R. v. S. P., 2015 NLCA 30

Date: 2015060 9 Docket: 14/75 Citation: R. v. S. P. , 2015 NLCA 30

Section 486.4 of the Criminal Code respecting the non-publication of the identity of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: S. P. APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Harrington J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201204G0111 Appeal Heard: May 21, 2015 Judgment Rendered: June 9, 2015 Reasons for Judgment by Rowe J.A. Concurred in by Welsh and Harrington JJ.A. Counsel for the Appellant: Self Represented (Video Conference)

Counsel for the Respondent: Iain R. W. Hollett Rowe J.A.: [ 1 ] On May 8, 2012, S. P. was convicted in Provincial Court of two counts of assault and one count of uttering a threat. R. v. S. P. 2012 PCNL 1410A00176 . Regarding the uttering of a threat, the trial judge found that S. P. became angry with his then wife (the complainant) and threatened to “beat [her] brains out”. Concerning the two counts of assault, the trial judge found that on one occasion S. P. had thrown a bag of turkey organs at the complainant, hitting her in the chest. The trial judge found that on another occasion S.

P. had punched the complainant’s arm. [ 2 ] S. P. appealed the convictions to a judge of the Trial Division sitting as a

Summary Conviction Appeal Court (SCAC). In September 2014, the SCAC dismissed S. P.’s appeal. R. v. S. P. 201204G0111. Pursuant to s. 839 of the Criminal Code , S. P. seeks leave to appeal the SCAC decision; he is seeking to have this Court enter acquittals or order a new trial. [ 3 ] The test for granting leave to appeal under s. 839 was set out in R. v. Newfoundland Recycling Ltd. , 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153 at para. 9 : [T]hus, to obtain leave to appeal pursuant to s. 839(1): (

a) the appeal must “be taken on a ground that involves a question of law alone”, and (

b) the ground(

s) of appeal must be such that: (

i) either the ground of appeal has a “reasonable possibility of success”, or (ii) “the proposed question of law [has significance] to the administration of justice”. See also, R. v. Mahoney , 2011 NLCA 71 at para. 5 . [ 4 ] S. P. raises five issues in his application for leave to appeal: (1) did the trial judge adequately assist S. P. (who represented himself) such that he received a fair trial; (2) did the trial judge err when he denied S.

P.’s request to recall the complainant for further cross-examination; (3) did the trial judge err when he refused to issue warrants for the arrest of two witnesses subpoenaed by S. P.; (4) was the trial judge’s assessment of S. P.’s credibility improperly influenced by the Crown’s application for the appointment of counsel to cross-examine the complainant (rather than allowing S.

P. to do so); (5) what is the effect of an error in the probation order, which stated that he had pled guilty, rather than having been found guilty? [ 5 ] The Crown took the position that issues (1), (2) and (3) are “questions of law alone”, while issues (4) and (5) are not. The upshot is that issues (4) and (5) could not constitute grounds for the granting of leave to appeal, whereas (1), (2) and (3) could do so, if they otherwise meet the test set out above. For the purposes of s. 839(1) of the Criminal Code , I accept the Crown’s characterization of the first three issues as questions of law. See R. v.

Biniaris , [2000] 1 S.C.R. 381, 2000 SCC 15 , para. 21-23 ; R. v. J.M.H. , [2011] 3 S.C.R. 197, 2011 SCC 45 , para. 24-39 . [ 6 ] As stated in Newfoundland Recycling , an appellant who has had the benefit of the decision of a SCAC may appeal to this Court only on a question of law. But satisfying that criterion is not sufficient. In addition, a ground of appeal must have a reasonable possibility of success or the question of law must have significance to the administration of justice. In this case, the latter requirement is not satisfied.

The grounds of appeal do not engage new or uncertain principles of law, nor are they otherwise significant to the administration of justice. It is necessary, then, that one of the grounds of appeal must have a reasonable possibility of success. The following review of the three grounds that raise a question of law leads to the conclusion that none of the grounds has a reasonable possibility of success.

(1) Trial Judge’s Assistance to S. P. [ 7 ] S. P. submitted to this Court that the trial judge frequently interrupted him as he sought to present his case. In S. P.’s submission, rather than assisting him to present his case, the trial judge repeatedly hindered him from doing so. [ 8 ] In S. P.’s view the trial judge unfairly prevented him from leading evidence that would tend to show that the complainant had demonstrated a pattern of untruthfulness. [ 9 ] In reply, the Crown submits that the trial judge was diligent in providing proper assistance to S.

P. as a self-represented accused, particularly by explaining procedures to S. P. and assisting him in the proper formulation of questions to witnesses. [ 10 ] Regarding S. P.’s efforts to bring forward evidence that the complainant had been untruthful on other occasions, the Crown submits that such evidence was properly excluded, as it was not material to the charges against S. P. [ 11 ] S. P. sought to compel the attendance of K. N. as a witness, with a view to eliciting testimony from him that the complainant had falsely accused K. N. of sexual assault. The trial judge permitted S.

P. to ask the complainant whether she had made a false allegation of sexual assault against K. N. She denied that she had falsely accused K. N. The trial judge refused to compel K. N. to

attend and give evidence on the basis that evidence regarding the truthfulness of the complainant’s reply regarding K.N. was collateral tothe matters at trial. [12] In so deciding, the trial judge correctly applied the law relating to the collateral issues. R. v. Hall 2014 NLCA 25, para. 33. R.v. A.R.B. (1998), (ON CA), 41 O.R. (3d) 361, 128 C.C.C. 457 (Ont. C.A.), aff’d 2000 SCC 30, [2000] 1 S.C.R. 781. [13] As to whether, more generally, the trial judge provided proper assistance to S.

P. as a self-represented accused, the reasons ofthe SCAC demonstrate why there is no reasonable possibility of success of this ground of appeal: Prior to the hearing of evidence, the trial judge took time to explain to the Appellant the procedure to be followed at trial. The Appellantindicated that he understood the charges and the Judge’s advice. At the conclusion of the Crown’s case, the trial judge again assisted theAppellant by explaining the procedure in presenting evidence, should the Appellant wish to do so.

Throughout the trial, the judge was careful and vigilant to exclude any improper evidence put forward by the Crown. In all cases thiswas done notwithstanding the absence of any objection by the Appellant. Evidence excluded by the trial judge included a number ofhearsay statements as well as a copy of documentary evidence which did not comply with the Evidence Act. In

summary, the record of the proceedings indicate [sic] that the trial judge took all reasonable efforts to ensure that the Appellant had afair trial. [14] I would note a further matter. S. P. had been charged with breach of an Emergency Protection Order (EPO). The Crownsought to place in evidence a non-certified copy of the EPO: The judge refused this. As a result, the charge relating to the EPO wasdismissed.

(2) Re-calling the Complainant [15] S. P. submits that the trial judge prevented him from completing his cross-examination of the complainant. At the end of thefirst day at trial, the judge asked S. P. if he had any more questions for the complainant, to which S. P. replied “no, not at this time”. [16] On the second day at trial, S. P. indicated that he wished to ask further questions of the complainant. This would involverecalling the complainant to the witness box. The judge asked S. P. what line of questioning he intended to pursue if the complainantwas recalled to give further testimony. S.

P. indicated that he wished to ask the complainant whether her father had sexually assaultedher as a child and whether she had related this to a social worker. The trial judge held that the intended line of questioning was irrelevantto the charges against S. P. and, thus, denied his request that the complainant be recalled to testify. [17] In so doing, the trial judge acted in accordance with law by limiting the evidence at trial to matters material to the offencesalleged against S. P. Again, there is no reasonable possibility of success on this ground of appeal.

(3) Refusal to Issue Warrants for Subpoenaed Witnesses [18] This overlaps with issue (1) above. S. P. had subpoenaed K. N. to testify, but he did not appear. S. P. had also subpoenaedS.N., but she did not appear either. [19] S. P. sought to have the trial judge issue witness warrants to compel the attendance of K. N. and S. N.

Section 705 of theCriminal Code provides for such warrants. It reads: 705.

(1) Where a person who has been served with a subpoena to give evidence in a proceeding does not attend or remain in attendance,the court, judge, justice or provincial court judge before whom that person was required to attend may, if it is established (

a) that the subpoena has been served in accordance with this Part, and (

b) that the person is likely to give material evidence, issue or cause to be issued a warrant in Form 17 for the arrest of that person. (Emphasis added.) [20] The trial judge asked S. P. as to the nature of the testimony that he wished to elicit from K. N. and S. N. The judge did so inorder to determine whether either was a person “likely to give material evidence”. [21] S. P.’s reply concerning K. N. is dealt with above. Concerning S. N., S.

P. indicated that she could testify that she had seen thecomplainant drive while having neither a valid licence nor insurance and that the complainant had done so in a car that was unfitmechanically. [22] The trial judge held that the materiality requirement set out in s. 705(

b) was not met and, accordingly, refused to issue thewitness warrants sought by S. P. Again, there is no reasonable possibility of success of this ground.

(4) Crown Application to Appoint Counsel for Cross-Examination of the Complainant [23] While it is not necessary for me to deal with this issue (as it is not “a question of law alone”), it is clear that the trial judgerefused the Crown’s application and that the accused was permitted to cross-examine the complainant. I note the

summary provided bythe SCAC: The Crown filed an application on January 24, 2012 pursuant to

section 486.3(2) for an order not permitting the defendant to personallycross-examine [K. N.] and for the Appellant to appoint a lawyer to handle the cross-examination.

The application was properly made by the Crown. The provision provides that an order would be granted if the court is of the opinion that in order to obtain a full and candid account from a witness of the acts complained of, the accused should not be permitted to cross examine the witness. The trial judge denied the application which indicates that he did not accept that there would be any difficulty in obtaining a full and candid account from [K. N.] if cross examined by the Appellant. The Appellant has failed to put forward any evidence of bias by the trial judge in dealing with this application. The ground of appeal has no merit.

(5) Error in Probation Order [ 24 ] The wording of the probation order does not relate to the matter under appeal, that being the conviction. Rather, it relates to sentence, which was not appealed. [ 25 ] In any event, the matter was dealt with by the SCAC: After the conviction of the Appellant, the officials at Provincial Court prepared a probation order in which a recital incorrectly stated that the Appellant “pleaded guilty” to the charges instead of being found guilty. In all other respects the probation order was in order and correct.

In my view, the typographical error is of no consequence to the validity of the convictions previously entered. CONCLUSION [ 26 ] Only the first three grounds of appeal raise a question of law as required for an appeal from the SCAC. None of those grounds has a reasonable possibility of success or has significance for the administration of justice. Accordingly, leave to appeal is denied. ____________________________________ M. H. Rowe J.A. I Concur: ______________________________ B. G. Welsh J.A. I Concur: ______________________________ M. F. Harrington J.A