) ) HER MAJESTY THE QUEEN – v. –, 2010 ONSC 6603

CITATION : R. v. Fazekas, 20190 ONSC 6603 COURT FILE NO.: 89/10 DATE: 20101202 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – Stephen Fazekas Respondent ) ) ) ) ) ) ) ) Christina Croteau, for the Crown Stephen Fazekas, acting in person ) ) HEARD: November 30, 2010 DECISION ON MOTION Poupore J.: [ 1 ] Stephen Fazekas is charged with criminal harassment under s. 264 of the Criminal Code of Canada (“ Criminal Code ”) along with a number of related charges.

The Crown brings a motion pursuant to ss. 486.3(4) of the Criminal Code to have counsel appointed for the cross-examination of the complainant, Paula Everitt. [ 2 ] Subsection 486.3(4) of the Criminal Code , provides as follows: In any proceedings in respect of an offence under

section 264 [criminal harassment], on application of the prosecutor or the victim of the offence, the accused shall not personally cross-examine the victim unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination.

The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination. [ 3 ] In support of this motion, the Crown relies on the affidavit of Carole MacLellan setting out the charges against Stephen Fazekas as well as the transcript of Partial Proceedings at Trial before the Honourable Mr. Justice P.T. Bishop on June 25, 2002, at Sudbury, Ontario. The court in its reasons for judgment recounted the evidence of an assistant crown attorney. She stated that Mr.

Fazekas had to be cut off by the Judge when he was cross-examining the complainant and in fact he was eventually stopped from cross- examining. He was very vulgar, he used foul language, and he became agitated. [ 4 ] In response, Mr. Fazekas produces a transcript of his cross-examination of another complainant on a subsequent trial. [ 5 ]

Section 486.3(4) of the Criminal Code establishes a presumption that an accused charged with criminal harassment shall not cross-examine the complainant. The accused has the onus of rebutting this presumption by demonstrating that the proper administration of justice requires him or her to personally cross-examine the complainant. Defence’s Argument [ 6 ] Mr. Fazekas relies on s. 650 of the Criminal Code as well as his right to a fair trial guaranteed by ss. 7 and 11(

d) of the Canadian Charter of Rights (“ Charter ”) to oppose the Crown’s motion.

Section 650 of the Criminal Code mandates that an accused be present during his whole trial (subject to exception in ss. 650(1.1) , 650(2) , and 650.01 )), and entitles an accused to make full answer and defence personally or by counsel.

[7] Mr. Fazekas argues that the proper administration of justice requires him to personally cross-examine the complainant, as heknows her well and could get her to admit certain facts under oath that no lawyer could. Furthermore, Mr. Fazekas is concerned that thejury will draw an adverse inference if he conducts his own defence, except for the cross-examination of the complainant, “who is thecrux of the case.” [8] In his Charter argument, Mr. Fazekas relies on R. v.

Swain, (SCC), [1991] 1 S.C.R. 933, to argue that anycommon law limit on an accused’s right to control his own defence “which infringes life, liberty or security of the person, must be theleast intrusive rule which will attain the objectives which are of sufficient importance to override [s. 7] of the Charter.” [9] Mr.

Fazekas further argues that appointing counsel for the cross-examination of the complainant infringes the presumptionof innocence and the right to a fair trial because the Crown is stating “fear” as a key element for not allowing him to cross-examine thecomplainant when fear is a key element of the charge against him. Mr. Fazekas argues that this amounts to the Crown “alreadyconvicting [him] without any evidence or testimony given to the jury yet!” [10] Finally, Mr. Fazekas argues that he has a right under s. 11(

d) to make full answer and defence. He states this includes the rightto personally cross-examine the complainant. Analysis [11] As set out above, s. 486.3(4) establishes that an accused charged with criminal harassment “shall not personally cross-examinethe victim unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conductthe cross-examination.” [12] The

section “creates a presumption that counsel should be appointed in these circumstances unless the accused is able tosatisfy the court that the proper administration of justice requires the accused to conduct the cross-examination personally” (R. v. D.P.G.,[2008] O.J. No. 767 (S.C.) (“D.P.G.”), at para. 2). [13] In D.P.G., supra, the self-represented accused was charged with 12 counts relating to accessing, making, possessing andmaking available child pornography, and with voyeurism. The Crown brought an application under s. 486.3(1) seeking the appointmentof counsel to cross-examine child witnesses.

It should be noted that, except for the applicability of the subsection, the language and onusin ss. 486.3(1) and 486.3(4) is identical. In D.P.G., the accused opposed the Crown’s motion, arguing that “his past experience withlawyers has left him without any confidence that the questions he wishes to ask will be put to the witnesses” (at para. 3).

He furtherargued that, because the child witnesses were his cousins, he was able to communicate well with them and likely to be less intimidatingthan a lawyer would be (at para. 4). [14] Addressing the accused’s arguments, McDermid J. noted that the accused “will be able to instruct counsel about the areas hewished to explore with the witnesses” (at para. 6).

Further, regarding the accused’s argument that he would be better able to communicatewith the witnesses, McDermid J. noted, at para. 6, “although [the accused] may have been able to communicate with [the witnesses]previously, the atmosphere in the court room is quite different from everyday experience and they will be testifying for the Crown, whois seeking to convict him on these offences.” In granting the Crown’s motion to have counsel appointed, McDermid J. held, at para. 7,“having considered all the circumstances, I am not satisfied that the proper administration of justice requires the accused to conduct thecross-examination personally.” [15] In R. v.

Grey, [1996] O.J. No. 4743 (C.J.), Blacklock J. was faced with a Crown motion to have counsel appointed for thecross-examination of a child witness to a criminal harassment charge. Though this case predates the current s. 486.3(4) of the CriminalCode, the relevant

section at the time created a presumption that an accused shall not personally cross-examine such a witness, unless theproper administration of justice required it.

In this case, the accused argued that “it is only he who can bring out an accurate reflection of[the relationship between the witness and the accused] through cross-examination” (at para. 29). [16] Blacklock J. “considered whether or not there is anything in this case which requires the accused to conduct his cross-examination personally of the child witness in the interest of the due administration of justice,” but found “no reason why, with adequateopportunity for Mr.

Grey to consult with counsel, every bit of his interests in the administration of justice cannot be served throughappointed counsel” (at paras. 29, 30). Further, Blacklock J. noted, at para. 31, that he also took into consideration whether or not hecould “achieve the societal interest of protection of the child witness” if the accused were allowed to personally cross-examine her. Blacklock J. found that he could not and granted the Crown’s motion to have counsel appointed.

[17] It is useful to remember the purpose of the section, which was recently explained by G. Wakefield J. in R. v. P.N.S., [2010]O.J. No. 2782 (C.J.). It was noted, at para. 13:

Section 486.3 is found within that part of the Criminal Code setting out legislated aids for a witness in court, such as screens and supportpeople, to facilitate a witness providing full and candid testimony. Specifically, s. 486.3, if an application is made, authorizes the court toorder an accused not to cross-examine a particular witness directly, but to insert a “legal screen” between the accused and witness byensuring a third party conduct the cross-examination. [18] With regard to the Charter argument, it does not appear that this

section has been constitutionally challenged. However, s.486.2 of the Criminal Code, permitting child witnesses to testify behind a screen, has been challenged and upheld in R. v. S. (J.) (2008),2008 BCCA 401 , 238 C.C.C. (3d) 522 (B.C.C.A.), aff’d 2010 SCC 1 , 251 C.C.C. (3d) 1 (S.C.C.) (“S. (J.)”). Section486.2(1) states: Despite

section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness whois under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of amental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow thewitness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administrationof justice. [19] In R. v.

S. (J.), at paras. 32-34, Smith J.A. discussed and adopted the reasoning of L’Heureux-Dube J. in R. v. Levogiannis, (SCC), [1993] 4 S.C.R. 475, which held that the predecessor to s. 486.2 was constitutionally valid: 32 At 482, [L’Heureux-Dube J.] adopted the reasons of Morden A.C.J.O. of the Ontario Court of Appeal (1990), (ON CA), 1 O.R. (3d) 351 (Ont. C.A.). Morden A.C.J.O. observed that a screen only blocked the complainant's view of theaccused, but did not prevent the accused, the prosecutor or the trial judge from viewing the complainant.

After reviewing a number ofEnglish, Canadian and American authorities, he concluded that if the accused had a right to confrontation, it was not an absolute right. Ifa right of confrontation exists, it is subject to qualifications in the interests of justice.

Further, the "elements of confrontation", includingphysical presence in the courtroom, testimony under oath or promise to tell the truth, cross-examination of the witness and observation ofthe witness's demeanour, remained. 33 L'Heureux-Dubé J. then framed the issue in Levogiannis as "simply put, whether a witness's obstructed view of an accused,infringes the rights of such accused under s. 7 or 11(

d) of the Charter" (at 485). 34

Section 7 requires a balancing of competing interests. An accused's right to a fair trial, including the right to make full answerand defence, must be balanced against the broader societal interest in having offences prosecuted. L'Heureux-Dubé J. rejected theargument that in order to make full answer and defence an accused must be able to confront his accuser. As was stated by MacDonaldJ.A. (as he then as), for the court, in R. v. R. (M.E.) (1989). (NS CA), 49 C.C.C. (3d) 475 (N.S. C.A.), at 484: The right to face one's accusers is not in this day and age to be taken in the literal sense.

In my opinion, it is simply the right of anaccused person to be present in court, to hear the case against him and to make answer and defence to it. [20] This statement was adopted by Morden A.C.J.O. in Levogiannis. [21] Ultimately, Smith J.A. found, at para. 43, that the presumption for testimonial aids created in s. 486.2 of the Criminal Code is“merely the next step in the evolution of the rules of evidence.

These rules seek to facilitate the admissibility of relevant and probativeevidence from children and vulnerable witnesses while maintaining the traditional safeguards for challenging the reliability of theirevidence.” This analysis might be useful in considering whether s. 486.3 violates Mr. Fazekas’ Charter rights, in that a similar rebuttablepresumption is created, with the intent to protect vulnerable witnesses. Conclusion [22] Stephen Fazekas has not satisfied me that the proper administration of justice requires that he personally conduct the cross-examination of the complainant.

His conduct in this matter to date, although polite and civil, demonstrates that he has difficulty stayingfocused. He has a tendency to get excited. No good can come from allowing him to confront the complainant personally. Although hefeels he is best equipped to cross-examine the complainant, he is no substitute for a legally trained advocate.

[ 23 ] Mr. Fazekas will have ample opportunity to consult with and instruct counsel prior to trial. A jury instruction will be given to alleviate Mr. Fazekas’s concern about the appearance of counsel to examine the complainant. [ 24 ] Legal Aid Ontario was given notice of this motion but did not attend. This matter is adjourned to ___________ in order that Legal Aid Ontario can inform the court about the availability of counsel prior to a date being set for trial. Mr. Justice John S. Poupore Released: December 2, 2010 CITATION : R. v.

Fazekas, 20190 ONSC 6603 COURT FILE NO.: 89/10 DATE: 20101202 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Stephen Fazekas DECISION ON MOTION Poupore J. Released: December 2, 2010