appearance underthe warrant”: Section 803(2) of the Criminal Code. Case Law [17] In R. v. Hazout, (ON CA), [2005] O.J.

No. 3550 (OCA), Gillese, J.A. of the Ontario Court of Appealdescribed the balancing act a judge deciding whether to grant an accused an adjournment has to perform: “When an accused personrequests an adjournment of his or her trial on the date set for trial, the trial judge is required to balance two rights. The first is theaccused's constitutional right to be represented by counsel including, when possible, counsel of choice. This is a fundamental rightvigorously guarded by the court.

The second is the trial judge's right to control the trial process, a right that includes a wide discretion togrant and refuse adjournments. An appellate court should only interfere with a trial judge's balancing of these rights if the refusal of anadjournment deprives the accused of a fair trial or the appearance of a fair trial”: Hazout, paragraph 31. [18] I also note the comments of Rice, J. in R. v. Meikle, 2005 BCSC 1398: “It is a fundamental right that an accused have theopportunity to be represented by counsel, particularly where the accused’s liberty is at stake.

Ordinarily, therefore, a court should grantan adjournment where an accused is without counsel and wishes to seek counsel. However, the court should not overlook circumstanceswhere the accused has been dilatory in exercising the right to obtain counsel or is not seeking the adjournment bona fide but rather as adelaying or obstructing tactic”: Meikle, paragraph 26. [19] In R. v. Merdsoy (1994), (NL CA), 121 Nfld. & PEIR 181, N.J. No. 244 (Nfld.

C.A.), Goodridge, C.J.N.explained the role of an appellate court when reviewing a trial judge’s discretionary decision of whether to grant an adjournment: “In theexercise of discretion a judge is required to act judicially. An appeal will not be entertained from an order which was within thediscretion of the trial judge to make unless it is shown that he exercised his discretion under a mistake of law or under a misapprehensionof the facts, or that he considered irrelevant matters or failed to consider relevant matters.

An appeal court will assume that a discretionhas been properly exercised unless the contrary is shown”: Merdsoy, paragraph 41. [20] This is the law I will apply on this appeal. I turn now to analyze the issues I stated above, starting with the background tothem. Analysis Background [21] On May 2, 2016, an RCMP officer swore an information at Grand Bank, NL alleging that Mr. Barry committed the sixoffences of which the trial judge convicted him on September 1, 2016. Mr.

Barry appeared in the Provincial Court at Grand Bank onMay 4, 2016 and the matter was adjourned to May 26, 2016 so the Crown could elect how it would proceed on the Criminal Codecharges. On the latter date the Crown elected to proceed summarily, and Mr. Barry pleaded not guilty to all charges. The Court set thetrial for July 18, 2016 at Grand Bank. [22] On May 4, 2016, the Court also allowed the Crown to amend the dates of the Criminal Code charges changing them fromJanuary 26, 2016 to February 29, 2016. Marcus Evans, Q.C of the Newfoundland and Labrador Legal Aid Commission appeared withMr.

Barry on May 4 and May 26, 2016 and Mr. Barry had engaged Mr. Evans as his counsel for the July 18, 2016 trial. [23] In paragraph one of an Interlocutory Application that Mr. Barry filed for an order that I appoint counsel to represent him on hisappeal, Mr. Barry claims that on July 18, 2016 “… I discharged … [Mr. Evans] as my counsel and we appeared in Court and my counseladvised the Court that he had been discharged and the matter was postponed for trial until August 30, 2016”. [24] Mr. Barry explained why he discharged Mr.

Evans: “… I attended the Courthouse [on July 18, 2016] for my trial, had a pre-trial consultation with my counsel Mr. Evans, requested that he cross-examine the complainant with respect to certain of my physicalcharacteristics which, in view of the allegations, the complainant should have known about, [and] he advised me that issue was irrelevant…”. [25] In the same application, Mr. Barry claimed that on August 25 or 26, 2016, Barbara Barker, a staff solicitor with theNewfoundland and Labrador Legal Aid Commission contacted him by telephone. Mr. Barry said that Ms.

Barker advised in theirconversation that his file had just been assigned to her and she needed more time to prepare. Mr. Barry said Ms. Barker told him shewould file a written application with the Provincial Court to adjourn his trial then scheduled for August 30, 2016. He says Ms. Barkeralso told him to attend at Provincial Court on August 30, 2016 to hear if the trial judge granted the adjournment. [26] Mr. Barry explained in paragraph one of his Interlocutory Application what happened when he attended Court: “August 30,2016, I attended the Courthouse at Grand Bank.

I suffered a severe anxiety attack and left the Courthouse. I had previously been treatedby a physician for anxiety and suffered a panic attack when I saw the witnesses for the Crown were in attendance, realized that mycounsel’s Application for an adjournment might not be granted and that the trial may proceed before I had a chance to properly instructmy counsel”. [27] The trial judge rejected Ms. Barker’s application to adjourn the trial as Mr. Barry anticipated and proceeded ex parte on August30, 2016, but not before allowing Ms. Barker to withdraw as Mr. Barry’s counsel. However, the trial judge appointed Ms.

Barker tocross-examine the complainant. On September 1, 2016, as I noted earlier, after the trial judge heard oral submissions from Crowncounsel, he convicted Mr. Barry of all offences and issued a warrant for Mr. Barry’s arrest. [28] The transcript of proceedings from the Provincial Court indicates what happened when Mr. Barry’s matter was called onAugust 30, 2016; as I note: • Mr. Barry was not present in court, but reports were conveyed to the trial judge that Mr. Barry had been seen in the court precincts

earlier but was no longer there when his matter was scheduled to proceed; • Barbara Barker was present and had been retained as Mr. Barry’s counsel; • Ms. Barker advised the trial judge that Mr. Barry’s matter was not assigned to her until August 25, 2016 and she had not met withMr. Barry to discuss the evidence with him; • Ms. Barker requested an adjournment to allow her to meet with Mr.

Barry and obtain his instructions; • The Crown left “…it in the court’s discretion in terms of how we proceed today”: Transcript of Proceedings in the ProvincialCourt on August 30, 2016, page 7, lines 19-20. • After some further discussion between the trial judge and Ms. Barker, the trial judge stated: “With—this is the second day thatwe’ve had for the trial scheduled. We’ve already lost one day on the court docket. I’m not inclined to lose another. At the end of the day,the man is charged with a number of

summary conviction offenses. Strictly speaking the accused doesn’t have to be in court. We canhave his trial ex-parte and that’s, I guess, what we’ll end up doing. Ms. Barker doesn’t have instructions from him and so, it will beunfair to her to ask her to represent him”: Transcript of Proceedings in the Provincial Court on August 30, 2016, pages 7 & 8, lines 21-22& 1-6, respectively; and • Ms. Barker remained at the request of the trial judge and cross-examined the complainant as the trial judge had ordered. [29] The RCMP took Mr.

Barry into custody on September 2, 2016 and he appeared before the trial judge the same day. The trialjudge adjourned the matter until September 7, 2016 for submissions on sentence. Mr. Barry advised the trial judge he wished to speak tocounsel before his next appearance and the trial judge agreed that he should. Meanwhile, Mr. Barry remained in custody. [30] On September 7, 2016 Mr. Barry informed the trial judge he wished to retain counsel before he went ahead with the sentencinghearing and the trial judge adjourned the matter to September 27, 2016 and addressed Mr.

Barry this way: “So, that gives you not quitethree weeks, Mr. Barry, to retain counsel and brief counsel as to sentencing submissions and I remind you that is not the trial. The trialhas been concluded. I have found you guilty of the offences. It is a matter now for sentencing …”: Transcript of Proceedings in theProvincial Court on September 7, 2016, page 101 & 102, line 22 & lines 1-4, respectively. [31] Amanda Barfitt, a staff solicitor with the Newfoundland and Labrador Legal Aid Commission appeared in the Provincial Courton September 27, 2016. She confirmed that Mr.

Barry “… had applied-reapplied again, I guess, for counsel through our office andcounsel has not been assigned yet and it’s our position that we’re going to ask for a postponement”: Transcript of Proceedings in theProvincial Court on September 27, 2016, page 104, lines 10-12. The Court allowed Ms. Barfitt’s application and adjourned the matter toNovember 14, 2016 for sentencing submissions. [32] Jeffrey Slade, a staff solicitor with the Newfoundland and Labrador Legal Aid Commission appeared in Court with Mr. Barryon November 14, 2016. He made oral submissions on Mr.

Barry’s behalf and the trial judge set the matter over until November 16,2016 for his decision on sentencing. On that date, the trial judge imposed the sentences on Mr. Barry that I stated earlier in thesereasons. [33] The trial judge also filed two written decisions from his dealings with Mr. Barry.

He introduced the first of these decisions,dated September 1, 2016 by stating they were “reasons for proceeding with an ex parte trial, and for finding the accused guilty of theoffenses charged” and in the second, dated November 16, 2016 he offered his “reasons for sentencing the accused”. [34] The trial judge described Mr. Barry as the “absconding accused” when he discussed Mr.

Barry’s failure to appear in court onAugust 30, 2016; and the trial judge said that “[w]hen the accused fails to attend court for his trial, it invites an inference that he waivesthe right to attend his trial”: Decision dated September 1, 2016, paragraph 10; citing R. v. Lee, (SCC), [1989] 2 S.C.R.1384, S.C.J. No. 125 (SCC) as his authority for drawing the inference. The trial judge also noted that “[t]here was no information aboutwhy the accused was not in court”: Decision dated September 1, 2016, paragraph 10. [35] As I noted earlier, the trial judge did not sentence Mr. Barry until November 16, 2016.

Between September 1, 2016 andNovember 16, 2016, Mr. Barry appeared in court three times: September 2, 2016; September 27, 2016 and November 14, 2016. Asidefrom Barbara Barker who appeared for Mr. Barry on August 30, 2016, two other lawyers appeared for him between those dates, beingAmanda Barfitt on September 27, 2016 and Jeffrey Slade on November 14, 2016, both like Ms. Barker being staff solicitors with LegalAid. [36] Mr. Barry was in custody from his arrest on September 2, 2016, on the warrant of arrest the trial judge issued the day before;and Mr.

Barry was remanded in custody on the warrant until the trial judge sentenced him on November 16, 2016. He began serving thejail sentence the trial judge imposed on November 16, 2016 and was released from custody on June 9, 2017, after serving his fullsentence. [37] This is the background to Mr. Barry’s appeal. I turn now to discuss the issues I stated above. Discussion Standard of Review [38] The trial judge refused to adjourn Mr. Barry’s trial on August 30, 2016 and set the matter over to allow Mr. Barry and hiscounsel, Barbara Barker, to meet and prepare for Mr. Barry’s defence.

Section 803(1) of the Criminal Code gives

summary convictioncourts discretion to, as the

section says, “adjourn the trial to a time and place to be appointed and stated in the presence of the parties ortheir counsel or agent”.

[39] It is well-established that trial judges exercising the discretion to adjourn must act judicially. That requires trial judges toconsider the right of the accused to be present for his trial, to be represented by counsel if he so wishes and to participate fully in theprocess; but it also requires trial judges to maintain control of the trial process and to protect the public interest in ensuring that thejustice is done in a timely and accountable way. [40] Mr.

Barry’s challenge to the trial judge’s refusal to grant him an adjournment and then try him in absentia has two aspects to it:whether the trial judge exercised his discretion judicially; and whether Mr. Barry had a fair trial. The first involves a question of law, towhich I will apply the standard of correctness; and the second involves questions of mixed fact and law, although more of the formerthan the latter, to which I will apply the standard of palpable and overriding error. Exercise of Discretion [41] On August 30, 2016, the trial judge received a request from Barbara Barker, counsel for Mr.

Barry, to adjourn the trial to allowher time to review the evidence and take instructions from Mr. Barry. Ms. Barker noted that Mr. Barry’s file was not assigned to heruntil August 25 or 26, 2016 and she did not meet with Mr. Barry before court. Of course, Mr. Barry never appeared in court that day andwas not in court when Ms. Barker presented his application to adjourn to another day. [42] The trial judge rejected Mr. Barry’s request for adjournment: The Court: Well, as you know I hope the tenor is not adverse. I just want to make good efficient use of the court docket time.

You know,I’ve already lost a day of docket time when we couldn’t proceed with a trial back in July. Now, this – on the advice of Counsel I blockedout a full day for this trial. It’s quarter to ten. We’ll adjourn until ten o’clock. If you [Ms. Barker] can find him great but, if you can’t findhim that’s okay. It’s a

summary conviction matter Mr. Vavasour [Crown counsel]. We’ll proceed in his absence: Transcript of Trial,page 6, lines 3-10. [43] The trial judge took a 15-minute recess to allow Ms. Barker to make contact with Mr. Barry. She did not. When courtresumed, the Crown indicated it was ready to proceed but indicated it would “leave it in the court’s discretion”: Transcript of Trial, page7, line 8. [44] The trial judge decided to go ahead in Mr. Barry’s absence: The Court: With – this is the second day that we’ve had the trial scheduled. We’ve already lost one day of the court docket. I’m notinclined to lose another. At the end of the day, the man is charged with a number of

summary conviction offences. Strictly speaking theaccused doesn’t have to be in court. We can have his trial ex-parte and that’s I guess what we’ll end up doing: Transcript of Trial, page 7& 8, lines 21-22 & 1-5. [45] The trial judge filed a written decision in the matter on September 1, 2016. He addressed Mr. Barry’s failure to attend courtand the dilemma that it created for him under two headings, “Docket time management” and “The absconding accused”. As to theformer, the trial judge said this: [5] It is clear from R. v.

Jordan, 2016 SCC 27, that time on the court docket is a scarce resource, and that docket time management is ajudicial responsibility. However, when both counsel agree that there is a legitimate reason to adjourn or otherwise delay the proceedings,the trial judge should grant the request for the delay: R. v. Hanlon and McKeil (1987), (NL CA), 64 Nfld & PEIR245(NLCA). [6] In this matter, there was no such agreement.

On the contrary, Crown counsel objected to the late request for the further delay andpointed out that the first trial date (July 18, 2016) had been lost when the accused had discharged his counsel on the day set for trial. Theaccused had claimed that he was going to retain a member of the private Bar, but then had filed an application for another adjournmenton the day before the trial date. Counsel for the accused, Crown counsel, and all of the witnesses were at the courthouse for the trial. [7] On balance, the late request for further delay should have been denied.

However, it became moot, because the accused absconded: R.v. Keith Barry, [2016] N.J. No. 385 (NLPC), paragraphs 5-7. [46] As to the “absconding accused”, the trial judge said this: [8] The accused had apparently come to the courthouse on the morning of the day set for the trial. However, when the courtroom opened(at 9:30 a.m.), he was not present.

We adjourned the start of the trial to 10:00 a.m., to allow his counsel to try to contact him. [9] At 10:00 a.m., counsel for the accused advised the court that, since she had not been able to contact the accused, and therefore had noinstructions, she would like to withdraw as counsel for the accused. She did advise that she would cross-examine the complainant, as perthe order made on August 15, 2016 pursuant to s. 486.3(3) appointing counsel to cross-examine the complainant. [10] The court was then faced with the choice of further delaying the trial or proceeding ex parte.

These matters were being prosecutedsummarily, and there is no requirement that the accused attend his trial of

summary conviction matters. When the accused fails to attendcourt for his trial, it invites an inference that he waives the right to attend his trial: R. v. Lee, (SCC), [1989], 2S.C.R.1384. There was no information about why the accused was not in court.

[11] As a result, the court followed s. 803(2) (a), and heard the trial in the absence of the accused: R. v. Keith Barry , paragraphs 8-11. [ 47 ] I note that the trial judge had carriage of the matter since Mr. Barry first appeared to answer to the charges on March 7, 2016. Let me summarize what the trial judge knew about Mr. Barry and the charges when he refused on August 30, 2017 to adjourn the proceedings and proceeded in Mr. Barry’s absence: • Mr. Barry was charged in March 7, 2016 with four (4) offences that he was alleged to have committed on January 29, 2016. • Mr.

Barry appeared in court on March 7, 2016 and proceedings were adjourned to April 6, 2016. Mr. Barry was granted judicial interim release. • Mr. Barry appeared in court on April 6, 2016 and the Crown advised a new information would be sworn against him adding two (2) charges to the four (4) charges that Mr. Barry was charged with in March. Proceedings were adjourned to May 4, 2016 to allow for a new information to be sworn and filed. • Mr. Barry appeared in court on May 4, 2016 to answer to the new information which had been sworn on May 2, 2016.

The court adjourned the proceedings to May 26, 2016 to allow the Crown to review its file and decide on how it was proceeding. • Mr. Barry appeared in court on May 26, 2016. With leave of the court, the Crown amended the new information to change the dates of the alleged offences and elected to proceed summarily on the four (4) counts in the information under the Criminal Code (the other offences being under provincial statutes were strictly

summary conviction) and Mr. Barry pleaded not guilty to all six (6) offences. The trial judge scheduled the trial for July 18, 2016. • Mr. Barry was represented by Marcus Evans Q.C., as counsel of record from March 7, 2016 until July 18, 2016 and Mr. Evans intended to represent him at trial on July 18, 2016. • Mr. Barry appeared in court on July 18, 2016 and Mr. Evans appeared with him as well. Mr. Evans advised the trial judge to this effect: Your Honour when I met with Mr. Barry this morning he advised me that he did not wish for me to represent him any further in the matter.

I’m unsure as to whether or not he will apply to legal aid or change his solicitor, or if he will retain private practice counsel but, in any event, he does not wish me to represent him further and to that end, he would like to have a postponement in his trial so that he can arrange alternate counsel: Consent #3, page 1, lines 19-24. • The trial judge allowed Mr. Evans to withdraw as Mr. Barry’s counsel of record and he postponed the trial to August 30, 2016. Mr. Barry informed the trial judge that he would retain counsel in private practice and the trial judge addressed Mr.

Barry before concluding proceedings that day: Okay. Mr. Barry the trial will proceeding on the 30th of August. If you don’t have legal counsel arranged by then, then you will be representing yourself. You understand that?: Consent #3, page 5, lines 1-3. • Mr. Barry acknowledged that he understood. Meanwhile, the Crown was present and was ready to proceed with the trial. The Crown objected to Mr. Evans’ request to withdraw as counsel for Mr. Barry and to postponing the trial but agreed to the new trial date the trial judge set. • Mr.

Barry did not appear in court on August 30, 2016, although Crown counsel informed the trial judge that a third party reported to him she saw Mr. Barry in the foyer of the courthouse, outside the courtroom where Mr. Barry was supposed to appear for his trial at 9:30 am. • Barbara Barker appeared as counsel for Mr. Barry and informed the trial judge that she spoke to Mr. Barry on Friday, August 26, 2016 and instructed him to appear in person for his trial on Tuesday, August 30, 2016. The trial judge recessed for 15 minutes for Ms. Barker to see if she could locate Mr. Barry, but she did not. Ms.

Barker asked to adjourn the proceedings to afford her time to review the evidence and consult with Mr. Barry. • The Crown expressed its concern about adjourning the proceedings since it was ready for trial but agreed to defer to the trial judge on whether to allow the request. The trial judge refused to adjourn the trial but permitted Ms. Barker to withdraw as counsel of record; although he retained her, because of an order he made on August 15, 2016 under

section 486.3(3) of the Criminal Code , to cross-examine the complainant who would testify in the proceedings. [ 48 ] This is what the trial judge knew of Mr. Barry and the proceedings on August 30, 2016 when he refused to adjourn the trial and proceeded in Mr. Barry’s absence. From that I find that the trial judge exercised his discretion judicially and did not err when he refused to adjourn and heard the trial ex parte . The following factors support my finding: • August 30, 2016 was the second time Mr. Barry’s trial was set down. It had previously been set for July 18, 2016 but postponed at Mr.

Barry’s request for six (6) weeks to allow him to retain new counsel, since he dismissed counsel on July 18, 2016 who had represented him since he was charged. • Mr. Barry accepted both trial dates when the trial judge set them, and he was advised of them because he was present in court on both dates when his trial was scheduled. • The Crown was present on both trial dates, its witnesses were present, and it was ready to present its case on both occasions. The Crown either opposed adjourning the trial (July 18, 2016), expressed its concern about the delay (August 30, 2016) or deferred to the

trial judge (August 30, 2016). • Mr. Barry was at the courthouse on August 30, 2016. But he did not appear in court, despite advice from his counsel that day to appear in person, either to support his request for an adjournment or to thoughtfully inform the trial judge, the Crown and his counsel of any difficulties he might be experiencing. • The trial judge knew nothing more about Mr. Barry’s wishes on August 30, 2016 than his counsel advised and properly inferred that Mr. Barry did not wish to appear for his trial, from the report that Mr.

Barry had been present in the courthouse and left. • The trial judge was concerned about several factors: the loss of court time already experienced on July 18, 2016 and the potential loss of court time if the trial did not go ahead on August 30, 2016; the impact on the Crown and its witnesses; and the lateness of Mr. Barry’s requests for adjournment. • All charges against Mr. Barry were for

summary conviction offences so the trial judge was authorized under section 803(2) (

a) of the Criminal Code to proceed without Mr. Barry, and he chose to proceed, noting the statutory authority for his decision. [ 49 ] From what the trial judge said on the record and supplemented with his written reasons three (3) days later, it is clear that the trial judge balanced the various interests affected by Mr. Barry’s request for a postponement. These included Mr.

Barry’s right to be present for his trial (or his wish not to be present as it appeared to the trial judge); the Crown’s interest in going ahead with the trial, in that its witnesses were present for a second time; the public interest in delivering justice in a timely and effective manner; and the trial judge’s responsibility to effectively manage his docket. [ 50 ] Let me adopt the trial judge’s own words to describe the process he engaged when he denied the adjournment and proceeded ex parte : “ On balance , the late request for further delay should have been denied”: R. v.

Keith Barry , paragraph 7 [Underlining mine]. The trial judge then added this comment, to finish the paragraph: “However, it became moot, because the accused absconded”. [ 51 ] Mr. Barry takes issue with the trial judge calling him an “absconder”. I will discuss shortly Mr. Barry’s account of what he did on August 30, 2016. We ought not to lose sight of the trial judge’s perspective on what Mr. Barry appeared to have done on the day; and that assists in understanding his suggestion that Mr. Barry absconded. Fair Trial [ 52 ] In R. v.

Hazout , Gillese, J.A. of the Ontario Court of Appeal said “[a]n appellate court should only interfere with a trial judge's balancing of these rights if the refusal of an adjournment deprives the accused of a fair trial or the appearance of a fair trial”: Hazout , paragraph 31 . Did Mr. Barry have a fair trial? [ 53 ] Mr. Barry says he did not have a fair trial. In paragraph 2(

c) of Mr. Barry’s amended notice of appeal he claims that “[t]he refusal of the trial judge to grant an adjournment of the trial on August 30, 2017 (sic) and in proceeding with the trial ex parte resulted in an unfair trial which constitutes a serious miscarriage of justice pursuant to s. 686(1)(iii) of the Criminal Code whereby the appeal should be allowed, the convictions quashed, and a new trial ordered pursuant to s. 686(2) ”. Otherwise, Mr.

Barry does not challenge the trial process. [ 54 ] I have already found that the trial judge acted judicially, based on what he knew when he refused the adjournment and proceeded ex parte . I will not examine the manner in which the trial judge conducted the trial since Mr. Barry takes no issue with it on this appeal. That leaves for consideration what Mr. Barry says happened on August 30, 2016 and in the weeks leading up to it. [ 55 ] Mr. Barry says he discharged Mr. Evans because they disagreed over how counsel would defend him. In particular, Mr. Barry says he wanted Mr.

Evans to cross-examine the complainant on matters that Mr. Evans did not think were relevant. In any event, it appears that Mr. Barry intended to hire private counsel when he discharged Mr. Evans on July 18, 2016. This is what he told the trial judge at the time: Mr. Barry: Your Honour right now I’m working with Champion Roofers and I have found out some information Saturday and I really don’t want a legal aid lawyer. I’d like to go to Mr. MacBeath, make an appointment with him and to pay him for my lawyer because this is a huge charge….

I want to pay for my lawyer now, cause I can afford to pay for it and I want to get this put under my belt your Honour”: Consent #3, page 5, lines 1-3. [ 56 ] Mr. Barry testified before me on March 2, 2018 about being at the courthouse in Grand Bank on August 30, 2016 and about the events leading up to it. For example, he noted that his employer committed suicide sometime between July 18 and August 30, 2016. Mr. Barry did not tell me when this happened other than he got paid on a Friday and someone told him the next morning that his employer was dead. At first, I thought Mr.

Barry told me about his employer’s death because it affected his emotional state at the time; and that may have been one of the reasons he did tell me of it. On reflection, however, I feel that he may also have relayed the information to me explain why he did not retain private counsel to represent him. [ 57 ] In any event, the Legal Aid Commission assigned Barbara Barker to represent Mr. Barry. I am not sure when Ms. Barker was given a certificate to represent Mr.

Barry but she told the trial judge that she did not receive the file until Thursday or Friday, August 25 or 26, 2016, just a few days before the trial scheduled for August 30, 2016. By the trial date, Ms. Barker had not met with Mr. Barry and she advised him by telephone that she would apply to adjourn the matter, so she could review the evidence with him and obtain his instructions. Ms. Barker also told Mr. Barry, as I noted earlier, that it was imperative for him to appear in court, in person on August 30, 2016. [ 58 ] Mr. Barry says he went to court as Ms. Barker instructed.

He lives in Marystown and says an uncle drove him to court. Mr. Barry says he was hoping the matter would be postponed but he was anxious and depressed and thought he would have a nervous breakdown when he went into the courthouse and saw the complainant and the other Crown witnesses in the foyer of the building. At that, Mr. Barry says he panicked, he left the courthouse and he told his uncle to take him back to Marystown. He says he felt like killing

himself. He also says he told his uncle of his state of mind but declined medical help when his uncle offered to take him to the hospital. [ 59 ] Mr. Barry’s uncle drove him to Marystown as Mr. Barry directed, but did not take him directly to his home. Mr. Barry says he went to a friend’s house first, where he borrowed money with which he bought beer and cigarettes that he drank and smoked at his residence, while he waited for the police to come looking for him; as he says he expected they would do. The police arrested Mr.

Barry at his residence on September 2, 2016, on a warrant the trial judge issued after he convicted Mr. Barry of the offences the day before. The police took Mr. Barry before the trial judge on September 2, 2016. The trial judge remanded Mr. Barry in custody and initiated the sentencing process by which he eventually sentenced Mr. Barry for the six (6) offences of which he found Mr. Barry guilty. [ 60 ] Mr. Barry says he was under a doctor’s care at this time and was being treated for anxiety and depression. He also says he was subject to panic attacks and his doctor was attending to that as well. Mr.

Barry submitted a letter signed by his doctor and a copy of the doctor’s medical chart for Mr. Barry for the period of June 1, 2016 to September 30, 2016. The Crown consented to the documents being put in evidence. [ 61 ] The doctor’s letter confirms that Mr. Barry was consulting Dr. Bernard Roberts, as a family doctor for anxiety, depression and panic attacks. The medical chart indicates that Mr. Barry saw Dr. Roberts on June 1, June 28, August 2 and September 2, 2016. Chart entries indicate that Mr. Barry discussed anxiety and depression with Dr. Roberts on June 28 and August 2, 2016.

On both dates, it seems that Mr. Barry’s upcoming court appearances, whether July 18 or August 30 were sources of stress for him, as was the suicide of one, if not two of his friends, one being his employer, as I noted earlier. Dr. Roberts’ notes indicate that he prescribed medication for Mr. Barry and discussed “management strategies” with him. [ 62 ] At the September 1, 2016 meeting Dr. Roberts’ notes indicate that Mr. Barry advised him as follows: “Has now got himself a new lawyer and has gone to the courts and his case has been postponed once again. He insisted on getting himself a female lawyer this time”.

He also advised his doctor that “[h]e is convinced that he is going to win his case and that he is going get out ‘scot-free’ because he insists that he is innocent”: Consent #4,

Schedule “B”, page 4. I will come back to these comments shortly. [ 63 ] Let me summarize Mr.

Barry’s position regarding the events of the several weeks leading up to August 30, 2016 and of that date: • He was suffering anxiety and depression and was prone to panic attacks, for all of which he was under the care of his family doctor; • His upcoming court proceedings were a source of stress for him, as were the deaths by suicide of one or two of his friends; • Legal Aid appointed Barbara Barker to represent him, but he did not speak with her until August 25 or 26, 2016 and would not be able to meet with her until August 30, 2016 when his trial was scheduled; • He wanted to adjourn the trial from August 30, 2016 and knew Ms.

Barker was applying to do so; • He went to Grand Bank for court on August 30, 2016 as Ms. Barker instructed him to do, but panicked when he entered the courthouse and saw the complainant and other Crown witnesses were there; • He directed his uncle, who had driven him to Grand Bank, to take him back to Marystown; and he did; and • He waited at his residence until the police came to arrest him on September 2, 2016. [ 64 ] Based on this Mr. Barry submits that he had “an unfair trial which constitutes a serious miscarriage of justice”. I disagree. Let me explain. [ 65 ] I will start with the claims Mr.

Barry makes about anxiety, depression and panic attacks. While his claims are reflected in his doctor’s medical chart, I have no independent or objective verification of them. Dr. Roberts did not testify, and his notes appear to reflect simply what Mr. Barry reported to him. I do not know if Mr. Barry was actually labouring under any of these conditions, or how disabling they were for him, if he was affected by them. [ 66 ] I also note that this entry appears several times in Dr. Roberts’ chart for Mr. Barry: “Not S/H. No psychosis, no BPD, no disorder of formal thought”.

I understand the note to indicate that Dr. Roberts believed that Mr. Barry was not prone to suicidal/homicidal ideation, that he did not suffer from a severe mental disorder that would impair his thoughts and emotions and affect his perception of reality, and that he did not have a borderline personality disorder. [ 67 ] Furthermore, and as the Crown correctly noted, Mr. Barry declined his uncle’s offer to look for medical help for him on August 30, 2016 and insisted that his uncle take him home; after he dropped by a friend’s house to borrow money to buy beer and cigarettes. Mr. Barry last saw Dr.

Roberts before the trial date on August 2, 2016 and did not see him until September 1, 2016, two days after he left the Grand Bank courthouse. On the latter date, Dr. Roberts noted, amongst other things, that Mr. Barry “[s]mells of alcohol – says that he had 4 beer last night”. [ 68 ] Overall, I find that Mr. Barry was not so affected by anxiety, depression or panic attacks that he could not appreciate what was happening at the courthouse in Grand Bank on August 30, 2016; and to rationally assess how he should respond to it. In fact, through his cross-examination of Mr. Barry, the Crown established that Mr.

Barry acted deliberately and decisively when he left the courthouse and that Mr. Barry did not care who was looking for him when he did. Mr. Barry also acknowledged during cross-examination that he did not try to contact anyone, including the police, the Crown and Ms. Barker to say where he was. He says he just wanted to be alone. He also realized he says that there was a “99%” chance the trial would proceed in his absence. [ 69 ] It is true that Mr. Barry first spoke with Barbara Barker about his file on Thursday or Friday, August 25 or 26, 2016; and that his first opportunity to speak with Ms.

Barker in person would be on Tuesday, August 30, 2016, before court in Grand Bank. Mr. Barry

could not say when Ms. Barker was appointed to represent him, but Ms. Barker says she only received the file when she called Mr. Barry and spoke to him on the telephone about it. By then, of course, it was too late for Ms. Barker to adequately prepare to represent Mr. Barry at trial on August 30, 2016; so, she applied to postpone the trial. [ 70 ] When Mr. Barry left court on July 18, 2016, he says he intended to retain private counsel to represent him. However, by August 25, 2016, at the earliest, Ms. Barker had taken carriage of his file and would be his counsel at trial. I have no idea what happened to Mr.

Barry’s plans to retain private counsel in the five (5) weeks that elapsed between July 18, 2016 and August 25, 2016, other than Mr. Barry’s employer committed suicide in the period. I expect that Mr. Barry lost his employment because of his employer’s untimely death and abandoned his plans to retain private counsel when he lost his income. [ 71 ] Mr. Barry acknowledged during cross-examination that the trial judge made it clear to him he would proceed with the trial on August 30, 2016. However, the question remains of how diligent Mr. Barry was, having discharged Mr.

Evans on the July 18, 2016 trial date, to ensure that he had counsel and would be ready for trial on the new date the trial judge gave him. [ 72 ] Finally, let me consider the belief that Mr. Barry expressed to Dr. Roberts when they met on September 1, 2016 that the trial “had been postponed once again” and he was “…going to win his case and…get out ‘scot-free’…”. In fact, as is patently clear, the trial judge did not adjourn the trial, but proceeded in Mr. Barry’s absence and found him guilty of all charges.

The Crown presented its evidence on August 30, 2016 and the trial judge adjourned until September 1, 2016 for oral submissions from the Crown. Meanwhile, he issued a warrant for Mr. Barry’s arrest at the end of proceedings on September 1, 2016. The trial judge gave his decision on September 2, 2016 and resumed proceedings on the same day when the police brought Mr. Barry before the trial judge on the warrant. [ 73 ] When Mr. Barry appeared on September 2, 2016, he noted how he left the courthouse abruptly just before his trial began and explained why he left: Mr.

Barry: …and when I came here and seen that young girl right there, just (unintelligible) black hair and the last time with blonde hair. They were just cutting me up. I could have come in, but I told my uncle, I said ‘Bring me home. I feels like I’m having a nervous breakdown’. And I never heard from no one since that; so, I just figured that the date was changed and I was waiting to hear from my lawyer: Transcript of Trial, page 100 & 101, lines 17-22 & 1. [ 74 ] The trial judge inferred from Mr. Barry’s decision to leave court and not appear for his trial that Mr.

Barry was trying to delay the trial again, as had happened when Mr. Barry discharged Mr. Evans on July 18, 2016. I find that the trial judge’s inference is reasonable, because of what Mr. Barry told the trial judge when he was arrested, an opinion that he also expressed to Dr. Roberts when they met in the doctor’s clinic the day before.

However, I do note that the opinion runs contrary to what he told the Crown on cross- examination before me about being “99%” sure the trial would go ahead after he left the courthouse on August 30, 2016. [ 75 ] Of course, the trial judge knew nothing of these other matters on August 30, 2016. They had no bearing on the trial judge’s refusal to adjourn and proceed with the trial without Mr. Barry. I found that the trial judge acted appropriately when he did so. They are only relevant to whether Mr.

Barry received a fair trial regardless of whether the trial judge was right to proceed. [ 76 ] Overall, I find that Mr. Barry’s trial was fair and that no miscarriage of justice occurred when the trial judge refused his application to postpone it and proceeded in Mr. Barry’s absence. These factors support my finding: • Mr.

Barry may or may not have been suffering from anxiety, depression or panic attacks on August 30, 2016; but if he was affected by any of those conditions, it did not prevent him from thinking rationally and logically, and with a full appreciation for the implications of leaving the courthouse with his trial pending; • Mr. Barry acted deliberately and decisively on that day, unconcerned about who may have been looking for him or of the impact his decision would have for himself personally, as well as for others; • Mr.

Barry has not shown that he acted diligently to ensure that he would have counsel to represent him for his trial on August 30, 2016; and • Mr. Barry may have left the courthouse and refused to appear for his trial to try and delay it for a second time. [ 77 ] I am satisfied that no right-thinking person, fully apprised of the facts and circumstances of this case, and those factors in particular, would think he did not have a fair trial.

Summary and Disposition [ 78 ] A

summary conviction trial judge convicted Keith Barry of six offences, after he refused Mr. Barry’s application to adjourn the trial and held the trial in Mr. Barry’s absence. Mr. Barry appealed the convictions, claiming the trial judge did not act judicially when he refused to adjourn the trial. Mr. Barry also claimed that his ex parte trial was unfair and a serious miscarriage of justice. [ 79 ] The Court dismissed the appeal. It found that the trial judge appropriately balanced the various interests affected by Mr. Barry’s request for a postponement when he refused to grant it and proceeded ex parte .

It also found that Mr. Barry’s trial was fair and that no miscarriage of justice occurred. Order [ 80 ] In the result, I dismiss Keith Barry’s appeal from his convictions and confirm the verdicts the

summary conviction trial judge found on September 1, 2016.

_____________________________ Garrett A. Handrigan Justice