R v Wesaquate, 2022 SKCA 101

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant or a witness shall not be published. Court of Appeal for Saskatchewan Citation: R v Wesaquate , 2022 SKCA 101 Date: 2022-09-16 Docket: CACR3423, CACR3468 Between: His Majesty the King Appellant And Jeremy Wesaquate Respondent Docket: CACR3473 Between: His Majesty the King Respondent And Jeremy Wesaquate Appellant Before: Caldwell, Schwann and Kalmakoff JJ.A. Disposition: CACR3423: Appeal from acquittal allowed. CACR3473: Conviction appeal allowed.

CACR3468 and CACR 3473: Sentence appeals dismissed as moot Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Caldwell The Honourable Madam Justice Schwann On appeal from: CRM No. 63/18 and CRM No. 303/17, Regina Appeal heard: June 13, 2022 Counsel: Erin Bartsch for the Appellant Nicolas L. Brown for the Respondent Kalmakoff J.A. I. INTRODUCTION [ 1 ] After a judge alone trial in the Court of Queen’s Bench, Jeremy Wesaquate was convicted of one count of assault causing bodily harm, contrary to s. 267 (

b) of the Criminal Code , and acquitted of sexual assault ( s. 271 ), uttering a threat to cause bodily harm ( s. 264.1(1) (a)), unlawful confinement ( s. 279(2) ), and assault with a weapon ( s. 267 (a)). He was sentenced to a term of imprisonment of 15 months (reduced to 165 days after credit for pre-sentence custody was applied), followed by an 18-month probation order. [ 2 ] The trial and sentencing decisions in this case have spawned three appeals. In CACR3423, the Crown appeals against Mr. Wesaquate’s acquittal on the charge of sexual assault. In CACR3473, Mr.

Wesaquate appeals against both conviction and sentence on the charge of assault causing bodily harm. In CACR3468, the Crown seeks leave to appeal against Mr. Wesaquate’s sentence on the assault causing bodily harm conviction. [ 3 ] In my respectful view, the Crown’s appeal in CACR3423 must be allowed. In acquitting Mr. Wesaquate of sexual assault, the trial judge made a legal error that affected the verdict and, accordingly, I would set aside the acquittal and order a new trial on that charge. I would also allow Mr.

Wesaquate’s conviction appeal in CACR3473 because, in the circumstances, the trial judge’s refusal to hear even preliminary submissions relating to a Charter argument that he wished to raise created an appearance of unfairness, meaning that his conviction was the product of a miscarriage of justice. A new trial must be held in relation to that charge as well. That being the case, the sentence appeals are moot. My reasons follow. II.

BACKGROUND [ 4 ] As I have concluded that a new trial must be held, I will review the evidence only to the extent necessary to provide context. [ 5 ] The events that gave rise to the charges against Mr. Wesaquate began on the evening of August 21, 2016, and continued into the early morning hours of the next day. Mr. Wesaquate and the complainant, B.B., had been in a common-law relationship for several years prior to that time. The relationship was turbulent, with periods of separation and reconciliation. They had reconciled only a week or

two before August 21, 2016. On that day, they were packing up the belongings in B.B.’s home for her move to Saskatoon, as she had recently finished a bachelor’s degree and intended to pursue graduate studies at the University of Saskatchewan. [ 6 ] B.B. testified at trial that Mr. Wesaquate became jealous and angry with her because, as they were cleaning her residence, a condom wrapper was found on the floor. This led him to accuse her of infidelity, which she denied. She said that sparked an evening-long tirade from Mr.

Wesaquate, during the course of which he choked her into unconsciousness, assaulted her with a knife, confined her in her residence against her will, threatened to cause her further bodily harm, and made sexual demands with which she complied only out of fear that, if she resisted, he would physically assault her more seriously than he already had. [ 7 ] Mr. Wesaquate denied the allegations entirely. He testified that no physical assaults had occurred, denied having made any threats or having confined B.B., and denied that any sexual contact had taken place.

He intimated that B.B. had made a false complaint to the police because she was jealous of the fact that he had been communicating with another woman and was angry that he did not want to move with her to Saskatoon. [ 8 ] When the trial began, Mr. Wesaquate was represented by counsel. Part way through the Crown’s case, however, his lawyer sought permission to withdraw, citing a breakdown in the solicitor-client relationship. The trial judge allowed the withdrawal and denied Mr. Wesaquate’s request to adjourn the trial to engage new counsel. She ordered that the trial continue but permitted Mr.

Wesaquate’s mother and a court worker to assist in the conduct of his defence. [ 9 ] As set out above, at the conclusion of the trial, the trial judge found Mr. Wesaquate guilty of assault causing bodily harm and acquitted him of the remaining charges. She went on to impose the sentence described in the introduction to these reasons. III. CACR3423 – CROWN APPEAL FROM ACQUITTAL A. The basis of the appeal [ 10 ] The Crown asserts that the trial judge erred in three ways in acquitting Mr.

Wesaquate of sexual assault. [ 11 ] First, the Crown says the trial judge incorrectly applied the law in concluding that the mens rea element of the offence had not been proven. The Crown takes the position that the trial judge found as a fact that sexual contact between Mr. Wesaquate and B.B. had occurred, and that B.B. had not consented to it. Despite having made that finding, the trial judge determined there was a reasonable doubt about Mr. Wesaquate’s guilt because she was not satisfied that he knew or was wilfully blind to the fact that B.B. had not consented.

In this respect, says the Crown, the trial judge made a legal error by failing to consider whether Mr. Wesaquate’s guilt was established on the basis that he had been reckless as to the absence of consent. [ 12 ] The Crown’s second argument is that the trial judge erred by misinterpreting and misapplying the defence of honest but mistaken belief in communicated consent. The assertion here is that the trial judge gave Mr.

Wesaquate the benefit of this defence, notwithstanding that there was no air of reality to it. [ 13 ] Third, the Crown submits the trial judge erred by providing reasons for judgment that are so inadequate that they preclude meaningful appellate review.

The argument here is that the trial judge failed to provide reasons that explained what evidence, or lack of evidence, led her to have a reasonable doubt about whether the Crown had proven the mens rea element of the offence. [ 14 ] For the purpose of disposing of the Crown’s appeal against acquittal, it is only necessary to address the first of these alleged errors. In my respectful view, in light of the evidence before the trial judge and the factual findings she made, it was incumbent upon her to consider whether Mr.

Wesaquate had been reckless regarding the absence of B.B.’s consent to the sexual activity in question when deciding whether the Crown had proven the mens rea element of the offence. She failed to do that and, thus, erred in law. That error had a material bearing on the acquittal and, in the circumstances, a new trial on this charge is required. Let me explain how I arrive at that result. B. The governing legal principles 1. Crown appeals from verdicts of acquittal [ 15 ] Under s. 676(1)(

a) of the Criminal Code , the Crown can only appeal an acquittal on a “ground of appeal that involves a question of law alone”. This means the appealable error must be traced to a question of law, rather than to a question about the weighing of evidence and the assessment of whether it meets the standard of proof ( R v Chung , 2020 SCC 8 at para 10 , 386 CCC (3d) 523 [ Chung ]).

Appellate courts must be careful not to transform opposition to a trial judge’s factual findings and inferences into attributed legal errors ( R v Javanmardi , 2019 SCC 54 at para 42 , [2019] 4 SCR 3). [ 16 ] While questions of law attract a correctness standard of review, the Court’s analysis must proceed from the understanding that an acquittal is not to be lightly overturned on appeal ( R v Sutton , 2000 SCC 50 at para 2 , [2000] 2 SCR 595).

In order to succeed, the Crown must not only identify a legal error on the part of the trial judge, it must also satisfy the appellate court that the impugned error of law might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal.

While this does not mean the Crown must show that the verdict would necessarily have been different absent the error, it does require demonstrating that the error may well have affected the verdict ( R v Graveline , 2006 SCC 16 at para 14 , [2006] 1 SCR 609; R v Cowan , 2021 SCC 45 at para 46 , 409 CCC (3d) 287). [ 17 ] Where the Crown discharges its burden of identifying a legal error and demonstrating that it had a material bearing on the verdict, the question then becomes one of remedy. Under s. 686(4)(b), where an appellate court allows an appeal from acquittal in a judge-

alone trial, it may order a new trial or enter a verdict of guilty. An appellate court’s power to enter a conviction rather than order a newtrial is discretionary and should only be used in the clearest of cases, where the court is satisfied that the trial judge’s findings of fact,viewed in light of the applicable law, support a conviction beyond a reasonable doubt (R v McRae, 2013 SCC 68 at para 39, [2013] 3 SCR931).

This will only be the case where all of the findings necessary to support a verdict of guilty have been made either explicitly orimplicitly, such that if the law had been applied correctly by the trial judge, a conviction would have been inevitable (R v Tran, 2010 SCC58 at para 47, [2010] 3 SCR 350; see also R v Moise, 2016 SKCA 133 at para 36, 343 CCC (3d) 16). 2. The legal components of the offence of sexual assault [18] Sexual assault, like all crimes, has an actus reus and a mens rea component. The Crown must prove both beyond a reasonabledoubt to obtain a conviction.

The actus reus component of sexual assault involves the touching of another person in a sexual way withouttheir consent.

The mens rea consists of the intention to touch the other person in that way and knowing of, being reckless of, or wilfullyblind to, a lack of consent on their part (R v Barton, 2019 SCC 33 at para 87, [2019] 2 SCR 579 [Barton]; R v Kirkpatrick, 2022 SCC 33 atpara 28 [Kirkpatrick]; R v J.A., 2011 SCC 28, [2011] 2 SCR 440 at paras 23–24 [J.A.]; R v Ewanchuk, (SCC), [1999] 1SCR 330 at para 42 [Ewanchuk]). [19] The first two elements of the actus reus—the touching and its sexual nature—are determined objectively.

The third element,absence of consent, is subjective and determined by reference to the complainant’s internal state of mind towards the touching (R v G.F.,2021 SCC 20 at para 25, 404 CCC (3d) 1 [G.F.]; Ewanchuk at paras 25–26; Kirkpatrick at para 28).

Whether or not the accused thoughtor perceived that the complainant was consenting is irrelevant to whether the actus reus occurred (Barton at para 89; R v T.S.C., 2022SKCA 1 at para 41, leave to appeal denied, (SCC); R v H.W., 2022 ONCA 15 at para 45 [H.W.]). [20] “Consent” is defined in s. 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in thesexual activity in question”. As set out above, that connotes a purely subjective analysis, determined only by reference to thecomplainant’s internal state of mind at the time the touching of a sexual nature occurs.

Consent requires the “conscious agreement of thecomplainant to engage in every sexual act in a particular encounter” (J.A. at para 31; G.F. at para 29). Consent must be freely given, mustexist at the time the sexual activity in question occurs, and must be linked to the sexual activity in question, which encompasses thespecific sexual act, the sexual nature of the activity and the identity of the partner (Barton at para 88).

Subjective consent on the part ofthe complainant cannot be found to exist in any of the situations covered by s. 273.1(2) of the Criminal Code (i.e., where the allegedconsent is given by a person other than the complainant; where the complainant is unconscious or otherwise incapable of consenting;where the accused induces the complainant to consent by abusing a position of trust, power or authority; where the complainant expressesa lack of agreement to the sexual activity in question, or where the complainant withdraws previously-given consent). [21] If the complainant did not subjectively consent to the sexual activity or touching in question, the actus reus of sexual assault isestablished.

However, as the Supreme Court observed in G.F.: [33] …the presence of subjective consent, or a reasonable doubt as to subjective consent, does not necessarily end the matter and result inan acquittal. There is a second aspect to “consent” for the purposes of the actus reus of sexual assault — subjective consent must also beeffective “as a matter of law” ….

Another way of framing that question is to ask whether the subjective consent has been vitiated. (citations omitted) [22] Where the apparent consent of the complainant to sexual touching has been obtained by force, threats or fear of force, fraud, orthe exercise of authority, that consent is of no legal effect (s. 265(3) of the Criminal Code; see also: Kirkpatrick at paras 33–34). The samecan be said where the complainant is induced into sexual activity by the accused abusing a position of trust, power, or authority(s. 273.1(2)(c)).

In short, where the complainant has been deprived of control over who touches their body, and how, there is no consent inlaw. Moreover, a complainant who is unable to say “no” to sexual touching, or who believes they have no choice in the matter, is notcapable of providing legally effective subjective consent (G.F. at paras 35 and 56–57). [23] Establishing the mens rea component of sexual assault requires the Crown to prove that the accused intentionally touched thecomplainant, and that the accused knew, or was reckless or wilfully blind to the fact that the complainant was not consenting.

The analysisis typically conducted after the trier of fact has concluded that the actus reus has been committed. The focus then shifts to the accusedperson’s mental state, with the question being whether the accused had the requisite knowledge or acted with the requisite recklessness orwilful blindness regarding lack of consent (Barton at para 87; G.F. at para 25; H.W. at para 46). C. Analysis 1. The Trial Decision [24] As set out above, the trial judge was faced with two diametrically opposite versions of the relevant events.

In her decision, shebegan by reviewing the evidence in detail, and then made findings of credibility and reliability. As Mr. Wesaquate had testified and deniedcommitting the offences, she instructed herself in accordance with the approach set out in R v W.(D.), (SCC), [1991] 1SCR 742 [W.(D.)], and went on to say: [Mr. Wesaquate] provides a lot of detail about what the parties did outside the house during this period.

By contrast, he provides littledetail about the hours spent Saturday night and Sunday morning except to say [B.B.] was mad at him about [the other woman with whomhe had been communicating] and then asked to have sex with him, which sounds unlikely. [B.B.] recalls little about the events surrounding the alleged offences, but she has a good recollection of specific actions and words used by[Mr. Wesaquate] during the alleged offences. The details she provides most often hang together; however, often those details are sparse. Overall, [B.B.]’s testimony was clear and more consistent than [Mr.

Wesaquate]’s; however, I must consider whether [Mr. Wesaquate]’sevidence raises a reasonable doubt about his guilt on any charge. I must consider, also, whether the evidence I do believe satisfies me

beyond a reasonable doubt that the Crown has proved the essential elements of each offence. [25] Next, the trial judge considered whether the elements of each offence had been proven. She began with the charge of sexualassault: First offence is sexual assault, contrary to s. 271 of the Criminal Code. The Crown must prove each of the following essential elements ofthis offence beyond a reasonable doubt: one, that [Mr. Wesaquate] touched [B.B.] directly or indirectly; two, that the touching by [Mr.Wesaquate] was intentional; three, that the touching by [Mr.

Wesaquate] took place in circumstances of a sexual nature; four, that [B.B.]did not consent to the sexual activity in question; and five, that [Mr. Wesaquate] knew that [B.B.] did not consent to the sexual activity inquestion. [B.B.] testified that [Mr. Wesaquate] told her to perform oral sex on him. She complied because she was fearful. Later, they had sexualintercourse. [B.B.] testified that the sexual intercourse just happened, and she did not consent to it. [Mr. Wesaquate] denies any sexualactivity that evening.

However, I find the real matter in issue is whether the Crown has satisfied me beyond a reasonable doubt that [Mr.Wesaquate] knew that [B.B.] did not consent to the oral sex and/or the sexual intercourse. [26] The trial judge concluded that she had a reasonable doubt about whether the vaginal intercourse B.B. described had occurred.She then turned to the allegation of oral sex, and explained why she was left with a doubt about whether the Crown had proven the mensrea component: Regarding the oral sex, I have a doubt whether [Mr. Wesaquate] knew of or was wilfully blind to [B.B.]’s lack of consent.

Thecircumstances described by [B.B.], again four years after the fact, were too vague to allow me to accept beyond a reasonable doubt that[Mr. Wesaquate] knew or was wilfully blind to [B.B.]’s state of mind, and, therefore, I find [Mr. Wesaquate] not guilty of count 1. [27] With respect to the charge of assault causing bodily harm, the trial judge concluded that offence had been proven to thecriminal standard. She said: The Crown asserts that [Mr.

Wesaquate] choked [B.B.] causing injuries to her neck that were more than trivial. [B.B.] testified that thebruises and marks lasted a week. … Evidence from Sergeant Hegi and the photographs combined with [B.B.]’s clear and consistent testimony describing how [Mr.Wesaquate] choked her convinces me beyond a reasonable doubt that [Mr. Wesaquate] choked [B.B.] and committed bodily harm bydoing so, and I find [Mr. Wesaquate] guilty of count 6. [28] As noted above, Mr. Wesaquate was acquitted on all of the remaining charges.

As such, I need not delve into the basis for thetrial judge’s determination on those matters. 2. Failure to consider recklessness [29] As set out in the foregoing excerpts, the trial judge found Mr. Wesaquate guilty of assault causing bodily harm because she wassatisfied beyond a reasonable doubt that, in the course of the events that preceded the sexual activity, he had assaulted B.B. by choking herwith enough force to cause injuries that amounted to bodily harm. The trial judge observed that B.B. had testified that she only compliedwith Mr.

Wesaquate’s demand for oral sex because she feared being subjected to further violence. In short, based on B.B.’s testimony, herapparent consent to sexual activity was not legally valid. [30] Although the trial judge concluded there was a reasonable doubt about whether the vaginal intercourse that B.B. described hadtaken place, she appears to have accepted B.B.’s testimony regarding the occurrence of oral sex. In that respect, she framed the “realmatter in issue” as being whether the Crown had proven that Mr.

Wesaquate knew B.B. had not consented to the oral sex and determinedthat she was left with a “a doubt whether [Mr. Wesaquate] knew of or was wilfully blind to [B.B.]’s lack of consent”. [31] The Crown contends that, given the findings of fact the trial judge made in relation to the charge of assault causing bodilyharm, it was incumbent upon her to consider not only whether Mr. Wesaquate knew or was wilfully blind to the fact that B.B.’s apparentacquiescence to his demand for oral sex was not legally effective consent, but also to consider whether he was reckless in that regard.

Iagree with that submission, as it is consistent with the governing law. [32] While the trial judge’s reasons make explicit reference to the concepts of knowledge and wilful blindness; they make nomention of recklessness as a potential basis for establishing mens rea.

In deciding whether the failure to make direct reference torecklessness constitutes legal error, it is important to bear in mind that appellate review must begin from the presumption that trial judges“know the law with which they work day in and day out” (R v Burns, (SCC), [1994] 1 SCR 656 at 664; R v R.E.M., 2008SCC 51 at para 45, [2008] 3 SCR 3 [R.E.M.]). It is also trite law that judges are under no obligation to demonstrate their knowledge ofbasic legal principles or to provide reasons that are the equivalent of a jury instruction on the law (G.F. at para 74; R.E.M. at para 45).

Themere failure by a trial judge to cite a governing legal principle does not establish that they have misapplied or failed to apply it. Reasonsmust be read as a whole, in the context of the entire trial, including the evidence and the submissions of counsel (Chung at para 13; R.E.M.at paras 13 and 37), and where ambiguities in a trial judge’s reasons are open to multiple

interpretations, those that are consistent with thepresumption of correct application are to be preferred over those that suggest error (R v C.L.Y., 2008 SCC 2, [2008] 1 SCR 5 at paras 10–12; G.F. at para 79). [33] All of that said, the presumption that trial judges know the law does not insulate their decisions from appellate scrutiny; thereasons must still show that the law was correctly applied in the particular case under appeal (R.E.M. at para 47; R v Sheppard, 2002 SCC26 at para 55, [2002] 1 SCR 869). [34] Even bearing in mind the presumption that trial judges know the law, I can find no basis in the record to conclude that the trial

judge in this case approached the question of mens rea from the angle that the law requires. The only mention of the concept ofrecklessness, as it related to the mens rea for sexual assault, occurred during a mid-trial discussion between the trial judge andMr. Wesaquate regarding whether he was going to testify. In that discussion, the trial judge told Mr. Wesaquate that, in order to establishhis guilt on the charge of sexual assault, the Crown would have to prove that he “intended to touch [B.B.], that the touching … was sexualin nature, that she did not consent to the sexual touching, and that [Mr.

Wesaquate] knew she did not consent, knew or was reckless orwilfully blind, whether she consented”. The word “reckless” was never uttered again, by anyone, at any point during the trial. The parties’submissions at trial focused on the question of whether the actus reus of the offence had been proven and, in that regard, Mr. Wesaquate’sposition was that no sexual touching of any sort had taken place. Neither party addressed the issue of whether Mr. Wesaquate was recklessregarding lack of consent during the trial, and the trial judge did not mention it in her reasons.

In short, there is nothing in the record thatsupports a conclusion, even based on the context as a whole, that the trial judge turned her mind to the question of recklessness whendeliberating the verdict on the charge of sexual assault. [35] Therefore, I am unable to conclude that the trial judge can be taken to have implicitly considered and rejected the possibilitythat the mens rea component of the charge of sexual assault had been proven on the basis that Mr. Wesaquate was reckless to the fact thatB.B. had not consented to oral sex.

Given the circumstances and the evidence before her, the failure to do so was a legal error. [36] Moreover, I am satisfied that, in the concrete reality of the case, this error had a material bearing on the acquittal. This isbecause the concepts of knowledge, wilful blindness, and recklessness, as they relate to mens rea for criminal offences, are qualitativelydifferent. [37] Knowledge, the highest of the three standards for mens rea, needs little explanation. It means the accused person actuallyknows the state of affairs that makes their conduct criminal.

In the case of sexual assault, it means the accused actually knows thecomplainant is not consenting to the sexual touching. [38] Wilful blindness and recklessness are more nuanced. While the two are often conflated, they are properly recognized as distinctconcepts, as Moldaver J. explained in R v Morrison, 2019 SCC 15, [2019] 2 SCR 3 [Morrison]: [98] Wilful blindness exists where an accused’s “suspicion is aroused to the point where he or she sees the need for further inquiries,but deliberately chooses not to make those inquiries”: R. v.

Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21 (emphasis in original).Wilful blindness has been characterized as “deliberate ignorance” because it connotes “an actual process of suppressing a suspicion”: D.Stuart, Canadian Criminal Law: A Treatise (7th ed. 2014), at p. 261. “A court can properly find wilful blindness only where it can almostbe said that the defendant actually knew”: Briscoe, at para. 23, citing G. Williams, Criminal Law: The General Part (2nd ed. 1961), at p.159.

This Court has repeatedly held that if an accused is found to be wilfully blind, that state of mind may substitute for actual knowledge:Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, at pp. 584-85; Briscoe, at para. 21. Indeed, it is “equivalent toknowledge”: Briscoe, at para. 23, citing Williams, at p. 159. … [100] For greater clarity, I pause here to note that although the two concepts are often conflated, recklessness is distinct from wilfulblindness: Sansregret, at pp. 584-85; Briscoe, at para. 23.

Recklessness refers to the state of mind of a person who, “aware that there isdanger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk”: Sansregret, atp. 582. By contrast, wilful blindness “arises where a person who has become aware of the need for some inquiry declines to make theinquiry because he does not wish to know the truth.

He would prefer to remain ignorant”: p. 584. [101] … The required mens rea for sexual assault is established where the accused is reckless with regard to a lack of consent on the partof the person sexually touched: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 42; R. v. J.A., 2011 SCC 28,[2011] 2 S.C.R. 440, at para. 24.

An accused’s awareness that there is a risk that the complainant has not consented to the sexual touching,and the accused’s persistence despite this risk, is sufficient to make out the requisite mental element…. (emphasis in original) [39] As I read the foregoing passage, recklessness regarding lack of consent to sexual contact represents a lower standard than wilfulblindness.

This is because recklessness involves only awareness of a risk that the complainant is not consenting and persistence in a courseof conduct in the face of that risk, whereas wilful blindness involves a deliberate failure by an accused person to make the necessaryinquiry about whether the complainant is consenting, in order to remain purposefully unaware of the truth.

Put another way, recklessnessinvolves a failure to turn one’s mind to the full extent of the risk that one’s conduct may be unlawful, while wilful blindness involvesdeliberately suppressing one’s suspicion about, or actively remaining ignorant to, the unlawfulness of that conduct (see, for example: R vBriscoe, 2010 SCC 13 at paras 22–24, [2010] 1 SCR 411; R v Spencer, 2017 SKCA 54 at para 72, 354 CCC (3d) 525; and R v Alekozai,2021 ONCA 633 at para 42). [40] As stated previously, the trial judge found that, before any sexual contact between Mr.

Wesaquate and B.B. had taken place, hehad committed a serious assault against her, by choking her to the point of unconsciousness. The trial judge also appears to have acceptedthat B.B. submitted to Mr. Wesaquate’s demand for oral sex out of fear for her safety. Although some time had passed between the assaultand Mr. Wesaquate’s sexual demand, there was evidence that the two events were not disconnected; B.B. testified that Mr. Wesaquate’sabusive tirade had continued unabated from the time of the assault until he demanded oral sex.

In these circumstances, it was incumbentupon the trial judge to have considered whether the inference could be drawn that Mr. Wesaquate was aware of the risk that B.B. hadacquiesced to his sexual demand because of the earlier assault and her fear that it may be repeated if she refused. Had she engaged in thatconsideration, in my view, there is a real possibility that the verdict may have been different.

Accordingly, the Crown’s appeal must beallowed, and the verdict of acquittal on the charge of sexual assault must be set aside. [41] The Crown concedes that it would not be appropriate in this case for this Court to enter a conviction. This is a properconcession, as resolving the question of whether Mr. Wesaquate was reckless as to the absence of B.B.’s consent to sexual contactrequires a finding of fact that the trial judge did not make. Moreover, it is unclear whether the trial judge adequately addressedMr. Wesaquate’s denial that sexual contact, of any sort, had occurred.

Although the trial judge’s reasons may be read as implicitly

rejecting his testimony, it is difficult to discern whether she made such a factual finding in accordance with the principles set out in W.(D.).Accordingly, it cannot be said that, but for the trial judge’s legal error in failing to consider the recklessness aspect of mens rea, Mr.Wesaquate would inevitably have been convicted of sexual assault. [42] Given my conclusion that a new trial should be ordered for the foregoing reasons, it is unnecessary to consider the Crown’sother arguments. D.

Conclusion on CACR3423 [43] I would allow the Crown’s appeal, set aside the acquittal on the charge of sexual assault, and remit that matter to the Court ofKing’s Bench for a new trial. IV. CACR3473 – MR. WESAQUATE’S APPEAL FROMCONVICTION A. The nature of the appeal [44] Mr. Wesaquate appeals against his conviction on the charge of assault causing bodily harm.

He asserts that the trial judge’srefusal to grant his request for an adjournment and the way in which she summarily dismissed his attempts to raise a Charter issue wereeither reversible errors of law or, when considered in the context of how the rest of the trial unfolded, compromised the fairness of the trialsuch that his conviction was the product of a miscarriage of justice. B. Background [45] When the trial began, on September 29, 2020, Mr. Wesaquate was represented by a lawyer, Estes Fonkalsrud. On the firstmorning of the trial, Mr.

Fonkalsrud sought an adjournment, stating that he had just been advised of two important developments. Thefirst was that a witness listed on the indictment, Constable Ryan Buhr, would not be present to testify. The second was that the Crownwould be applying to introduce evidence, under the principled exception to the hearsay rule, about things that B.B.’s children had said totheir grandmother [Khan application] (see: R v Khan, (SCC), [1990] 2 SCR 531). Mr. Fonkalsrud argued that, given theshort notice he had received about these developments, Mr.

Wesaquate’s right to make full answer and defence would be compromised ifthe trial were to proceed as scheduled. The trial judge denied the request. She ruled: THE COURT: Well, I have to say, I’m not satisfied at this time that Mr. Wesaquate’s ability to make full answer and defence is impaired.I can tell you the moment I do think that this -- this thing is coming to either an end or an adjournment, but not at this point, because until Ihear the Khan application, I don’t know the significance of that evidence, and I’m not satisfied at this time that -- about its significance.

The Crown is going to make every effort possible -- not every reasonable effort, but every effort possible to get that officer to testify. Hehas an obligation to do so, and I expect him to testify by video, if necessary, from Ottawa. So with that, I am not agreeing to the adjournment at this time. [46] After that ruling was made, Mr. Wesaquate was arraigned. As the charges were being read and his pleas were being recorded,Mr. Wesaquate attempted to raise a concern about the indictment. He expressed his belief that the sexual assault charge had been“dropped” at the preliminary inquiry.

The trial judge responded as follows: THE COURT: The sexual assault charge was dropped at the -- at the prelim, but the Crown is entitled to -- to file an Indictment with thatcharge on it. [47] The trial judge then asked Mr. Fonkalsrud to speak on Mr. Wesaquate’s behalf. Mr. Fonkalsrud indicated that he hadexplained to Mr. Wesaquate that, after a preliminary inquiry, the Crown may lay different charges than those contained in the originalInformation. He also advised the trial judge that Mr. Wesaquate understood the charges he was facing. Mr.

Wesaquate, however, againattempted to explain his concern to the trial judge, prompting this exchange: THE ACCUSED: But there was a (INDISCERNIBLE) come to court here before, and the judge at that day said that the Crown didn’thave no information or evidence attached to the new charges that were filed, and then she told the Crown that – or Crown that discard that(INDISCERNIBLE) there was no evidence or anything attached to the charges. THE COURT: And – and we’re beyond that point now. The – there’s not been an objection to the Indictment, and that would be a legalobjection, and Mr.

Fonkalsrud’s not objecting to the form of the Indictment, okay? So this is the Indictment. And now, at the trial, theCrown has to prove each offence beyond a reasonable doubt, okay? So this is the time for evidence to see if the Crown has sufficientevidence so that I can find that I accept beyond a reasonable doubt that you are guilty of these six offences. If I have a reasonable doubtabout any of the offences, I will find you not guilty. Does that make sense to you? [48] The trial then began. The Crown called B.B. as its first witness.

Her testimony took up the remainder of the first day of the trialand, when court was adjourned at the end of the day, Mr. Fonkalsrud was still in the midst of cross-examining her. When the trial resumedthe next day, Mr. Fonkalsrud asked the trial judge for a few minutes, so that he could discuss something with Mr. Wesaquate beforecontinuing the cross-examination. He indicated that it was an issue of solicitor-client communication, and said he needed to confirm thathe still had instructions to continue as Mr. Wesaquate’s counsel. The trial judge responded as follows: THE COURT: Okay. And perhaps Mr.

Wesaquate should know that if -- if something does happen, that he will be proceeding thereafter

on his own, okay? [ 49 ] Following a brief adjournment, Mr. Fonkalsrud resumed and completed his cross-examination of B.B. [ 50 ] The next witness for the Crown was B.B.’s mother, R.B. She was affirmed on a voir dire , in relation to the Crown’s Khan application. R.B. gave her evidence in chief and, before the day’s lunch break, Mr. Fonkalsrud began cross-examining her. [ 51 ] When Court reconvened in the afternoon, Mr. Fonkalsrud advised the trial judge that he may not be in a position to continue to act for Mr. Wesaquate.

He said there had been “a breakdown in the solicitor-client relationship that can’t be repaired”, largely because Mr. Wesaquate wanted to personally conduct the remainder of the cross-examination of R.B. [ 52 ] The trial judge then addressed Mr. Wesaquate directly. After recounting some of the history of the matter and observing that he had already been through “five or six lawyers”, she told him that she would give him time to consult with Mr. Fonkalsrud and consider his options, but made it clear to Mr.

Wesaquate that if he discharged his lawyer now, the trial would not be adjourned to give him time to engage new counsel. [ 53 ] The trial was then adjourned for 15 minutes and, following that adjournment, Mr. Wesaquate confirmed that he was dismissing Mr. Fonkalsrud as his lawyer. Once the trial judge verified that Mr. Wesaquate had the disclosure material he would need to continue his defence, she permitted Mr.

Fonkalsrud to withdraw, but ordered him to remain and act as amicus curiae for the balance of the day, so that he could ask questions of a police officer the Crown intended to call as a witness. [ 54 ] The trial judge also indicated that, notwithstanding the concern Mr. Wesaquate had expressed about his ability to conduct the remainder of R.B.’s cross-examination by himself, she was not prepared to delay the conclusion of R.B.’s evidence until the next day. To address this concern, she permitted Mr. Wesaquate’s mother to assist him with the rest of the cross-examination.

R.B.’s testimony continued to its conclusion on that basis. [ 55 ] The next Crown witness was Sergeant Colin Hegi of the Regina Police Service. After Crown counsel completed its examination-in-chief, Mr. Fonkalsrud cross-examined Sgt. Hegi, in his role as amicus . Mr. Wesaquate and his mother also conducted additional cross-examination. [ 56 ] Sergeant Hegi completed his testimony as the end of the second day of the trial drew near. Crown counsel advised the trial judge that there were two more witnesses to come. The trial judge explained to Mr.

Wesaquate that he would need to be prepared to cross- examine those witnesses the next day. Through Mr. Fonkalsrud, Mr. Wesaquate advised the trial judge that, if she were not prepared to appoint other counsel, he wanted a Court worker, Tracey Desjarlais, to assist him with the remainder of the trial. The trial judge responded to that request as follows: THE COURT: If Ms. Desjarlais is available to assist you tomorrow afternoon, fine; if she’s available to assist you Friday, fine. But -- but I hope I made it clear to you, Mr. Wesaquate, that we will delay matters to allow you to speak to a lawyer reasonably.

You’re far past it being reasonable. In other words, it would be unreasonable for me, in my view, to allow you any more time to -- to speak to a lawyer. This trial has been set for some time. You were expected to be ready for it, which means I’m expecting you to be ready to cross-examine the two officers tomorrow at two and to call your evidence on Friday if you choose to do so, okay? [ 57 ] With that, the trial judge excused Mr. Fonkalsrud from the remainder of the proceedings, and adjourned court for the day. [ 58 ] When Court resumed the next morning, Ms. Desjarlais was present to assist Mr.

Wesaquate The Crown called its final two witnesses, both of whom were police officers. After each of those officers had testified in chief, Ms. Desjarlais, Mr. Wesaquate and his mother were all permitted to ask questions in cross-examination. [ 59 ] Following that, the Crown closed its case. A stay of proceedings was directed on the charge of kidnapping. A discussion ensued about how to proceed with the Khan application. The trial judge tried to explain to Mr.

Wesaquate what the Khan application meant, in terms of the nature of the evidence the Crown was attempting to lead and what criteria needed to be met in order for the evidence to be admitted on that basis, and asked Ms. Desjarlais whether Mr. Wesaquate wished to call evidence on the voir dire . [ 60 ] At this point, Mr. Wesaquate again asked for an opportunity to retain legal counsel, but the trial judge again denied his request, saying: THE COURT: … I told you earlier this week that I was not going to allow you to adjourn the trial, to delay the trial again to get another lawyer.

That’s when I went through the number of lawyers that you’ve had assist you throughout. Now, I recognize that Mr. Fonkalsrud is only one of a couple that you actually fired; two others withdrew because of problems with the solicitor-client relationship. But in my view, you had been given more than sufficient time to get legal assistance for this trial, and that at a certain point, public interest in seeing matters determined became more important. It was my view that Mr. Fonkalsrud had assisted you through the difficult evidence, which is [B.B.]’s evidence and [R.B.]’s evidence.

He had assisted you through that, so it is only the latter part of the case that you’ve been without legal assistance. And the -- I -- I don’t know why you keep parting company with your lawyers, but you can’t -- you can’t keep delaying the trial by doing that, okay? … THE COURT: So this trial is finishing. So there’s -- I’m not going to delay to allow you to speak -- I mean, you can speak to a lawyer any time that you want to, but I’m not delaying the trial for that purpose. [ 61 ] The trial judge then engaged in a discussion with Crown counsel about its Khan application , as Mr.

Wesaquate had indicated that he wanted to call his children as witnesses on the voir dire . This prompted Crown counsel to request an opportunity to speak to the children and, perhaps, reconsider its position on the application.

[ 62 ] Then, because Mr. Wesaquate had indicated that he may wish to testify, the trial judge attempted to furnish him with information that would assist him in making that decision, including by providing a detailed explanation of the elements of the offences that the Crown was required to prove. [ 63 ] The discussion then turned to whether Mr. Wesaquate intended to call witnesses other than himself in his defence. He advised the trial judge that he wanted his daughters to testify and asked her if he could hire a lawyer at his own expense to represent him for the remainder of the trial.

She responded as follows: THE COURT: I’m not telling you you can’t have a lawyer, Mr. Wesaquate. What I’m telling you is that I’m not adjourning the trial for the purpose of you getting a lawyer. … THE COURT: And if you had parted ways with one lawyer, Mr. Wesaquate, even if you’d parted ways with two lawyers, it would be one thing. But in my view, the State has waited long enough for this trial to take place and cannot keep waiting for you to get a lawyer that you agree with, okay? THE ACCUSED: Yeah.

But I just wanted, like -- THE COURT: It has been four years, more than four years since the -- the incidents allegedly occurred. THE ACCUSED: See, but all the lawyers, I’ve never, ever got to sit and -- sit with them and -- THE COURT: And I’m not going back on that decision, Mr. Wesaquate. THE ACCUSED: Okay. Sorry about that. THE COURT: I am not delaying the trial any further for you to get a lawyer. [ 64 ] The trial was again adjourned for the day. When Court resumed the next morning, Crown counsel advised the trial judge that the Crown was abandoning the Khan application and closing its case.

The trial judge then informed Mr. Wesaquate that this meant R.B.’s testimony regarding what her grandchildren had told her would not be considered for the truth of its contents, and summarized the portions of R.B.’s evidence that would be admissible. [ 65 ] Then, Ms. Desjarlais asked for an adjournment to have transcripts prepared of the evidence that had been heard up to that point, so that it could be reviewed before the defence began calling evidence.

The trial judge granted that request, and the matter was adjourned from October 2, 2020, to December 21, 2020, for that purpose. [ 66 ] When the trial resumed on December 21, 2020, Mr. Wesaquate indicated that he intended to call evidence. Before he began to do so, however, he advised the trial judge that he wanted to bring a Charter application. The trial judge refused to entertain such an application, given the stage the proceedings had reached: THE ACCUSED: She -- Ms. Tracy Desjarlais was talking about COVID, and it’s now -- now like that had me all worried.

But also we were talking about the Charter of Rights application and an O’Connor application, and I don’t have any of the knowledge that she - - THE COURT: But -- yes, but, Mr. Wesaquate, if you were going to bring a Charter application, the time for doing so was not today. You needed to give notice about bringing that application. THE ACCUSED: See that’s the thing. I don’t know how the court works. THE COURT: Well, Mr. Wesaquate, you have gone through many lawyers.

You have decided each and every time that you were not content with their assistance, therefore, you put yourself in a position to represent yourself. So you do have to figure out how you are going to do that. I can assist you with the trial procedure. You did have a lawyer through the Crown’s case which was a help to you. Now it is your decision whether to call evidence. Today and tomorrow were set aside for that, so we’re going to proceed, and but we’ll proceed at 11:00, okay? [ 67 ] With that, Mr.

Wesaquate called his first witness—the woman whose communications he alleged had sparked B.B.’s jealousy —to testify. His mother conducted the examination-in-chief. Mr. Wesaquate then indicated that he wanted his daughter to testify. The matter was adjourned until the following day for that purpose however, when court resumed the next day, Mr. Wesaquate’s daughter was not present. The trial judge indicated that she was not prepared to delay the trial yet again to see if the child could be brought to Court. She told Mr. Wesaquate that, if he wanted to testify, he should do so. Mr. Wesaquate then took the stand.

At the end of his testimony, he renewed his request for an adjournment so that he could attempt to call his daughter to testify. The trial judge also denied that request. [ 68 ] Mr. Wesaquate called no further witnesses, and the case proceeded to closing arguments. Ms. Desjarlais made submissions on Mr. Wesaquate’s behalf. The trial judge ultimately rendered the verdicts described earlier in these reasons, finding Mr.

Wesaquate guilty on the charge of assault causing bodily harm, and acquitting him of all other charges. [ 69 ] Sentencing was adjourned so that a pre-sentence report could be prepared and, on the eve of the sentencing hearing, Mr. Wesaquate once again raised the prospect of a Charter application. The trial judge addressed this communiqué at the outset of the sentencing hearing. While the precise nature of his application may not have been clearly stated, it appeared that Mr.

Wesaquate sought to raise an abuse of process argument based on the fact that the Crown had indicted him on charges that had been dismissed at the preliminary inquiry. Once again, the trial judge ruled that she would not entertain such an application, because she took the view that it ought to have been brought before the trial commenced: THE COURT: Thank you. Mr. Wesaquate, you sent a -- an e-mail -- was it to the Court at 3 in the morning, talking about an abuse of

process and Charter of Rights application. THE ACCUSED: I didn’t know if I -- I had to file it before or what -- what the steps were I was supposed to take. … THE ACCUSED: Okay. I’m trying to file abuse of process, and me and Tracy have been trying to study everything together, but she has it on her, so I’ll let her speak on it. MS. DESJARLAIS: Actually I don’t have it, My Lady.

His mother took it from me, but -- because I’m not knowledgeable on how that whole process works, but the concern was -- or even prior to today, but we didn’t know when to -- when it should have been brought forward, at what point in time, but the fact that these charges were -- he’s already had a preliminary hearing.

Those charges were dismissed, and then the Crown went over and above, filed a straight indictment, and then he was acquitted by the Court on the majority of the charges, and the Crown has filed an appeal, so now he may even have a third trial on these charges, and -- THE COURT: What do you mean “a third trial”? MS. DESJARLAIS: Well, if -- if the Crown is successful on their appeal, there will be a third trial? THE COURT: Was there an earlier trial? I’m not aware that there was an earlier trial. MS. DESJARLAIS: Like, a preliminary hearing, the preliminary hearing initially.

THE COURT: Oh, yes, that -- yes, but as you know that’s not a trial. MS. DESJARLAIS: Okay, but still being presented with these -- THE COURT: So, I’m sorry, I’m confused. I don’t know what the abuse of process is. MS. DESJARLAIS: To go over and above when the matters were dismissed, and then to go straight indictment upon that, and then… THE COURT: Well, these were matters to bring up before trial. MS. DESJARLAIS: See I didn’t know when. THE COURT: But -- and Mr. -- but Mr. Wesaquate was represented by counsel when his -- MS. DESJARLAIS: Right, and -- THE COURT: -- trial started. MS.

DESJARLAIS: -- and when he addressed those concerns with previous -- any previous counsel before, they would withdraw. THE COURT: Well, but that -- we’ve had the trial. Mr. Wesaquate was, as you say, acquitted of five of six charges, and convicted of assault causing bodily harm. MS. DESJARLAIS: Yeah. THE COURT: So if the -- if the abuse of process has to do with -- with -- is it the time that it took to get to trial? I don’t -- I just don’t understand -- THE ACCUSED: Well, (INDISCERNIBLE). MS. DESJARLAIS: Well, that -- well, that, too. THE COURT: I think that’ll be something to talk to the Court of Appeal about.

It’s – MS. DESJARLAIS: Okay. Okay [ 70 ] The sentencing hearing then proceeded and, ultimately, the sentence described above was imposed. C. The arguments on appeal [ 71 ] Mr. Wesaquate contends the trial judge erred in law by refusing his requests to adjourn the trial so he could retain new counsel.

He says that, given the history of the matter, the circumstances and timing of his trial counsel’s withdrawal, the number and seriousness of the charges he was facing, the complexity of the legal issues at trial, his lack of understanding of the legal process, and his unsuccessful attempt to raise a Charter argument, the denial of an adjournment for the purpose of obtaining new counsel deprived him of the right to make full answer and defence, infringed on his right to a fair trial, and thereby amounted to a miscarriage of justice. [ 72 ] The Crown, on the other hand, submits the trial judge made no legal error in denying Mr.

Wesaquate’s adjournment requests. It points out that, by the time the trial began, Mr. Wesaquate’s matters had been before the courts for more than four years and he had already dismissed several lawyers. The Crown says the trial judge’s rulings in relation to Mr. Wesaquate’s adjournment requests, and the

summary dismissal of his Charter application fall into the category of discretionary trial management decisions and, in making them, she acted judicially and exercised her discretion in a reasonable way. Further, says the Crown, the trial judge took appropriate steps to ensure that Mr. Wesaquate would have adequate assistance, including appointing amicus curiae to conduct some of the cross-examination, and

permitting Mr. Wesaquate’s mother and a court worker to help him present his defence. Considering all of that, the Crown contends that Mr. Wesaquate’s right to make full answer and defence was not infringed, the trial was fair, and there was no miscarriage of justice. D. The analytical framework [ 73 ] Mr. Wesaquate’s arguments bring into play the concepts of full answer and defence, trial fairness and miscarriage of justice. In this regard, there are three aspects of the trial judge’s conduct of the proceedings that he contends were flawed: (

i) her decision to deny his request(

s) for an adjournment to retain new counsel; (ii) her failure to provide adequate assistance to him as a self-represented accused person; and (iii) her

summary dismissal of his attempts to raise a Charter issue. [ 74 ] I will address each of these facets of Mr. Wesaquate’s argument individually. Before doing that, however, it is useful to begin with a brief review the legal principles involved. 1. Errors of law and miscarriages of justice [ 75 ] Section 686(1) (

a) of the Criminal Code empowers an appellate court to set aside a conviction on two bases that are relevant to the circumstances of this case. The first is where the trial judge made a “wrong decision on a question of law” ( s. 686(1) (a)(ii)). The second is where “on any ground there was a miscarriage of justice” ( s. 686(1) (a)(iii)). [ 76 ] Miscarriage of justice is a flexible concept that comprehends a range of situations ( R v Moosomin , 2008 SKCA 168 at para 25 , 320 Sask R 74).

Establishing that a miscarriage of justice has occurred does not necessarily require an appellant to demonstrate legal error on the part of the trial judge; a miscarriage of justice can result from any irregularity or combination of irregularities that is severe enough to render the trial unfair or create the appearance of unfairness ( R v Davey , 2012 SCC 75 at paras 50–51 , [2012] 3 SCR 828; R v Theodore , 2020 SKCA 131 at para 80 , 399 CCC (3d) 125).

Actual prejudice to the accused is not necessary to establish a miscarriage of justice; an appearance of trial unfairness, in the eyes of a reasonable and objective observer, is enough ( R v Wilde , 2022 SKCA 74 at para 17 [ Wilde ] ). 2. Full answer and defence and trial fairness – s. 7 and s. 11(

d) of the Charter [ 77 ] Section 650(3) of the Criminal Code entitles an accused person “after the close of the case for the prosecution, to make full answer and defence personally or by counsel”. The principle of full answer and defence also finds expression in the Charter where it is tied to, and intertwined with, the right to a fair trial, as the Supreme Court of Canada recently observed in R v J.J. , 2022 SCC 28 at para 123 [ J.J. ]: [123]

Section 11(

d) states that any person charged with an offence has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. The principles of trial fairness and the accused’s right to make a full answer and defence are expressions of procedural principles of fundamental justice under s. 7, and are also embodied in s. 11(d) ( R. v. N.S ., 2012 SCC 72 , [2012] 3 S.C.R. 726, at para. 15 ; Mills , at para. 69 ). [ 78 ] In addition to embodying the burden of proof beyond a reasonable doubt and the requirement that the state bear that burden, s. 11(

d) demands that criminal prosecutions be carried out in accordance with due process. However, as the majority of the Supreme Court set out in J.J. , the analysis of claims that allege violations of s. 7 and s. 11(

d) rights is not entirely accused-focused. While the rights contained in those sections are those of the accused person, the determination of whether there has been a violation must also bear in mind the other interests at stake in the criminal justice system: [118]

Section 7 requires the principles of fundamental justice to be balanced relationally. The emphasis on an accused’s fair trial rights under s. 7 should be primary ( Shearing , at paras. 130-32; Mills, at para. 94; D. Stuart, Charter Justice in Canadian Criminal Law (7 th ed. 2018), at pp. 284-86; K. Roach, “The Protection of Innocence Under

Section 7 of the Charter ” (2006), 34 S.C.L.R. (2d) 249 , at pp. 280- 81) . But the spectrum of interests reflected in the principles of fundamental justice requires a court to avoid viewing any particular principle in isolation from the others (Mills, at para. 73). And “[n]o single principle is absolute and capable of trumping the others; all must be defined in light of competing claims” ( Mills , at para. 61). … [121] Accordingly, our analysis of the principles of fundamental justice under s. 7 adopts the balancing process that was applied in Mills and Darrach .

Like s. 11(d), the right to make full answer and defence and the right to a fair trial are considered from the perspectives of the accused, the complainant, the community and the criminal justice system at large ( O’Connor , at paras. 193-94, per McLachlin J., as she then was). … [ 79 ] In short, the right to a fair trial guaranteed by s. 11(

d) does not mean that an accused person is entitled to the most favourable procedures imaginable. Nor is the broad principle of trial fairness assessed solely from the accused’s perspective; fairness is also assessed from the point of view of the complainant and community and the criminal justice system at large ( J.J. at para 125 ). 3.

Decisions concerning denial of requests for adjournment [ 80 ] It has been recognized that an adjournment request rooted in the right to make full answer and defence may be seen as a request for a Charter remedy under s. 24(1) (see, for example: R v Chu , 2016 SKCA 156 , 344 CCC (3d) 51). However, I do not understand Mr. Wesaquate to have sought an adjournment as a Charter remedy at trial, nor did he argue on appeal that it should have been granted on that basis. [ 81 ] Of course, seeking Charter relief is not the only means to mount an appellate challenge against a decision denying an adjournment request.

As Caldwell J.A. explained in R v Hayter , 2018 SKCA 65 , 365 CCC (3d) 413 [ Hayter ], even where the Charter is

not invoked in an appeal from a decision to refuse to grant an adjournment, the Court’s powers to correct errors of law or remedymiscarriages of justice are engaged, and the analysis calls for the application of corresponding standards of review: [15] Nonetheless, a decision to deny an adjournment request remains appealable to this Court outside of the Charter under andaccording to the requirements of s. 675(1)(

a) of the Criminal Code. An appeal of this nature engages the Court’s powers under ss.686(1)(a)(ii) or (iii): R v Chu at para 81; R v Moosomin, 2008 SKCA 168at para 27, [2009] 1 WWR 577.

If approached as a potentialerror of law under s. 686(1)(a)(ii), the appellate review is that of a discretionary decision of a trial judge (see R v Chu; R vIronchild (1984), (SK CA), 30 Sask R 269 (CA); Barrette v The Queen, (SCC), [1977] 2 SCR 121).If approached as a potential miscarriage of justice under s. 686(1)(a)(iii), the appeal court reviews what occurred in the trial to see whetherthere was in fact a miscarriage of justice or the appearance of one (R v Moosomin; R v Khan, 2001 SCC 86, [2001] 3 SCR 823). [82] It may not always be easy to determine whether a decision to deny an adjournment request should be approached as a potentialerror of law or as a potential miscarriage of justice.

As Arbour J. observed in R v Khan, 2001 SCC 86 at para 63, [2001] 3 SCR 823:“[a]lthough paras. (a)(ii) and (a)(iii) [of s. 686(1)] are distinct, they are nevertheless closely related…[t]here may often be a fine linebetween what can constitute a “wrong decision on a question of law” and a “miscarriage of justice””. [83] In Hayter, this Court approached the problem by considering first whether the trial judge’s decision to deny the accused’srequest for an adjournment was an error of law.

Justice Caldwell described the analytical process to be followed in this way: [20] As Barrette v The Queen, R v Ironchild and R v Chu indicate, an appeal court’s review of the judge’s decision to decline to grantan adjournment looks first to see whether the decision was based upon reasons that are not well-founded in law.

If so, the appeal court’sfocus shifts to a determination of whether the error has resulted in a deprivation of the accused’s right to make full answer and defence orto a fair trial. [84] This approach must bear in mind, among other things, that the right to make full answer and defence – important as it is – doesnot trump all other interests. The right to make full answer and defence must be “weighed conscientiously and delicately along with thepublic interest in the orderly administration of justice” (Hayter at para 18, quoting from R v Ironchild (1984), (SK CA),30 Sask R 269 (CA) at para 13).

In determining whether a trial judge’s decision with respect to an adjournment request is based on reasonsthat are not well-founded in law, the starting point is the reasons given by the trial judge but, where those reasons leave little to review,“the appellate court must have resort to the whole of the record, examining it for evidence that might support as well as impugn thedecision to deny the adjournment request” (Hayter at para 21). [85] In Hayter, Caldwell J.A. identified and described four lines of inquiry to guide a trial judge’s determination of whether to grantan adjournment for the purpose of obtaining counsel, where it is sought at or shortly before trial (at para 30): (

a) Has the accused failed to exercise the right to counsel honestly and diligently? (

b) Would granting an adjournment inordinately delay the trial? (

c) Would granting an adjournment potentially affect trial fairness from the Crown’s perspective? (

d) Is the accused reasonably capable of making full answer and defence to the charges without the assistance of legal counsel? [86] Under each of these lines of inquiry, Caldwell J.A. also set out a list of relevant sub-questions.

However, as he explained, thedetermination does not turn on whether the trial judge canvassed or addressed all of the sub-questions listed in a formulaic way, but,rather, whether the trial judge properly focussed on the fairness of the trial and the interests of justice: [31] To be clear, there is no general duty on a trial judge to probe each and every one of the itemized questions in a ritualized fashion.The foregoing are merely non-exhaustive suggestions. Each request for an adjournment will give rise to its own set of relevant questionsand considerations.

The scope of the inquiry is best left to the insight and experience of the trial judge. Some of the considerations andquestions itemized above may carry more weight than others based on the facts and circumstances in any given situation. Someconsiderations will overlap and necessarily compete against others. On one hand, the trial judge is bound to see that the accused receives afair and public hearing (Charter, s. 11(d)), which includes the right to a fair trial, and that an accused is not deprived of his or her libertyexcept in accordance with the principles of fundamental justice (Charter, s. 7).

On the other hand, the judge has a duty to ensure theorderly and expeditious administration of justice and to prevent the abuse of court processes. In this context, the relative weight assignedto each consideration is for the trial judge to assess and to balance, with the balancing exercise largely a matter of judicial discretion. Atthe end of the day, the trial judge must be satisfied, on his or her own inquiry, whether it is in the interests of justice to grant anadjournment. 4.

The duty of a trial judge to assist a self-represented accused [87] Where an accused person is not represented by counsel, a trial judge “has a duty to ensure that the accused can have a fair trialthat is respectful of his or her fundamental rights” (R v J.D., 2022 SCC 15 at para 34 [J.D.]).

This duty includes an obligation to rendersome level of assistance, so that defences available to the accused person are presented with full force and effect (Wilde at para 18; R vBialski, 2018 SKCA 71 at para 65, 364 CCC (3d) 485; R v Cathcart, 2019 SKCA 90 at para 76, 380 CCC (3d) 357 [Cathcart]; R vPotoreyko, 2022 SKCA 71 at para 7 [Potoreyko]). [88] The decision as to how much assistance to give a person who is not represented by counsel involves an exercise of discretion.A trial judge’s duty, in this respect, is bounded by what is reasonable, and it will vary from case to case, depending on the dynamics of thetrial in question which may include, among other things, the personal circumstances and abilities of the accused, the seriousness of thecharges, the overall complexity of the case, and the defences raised (Wilde at para 20; Cathcart at para 77; R v Harris, 2009 SKCA 96 atpara 29, 331 Sask R 283; J.D. at para 34). [89] Moreover, while trial fairness requires that a self-represented accused be given a fair opportunity to present their case to the

best of their ability, the duty to assist is limited to what is reasonable in the circumstances; a trial judge is not required to enable theaccused to present the case as effectively as a competent lawyer. Balance is also crucial; there is a duty to assist accused persons who donot have counsel, but trial judges must remain neutral and cannot effectively step into the role of counsel (R v Woolsey, 2021 BCCA 253at paras 49–51 [Woolsey]). [90] In some instances, the duty to assist may require a trial judge, on their own motion, to raise a Charter issue on behalf of a self-represented person.

This duty does not arise “on the mere scent or intimation of a possible Charter infringement” (R v Richards, 2017ONCA 424 at para 113, 349 CCC (3d) 284) but, where there is admissible uncontradicted evidence of a relevant Charter breach, the trialjudge has an obligation to raise the issue, invite submissions, and inquire into the infringement and its consequences. (Bialksi at para 23;Woolsey at para 57; R v Neidig, 2018 BCCA 485 at para 100, 425 CRR (2d) 262). [91] Because the manner in which a trial judge addresses the obligation to assist an accused person who does not have counselinvolves an exercise of discretion, decisions of that nature are entitled to deference on appeal (Cathcart at paras 77–78).

The failure toadequately assist an accused person who is not represented by counsel does not give rise to a free-standing ground of appeal. Where afailure of that sort is demonstrated, the question is whether a miscarriage of justice within the meaning of s. 686(1)(a)(iii) has resulted(Wilde at para 21; Woolsey at para 59; R v Forrester, 2019 ONCA 255 at para 17, 375 CCC (3d) 279). There will be a miscarriage ofjustice if trial fairness is compromised, but not every breach of a trial judge’s obligation to provide assistance will render a trial unfair.

Itis the cumulative effect of any errors or shortcomings, in that respect, that must be considered (Wilde at para 21; Potoreyko at para 8). 5. Trial management and

summary dismissal of Charter applications [92] Trial judges have the power in criminal cases to control the process in their courtroom and to make rulings to ensure that trialsproceed in an effective and orderly fashion (R v Samaniego, 2022 SCC 9 at para 20, 466 DLR (4th) 581 [Samaniego]). For superior courtjudges, that power lies in the court’s inherent jurisdiction while, for statutory courts, it derives from the court’s authority to control its ownprocess (R v Anderson, 2014 SCC 41 at para 58, [2014] 2 SCR 167).

Trial management decisions of this sort attract a deferential standardof review on appeal and should not be interfered with absent an error in principle or an unreasonable exercise of discretion (Samaniego atpara 26). [93] Decisions about whether to grant adjournments fall under the trial management power. Likewise for decisions about whether toconduct a full hearing into claims of Charter violations or dismiss them summarily.

In that respect, the trial management powers permitjudges to conduct preliminary screening of Charter applications to assess whether they have a reasonable prospect of success, and tosummarily dismiss them without a full hearing where that standard is not met (R v Cody, 2017 SCC 31 at paras 37–38, [2017] 1 SCR 659[Cody]; R v Giesbrecht, 2019 MBCA 35 at paras 134-135, 373 CCC (3d) 70; R v R.V., 2022 ABCA 218 at para 63; see also R v Kutynec(1992), (ON CA), 7 OR (3d) 277 (CA) at 287–289; and R v Vukelich (1996), (BC CA), 108 CCC(3d) 193 (BC CA)).

Such use of trial management powers benefits the administration of justice, because it reduces delay and preservesscarce judicial resources by ensuring that courts do not embark on inquiries that will not assist in resolving the real issues of importance tothe trial (see: Cody at para 37; R v Orr, 2021 BCCA 42 at paras 53–56, 399 CCC (3d) 441 [Orr]; R v O’Reilly, 2017 QCCA 1283 at para137, leave to appeal denied, (SCC)). [94] In the exercise of trial management powers, a judge may also summarily dismiss a Charter motion if permitting it to proceedwould be unfair to the Crown.

This may be the case, for example, where the notice given by the accused is absent or inadequate.

In thatrespect, “[i]t is open to a trial judge to conclude that a defence action or inaction is illegitimate in the context of the trial, having regardinter alia to the timeliness of the action and whether it was taken in compliance with procedural requirements” (R v Morton, 2020 ABCA250 at para 64, citing Cody at para 32; see also: R v Greer, 2020 ONCA 795 at para 108, 397 CCC (3d) 40 [Greer]). [95] Preliminary screening of a Charter argument involves an exercise of discretion and decisions of that nature are not to be lightlyinterfered with on appeal.

Unless an appellant can demonstrate that the trial judge’s discretion was not exercised judicially, appellatecourts should not disturb such rulings (R v Pires; R v Lising, 2005 SCC 66 at paras 46-47, [2005] 3 SCR 343; Giesbrecht at para 136; Orrat para 53; R v Vickerson, 2018 BCCA 39 at paras 60-63, 358 CCC (3d) 441; R v M.B., 2016 BCCA 476 at paras 45-47). As the BritishColumbia Court of Appeal observed in Orr, a more intrusive standard of review would undermine the ability of trial judges to exercisetheir management powers effectively: [54] The importance of the deferential standard cannot be overstated.

As explained by Charron J. in Pires, Lising, without deference tothe discretionary exercise of case management powers, judges are “likely to embark upon many unnecessary hearings rather than riskvitiating an entire trial,” and the trial court’s “power to control the proceedings then becomes more illusory than real” (at para. 47). Such aresult would be antithetical to the increased jurisprudential calls to avoid unnecessary delay in criminal proceedings and the “special role”judges play in heeding that call: R. v.

Jordan, 2016 SCC 27at paras. 41, 45, 114, 116, 139; Cody at paras. 1, 36–39; R. v.Thanabalasingham, 2020 SCC 18at para. 9. [96] While I agree with the foregoing remarks, that does not mean decisions summarily dismissing Charter applications areunimpeachable. Appellate deference to such decisions is not appropriate where the result is a trial that is unfair and produces a miscarriageof justice.

Although the extent to which a trial judge must delve into a Charter application to guard against a miscarriage of justice willvary with the context of each case, it is clear that the principles of basic procedural fairness must be observed. As Paciocco J.A. noted inGreer, two key considerations in determining whether the requirements of basic procedural fairness have been met are: (

i) the extent towhich the accused was given an opportunity to make submissions before

summary dismissal occurred; and (ii) whether the trial judgeprovided adequate reasons for their decision: [110] …As a trite, general proposition, the right to make submissions before a ruling is an essential component of the principle of audialteram partem (that parties have the right to be heard): R v D’Allesandro, 2018 BCCA 118, 359 CCC (3d) 350, at paras. 17-20. Theright to make submissions is also a central component of the right to make a full answer and defence: R v Aucoin, (SCC),[1979] 1 SCR 554. The trial management authority to dismiss Charter motions summarily will not be exercised fairly if this authority isused without first permitting submissions from the accused as to whether

summary dismissal is warranted. When Rosenberg J.A. providedhis influential instruction on the general trial management power in R v Felderhof (2003), (ON CA), 180 CCC (3d)498 (Ont), at para. 40, he said:

It would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trialjudge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner. [Emphasis added.] [111] Where a trial judge is considering

summary dismissal without an evidentiary inquiry because a Charter claim appears to bemeritless, the trial judge should ensure that the defence is aware of this and is “able to summarize the anticipated evidentiary basis for itsclaim” so that the trial judge has the information required: Kutynec, at p. 301; R v Papasotiriou-Lanteigne, 2017 ONSC 5337, 390 CRR(2d) 222, at paras. 22-23. This includes providing the accused with an opportunity to argue against

summary dismissal. [112] Submissions are no less critical where

summary dismissal is based on non-compliance with the rules. Before summarily dismissinga Charter claim because of non-compliance with the rules, trial judges are required to consider all relevant circumstances: Blom, atpara. 22. This includes the Charter argument sought to be advanced, prejudice to the opposing party, and the impact that permitting themotion to proceed would have on the trial process: Loveman, at p. 127; Tash, at para. 15(7). Explanations for non-compliance with therules may also be of importance. For the decision to be made fairly, a trial judge will therefore need to ensure that trial counsel is alertedthat

summary dismissal is being considered and is given an opportunity to provide material information and submissions so that the trialjudge can finally and fairly determine whether

summary dismissal is in fact appropriate. [113] To be clear, I am not suggesting that a full evidentiary hearing needs to be conducted to determine whether to conduct anevidentiary hearing. The issue should first be addressed by oral submissions, but some evidence may prove to be necessary before afull voir dire is dispensed with: R v Vukelich (1996), (BC CA), 108 CCC (3d) 193 (BCCA), at paras. 17-23.

Inreceiving such submissions, a trial judge is also entitled to ensure that the submissions are relevant, focused, and efficient. [114] The second relevant requirement of procedural fairness is the trial judge’s obligation to explain why a Charter motion is beingsummarily dismissed, if that is the decision that is made. For example, the decision of the trial judge to summarily dismiss a s. 11(b)application was overturned in R v Imola, 2019 ONCA 556, 439 CRR (2d) 352, after the trial judge failed to give sufficient reasons for thesummary dismissal that occurred.

In R v Sheppard, 2002 SCC 26, [2002] 1 SCR 869, at paras. 44-45, Binnie J. made clear that the duty togive reasons applies to Charter rulings. This duty must necessarily apply, as well, to rulings that dispense with the need for a full Chartervoir dire. The sufficiency of reasons is therefore a relevant consideration in determining whether procedural fairness has been achieved inthe

summary dismissal of a Charter motion. (Emphasis added) [97] As a bottom-line proposition, the trial management powers can and should be used in criminal trials to reduce delay andseparate the wheat from the chaff, but they are not a licence to sacrifice fairness in the name of efficiency (see, generally: Samaniego atpara 25). 6. Applying the analytical framework a. Refusal of Mr. Wesaquate’s requests for an adjournment [98] I see no reviewable error in the way the trial judge dealt with Mr. Wesaquate’s mid-trial requests for an adjournment to obtainnew counsel.

When her reasons for refusing to grant an adjournment are read in the context of the record as a whole, it is clear that sheapproached the problem in a fashion consistent with the guidance provided by this Court in Hayter and exercised her discretion, in thatrespect, judicially and for reasons that are well-founded in law. While the trial judge did not explicitly reference that decision or proceed inlock-step fashion through the analytical framework set out therein, it is apparent that the Hayter considerations drove her analysis. In thatrespect, she first turned her mind to whether or not Mr.

Wesaquate had been diligent in exercising his right to counsel. She observed thathe had been represented by, and had discharged, several lawyers. While Mr. Wesaquate may not have been entirely to blame for all of thechanges in counsel, the trial judge correctly observed that he had fired more than one lawyer and that at least two others had withdrawndue to “problems with the solicitor-client relationship”.

In short, the record supports a conclusion that, by the time his trial began, Mr.Wesaquate had had more than an adequate opportunity to obtain counsel, and that he had not been diligent in that respect. [99] It is also evident from the trial judge’s on-the-record remarks that she was concerned, and justifiably so, about the delay thatmight result from a further adjournment. She correctly observed that it had been more than four years since the alleged offences hadoccurred and that the trial had been delayed on prior occasions due to issues with Mr. Wesaquate’s legal representation.

The trial judgeexpressed the view that the delay was well past the point of being reasonable, and that the public interest in seeing the matter to itsconclusion had taken on increased importance. She also weighed and considered the impact that granting a further mid-trial adjournmentwould have on trial fairness from the Crown’s perspective. In this respect, she was obviously alive to the length of time the matter hadtaken to get to trial, and that the charges involved serious allegations of violence against an intimate partner.

It was reasonable for her tohave inferred that further delay would be unfair to the Crown. [100] Finally, it is apparent from the record that the trial judge considered Mr. Wesaquate’s ability to make full answer and defencewithout counsel. In that respect, she specifically observed that he had been represented by counsel at the start of the trial, and that counselhad conducted the cross-examination of the Crown’s key witnesses.

She also considered and implemented other measures to assist Mr.Wesaquate in conducting his defence, including permitting his mother to assist in examining witnesses, allowing a court worker to alsoquestion witnesses and make arguments, and adjourning the matter at the close of the Crown’s case to permit the court worker to reviewthe trial transcripts before leading defence evidence. [101] Taking all of this into consideration, I am not persuaded that the denial of Mr. Wesaquate’s requests for an adjournment to engagenew counsel provides a basis for appellate intervention.

I am satisfied the trial judge exercised her discretion judicially and applied therelevant legal principles correctly. b. Failing to provide adequate assistance c.

Summary dismissal of Mr. Wesaquate’s Charter application

[102] I will deal with Mr. Wesaquate’s arguments relating to the trial judge’s alleged failure to provide adequate assistance to him andthe

summary dismissal of his prospective application under the Charter together, as they overlap to a considerable extent. [103] Before proceeding further with the analysis, I pause here to note that, although Mr. Wesaquate has described the application thathe attem

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