r v. R., 2015 NBCA 49

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK TIMOTHY CARR APPELLANT 107-14-CA TIMOTHY CARR APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Carr v. R., 2015 NBCA 49 Carr c.

R., 2015 NBCA 49 CORAM: The Honourable Justice Quigg The Honourable Justice Green The Honourable Justice Baird CORAM : l’honorable juge Quigg l’honorable juge Green l’honorable juge Baird Appeal from a decision of the Provincial Court: May 22, 2014 (conviction) September 2, 2014 (sentencing) Appel d’une décision de la Cour provinciale : le 22 mai 2014 (déclaration de culpabilité) le 2 septembre 2014 (détermination de la peine) History of case: Decision under appeal: N/A Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : s.o.

Procédures préliminaires ou accessoires : s.o.

Appeal heard: April 22, 2015 Judgment rendered: July 23, 2015 Reasons for judgment: The Honourable Justice Baird Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Appel entendu : le 22 avril 2015 Jugement rendu : le 23 juillet 2015 Motifs de jugement: l’honorable juge Baird Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Counsel at hearing: Timothy Carr appeared in person For the respondent: Kathryn A. Gregory Avocats à l’audience : Timothy Carr a comparu en personne Pour l’intimée : Kathryn A. Gregory THE COURT The appeal is dismissed. LA COUR L’appel est rejeté. The following is the judgment delivered by BAIRD, J.A. I. Introduction

[1] On May 17, 2013, as a result of an incident involving Mr. Carr and his estranged wife, an Information waslaid by the Royal Canadian Mounted Police pursuant to s. 267(

a) of the Criminal Code, alleging Mr. Carr committed an assault on Ms.Anketell, using a weapon, i.e. his vehicle. During the trial, Mr. Carr was initially represented by counsel; however, at the close of theCrown’s case, there was a breakdown of the solicitor-client relationship such that Mr. Carr completed the trial as a self-representedaccused. On May 22, 2014, he was convicted and later sentenced to 45 days in jail, to be served intermittently, plus two years ofsupervised probation with conditions. Mr. Carr appeals his conviction. II. Grounds of Appeal and Analysis [2] At the time of the offence, Mr.

Carr and Ms. Anketell had been separated for one year following a thirty-oneyear marriage. On the evening in question, Ms. Anketell left her place of employment to go shopping, and to have dinner with her sister.Later, when she drove into the driveway of the former marital home, where she lived, she observed Mr. Carr’s truck pull in behind her.As a result, she immediately drove her vehicle across the lawn, down a hill and through her neighbour’s driveway onto the roadway.When the neighbour observed Ms. Anketell’s vehicle exit the property, and saw Mr.

Carr’s truck accelerate behind her with “gravelflying on the driveway”, she called 9-1-1. Ms. Anketell testified that in the ensuing minutes, as she drove her vehicle along the highway,Mr. Carr positioned his truck in such a fashion as to force her over the centerline of the road into oncoming traffic and he “wouldn’t let”her back into the proper lane. This was a continuing event, during which she was in a high state of anxiety and feared for her life, asoncoming traffic had to move onto the shoulder of the road to avoid hitting her. [3] Mr. Carr disputed Ms.

Anketell’s version of events, and testified the roadway where this alleged incident tookplace was not wide enough to permit him to maneuver his vehicle in the manner described by Ms. Anketell. In the end, the trial judgeaccepted Ms. Anketell’s evidence. She analysed the elements of the offence, made numerous findings of fact, and concluded Mr. Carrhad committed an assault with a weapon, that being his vehicle. Mr. Carr raised four grounds of appeal which I will address in turn. [4] Firstly, Mr.

Carr submits his conviction should be “quashed” as he “had no legal representation and was leftdistressed and [abandoned] with no knowledge of the legal system”. Before us, when asked to clarify what he meant by this, Mr. Carracknowledged he had not requested the opportunity to retain new counsel at trial, nor had he asked for state-funded counsel following thebreakdown of the retainer with his solicitor. He admitted the trial judge offered an adjournment to enable him to retain new counsel, buthe declined, stating he “wanted to get it over with quick”. He advised he was engaged in divorce proceedings with Ms.

Anketell, and theywere progressing slowly. The witnesses for the Crown had testified and had been cross-examined by Mr. Carr’s counsel. Mr. Carr felt heshould offer his version of events as what “she said” was “not matching up”. [5] On the right to counsel, our Court in R. v. Osborne, 2003 NBCA 86, 268 N.B.R. (2d) 184, per Robertson J.A.stated: For trial purposes, there is no constitutional right to state-funded counsel under ss. 7, 10(

b) or 11(

d) of the Charter of Rights andFreedoms. However, in cases where representation by counsel is essential to achieving a fair trial, an accused who is unable to bear thefinancial burden of retaining a lawyer does have a constitutional right to state-funded representation: see R. v. Rowbotham (1988), (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.), at 65-70. The law is equally clear that the onus is on the accused to establish thatlegal representation is essential to achieving a fair trial and, also, that he or she lacks the financial resources to mount a proper defence.

The fact that the respondent qualified for legal aid is evidence that he lacks the financial resources to retain counsel. The Crown does notchallenge this presumption. Instead, the Crown challenges the Trial Judge's finding that, without counsel, the respondent would bedenied a fair trial. Of course, legal representation is not an indispensable component of this constitutional requirement. Self-representation is an option, in which case, the law resorts to other means for protecting an accused's right to a fair trial: see generally R.v.

Duguay (C.) (1995), (NB CA), 150 N.B.R. (2d) 99 (C.A.), per Ryan J.A., at para. 5 and R. v. Rain (1998), 1998ABCA 315 , 130 C.C.C. (3d) 167 at 178-79 (Alta C.A.); leave to S.C.C. dismissed [1998] S.C.C.A. No. 609 (Q.L.). To determine whether state-funded counsel is necessary to ensure trial fairness, a court is required to examine several factors. Recently,in R. v. Hayes (A.T.) (2002), 2002 NBCA 80 , 253 N.B.R. (2d) 299 (C.A.), this Court affirmed the governing principles andcriteria.

Writing for the Court, Justice Deschênes held at para. 14: The considerations which impact on the issue of whether legal representation is essential to a fair trial include: (1) the seriousness of thecharge, (Rowbotham, p. 67 [C.C.C.]), (2) the complexity of the case, (New Brunswick v. J.G., p. 229 [C.R.], R. v. Rain (M.M.) (1998),1998 ABCA 315 , 223 A.R. 359; 183 W.A.C. 359 (C.A.), para. 51, (3) the length of the trial, (Rain, para. 51), (4) matters which

relate to the accused as a person, including his or her level of education, language difficulties and his or her general abilities to conducthis or her defence (Rain, para. 51), and (5) the jeopardy of imprisonment. (Rain, paras. 72-89) Thus, when deciding whether state-funded counsel should be ordered, consideration must be given to five factors: (1) the seriousness ofthe charge; (2) the possibility of imprisonment; (3) the complexity of the case; (4) the length of the trial; and (5) the accused's capacity toconduct his or her own defence.

As is apparent, some of the factors are overlapping. [paras. 7-10] [6] Considering the above, I agree with the respondent’s submission that this case was neither lengthy, norcomplex. Mr. Carr wanted the matter to proceed. The trial judge was considerate and offered him an adjournment, which he rejected. Inthe circumstances of this case, the judge was under no obligation to do more than she did. Mr. Carr, in hindsight, has second guessed hisdecision to represent himself, however that is not grounds for appellate review. Thus, there is no merit to this ground of appeal. [7] As a further ground of appeal, Mr.

Carr asserts Ms. Anketell’s version of events was “never challengedbecause she was never cross-examined about any [differences] between her written statement and her [testimony]”. During his oralsubmission, he opined that Ms. Anketell’s version of events was incredible given the width of the road. At trial, he testified he hadmeasured the particular stretch of highway where Ms. Anketell alleged the incident occurred in an attempt to prove he did not pass Ms.Anketell’s vehicle in the manner she described. He did not know how to “bring her back up”; in other words he wanted to re-examineMs.

Anketell. [8] There are two issues which flow from the above:

i) Although no formal request was made to the trial judge, Mr. Carr submitted he wanted to re-examine Ms. Anketell on key elementsof her testimony at the end of his case, in an effort to challenge her credibility. ii) Was the trial judge’s credibility analysis adequate? With respect to the first issue, Mr. Carr’s counsel had completed her cross-examination of Ms. Anketell. Mr.

Carr may not have beensatisfied with the cross-examination; however, as our Court has stated, we will not interfere with trial strategy except in the rarest ofcases, nor will we speculate why counsel proceeded in a given fashion, unless we find there has been an error in the application of aprocedural rule, or an evidentiary rule, which has prejudiced the accused: see Gardiner v. R., 2010 NBCA 46, 362 N.B.R. (2d) 179,(para. 10), per Richard J.A. I see no procedural error or evidentiary violation from the record at trial. [9] Before us, Mr. Carr was asked if the trial judge made “any mistakes” in her

summary of the evidence, and hewas not able to identify any errors. He submitted “she went by the accusations of my ‘ex’”. Commencing at page 10 of her decision, thetrial judge made significant findings of credibility, characterizing Mr. Carr’s evidence as self-serving and lacking an “air of reality”. Sheconducted the analysis established by the Supreme Court in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No.26 (QL) which requires the trier of fact to assess the evidence as follows:

i) If the court believes the accused, it must acquit; ii) Even if the court does not believe the accused, but is left with reasonable doubt, it must acquit; iii) Even if the court is not left in doubt by the evidence of the accused, the fundamental question whether the Crown has proven its casebeyond a reasonable doubt must still be answered. [10] In Wilson v. R., 2013 NBCA 38, 412 N.B.R. (2d) 100, per Richard J.A. there is a comprehensive discussion ofthe jurisprudence following R. v.

W.(D.) with particular emphasis given to the adequacy of reasons where credibility findings are in issue.Other related decisions of this Court include Doiron v. R., 2013 NBCA 31, 405 N.B.R. (2d) 22, J.N.C. v. R., 2013 NBCA 59, 409 N.B.R.(2d) 310, Holland v. R., 2013 NBCA 69, 412 N.B.R. (2d) 384, Robichaud v. R., 2014 NBCA 1, 415 N.B.R. (2d) 218, Gahan v. R., 2014NBCA 18, 418 N.B.R. (2d) 104.

[ 11 ] In her reasons, the trial judge considered the history of the relationship between the parties, their marital breakdown, post-separation conduct, facts and circumstances both prior to and during the events of May 17, 2013, and the testimony of the independent witness. She assessed this evidence in the “overall context of events”. She drew conclusions, and found “the evidence of Mr. Carr does not have the inherent sense of cohesion and logic that should be readily apparent in light of the events that are not contested and in light of the observations made by the neighbour, Mrs. McGinn”.

She noted it was “hard” to reconcile Mr. Carr’s evidence with that of his wife, and in the end, she found Mr. Carr’s evidence unreliable and concluded he had not raised a reasonable doubt. [ 12 ] Credibility findings are entitled to deference, absent material error of law or palpable and overriding errors of fact ( Gillis v. R. , 2014 NBCA 58 , 426 N.B.R (2d) 1 , per Drapeau C.J.N.B., at paras. 74-75, leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 496 (QL); Downey v. R ., 2015 NBCA 25 , [2015] N.B.J. No. 91 (QL), at para. 17 ).

In the case at bar, the trial judge’s reasons were sufficiently detailed, offering justification for her findings of credibility. The R. v. W.(D . ) analysis was complete, articulate and unassailable. There is no merit to this ground of appeal. [ 13 ] Ms. Anketell testified that her husband had been stalking her for months following the separation, to the point she had devised a “parking strategy” so she could easily escape if the need arose. In his third ground of appeal, Mr.

Carr submits there was no “stalking done by [his] truck”, relying on the fact there are probably “500” trucks like his in the Moncton area. The trial judge referenced Ms. Anketell’s testimony in this regard, contextually, as part of the background information she used to assess credibility. Before us, Mr. Carr acknowledged he was the driver of the truck the evening the events took place. Although the trial judge referenced previous stalking by Mr.

Carr in her decision, that evidence was not determinative of her ultimate conclusion, and in my opinion, was a finding of fact the trial judge was entitled to make. [ 14 ] Finally, Mr. Carr asserts the police investigation was flawed, as there were no measurements taken of the particular

section of highway where Ms. Anketell alleged his vehicle pushed her across the centerline into oncoming traffic. Mr. Carr walked the “spot where it happened”, performed his own measurements, and concluded it was physically impossible for his vehicle to pass Ms. Anketell’s vehicle on the shoulder of the road as she alleged. Once again, Mr. Carr had an opportunity to present his evidence, and to cross-examine Ms. Anketell as well as the investigating officer. He proffered his own theory based on his inspection of the highway. The trial judge did not accept his version of events in the totality of the evidence. Mr.

Carr could have retained an expert witness to perform the measurements to support his evidence, but he did not do so. I find no reversible error with respect to the trial judge’s findings of fact, and there is no merit to this ground of appeal. III. Disposition [ 15 ] In my opinion, there was sufficient proof of the alleged offence. The trial judge did not err in fact or in law, and her decision was reasoned. I would dismiss the appeal. ___________________________ BARBARA L. BAIRD, J.A. WE CONCUR: ___________________________ KATHLEEN A. QUIGG, J.A. ___________________________

BRADLEY V. GREEN, J.A.