2015 NBCA 25, 2015 NBCA 25

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 42-14-CA DANIEL RAY DOWNEY APPELLANT DANIEL RAY DOWNEY APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Downey v. R., 2015 NBCA 25 CORAM: The Honourable Justice Larlee The Honourable Justice Quigg The Honourable Justice Baird Downey c.

R., 2015 NBCA 25 CORAM : l’honorable juge Larlee l’honorable juge Quigg l’honorable juge Baird Appeal from a decision of the Provincial Court: December 4, 2013 Appel d’une décision de la Cour provinciale : Le 4 décembre 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBPC 25 Décision frappée d’appel : 2013 NBPC 25 , 2013 NBCP 25 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: February 11, 2015 Appel entendu : le 11 février 2015 Judgment rendered: April 23, 2015 Jugement rendu : le 23 avril 2015

Reasons for judgment: The Honourable Justice Baird Concurred in by: The Honourable Justice Larlee The Honourable Justice Quigg Counsel at hearing: Daniel Ray Downey appeared in person For the respondent: Kathryn A. Gregory Motifs de jugement : l’honorable juge Baird Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Quigg Avocats à l'audience : Daniel Ray Downey a comparu en personne Pour l’intimée : Kathryn A. Gregory THE COURT The appeal against conviction is dismissed. LA COUR L’appel de la déclaration de culpabilité est rejeté. The judgment of the Court was delivered by BAIRD, J.A. I. Introduction and

summary of facts [ 1 ] The appellant, Daniel Ray Downey, was tried, convicted and sentenced for a criminal offence and sought release from custody pending his appeal. At the hearing for interim release, Mr. Downey tendered a fabricated (constructed) document which, had it been authentic, would have bolstered his submission there had been late Crown disclosure for the original trial. He was subsequently convicted of willfully attempting to obstruct, pervert, or defeat the course of justice by fabricating evidence, pursuant to s.139(2) of the Criminal Code of Canada , and sentenced to six months incarceration.

He appeals that conviction. [ 2 ] Mr. Downey raised the following grounds on appeal: 1. The trial judge erred in law by not ensuring that the Appellant was represented by counsel at trial and further erred by placing limitations on the defence thereby not allowing the Appellant to make full answer and defence contrary to S.7 of the Charter of [ Rights ] and Freedoms;

2. The trial judge erred in law by admitting into evidence (exhibits); 3. The trial judge erred in law by failing to dismiss the charges against the appellant due to pre-trial delay from the crown 11(b)Charter of [Rights]; 4. [Fresh] evidence; 5. The judge erred in not [taking] into count all [facts]; 6. Miscarriages of justice; 7. Question of mixed law [and facts]. These latter issues were not fleshed out at the appeal hearing as grounds of appeal and will not be dealt with. II. Analysis and Decision A. Trial delay [3] R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106 (QL), dealt withinstitutional delay within the context of s. 11(

b) of the Canadian Charter of Rights and Freedoms. The majority found the following tobe significant considerations: 1. The length of the delay; 2. The explanation for the delay; 3. Waiver; 4. Prejudice to the accused. [4] In R. v. Morin, (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25 (QL), the majority adoptedan expanded approach. LaForest, Sopinka, Stevenson and Iacobucci JJ. agreed s. 11(

b) of the Charter should be applied holistically. Thisapproach was followed in R. v. Lanteigne, 2010 NBCA 91, 366 N.B.R. (2d) 1, per Bell J.A., as he then was: The relevant jurisprudence regarding the right to be tried within a reasonable time is set out in R. v. Askov, (SCC), [1990]2 S.C.R. 1199, [1990] S.C.J. No. 106 (QL); R. v. Morin, (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25 (QL) atparas. 31-64 and R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3; and reiterated by this court in Giberson v. R., 2010 NBCA 19, 356 N.B.R.(2d) 196 at para. 4; Black v. R., 2010 NBCA 65, [2010] N.B.J.

No. 287 (QL) at para. 13; and Black v. R., 2010 NBCA 36, [2010] N.B.J.No. 171 (QL) [Black (I)]. It is now trite law that the following factors are to be considered by a trial judge in assessing whether a delayviolates an accused’s s. 11(

b) Charter right: 1. The length of the delay; 2. Waiver of time periods; 3. The reasons for the delay, including: (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, (

e) other reasons; and 4. Prejudice to the accused.

Prejudice can be inferred in the case of excessive delays: R. v. Smith, (SCC), [1989] 2 S.C.R. 1120, [1989] S.C.J. no.119 (QL), at para 42; Askov at para. 67; Morin at para. 61; Godin at paras. 34, 37; and, Giberson v. R., 2010 NBCA 19, 356 N.B.R. (2d)196, at para. 6. The standard of review in s. 11(

b) cases is normally as set out in R. v. Gray, 2001 NBCA 51, 239 N.B.R. (2d) 83, (adopted in Gibersonat para. 2): The determination of unreasonable delay is, in large measure, a question of fact.

Unless the trial judge made an error of law, this Courtmust show deference when asked to reverse a finding that an accused’s right to be tried within a reasonable time has been violated. [para.6] In this case, however, the Court is being asked to respond to a pure question of law, namely, whether the period of a stay directed unders. 579 should be attributed to the Crown for purposes of assessing the reasonableness of a delay.

On that narrow question, the standardis one of correctness. [paras. 9-11] As a general rule, institutional delay raises issues of trial fairness, which should be assessed contextually. [5] From the date of the first appearance before a Provincial Court, there were adjournment requests by both Mr.Downey and the Crown. Mr. Downey raised the issue of delay at the beginning of the trial; however, this was in reference to his notbeing able to secure and serve subpoenas in time. Again, at the end of his case, Mr.

Downey opined there would be further delay, shouldthe court allow the Crown motion to call rebuttal evidence. I note, parenthetically, that this was a delay of only a few days, but Mr.Downey did raise the issue. During the trial, he admitted his fault for one of the adjournments: “and it, I know it’s mostly my fault, to acertain degree […]”. [6] The request for a stay of proceedings pursuant to s.11 (

b) of the Charter was raised by Mr. Downey for thefirst time on appeal. At no time did he request a stay of proceedings on the ground his Charter right to a trial without delay had beenviolated; therefore, the trial judge was never asked to rule on this question. As the issue of institutional delay was not put to the trialjudge for determination, there is no decision on this element of the appeal to review. Even if it had been raised, there is no evidence tosuggest Mr. Downey was prejudiced, or that he did not have a fair trial as a result of several adjournments at the request of both parties. B.

State-funded counsel [7] Mr. Downey asserts his conviction should be overturned because he was not provided with state-fundedcounsel, thereby denying him the right to a fair trial as guaranteed in s. 7 of the Charter. He submits he could not effectively provide afull answer and defence. As a general rule, the onus is on the accused to prove he or she cannot properly represent him or herself at trial,and, in the interests of justice, requires state-funded counsel: R. v. Rowbotham, (ON CA), [1988] O.J. No. 271 (C.A.)(QL). [8] In LeBlanc v.

R., 2005 NBCA 6, 279 N.B.R. (2d) 121 per Deschênes J.A., at para. 8, leave to appeal refused[2011] S.C.C.A. No. 214 (QL), this Court directed when an accused requests the appointment of state-funded counsel, the judge isgenerally required to consider the following factors: 1. The seriousness of the charge; 2. The possibility of imprisonment; 3. The complexity of the case; 4. The length of the trial; 5. The accused’s capacity to conduct his/her own defence.

[9] Further, the respondent’s submission that there is no “unqualified” right to state-funded counsel is consistentwith what this Court stated in R. v. Osborne, 2003 NBCA 86, 268 N.B.R. (2d) 184. In New Brunswick Legal Aid Services Commission v.R. and Koumoutsidis, 2006 NBCA 32, 297 N.B.R. (2d) 186, Richard J.A. reiterated the above, and added: In the present case, Mr.

Koumoutsidis did not lead any evidence in the Court of Queen’s Bench to establish that legal representationwould be essential to achieve a fair trial and that he lacks the financial resources to mount a proper defence. [para. 10] [10] At the outset of the trial, the judge asked Mr. Downey if he was representing himself. When he confirmed hewas, he added he had been denied legal aid. There was no mention of an appeal from that denial, but he advised the trial judge he suffersfrom a learning disability and dyslexia, and did have private counsel at one point. Mr.

Downey did not request the appointment of state-funded counsel. [11] The issue of state-funded counsel was first advanced by Mr. Downey on appeal. There was no inquiryconducted by the trial judge in this case, as Mr. Downey did not ask the court to rule on this issue. Indeed, even if he had, it is unlikelythat state-funded counsel would have been ordered. This case was neither complex, nor lengthy. Mr. Downey was afforded everyopportunity to present his evidence, and there is nothing to suggest he did not have a fair hearing. Throughout, the trial judge wasconsiderate and respectful, and provided Mr.

Downey with evidentiary explanations from time to time without giving him advice per se.There was sufficient evidence before the court to enable a proper adjudication of the issues. [12] With respect to both trial delay and state-funded counsel, there are three prerequisites that must be satisfied topermit raising an issue for the first time on appeal, including a Charter challenge: (1) a sufficient evidentiary record to resolve the issuemust be present; (2) the accused’s failure to raise the issue at trial must not have been for tactical reasons; and (3) no miscarriage ofjustice may result from the refusal (R. v.

Brown, (SCC), [1993] 2 S.C.R. 918, [1993] S.C.J. No. 82 (QL), at para. 20).These criteria militate against the appellant’s position in the present case, and have been adopted by this Court in many recent decisions:Brooks v. The Law Society of New Brunswick et al., 2015 NBCA 18, [2015] N.B.J. No. 78 (QL), at para. 3; Langlais v. R., 2008 NBCA20, 328 N.B.R. (2d) 201, at para. 5; Black v. R., 2010 NBCA 36, 360 N.B.R. (2d) 132, at para. 3, leave to appeal refused [2010]S.C.C.A. No. 325 (QL); Black v. R., 2010 NBCA 65, 363 N.B.R. (2d) 316, at para. 5, leave to appeal refused [2010] S.C.C.A. No. 469(QL); Hachey v.

R., 2012 NBCA 14, 383 N.B.R. (2d) 197, at para. 5; C.M.H. v. J.R.H., 2012 NBCA 71, 393 N.B.R. (2d) 154, at para.29; Downey v. R., 2012 NBCA 78, 392 N.B.R. (2d) 238, at para. 6. C . Trial judge bias [13] Mr. Downey opines the trial judge was biased as he had prior knowledge of his criminal record. There isnothing in the evidence to support this submission and, in my opinion, it has no merit and does not meet the test for bias set out in R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84 (QL). D.

Trial judge’s discretion with respect to [fresh] evidence and exhibits [14] Crown counsel requested leave to call rebuttal evidence ostensibly to refute the evidence of defence witnessesconcerning what and when certain information had been sent to the office of the Registrar of the New Brunswick Court of Appeal. Mr.Downey submits this evidence could have been offered by the Crown as part of its case, and secondly, that notice had not been given tohim as required by s. 28 of the Canada Evidence Act, R.S.C. 1985, c.

C-5. [15] Called as a rebuttal witness, the Registrar testified to the contents of her file and confirmed what documentswere faxed to her office prior to the interim release hearing. Mr. Downey was given the opportunity to cross-examine the Registrar andhe declined. The receipt of rebuttal evidence in the circumstances was within the discretion of the trial judge, which is owed deference,and there is no merit to this ground of appeal (R. v. G.(S.G.), (SCC), [1997] 2 S.C.R. 716, [1997] S.C.J. No. 70 (QL), atpara. 30, and Lempen v. R., 2008 NBCA 86, 338 N.B.R. (2d) 377, per Bell J.A., as he then was, at para. 20).

Notice pursuant to s. 28 ofthe Canada Evidence Act was not required (see S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian CriminalEvidence, 5th ed. (Toronto: Thomson Reuters, 2014) (loose-leaf updated 2014, release 5) ch. 24 at 19). III. Disposition

[ 16 ] The trial judge drew inferences from the evidence and made findings of fact. Inferences are conclusions drawn from facts. The standard of appellate review on findings of fact is palpable and overriding error. From the evidence, I conclude the trial judge made no palpable and overriding error in drawing inferences from the facts: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 , at paras. 10 and 19 . [ 17 ] Further, an appellate court is not at liberty to overturn findings of credibility simply because it would have come to a different conclusion: Gillis v. R. , 2014 NBCA 58 , [2014] N.B.J.

No. 242 (QL) , at paras. 74-75 , leave to appeal refused [2014] S.C.C.A. No. 496 (QL). In addition, the standard for appellate review on the basis of evidential misapprehension is “stringent” ( Gillis , at paras. 76-78 ). [ 18 ] Applying the above, I would not interfere with the trial judge’s findings of fact. I conclude there was no misapprehension of the evidence by the trial judge, and the verdict is reasonable. [ 19 ] I would dismiss the appeal against conviction. __________________________ BARBARA L. BAIRD, J.A. WE CONCUR: ___________________________ M.E.L.

LARLEE, J.A. ___________________________ KATHLEEN A. QUIGG, J.A.