R. v. Burry, 2023 NLSC 120

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Burry , 2023 NLSC 120 Date : September 11, 2023 Docket : 202101G0354 His Majesty the King v. Devon Burry Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Sandra R.

Chaytor On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 19-32210 dated the 17th day of December 2020. Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 2, 2022; April 26, 2022; May 4, 2023 and May 19, 2023

Summary: The Appellant was convicted following trial in Provincial Court of one count of criminal harassment pursuant to section 264(1) of the Criminal Code , and one breach of a Probation Order contrary to

section 733.1(1) of the Criminal Code . He appealed the

summary convictions on the grounds that: (1) he was denied natural justice on a pre-trial application to appoint counsel to cross-examine the complainant; (2) the trial judge failed to provide him, as a self-represented accused, with an adequate level of assistance; (3) the trial judge erred in law in not providing sufficient reasons for the decision to convict; (4) the verdict on the criminal harassment charge was unreasonable in that the trial judge did not consider the complainant’s motive to fabricate; and (5) the trial judge erred in failing to inquire into a potential breach of

section 9 of the Charter . Held: The appeal was dismissed on all grounds and the convictions upheld.

Appearances: Jill N. Quilty and Paul J. Thistle Appearing on behalf of the Crown Devon Burry Appearing on his own behalf Authorities Cited: CASES CONSIDERED: R. v. McKinley, 2022 ONCJ 323; R. v. J.J., 2022 SCC 28; R. v. Ryan, 2012 NLCA 9; R. v. Tran (2001), (ON CA), 149 O.A.C. 120, 156 C.C.C. (3d) 1; R. v. Phillips, 2003 ABCA 4, aff’d 2003 SCC 57; R. v. Wolkins, 2005 NSCA2; R. v. Khan, 2001 SCC 86; R. v. Littlejohn (1978), (ON CA), 41 C.C.C. (2d) 161, 1978 CarswellOnt 1201 (Ont.C.A.); R. v. Leno, 2021 BCCA 200; R. v. Corbett, (SCC), [1988] 1 S.C.R. 670 ; R. v.

Sheppard, 2002 SCC 26; R. v.R.E.M., 2008 SCC 51; R. v. Vuradin, 2013 SCC 38; R. v. G.F., 2021 SCC 20; R. v. Sinclair, 2011 SCC 40; R. v. Reddick (J.S.) (1995), (NS SC), 150 N.S.R. (2d) 209, 436 A.P.R. 209 (N.S. S.C.) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Charter of Rights and Freedoms,

Part I of the Constitution Act,1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Canada Evidence Act, R.S.C., 1985, c. C-5 REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION [1] The Appellant was convicted of one count of criminal harassment pursuant to section 264(1) of the Criminal Code, R.S.C.1985, c. C-46 (the “Criminal Code”) and one breach of a probation order contrary to

section 733.1(1) of the Criminal Code. [2] The Appellant was self-represented at trial and on this appeal. He appeals both

summary convictions to this Court pursuant tosection 813 of the Criminal Code. [3] The grounds of appeal include errors the Appellant contends were committed by the trial judge. As well, the first ground ofappeal includes an error the Appellant submits was made by the judge who heard a pre-trial application pursuant to s. 468.3(2) of theCriminal Code for appointment of counsel to cross-examine the complainant. [4] This is my decision with respect to the appeal. grounds of appeal [5] In the Notice of Appeal, the Appellant identified five grounds of appeal, as follows: 1.

He was denied natural justice in that he was not called upon to make submissions at the hearing of the application to appointcounsel for cross-examination of the complainant; 2. The trial judge did not provide the minimum level of assistance to him as a self-represented accused; 3. The trial judge did not deal with material inconsistencies in the complainant’s testimony; 4. The trial judge did not deal with the complainant’s motive to fabricate; and 5. The trial judge did not explain why his testimony did not give rise to a reasonable doubt.

[ 6 ] The Appellant submits that the first two grounds of appeal are procedural issues which affect the convictions on both the breach of probation charge and the criminal harassment charge. The remaining three grounds of appeal, the Appellant submits, relate solely to the conviction on the criminal harassment charge. [ 7 ] In his factum, the Appellant identified ten “issues” for consideration on the appeal. These issues were largely an expounding and particularization of the grounds of appeal set out in the Notice of Appeal.

Through the Appellant’s written and oral submission, it became clear that the grounds enumerated above as three and five concern the sufficiency of the trial judge’s reasons and I will deal with these grounds on that basis. [ 8 ] In his submissions, the Appellant also raised a further ground of appeal not set out in the Notice of Appeal. He submitted that the trial judge erred in failing to conduct an inquiry into a potential

section 9 breach of the Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 . [ 9 ] The Appellant has also sought costs against the Crown in having proceeded with the prosecution of the charges. [ 10 ] Insofar as the Crown acknowledged and made submissions on the additional issues raised, I will address them. [ 11 ] I have categorized the grounds of appeal and will deal with them in the following order: 1. Was the Appellant denied natural justice on the application to appoint counsel to cross-examine the complainant such that an error of law or miscarriage of justice occurred justifying an appeal? 2.

Did the trial judge fail to provide the Appellant, as a self-represented accused, an adequate level of assistance such as to warrant appellate intervention? 3. Did the trial judge err in law in not providing sufficient reasons for his decision? 4. Was the verdict on the criminal harassment charge unreasonable in that the trial judge did not consider whether the complainant had a motive to fabricate? 5. Did the trial judge err in not conducting an inquiry into a potential breach of

section 9 of the Charter ? Disposition [ 12 ] The appeal is dismissed and the convictions upheld. powers on appeal [ 13 ] This is a

summary conviction appeal brought pursuant to

section 813 of the Criminal Code . [ 14 ] Section 822(1) of the Criminal Code states that where an appeal is taken under

section 813 , sections 683 - 689 of the Criminal Code apply with such modifications as the circumstances require. [ 15 ] Section 686(1) governs appeals from convictions, and reads, in part: 686

(1) At the hearing of an appeal from a conviction… the Court of Appeal, (

a) may admit the appeal, if it is of the opinion, (

i) the verdict should be dismissed on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground that it is an erroneous decision on a question of law, (iii) there has been a miscarriage of justice for any reason; (

b) may dismiss the appeal if, (

i) is of the opinion that the appellant, although not properly convicted on one count or part of the indictment, was lawfully convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any of the grounds mentioned in paragraph (a),

(iii) although it is of the opinion that, for a reason mentioned in subparagraph (a)(ii), the appeal could be decided in favour of the appellant, it is of the opinion that no material harm or serious miscarriage of justice occurred, (iv) notwithstanding a procedural irregularity at trial, the trial court had jurisdiction over the class of offences to which the appellant was convicted and is of the opinion that no prejudice was caused to the appellant by that irregularity; … Analysis Ground 1: Was the Appellant denied natural justice on the application to appoint counsel to cross-examine the complainant such that an error of law or miscarriage of justice occurred justifying an appeal? [ 16 ] This ground of appeal is sought in accordance with sections 686(1)(a)(ii) and (iii).

Questions of law are reviewable on the standard of correctness, and the test for 686(1)(a)(iii) permits the Court to allow the appeal where an accused had an unfair trial or the proceedings gave rise to a miscarriage of justice. [ 17 ] The Appellant submits that he was not called upon to make a submission at the hearing of the Crown’s application pursuant to

section 486.3(2) of the Criminal Code to appoint counsel to cross-examine the complainant, prior to the judge deciding the application. [ 18 ] The Appellant contends that appointing counsel to cross-examine a witness deprives an accused of his right to personally conduct his defence.

He further submits that there are circumstances where an accused can overcome the presumption that counsel will be appointed, and that the appointment of counsel in absence of defence submissions amounts to a violation of the accused’s natural rights. [ 19 ] For all of these reasons, the Appellant submits that the omission of the applications judge to hear from him prior to rendering a decision on the application “render[ed] the hearing unfair in both reality and appearance.” [ 20 ]

Section 486.3(2) of the Criminal Code provides that in a proceeding in respect of an offence under

section 264 , the judge shall, on application of the prosecturo in respect of a witness who is a victim, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross- examination. [ 21 ] In a letter sent to the Provincial Court by the Appellant prior to the hearing of the application, the Appellant confirmed he had received the Crown’s

section 486.3(2) application. The Appellant wrote, “[The letter] is basically a request to have Jonathan Noonan appointed as

section 486 council [ sic ] in the event that the Crown’s application under

section 486.3 is granted.” [ 22 ] This correspondence confirms the Appellant received the application and was aware of its purpose. The wording, “in the event” the application is granted further shows that the Appellant was aware the granting of the application was not necessarily a foregone conclusion. [ 23 ] At the hearing on the application, the judge called on the Crown to speak to the application. Following the Crown’s submission, the following exchange occurred: The Court: All right. So Mr.

Burry, you understand that once the Crown has made this application it is mandatory unless there are certain grounds that have been established by yourself. I have nothing that would preclude me from making this application, or granting this application today so I am going to do so. That means that there will be an AG appointment. There will be a lawyer appointed exclusively for the purpose of cross examination of the complainant. All right. Mr. Burry: Yes. The Court: Did you have anything to say? Mr.

Burry: I also actually, in anticipation of the granting of this application, I – we don’t know who the counsel is going to be so I did send a letter, actually, to the court, and I sent also a letter to the prosecutor… asking for Jonathan Noonan to be appointed as counsel. He is a lawyer that I am familiar with. I am not sure if you have my letter there but everything is explained in it. Basically Mr. Noonan has been

section 486 counsel for me in a prior trial. Actually it was the same complainant. … [ 24 ] The Appellant continued by telling the applications judge that he had already approached Mr. Noonan and that he would be willing to act in this capacity during the trial. [ 25 ] On this appeal, the Appellant contends that he was not provided an opportunity to make submissions on the rightfulness of the judge granting the Crown’s application.

[ 26 ] In R. v. McKinley , 2022 ONCJ 323 , a self-represented accused, charged with criminal harassment, objected to the appointment of counsel to cross-examine the complainant. The court, in denying the accused’s request to personally conduct the cross-examination, described how

section 486.3 seeks to strike a balance between the rights of the accused to a fair trial and to conduct their own defence against the right of a witness not to be further victimized ( McKinley at paragraphs 14 and 15 ). [ 27 ] The right to cross-examination of a witness is not unlimited. It must be balanced by countervailing factors such as the potential prejudice to the witness and the trial process itself. An accused person cannot simply declare that a certain cross-examination strategy will be the most effective means to defend the case and then expect to be granted permission to adopt it ( R. v. J.J ., 2022 SCC 28 at paragraphs 183 and 184 ). [ 28 ] The default presumption on a

section 486.3(2) application is that counsel will be appointed to cross-examine the complainant. To rebut that presumption, an accused needs to present compelling, specific evidence that the interests of justice, require that they personally conduct the cross-examination. [ 29 ] Parliament specifically included the crime of criminal harassment in

section 486.3(2) as a justification for issuing an order to appoint counsel for the purpose of cross-examining a complainant. To permit the accused to cross-examine a complainant who comes to court testifying that she has been the subject of repeated behavior by the accused that has caused her to fear for her safety, would risk perpetuating the alleged harassment. While an accused is presumed innocent and has the right to defend himself and to conduct his defence as he sees fit, Parliament has placed reasonable limits on that right in those circumstances. [ 30 ] The Appellant had input on the

section 486.3(2) application. He communicated with the court, in writing, prior to the application being heard. He was also called upon to make a submission during the hearing.

On both occasions the Appellant made the same submission focusing not on whether he could rebut the presumption in having counsel appointed but rather on identifying who he would prefer to have appointed in that capacity. [ 31 ] The record also shows however that the applications judge did state that she was going to grant the application prior to inviting the Appellant to speak. [ 32 ] The Appellant is articulate and has proven to be relatively capable in presenting his case and making submissions.

The record shows that he understood the application process, engaged in it, and took the opportunity to speak when called upon. Nonetheless, the possibility exists that the Appellant may not have fully appreciated the full implications of that opportunity. [ 33 ] In dealing with the Appellant as a self-represented party, the applications judge should have been clear when calling upon him to speak that he could make any submission he wished including to try and rebut the presumption to appoint counsel in the circumstances.

The nature of the submission that the Appellant was being asked to make should not have been ambiguous and the opportunity to do so should have been granted prior to the judge stating that she was going to grant the order. [ 34 ] In this regard, the Appellant has identified a procedural irregularity.

If I conclude, however, that no substantive wrong or miscarriage of justice occurred, then I may dismiss the appeal, notwithstanding that the Appellant may have shown an error of law. [ 35 ] The presumption in favour of appointment of limited-purpose counsel is very strong when a 486.3(2) application is made. [ 36 ] The Appellant has not established how the proper administration of justice required that he have the opportunity to personally cross-examine the complainant.

Rather, the Appellant seems to erroneously believe that the “failure” of the judge to invite submissions from him prior to stating that the order was going to be granted, is a “foundational defect” mandating that his appeal be granted. [ 37 ] A vague assertion of the right of the Appellant to conduct his own defence is not sufficient.

Parliament has deliberately, and reasonably, limited that right in circumstances where to do so could result in the potential perpetuation of the alleged offence and a further victimization of the complainant. [ 38 ] Furthermore, the Appellant has not articulated any prejudice arising as a result of not being asked to speak to the application prior to the applications judge indicating that the application would be granted. [ 39 ] Counsel of the Appellant’s choice, Mr. Noonan, was appointed to conduct the cross-examination.

The record shows that the trial proceedings adjourned twice to allow the Appellant to consult with Mr. Noonan (pages 76, 77 and 97 of the transcript of trial). [ 40 ] Further, Mr. Noonan specifically questioned the complainant on the content of Facebook messages between her and the Appellant and whether the messages adduced into evidence were a complete record of their communications. This was significant evidence for the Appellant in his defence which was largely aimed at the subjective state of mind of the complainant. [ 41 ] I am unable to conclude that the outcome of the

section 486.3(2) application, let alone the trial, would have been different had the Appellant made submissions on the application prior to the applications judge indicating that she was going to grant the application. [ 42 ] No substantive wrong or miscarriage of justice occurred. This ground of appeal is dismissed. Ground 2: Did the trial judge fail to provide the Appellant, as a self-represented accused, an adequate level of assistance such as to warrant appellate intervention? [ 43 ] This ground of appeal is sought in accordance with section 686(1)(a)(iii) of the Criminal Code .

The test permits the Court to allow the appeal where an accused had an unfair trial or the proceedings gave rise to a miscarriage of justice. [ 44 ] The Appellant contends that he is entitled to an appeal by reason of inadequate judicial assistance to an unrepresented accused. [ 45 ] Specifically, the Appellant points to two areas in which the trial judge did not provide him with adequate assistance:

1. In not having informed the Appellant, prior to commencing his testimony, that he could be cross-examined on his criminal record;and 2. In denying the Appellant’s motion for mistrial without making sufficient inquiry. The Duty owed to a Self-Represented Accused by a Trial Judge [46] In R. v.

Ryan, 2012 NLCA 9, at paragraphs 128-129, the court of appeal dealt with the duty of a trial judge to an unrepresentedaccused: 128 The fundamental duty of a trial judge to see that an accused receives a fair trial means that the judge must take steps to provideassistance to an unrepresented accused to enable his or her defence, or any defence that proceeding may reasonably disclose, is broughtto the attention of the jury with full force and effect … 129 The trial judge's duty does not go as far as providing the same degree of assistance as would be provided by counsel if theaccused were represented: R. v.

Rain, para. 38. Otherwise he or she would become an advocate for the accused, thereby compromisingjudicial impartiality. There is no set formula of instruction that can ritualistically be used in each case. The advice and instruction must betailored to the particular circumstances. As stated by Fruman J.A. in R. v. Phillips, 2003 ABCA 4, 172 C.C.C. (3d) 285 (Alta. C.A.), aff'd2003 SCC 57 , [2003] 2 S.C.R. 623 (S.C.C.): [22] ... ... trials involving unrepresented accuseds are rarely consistent or simple.

Their need for guidance varies depending on the crime,the facts, the defences raised and the accused's sophistication. The judge's advice must be interactive, tailored to the circumstances of theoffence and the offender, with appropriate instruction at each stage of a trial. [23] How far a trial judge should go in assisting an accused is therefore a matter of judicial discretion: McGibbon, supra, at 347. Theoverriding duty is to ensure that the unrepresented accused has a fair trial. [Emphasis added in original] [47] The assessment of whether the Appellant had a fair trial is contextual.

It is the kind of analysis that does not easily lend itself tobright red lines that, once crossed, amount to a reviewable error on appeal. It requires examining the conduct of the trial as a whole. [48] Additionally, a judge has an obligation of impartiality to the process that is different from a lawyer’s duty to their client. Thejudge’s obligation is to protect the accused’s right to a fair trial by giving them information which enables them to bring forward theirdefence in full force and effect.

This obligation does not mean that the trial judge is required to advise an accused of all potential risksassociated with a particular course of action. It must depend on the context, the circumstances of the case and the accused. [49] In R. v. Tran (2001), (ON CA), 149 O.A.C. 120, 156 C.C.C. (3d) 1, the court stated that there is “aminimum level of assistance” that is required in order to ensure that an accused obtains a fair trial (Tran at paragraph 31). [50] In R. v.

Phillips, 2003 ABCA 4, aff’d 2003 SCC 57, the court stated whether the trial judge adequately assisted the appellant asan unrepresented accused, requires a “careful and detailed examination of the complete trial record.” This involves an evaluation of thetrial judge’s action in light of the facts and the circumstances of the case (Phillips at paragraph 26). Test on Appeal – Miscarriage of Justice [51] Even where the level of assistance provided to an unrepresented accused is inadequate, that inadequate assistance is not a free-standing ground of appeal.

The question is whether there has been a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code"(Ryan at paragraph 131). [52] The test for appellate intervention in such circumstances is whether the accused received a fair trial. A fair trial encompassesboth the ability to make full answer and defence as well as the appearance of fairness. The absence of a fair trial in this sense may justifya conclusion that there has been a miscarriage of justice (Ryan at paragraph 132 citing Rushlow, at paragraph 35). [53] In R. v.

Wolkins, 2005 NSCA 2, Cromwell J.A. (as he then was) wrote that a miscarriage of justice can occur either: (

i) becausethe trial was unfair; or (ii) the conduct of the trial shakes public confidence in the administration of justice. A miscarriage of justice mayresult where the reliability of the trial's result may have been compromised (Wolkins at paragraph 84). [54] In R. v. Khan, 2001 SCC 86, LeBel J., in concurring reasons, provided a helpful analysis for identifying when a miscarriage ofjustice occurs.

The essential question before the court when a party alleges that an irregularity at trial constituted a miscarriage of justice,is whether that irregularity was severe enough to render the trial unfair or to create the appearance of unfairness.

The emphasis is on thegravity of the irregularity and the effect it may have had on the fairness of the trial (Khan paragraph 69). [55] The appearance of unfairness should be assessed in relation to a reasonable and objective observer, by asking if the irregularitywould be such as to taint the administration of justice in his or her eyes (Khan at paragraph 73). [56] In Khan, Lebel, J. cautioned against providing any strict formula in order to determine when a miscarriage of justice has taken

place. He provided, however, a non-exhaustive list of factors to consider on appeal for assessing whether a miscarriage of justice occurred.

The list includes the following pertinent points to this case: (1) whether the irregularity pertained to a question which was, in law or in fact, central to the case against the accused; (2) the relative gravity of the irregularity; (3) the type of trial during which the error has occurred; and (4) the effect of the irregularity on the fairness of the trial and the appearance of fairness ( Khan at paragraphs 75- 78 and 84 ). [ 57 ] Bearing these principles in mind, I will now assess the whole of the trial record, to determine if a miscarriage of justice occurred in this case.

Review of the Trial Record [ 58 ] Three witnesses testified at trial: the investigating officer, Cst. Brittany Abbott, the complainant, and the Appellant. The complainant was cross-examined by the court appointed counsel. [ 59 ] In addition to the testimony of the witnesses, a book comprised of 43 pages of Facebook messages and email communications between the complainant and the Appellant was adduced into evidence after a voir dire was held on admissibility. [ 60 ] The trial commenced without any particular guidance being provided to the Appellant by the trial judge.

Although this is not fatal, it is certainly preferable that a self-represented accused be provided procedural guidance from the trial judge at the outset of the trial. [ 61 ] As the trial progressed, however, there were many instances where the judge provided assistance and guidance to the Appellant. Examples of this evidenced in the transcript of the trial include: • The trial judge explained to the Appellant “for his benefit” what happens when a party tenders an exhibit and the necessity of the Crown to establish that the documents were admissible.

The Appellant responded that he understood (page 13 of the transcript of trial). • During the Appellant’s cross-examination of the police officer, the Crown was about to object to a question being posed by the Appellant. The trial judge intervened to inquire as to the purpose of the question and to caution against hearsay evidence. The Appellant explained the purpose of the question and the trial judge concluded it was a fair question that could be posed to the witness (pages 18-19 of the transcript of trial). • During the evidence in chief of the complainant, she referenced a previous court case.

The Crown asked who was involved in that case and the Appellant objected stating it was irrelevant. The Crown clarified that it was asking the question for the purpose of establishing identity of the sender of the message. The trial judge provided direction that the content of the message could be referenced but the facts of the event to which it relates was not relevant to this proceeding.

The Appellant asked for the complainant’s answers be more confined and the trial judge found this to be a fair objection (pages 62-63 of the transcript of trial). • The trial judge offered direction to the Appellant during the Appellant’s submission on the voir dire dealing with the admissibility of the book of messages between the Appellant and the complainant (page 83 of the transcript of trial). • The trial judge noted his duty to ensure the Appellant received a fair trial and provided some direction to the Appellant regarding calling a witness.

The trial judge adjourned the trial to allow the Appellant to be able to call the witness if he so decided (pages 109-114 of the transcript of trial). • In the context of whether the Appellant were to call a particular witness, the trial judge explained to the Appellant the collateral fact rule and the difference between admissibility of evidence and the weight it is given (pages 120-121of the transcript of trial). • The trial judge inquired of the Appellant whether he had documents he wanted to bring with him into the witness box (page 128 of the transcript of trial). • While the Appellant was under cross-examination, the trial judge intervened and told the Crown that he did not think a question being asked was appropriate for the Appellant to answer (page 147 of the transcript of trial). • The trial judge inquired of the Appellant at the end of his cross-examination if there was anything further he wished to say.

The trial judge further inquired whether the Appellant intended to call any other witnesses and granted the Appellant’s request for an adjournment to allow him to prepare his final submissions (page 161 of the transcript of trial). • The trial judge facilitated how the Appellant could file with the court the authorities he wished to rely upon (page 162 of the transcript of trial). • During the Appellant’s final submissions, the trial judge directed the Appellant to the exhibits in case he wished to reference them (page 170 of the transcript of trial). [ 62 ] Notwithstanding the assistance provided to the Appellant by the trial judge during the trial, the Appellant submits there were two key points in which he was not provided adequate assistance. [ 63 ] I will explore each of those to determine whether individually, or cumulatively, the result was a miscarriage of justice.

Not advising regarding risk of cross-examination on criminal record [ 64 ] The Appellant submits that the trial judge did not caution him specifically as to the risk of being cross-examined on his criminal record if he testified.

[65] The trial judge did provide guidance to the Appellant prior to the Appellant deciding to testify. At pages 100-101 of thetranscript of trial, the following exchange occurred: THE COURT: So, Mr. Burry, that’s the case for the Crown. So at this juncture in any criminal trial, the accused has the option totestify, if they wish. No accused person is obliged to testify if they don’t wish to. If you do testify, of course you could be subject tobeing cross-examined by the Crown attorney.

Likewise, the thing to remember is that things that are said from the body of the court,like where you’re sitting now, they can’t be evidence. The only part that can be evidence is evidence that’s given under oath through thewitness box. So it’s a decision for an accused person to make and it’s up to you at this point as to whether or not you wish to giveevidence or to call a witness. MR. BURRY: I’ll testify. THE COURT: Alright, sir. So did you want to come forward and get in the witness box, sir? Did you have any notes you wanted tobring with you or anything? MR.

BURRY: No. [66] Although the trial judge advised the Appellant that if he testified he could be subjected to cross-examination, he did notspecifically inform him that this could include cross-examination on his criminal record. [67] Without this caution having been given by the trial judge, the Appellant decided to testify. [68] At the beginning of the Crown’s cross-examination of the Appellant, for the first time, the Crown raised the issue ofquestioning the Appellant about his criminal record (pages 133-134 of the trial transcript).

The Crown acknowledged that this shouldhave been raised earlier in the proceeding. [69] The Crown advised the trial judge that he intended to pose questions on the Appellant’s criminal record to specifically showthe identity of the victim regarding the convictions. The position of the Crown was that this was relevant to the elements of the offenceof criminal harassment as it went to whether the accused knew, or was reckless as to whether, the complainant was harassed.

It was alsorelevant to whether the Appellant’s conduct caused the complainant fear and whether that fear was reasonable in the circumstances. [70] The trial judge responded to the Crown’s submission by referencing the limited purpose of the criminal record pursuant to theCanada Evidence Act, R.S.C., 1985, c.

C-5 (the “Canada Evidence Act”). [71] It is noted that the trial judge did not call on the Appellant to make a submission on the issue of the admissibility and use of hiscriminal record before determining that the record could be adduced for the limited purpose of identifying the victim of his priorconvictions. [72] The cross-examination of the Appellant proceeded and the Appellant appeared to have been caught off guard when the Crownquestioned him on his criminal record (pages 144-145 of the transcript of trial).

The Appellant asked the trial judge whether hisconvictions for sexual assault should be brought up at the trial. [73] At this point in the proceeding, the trial judge offered assistance to the Appellant by explaining that the Canada Evidence Actallows someone to be asked about their criminal record and the specific offences of which they had been convicted. The trial judgeelaborated that the Appellant could admit or deny the convictions, but if denied, the Crown would have an opportunity to prove theconvictions.

The trial judge told the Appellant that the fact of a criminal conviction is merely another piece of evidence in relation tocredibility. The only purpose in putting it to him is to see if he acknowledged it. [74] The Appellant responded by advising the court that the convictions were under appeal. [75] The Crown then reiterated that he also sought to ask the Appellant the identity of the victim of the sexual assaults.

The cross-examination proceeded and the Crown asked the Appellant to confirm that the identity of the victim of the sexual assaults was the sameas the complainant before the court on the criminal harassment charge. [76] In R. v. Littlejohn (1978), (ON CA), 41 C.C.C. (2d) 161, 1978 CarswellOnt 1201 (Ont. C.A.), the courtdismissed a ground of appeal based on inadequate judicial assistance to a self-represented accused and concluded that the accused hadbeen afforded a fair trial. In doing so, the appellate court commended the significant efforts by the trial judge in explaining the process tothe accused.

Included in those efforts was the trial judge having advised the accused that he would be cross-examined about his criminalrecord, if he had one (Littlejohn at paragraphs 27-29). [77] In R. v. Leno, 2021 BCCA 200, the appellant argued they received insufficient judicial assistance as a self-represented accused.At trial, the Crown had brought an application pursuant to R. v. Corbett, (SCC), [1988] 1 S.C.R. 670 before the accusedtook the stand.

The judge explained to the appellant that he had no obligation to testify but if he did would be subject to cross-examination including on any previous convictions relevant to the jury's assessment of his credibility. The appellate court found that thetrial judge had fulfilled the duty of assisting the accused. The court provided specific examples of how the trial judge discharged hisduty. This included the judge having advised the accused of the risk of cross-examination on his criminal record prior to taking the stand(Leno at paragraph 87).

[ 78 ] In the case before me, I conclude that the trial judge should have advised the Appellant of the risk of being cross-examined on his criminal record prior to the Appellant deciding to testify. [ 79 ] I further find that the trial judge should have invited submission from the Appellant on the issue of the usage of his criminal record for the purposes articulated by the Crown. [ 80 ] Having said this, the inquiry on appeal does not stop with answering whether certain desirable steps were not taken by the trial judge.

Rather, in order to be entitled to an appeal, the Appellant must demonstrate that any omission or irregularity by the trial judge compromised his right to a fair trial such that his conviction is a miscarriage of justice. [ 81 ] The Appellant submits that he was under the impression that his criminal record could not be brought up during the trial.

He submits that the trial was rendered unfair because had he realized this, he could have instructed court-appointed counsel to cross-examine the complainant regarding allegations of past abuse and potentially mitigated the significance of the sexual assault convictions. This, he submits, prejudiced his right to make full answer and defence.

The Appellant submits that the trial judge may have accepted his testimony had the complainant recanted or downplayed any past history of abuse. [ 82 ] I am unable to conclude that the trial judge’s failure to advise the Appellant of the specific risk of cross-examination on his criminal record prior to the Appellant testifying, or not having heard from the Appellant at the time the issue was raised by the Crown, rendered the trial unfair or otherwise occasioned a miscarriage of justice pursuant to section 686(1)(a)(iii) of the Criminal Code . [ 83 ] It is of significance that the complainant was cross-examined by court-appointed counsel and the Appellant was provided opportunities to consult counsel.

The cross-examination of the complainant including questioning relevant to the defence theory regarding the complainant’s lack of fear or feeling of harassment. [ 84 ] Even if the trial judge were to have allowed a line of questioning on cross-examination of the complainant aimed at somehow “mitigating” the significance of the sexual assault convictions, as suggested by the Appellant on this appeal, the Appellant has not articulated that this would give rise to a different defence from the one advanced at trial.

Instead, the Appellant seems to suggest this may have enhanced the defence advanced which targeted the elements of the offence regarding the complainant’s state of mind. [ 85 ] The evidence of the Appellant’s criminal record was not a central issue in the trial. However, evidence of his conviction for sexual assault against the complainant could go to the element of the criminal harassment offence regarding whether the Appellant’s conduct harassed the complainant and caused her fear.

This element of the offence was central to the Appellant’s defence strategy at trial and a live issue at trial. [ 86 ] The Crown clearly wanted to adduce the evidence of the Appellant’s conviction for sexual assault for the purpose of showing the identity of the victim as being the complainant of the criminal harassment charge and to use it as evidence probative of her state of mind. [ 87 ] Notwithstanding the Crown’s purpose in adducing the evidence, the Appellant’s conviction for sexual assault against the same complainant is not referenced by the trial judge in the reasons for conviction.

In this regard, the effect of the omission of the trial judge to advise the Appellant of the risk of cross-examination on his record does not appear to have been substantial. [ 88 ] The fact that the Appellant was on a probation order not to contact the complainant, and did so despite the order, did factor into the trial judge’s reasoning in convicting the Appellant.

This is evidence that was before the trial judge through the complainant’s evidence and not as a result of the Appellant having testified. [ 89 ] The trial judge also referenced in his decision the content of the messages between the complainant and the Appellant as well as the complainant’s testimony regarding her state of mind. There was a preponderance of evidence adduced, through the complainant’s testimony, as to her feelings of harassment and fear.

This evidence was sufficient to ground the trial judge’s conclusions that the complainant was harassed, in fear and that her fear was reasonable without any regard to the evidence that she was the same complainant in the sexual assault convictions. [ 90 ] The evidence before the trial judge regarding the complainant’s state of mind included evidence of how the complainant felt at the time of testifying as well as evidence through the Facebook messages, of how she felt at the time that the Appellant was persistently messaging her.

Examples include the following: • The complainant testified as to how the conversation with the Appellant made her feel hopeless and confused. She stated that it was “scary to say the least” and overwhelming (page 38 of the transcript of trial). • The complainant testified that, “It’s scary to think of what he considered his limits are in the court of law.

I mean, if in my opinion, if a court can’t control his behavior, how will I ever?” (Page 41 of the transcript of trial). • The complainant testified as to a message she had sent the Appellant during the communications in which she stated, “No, you don’t, you’re literally just trying to scare me all the time.” (Page 42 of the transcript of trial). • The complainant testified, “It’s almost fear that things may have went back to what they were when I was a kid, fear of reliving that and going through that again.

I guess I blocked it out for a lot but it took me half way through the messages to really, like process of what going on.” (Page 43 of the transcript of trial). • The complainant testified as to how she felt while the Appellant was sending the messages to her. She stated, “I was really frightened that he would actually come to St. John’s and try to find me after literally telling me this and being so persistent. At first I was like, well, this is just him, he’s going to message me until I block him a few times but after it was so persistent, it was really scary, like.” (Page 69 of the transcript of trial).

• The complainant testified that throughout time frame she was receiving the messages she felt anxious, stressed out, “really anxious”. (Page 76 of the transcript of trial). [ 91 ] Given the abundance of evidence before the trial judge regarding the complainant’s state of mind and the trial judge not having referenced the Appellant’s criminal conviction against the complainant in his reasons for conviction, the evidence related to the conviction did not have a significant impact on the outcome of the trial.

In this sense, the gravity of the irregularities in not having advised the Appellant of the risk of being cross-examined on his record and in not having heard from him on the admissibility of his record, was not substantial. [ 92 ] In addition, this was a judge alone trial, which also reduces the risk of a miscarriage of justice in the circumstances. [ 93 ] Furthermore, the trial judge did provide significant assistance to the Appellant throughout the trial. The trial judge showed awareness of the importance of ensuring a fair trial.

In those circumstances, his decision is owed a measure of deference. [ 94 ] Thus I conclude that the Appellant has not met the onus of establishing that the omission by the trial judge to advise him of the risk of being cross-examined on his criminal record, or calling upon him to make a submission regarding the admissibility of his record, led to an unfair trial or a miscarriage of justice. To accept the Appellant’s position that he may have done something different is not sufficient.

That would reduce the test to merely having to show that the judge made an omission or committed an irregularity without having to show that the effect of the omission or irregularity resulted in an unfair trial or miscarriage of justice. [ 95 ] I am unable to conclude that any omission or irregularity committed by the trial judge resulted in an unfair trial or was so serious that the conviction in the circumstances would shake the public confidence in the administration of justice.

Denying the Appellant’s motion for a mistrial [ 96 ] The Appellant further submits that the trial judge did not meet the requisite level of assistance to him on a mistrial Application that he wished to advance during the trial. [ 97 ] The Appellant sought to bring an application for mistrial as a result of the applications judge not having heard him on the appointment of counsel to cross-examine the complainant. [ 98 ] When this was raised with the trial judge, he advised the Appellant that this was an issue that would be more appropriate to be dealt with on appeal as opposed to on a mistrial application.

The Appellant replied that he understood but wanted to ensure he put the issue on the record so that the appellate court would know it had been raised by him at trial. [ 99 ] The Appellant submits that the trial judge erred in dealing with this issue in a

summary fashion. He submits that the trial judge should have heard submissions from him as to the grounds for a mistrial prior to determining that the application had no merit. [ 100 ] The trial judge heard from the Appellant on this issue. He could have inquired further into details as to why the Appellant was seeking a mistrial, however the basis on which the Appellant was seeking a mistrial was clear. It was because the Appellant contended he had not been afforded an opportunity to be heard on the

section 486.3(2) application. [ 101 ] The trial judge concluded on that basis that this was not an issue that would give rise to a mistrial. He offered assistance to the Appellant in advising this was an issue that should be raised on appeal. [ 102 ] I conclude that the trial judge offered the appropriate assistance to the Appellant on this issue. The trial judge offered guidance to the Appellant on the more appropriate procedural avenue available to him. [ 103 ] The Appellant has raised the issue of not having been heard on the

section 486.3(2) application as a ground of appeal and has not been successful. [ 104 ] If the trial judge erred in not inviting and hearing a more fulsome submission from the Appellant on this issue at the time of trial, there is no reason to believe the outcome would have been any different than it has been on this appeal. [ 105 ] There was no miscarriage of justice as a result of the trial judge’s handling of the Appellant’s motion for mistrial. Conclusion on Ground 2: [ 106 ] The trial judge provided assistance to the Appellant throughout the trial.

The record, on the whole, establishes that he received a fair trial. [ 107 ] The Appellant has not met the onus of establishing that the omissions and irregularities by the trial judge in the assistance rendered to him, individually or collectively, affected trial fairness. The Appellant has failed to show that these issues amounted to a miscarriage of justice as per section 686(1)(a)(iii) of the Criminal Code . [ 108 ] This ground of appeal is dismissed.

Ground 3: Did the trial judge err in law in not providing sufficient reasons for his decision? [ 109 ] The Appellant submits that the trial judge’s reasons were lacking in that they did not adequately explain: (

a) how the trial judge resolved material inconsistencies in the complainant’s testimony; and (

b) why the Appellant’s testimony was rejected or did not give rise to a reasonable doubt. [ 110 ] The question of the sufficiency of a trial judge’s reasons is a question of law and is reviewable on a standard of correctness ( R. v. Sheppard , 2002 SCC 26 at paragraph 28 ).

The Law [ 111 ] In Sheppard , at paragraph 55 , Binnie J. outlined an approach to appellate intervention on the duty of a trial judge to give sufficient reasons including: (1) the accused should not be left in doubt about why he was convicted;

(2) The trial judge is not held to some abstract standard of perfection;

(3) The reasons must be reasonably intelligible to the parties and provide for meaningful appellate review of the correctness of the decision; and

(4) Where there is any deficiencies in the reasoning process of the trial judge, the appeal court may rectify this in its own reasons. [ 112 ] I must take a functional context-specific approach to assessing the adequacy of the trial judge’s reasons. [ 113 ] The reasons must be sufficient to fulfill their functions of explaining the decision to the parties, providing accountability and permitting effective appellate review. The reasons, read in the context of the record and the submissions on the live issues in the case, must show that the judge has seized the substance of the matter.

Provided this is done, detailed recitations of evidence or the law are not required ( R. v. R.E.M. , 2008 SCC 51 at paragraphs 15 and 43 ). [ 114 ] More recently in R. v. Vuradin , 2013 SCC 38 , the Supreme Court reiterated that the core question in determining whether the trial judge’s reasons are sufficient is whether the reasons, read in context, show why the judge decided as he or she did. [ 115 ] In R. v.

G.F. , 2021 SCC 20 , the Supreme Court cautioned appellate courts against scrutinizing the text of trial reasons in search of errors and again emphasized that reasons are reviewed functionally and contextually ( R. v. G.F at paragraph 76). Analysis of the Trial Judge’s Reasons [ 116 ] In order for the Appellant to have been convicted of criminal harassment, the trial judge had to be satisfied that the following essential elements of the offence had been proven beyond a reasonable doubt: 1. T he Appellant repeatedly communicated either directly or indirectly, with the complainant; 2.

His conduct harassed the complainant; 3. The Appellant knew that his conduct harassed the complainant or he was reckless as to whether she was harassed; 4. His conduct caused the complainant to fear for safety ; and 5. The complainant’s fear was reasonable in the circumstances. [ 117 ] The trial judge’s decision is found at pages 195- 203 of the transcript. [ 118 ] The trial judge’s reasons begin with a

summary of the documentary evidence and the testimony of both the complainant and the Appellant. [ 119 ] The trial judge continues by citing case law and setting out the five elements of the offence of criminal harassment. The trial judge cited jurisprudence in which frequent email contacts amounted to harassment.

He also considered case law which noted that where the case is based largely on social media contact, a factor to consider is whether the complainant replied to the messages. [ 120 ] The trial judge then concluded his decision at page 202 of the transcript, as follows: “I am satisfied that the complainant was harassed by the repeated contact from the accused. I’m also satisfied that the accused knew or was reckless as to whether or not she was harassed. The accused knew he was on a probation order not to contact the victim, and did so despite the order.

As well, he deliberately used nine separate identities, as he recognized that she would not reply to him if he used his own name. The complainant did reply to some of the accused’s messages, but I’m satisfied that she did so in the face of the accused persistence and did not on any occasion contact the accused first or initiate contact at any time. Contact was not like that in Elliott, a discussion, it was largely a one-sided stream of contacts from the accused, which persisted even after a request that he stop.

I’m satisfied the complainant was afraid of the accused and her fear in all the circumstances was reasonable.” [ 121 ] The Appellant submits that the trial judge’s reasons are inadequate as he did not deal with “material inconsistencies” in the complainant’s evidence.

The Appellant contends that these inconsistencies included the complainant having provided her email address to him after he had sent her a sexually explicit message; admitting she entertained the dialogue and was searching for closure; not reporting the communication between them to the police until he sent a nude picture; and stating at one point that she was “instigating.” This, the Appellant submits, is not consistent with the complainant’s testimony that she was harassed or in fear due to his conduct. [ 122 ] What the Appellant is characterizing as inconsistencies in the complainant’s evidence is more properly characterized as behaviors that the Appellant believes were inconsistent with the complainant being harassed or fearful.

[ 123 ] This was not a trial where the facts were largely in dispute. A significant portion of the evidence was the written record of the book of messages and email between the Appellant and the complainant. [ 124 ] It is clear from the reasons, that the trial judge considered that the complainant did at times respond to the Appellant and did provide her email address to him to enable him to send her a story. Whether the Appellant specifically requested her email address as stated by the trial judge is not an overriding and palpable error.

There was evidence by which the trial judge could have made such an inference. [ 125 ] It is further clear from the reasons that the trial judge dealt with the fact that the complainant’s response to the Appellant contacting her varied from responding at times and at other times blocking his messages or telling him to leave her alone. Ultimately the trial judge stated in his reasons that he was satisfied that the complainant replied to some of the messages in the face of the Appellant’s persistence.

The trial judge was satisfied that the evidence showed the complainant did not on any occasion contact the Appellant first or initiate the contact. The trial judge noted that the contact was largely a one-sided stream of contacts from the Appellant which persisted even after the complainant requested that he stop.

Based on this, the trial judge was satisfied that the complainant was harassed, that she was afraid and that her fear in all the circumstances was reasonable. [ 126 ] The Appellant further submits that the trial judge’s reasons are inadequate in that they do not explain why he rejected his testimony or why his testimony did not give rise to a reasonable doubt. [ 127 ] The trial judge considered the Appellant’s position.

He noted in his reasons that the Appellant maintained in his evidence that the complainant did not fear him and that the Appellant felt the complainant wanted to contact him, otherwise she could have adjusted her Facebook settings to avoid contact by him. [ 128 ] The trial judge did not have to reject the Appellant’s evidence regarding his belief that the complainant was not being harassed or in fear. The trial judge acknowledged that the Appellant held that belief. [ 129 ] The trial judge made a finding of fact however, that the Appellant was reckless as to whether the complainant was harassed.

There was evidence before the trial judge on which to base this finding. The trial judge noted that the Appellant knew he was on a probation order not to contact the complainant and did so despite the order. As well, the trial judge noted in his reasons that the Appellant deliberately used nine separate identities to contact the Appellant, as he recognized that the complainant would not reply to him if he used his own name. [ 130 ] A central issue at trial and the most salient to the defence mounted were the elements of the offence regarding the complainant’s state of mind.

Specifically, whether the Appellant’s conduct in repeatedly contacting the complainant caused her to be harassed, whether the conduct caused her to fear for her safety and the reasonableness of her fear. [ 131 ] It is clear that the trial judge accepted sufficient of the complainant’s evidence to establish these elements of the offence.

The complainant’s evidence was supported by the documentary evidence in the form of the persistent and continuing messaging from the Appellant despite the complainant having told him to stop and leave her alone. [ 132 ] It is also evident that the trial judge was not left with a reasonable doubt on the whole of the evidence, including the evidence of the Appellant regarding his belief of the complainant’s state of mind.

The trial judge therefore concluded that the Appellant’s guilt had been established beyond a reasonable doubt. [ 133 ] The trial judge’s reasons, considered in the context of the record and the live issues at trial, disclosed a logical connection between the evidence and the verdict sufficient to permit meaningful appeal. [ 134 ] The basis for the trial judge’s decision is evident. The trial judge met his obligation to provide sufficient reasons. [ 135 ] This ground of appeal is dismissed.

Ground 4: Was the verdict on the criminal harassment charge unreasonable in that the trial judge did not consider whether the complainant had a motive to fabricate? [ 136 ] This ground of appeal is based on the trial judge’s findings of fact and is to be assessed in connection with whether there was evidence upon which the trial judge could reasonably have reached the verdict. [ 137 ] In R. v. Sinclair , 2011 SCC 40 , the Supreme Court clarified the inquiry to be made by an appellate court in reviewing a judge- alone verdict for reasonableness or whether the verdict can be supported on the evidence.

At paragraph 84, Charron, J., writing for the majority, stated: In my view, the s. 686(1)(a)(

i) inquiry in judge-alone trial should proceed as follows: (

a) The reviewing court should first apply the test in Yebes/Biniaris . The question is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered on the evidence as a whole. If not, then the test is met, the inquiry is over, and an acquittal is entered. (

b) If the verdict is available on the evidence, the reviewing court may go on to assess the reasonableness of the verdict under the Beaudry test by scrutinizing the actual findings of fact and inferences made by the trial judge. As stated earlier, an unreasonable verdict

of the kind identified in Beaudry will be exceedingly rare. It is therefore not necessary to conduct this assessment in every case. Unless the issue is specifically raised, or the circumstances clearly call for this further inquiry, the impact of errors in the reasoning process that led to the verdict falls to be assessed under either s. 686(1)(a)(ii) (errors of law) or s. 686(1)(a)(iii) (miscarriage of justice). (

c) The Beaudry test may apply in exceptional cases where the reasoning process of the trial judge is so irrational, or so at odds with the evidence, that it vitiates the verdict -- even though that verdict is available on the evidence as a whole. In these rare cases, an appellate court will be justified in concluding that the verdict itself is unreasonable. What precise kind of errors would justify this conclusion is a question better left to be decided in cases where the issue will arise.

If the reviewing court so concludes, a new trial is ordered, as the court will have already determined under the Yebes/Biniaris test that the verdict is otherwise available on the evidence. [ 138 ] The Appellant submits that the conviction on the criminal harassment charge was unreasonable in that the trial judge convicted him without dealing with what the Appellant describes as “incontrovertible evidence” that the complainant had a strong motive to lie. [ 139 ] In making this submission the Appellant references the portion of the complainant’s testimony in which she admits that there was a source of conflict between her and the Appellant regarding the Appellant talking to other girls (transcript of trial at page 96). [ 140 ] The Appellant submits that this conflict meant that the complainant was “vex with jealousy” when she reported him to the police and that this was motive for her to lie about being harassed. [ 141 ] Although the Appellant raised this issue in his final submissions at trial, the Appellant submits that the trial judge did not adequately address this issue in his reasons so as to meet the R.E.M. test.

Had the trial judge considered this evidence, the Appellant contends, it would have affected his finding that the complainant was in fear or felt harassed. [ 142 ] I am unable to conclude that the verdict is unreasonable on this basis. [ 143 ] The following exchange occurred during the cross-examination of the complainant: Q. And when the picture came… the nude picture, was that the straw that broke the camel’s back, in terms of – A. Obviously, yes, yes. Q. Was there also some communication that you’d received from other girls, that he was talking to other girls at the same time? A. Yes. Q.

And that, I take it, was a source of conflict for you as well? A. Absolutely. Q. So was it those sort of things, coupled together, you know you decided you were going to call the police? A.

Yes. [ 144 ] Although the complainant admitted that there was a source of conflict between her and the Appellant regarding him talking to other girls, there was no evidence to suggest this was because she was jealous let alone that it caused her to fabricate the allegations against him, including her fear of him. [ 145 ] Why the Appellant’s contact with other girls gave rise to a source of conflict between the complainant and Appellant was not expounded upon during her cross-examination.

It could mean any number of things including that the complainant may have been concerned that other girls were also receiving unwelcome messages from the Appellant. To give it this

interpretation however, would be speculation as would a finding that the complainant was jealous. [ 146 ] Given the ambiguity surrounding the complainant’s statement about a source of conflict between her and the Appellant, the trial judge was right not to consider this as evidence of motive to lie. There was no evidence that because of a conflict between them, the complainant fabricated her state of mind. [ 147 ] What was admitted by the complainant was that this source of conflict combined with the receipt by her of a nude photo of the

Appellant were the triggering factors for her to contact the police. This is not evidence of motive to fabricate.

It is simply evidence ofwhy the complainant ultimately reported the Appellant to the authorities. [148] The case was largely conducted on the basis of the written record of the messages between the Appellant and the complainant.This documentary evidence together with the testimonies of the complainant and the Appellant was the totality of the evidence thatenabled the trial judge to ascertain the complainant’s state of mind. [149] The trial judge noted in his reasons that the complainant did not initiate contact with the Appellant, that she sometimes replied tohim and at other times blocked him.

There was no evidence that the complainant was pursuing contact with the Appellant because shewas romantically interested in him and ultimately lied about being in fear because she was jealous or for any reason. [150] The complainant explained her state of mind in her testimony and the trial judge accepted her evidence that she was in fear. Basedon the totality of the evidence, the trial judge concluded that the fear was reasonable. [151] I have found that the trial judge met his obligation to provide sufficient reasons.

Although the Appellant raised motive to lie as anissue at trial, the evidence did not support the submission. Thus the trial judge did not need to explain his reasons for his conclusions onthe complainant’s state of mind any more than he did. [152] The verdict was available on the evidence and it was reasonable. This ground of appeal is dismissed. Ground 5: Did the trial judge err in not conducting an inquiry into a potential breach of

section 9 of the Charter? [153] This ground of appeal is sought in accordance with sections 686(1)(a)(ii) and (iii). Questions of law are reviewable on thestandard of correctness, and the test for 686(1)(a)(iii) permits the Court to allow the appeal where an accused had an unfair trial or theproceedings gave rise to a miscarriage of justice. [154] The Appellant submits that his arrest for criminal harassment was illegal because the complainant made allegations of breach ofprobation against him, not harassment, but the police decided to lay a criminal harassment charge. [155] Therefore, the Appellant contends there was a potential

section 9 Charter breach and the trial judge should have alerted him, as aself-represented accused, to this issue. [156] In support of this position, the Appellant relies upon R. v. Reddick (J.S.) (1995), (NS SC), 150 N.S.R. (2d)209, 436 A.P.R. 209 (N.S. S.C.). In that case, the accused was successful in bringing a pre-trial application to quash an information onthe basis that a police officer lacked the requisite reasonable and probable ground to lay a second degree murder charge. The accusedwas originally charged with aggravated assault but when the victim died the murder charge was laid.

The court was satisfied that inlaying the murder charge, the police officer had not considered the issue of whether the accused knew the stab wound would likely causedeath.

The court found it would be contrary to principles of fundamental justice to require the accused to stand trial on a charge wherethe information was sworn on the basis of a misunderstanding of the applicable law. [157] It is noted that unlike Reddick, which was a pre-trial application, the Appellant is raising for the first time at the appellate stage,the issue of lack of reasonable and probable grounds by the officer in laying the criminal harassment charge. [158] Although the Appellant questioned Cst.

Abbott, about the grounds for laying the charge, he did not raise this as a Charterargument at the time of trial. The Appellant contends that the trial judge should have alerted him to this as being a potential issue and inthis respect, the judge erred. [159] In appropriate circumstances where a potential Charter breach is evident, a trial judge has an obligation to alert a self-representedaccused to the potential breach. [160] Arresting powers of police are found in

section 495 of the Criminal Code. To lay a charge, a police officer must believe onreasonable and probable grounds that an indictable offence has been committed. [161] Cst. Abbott testified that, in her view, the Appellant’s use of fake names and numerous Facebook accounts to contact thecomplainant and the Appellant continuing to contact the complainant even after she told him to stop, was harassment. [162] In laying the criminal harassment charge, the police had a statement from the complainant and the compilation of Facebookmessages and email communications between the Appellant and the complainant.

The police had evidence that the Appellant had sentmany messages over a period of time to the complainant who he was under a probation order not to contact; that he sent her anunsolicited nude photograph of himself; that the complainant had attempted to block him from sending messages, and that the Appellanthad nonetheless used various false identities to continue to contact her. [163] There were reasonable and probable grounds for the belief by the officer that a criminal harassment charge could be made out. [164] The trial judge committed no error.

He had no obligation in the circumstances of this case to alert the Appellant to a possibleCharter breach. [165] This ground of appeal is without merit and is dismissed. Costs against the Crown [166] The Appellant submits that the Crown should pay his costs because, in his view, this case was a frivolous prosecution.Proceeding to trial on little to no evidence, he submits, is more egregious in instances were an accused is self-represented. [167] I have dismissed the appeal and upheld the convictions. There is no basis for awarding costs against the Crown.

summary and disposition [ 168 ] The appeal is dismissed. The convictions are upheld. _____________________________ Sandra R Chaytor Justice