R v Wilde, 2022 SKCA 74

Court of Appeal for Saskatchewan Docket: CACR3500 Citation: R v Wilde, 2022 SKCA 74Date: 2022-06-27 Between:Jason Delaney WildeAppellantAndHer Majesty the QueenRespondentBefore: Ryan-Froslie, Schwann and Kalmakoff JJ.A.Disposition: Appeal allowedWritten reasons by: The Honourable Madam Justice SchwannIn concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr. Justice KalmakoffOn appeal from: Provincial Court, Meadow LakeAppeal heard: February 17, 2022Counsel: Deborah Hatch and Caitlin Dick for the Appellant Grace Hession David for the Respondent Schwann J.A. I.

INTRODUCTION [1] Jason Delaney Wilde was charged with aggravated assault contrary to s. 268 of the Criminal Code. Mr. Wilde was convictedfollowing a judge-alone trial before a Provincial Court judge in which he was not represented by counsel. He was sentenced to 18 monthsof incarceration. [2] Mr. Wilde, who is now represented by legal counsel, appeals from his conviction. He argues that the trial judge made twodistinct, but related, errors. First, he says the trial judge failed to discharge the duty owed to him as an unrepresented accused to ensure thathe received a fair trial.

He submits the trial judge frustrated his attempts to adequately respond to the case against him in a way that had asignificant impact on his ability to conduct and present his defence. Second, Mr. Wilde argues that the trial judge neglected to follow theSupreme Court’s guidance in R v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D).], by impermissibly treating his evidence andthat of the complainant as a credibility contest. [3] For the reasons expressed below, I find merit in Mr. Wilde’s arguments. His appeal is allowed and a new trial is ordered. II. BACKGROUND [4] The events that gave rise to the charge against Mr.

Wilde took place on June 9, 2020, and in the early morning hours of thefollowing day and involved him, Justin Harty and Jason Metz. All three individuals were tree planters operating in northern Saskatchewanand were well-known to each other. [5] Leading up to the night in question, Mr. Harty had expressed dissatisfaction with how Mr. Wilde had been leaning on himfinancially and for rides. He wanted that behavior to stop. To that end, on June 9, 2020, while Mr. Wilde was away from the work camp,Mr. Harty removed his belongings from the camper where Mr. Wilde was staying and piled them outside under a tarp. Mr.

Wilde returnedto the work camp around 8:00 p.m. that evening. According to Mr. Harty, Mr. Wilde initially took the removal of his belongings well.However, Mr. Harty testified that, as the evening wore on, Mr. Wilde became increasingly annoyed with him due to the sharp remarks andteasing he had directed toward Mr. Wilde. [6] Mr. Harty’s ribbing led to a heated argument between himself and Mr. Wilde while they were in Mr. Metz’s SUV. Mr. Metz,who was also in the SUV, described their interaction as “a couple old friends just, you know getting at each other”. He thought Mr.

Hartyhad started the argument and was quite certain that Mr. Harty had been speaking to Mr. Wilde in a condescending manner. [7] At some point in the course of their heated exchange, Mr. Wilde and Mr. Harty left the Metz vehicle. Mr. Metz, who remainedin the front driver’s seat, testified that, although he was unable to hear what they said, he could see what happened as Mr. Wilde andMr. Harty were only 12 feet from the front of the SUV. [8] Mr. Metz testified that he saw Mr. Wilde sucker punch Mr. Harty in the jaw with a closed fist, which caused Mr. Harty to godown. According to Mr. Metz, when Mr.

Harty got back up, Mr. Wilde jumped on him, threw a few more punches and put him in aheadlock. Mr. Metz said that Mr. Harty had assumed a turtle-like position while this was happening, as if to protect himself fromMr. Wilde. [9] Mr. Harty’s testimony about the events that unfolded once he and Mr. Wilde left the vehicle was largely consistent with thatof Mr. Metz. He said that, once they left the vehicle, Mr. Wilde sucker punched him on the side of his face, which caused him to hit theground quite hard. Mr. Harty testified that Mr.

Wilde then got on top of him and placed his arm around his head in what he described as across-face arm bar. According to Mr. Harty, the intense squeezing applied by Mr. Wilde caused his jaw to break. He said Mr. Wilde

landed several more punches to the back of his head when he tried to stand up. [ 10 ] Mr. Harty suffered a swollen eye, intense pain and profuse bleeding from his mouth. He went to the local hospital in Meadow Lake the next day but left when he became dissatisfied with the diagnosis and the suggested treatment offered by the medical staff. With no ride back to the campsite, Mr. Harty flagged down an RCMP vehicle that was being driven by Cpl. Erin Dunphy, who took him back to camp. Mr. Harty returned to his Calgary home the next day where X-rays confirmed that he had suffered a broken jaw. The nature of Mr.

Harty’s injuries eventually led to two surgeries, an infection, significant dental work and a prolonged period of pain and recovery. [ 11 ] Mr. Wilde testified on his own behalf at trial. There was much agreement around the edges of what had transpired that evening, including the fact that the parties had been drinking, had engaged in an argument, that a physical altercation had occurred between him and Mr. Harty, and that their brawl had resulted in an injury to Mr. Harty’s jaw. Mr. Wilde denied punching Mr. Harty or giving him a black eye. He was adamant that Mr.

Harty was the aggressor throughout and that he had simply acted in self-defence by placing him in a headlock to protect himself until Mr. Harty calmed down. However, during cross-examination, Mr. Wilde conceded that Mr. Harty did not have a black eye in the early evening and that his physical contacts were the two chokeholds. When asked by Crown counsel how Mr. Harty had sustained a black eye, Mr. Wilde surmised it could have happened when he (Mr. Harty) fell to the ground. [ 12 ] Mr. Wilde questioned how Mr. Metz could have seen the altercation from inside his vehicle because, contrary to Mr.

Metz’s testimony, he said the fight had taken place behind the SUV, not in front of it. Mr. Wilde also testified that, when he asked Mr. Metz to intercede with Mr. Harty’s hectoring and aggression as the evening wore on, Mr. Metz told him not to back down from Mr. Harty, yet also told Mr. Harty to punch him out. Mr. Metz was not confronted with this assertion, which only came out in the course of Mr. Wilde’s evidence-in-chief. III. TRIAL DECISION [ 13 ] The trial judge reviewed the evidence in some detail. He described several aspects of Mr. Wilde’s testimony as being peculiar.

The first such example concerned Mr. Wilde’s testimony that Mr. Harty had repeatedly said that he had thrown Mr. Wilde’s possessions out of his camper, and yet, without further comment or warning and for some unknown reason, Mr. Harty had begun swinging at Mr. Wilde. The second so-called peculiar piece of evidence related to Mr. Wilde’s suggestion that Mr. Metz advised him to punch out Mr. Harty. Third, the trial judge also found peculiar Mr. Wilde’s assertion that, even though Mr. Harty was extremely drunk at the material time, significant force was required to subdue him. Finally, the trial judge rejected Mr.

Wilde’s testimony that Mr. Harty’s black eye was likely caused by a fall to the hard ground, stating there was no indication of any wood, stone, or any other material that might have caused that injury: he said, “And therefore I find that explanation to be hollow, and I do not believe it. I believe a significant blow to the kind to cause that type of bruise to the eye consistent with that of a sucker punch”. [ 14 ] The trial judge accepted the evidence of Mr. Harty, as corroborated by Mr. Metz, that the incident took place in the way they had described it and that it had resulted in significant injuries to Mr.

Harty. The trial judge rejected Mr. Wilde’s self-defence argument. In the end result, the trial judge was satisfied beyond a reasonable doubt that Mr. Wilde had attacked and assaulted Mr. Harty. IV. ISSUES [ 15 ] Mr. Wilde points to several specific instances in the course of the trial where, he says, the trial judge not only failed to assist him but hindered his ability to advance his defence with full force and effect. His argument largely reduces to questions of whether the trial judge erred by (

a) compromising his ability, as a self-represented accused person, to bring out his defence and thereby depriving him of a fair trial (i.e., a miscarriage of justice), and (

b) misapprehending the burden of proof. V. THE LAW A. Miscarriage of justice [ 16 ] At root, Mr. Wilde asks this Court to exercise the powers reposed in it under s. 686(1)(a)(iii) of the Criminal Code to set aside his conviction on the basis of a miscarriage of justice. There is no set formula for what amounts to a miscarriage of justice in any given situation: R v Khan , 2001 SCC 86 at paras 69–87 , [2001] 3 SCR 823. As discussed by Cromwell J.A. (as he then was) in R v Wolkins , 2005 NSCA 2 , 192 CCC (3d) 378, a miscarriage of justice is generally grouped into two broad categories.

The first examines whether the trial was fair and the second refers to the administration of justice – that is, whether an event that occurred in the course of a trial is so serious that “it shakes public confidence in the administration of justice” (at para 89). The focus is on the gravity of the irregularity, and the effect it may have had on trial fairness rather than the strength of the Crown’s case. [ 17 ] A finding that a miscarriage of justice has occurred can arise from an appearance of trial unfairness. An appellant need not show actual prejudice.

This point was addressed in R v Quintero-Gelvez , 2019 ABCA 17 , 370 CCC (3d) 411 [ Quintero-Gelvez ]: [6] … Actual prejudice from an error of law is not a prerequisite to a finding that a miscarriage of justice has occurred; such a finding may be founded where an appearance of unfairness arises; see R v Duke , 1985 ABCA 187 at para 21 . An appearance of a miscarriage of justice requiring appellate intervention exists where the irregularities would be such as to taint the administration of justice in the eyes of a reasonable and objective observer.

The issue is whether a well-informed, reasonable person considering the whole of the circumstances would have perceived the trial as being unfair or as appearing to be so; see R v Spiers , 2012 ONCA 798 at para. 32 .

See also Khan at para 73 and R v Moosomin, 2008 SKCA 168 at paras 25–27, [2009] 1 WWR 577. B. Duty to assist a self-represented accused [18] Where an accused is self-represented at trial, a trial judge is required to ensure the trial is fair and that there is no miscarriageof justice. That includes the duty to render some level of assistance so that the defences available to an accused are presented with fullforce and effect. However, an allegation that a trial judge has failed to assist a self-represented accused does not give rise to a free-standingground of appeal.

The overarching focus must remain on the question of trial fairness and whether the alleged failure to assist rendered thetrial unfair: see R v Bialski, 2018 SKCA 71 at para 47, 364 CCC (3d) 485 [Bialski], leave to appeal to SCC refused, ; Rv Olenick, 2010 MBCA 107 at para 7, 262 Man R (2d) 15 [Olenick]; and R v DRS, 2018 ABCA 342 at para 18, 368 CCC (3d) 383. [19] The legal principles and scope of a trial judge’s duty to assist a self-represented accused were most recently explored byKalmakoff J.A. in R v Cathcart, 2019 SKCA 90, 380 CCC (3d) 357 [Cathcart], where he said as follows: [76] … While it is clear that an accused who decides to proceed without the assistance of a lawyer cannot, after the fact, attack aconviction on the basis that he or she did not have representation as effective as what might have been provided by counsel, a trial judgehas an obligation to ensure that a trial is fair and that there is no miscarriage of justice: R v Harris, 2009 SKCA 96, 331 Sask R 283[Harris].

Part of a trial judge’s duty in that respect is to render some assistance to those who are self-represented so that defences availableto such individuals are presented with full force and effect: R v Bialski, 2018 SKCA 71 at para 65, 364 CCC (3d) 485 [Bialski]; R vCandido, 2015 SKCA 104 at para 13, 467 Sask R 128. [77] Deciding how much assistance a judge should give to a self-represented accused person is an exercise in discretion. A trial judge isnot counsel for the accused, and cannot provide assistance of the sort that counsel would furnish, but there is a duty … to ensure that theaccused has a fair trial.

This duty is circumscribed by a standard of reasonableness: R v Richards, 2017 ONCA 424, 349 CCC (3d) 284[Richards]. What this standard requires from a trial judge will vary from case to case.

It will depend on the dynamics of the trial inquestion, the circumstances of the particular accused, and the nature of the charges: Harris at para 29. [20] Of course, the level of assistance expected of a trial judge is not an absolute and will vary with the circumstances of each case,including such things as the charges involved, the facts, the complexity of the case, the defences raised, and the accused’s personalcircumstances (e.g., education, background, ability to communicate effectively, etc.).

Depending upon the particular circumstances of eachcase, “How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnessesmust of necessity be a matter of discretion” (R v McGibbon (1988), (ON CA), 31 OAC 10 (CA) at para 32): also see R vPhillips, 2003 ABCA 4 at para 23, 172 CCC (3d) 285, aff’d 2003 SCC 57, [2003] 2 SCR 623 [Phillips]; R v Harris, 2009 SKCA 96 atpara 29, [2010] 2 WWR 477 [Harris]; Cathcart at para 77; and R v Crowe, 2021 SKCA 66 at para 58, 403 CCC (3d) 297.

As mentioned,a “[f]ailure to assist a self-represented accused is not an independent ground of appeal, but raises the possibility of an unfair trial ormiscarriage of justice that may attract appellate intervention under s. 686(1)(a)(iii) of the Criminal Code …” (R v Forrester, 2019 ONCA255 at para 17, 375 CCC (3d) 279). [21] Not every breach of a trial judge’s obligation will render the trial unfair or result in a miscarriage of justice.

As noted inForrester, “It is the cumulative effect of any errors that the court needs to consider …” (emphasis in original, at para 17) in determining ifthe lack of guidance “‘compromised the accused’s ability to bring out [their] defence’” with full vigour and effect (at para 17, quotingOlenick at para 8). C. Standard of review [22] Issues of trial fairness and a miscarriage of justice are questions of law reviewable on the standard of correctness: Quintero-Gelvez at para 6, R v Biniaris, 2000 SCC 15 at para 19, [2000] 1 SCR 381, and Bialski at para 53.

The exercise of a trial judge’s discretionin determining how much assistance to provide to a self-represented accused is entitled to deference on appeal: “The appeal court will onlyintervene if the trial judge proceeded on a wrong principle, or if a miscarriage of justice resulted. There will be a miscarriage of justice iftrial fairness is compromised …” (Cathcart at para 78). VI. APPLICATION OF THE LAW A. Insufficient assistance [23] Mr. Wilde argues the trial judge compromised his ability to properly advance his defence with full force and effect in multipleways.

Although the trial judge provided lengthy verbal instructions at the outset of the trial, Mr. Wilde claims those instructions were (a)incomplete, insofar as they failed to inform him of the elements of aggravated assault, and (

b) provided a misleading explanation of theconcept of reasonable doubt. In addition to these shortcomings in the instructions, the trial judge is said to have unduly interfered withMr. Wilde’s cross-examination of two of the witnesses and improperly interjected himself into the trial. Taken together, Mr. Wilde argues,the oversights or errors rendered his trial unfair and resulted in a miscarriage of justice. I will deal with each allegation in turn. 1.

Failure to mention the elements of the offence [24] The trial judge provided lengthy and detailed instructions at the start of the trial in which he canvassed trial procedure, variouspoints of law (including the evidentiary burden borne by the Crown to prove the offence beyond a reasonable doubt), and the process fordirect examination and cross-examination of witnesses. Those instructions did not, however, include a list or description of the elements ofthe offence of aggravated assault. The trial judge said only that the Crown would need to provide “proof of the offence beyond areasonable doubt”. Mr.

Wilde says the trial judge erred in failing to inform him of the elements of the charge he was facing.

[25] Mr. Wilde cites no case authority in support of the proposition that omitting to describe or explain the elements of the offenceto a self-represented accused fails to satisfy the trial judge’s obligation to provide guidance to that person; nor have I been able to locateany case authority to that effect. If anything, the jurisprudence seems to suggest otherwise.

This same argument was made in Phillips,where, after canvassing the relevant jurisprudence, the Court said this: “No pronouncement was made that explaining the elements of theoffences to an unrepresented accused at the beginning of the trial is critical to a fair trial. In fact, I could find no case in which a new trialwas ordered on that basis” (at para 28).

A similar argument was advanced but rejected by this Court in Harris (at para 32). [26] Setting aside the question of whether the trial judge was obliged to identify and explain the elements of the offence, I fail to seehow this omission impaired the way in which Mr. Wilde conducted his defence. There is nothing in the record that would suggest thatMr. Wilde was unaware of what the Crown had to prove. Placed in the context of a charge for aggravated assault, it was clear fromMr. Wilde’s own testimony that (

a) he had applied force to Mr. Harty, (

b) the force applied was unwanted, (

c) as evidenced byMr. Harty’s resistance, Mr. Wilde knew it was unwanted, (

d) Mr. Harty was maimed as a result of the application of force (the medicalevidence went in unopposed), and (

e) Mr. Wilde conceded that the headlock likely caused the jaw injury. Viewed in this light, it is hard tosee how a failure to explain the elements of the offence made this trial unfair. Mr. Wilde defended the charge by arguing that he had actedin self-defence. [27] That said, it could be argued that, had Mr. Wilde been told the essential elements of the offence in question, he might havepursued a different strategy or defence that was somehow more responsive to the case the Crown had to prove. However, Mr.

Wilde didnot identify what, if anything, he would have done differently had he been given instructions from the trial judge on this point at the startof trial. 2. Instruction on the standard of proof [28] Next, Mr. Wilde argues the instructions that were provided by the trial judge in relation to the standard of proof and reasonabledoubt were wrong in law. He says the following passages from the instructions demonstrate this error: Now, you may hear the evidence, and you may say, well, there isn’t proof of this, or that, or the other thing.

Or, you may argue thathaving heard the Crown evidence, there isn’t that high degree of proof. A doubt must be based on the evidence. In other words, thepossibility that something might happen is not necessarily enough or sufficient basis for doubt, because it is speculative in nature. And I’mnot allowed to guess what might have happened. There has to be evidence. And if there is sufficient evidence, then I can draw conclusionsand reach a -- a decision. … When all of the evidence has been introduced, the Crown may call its case, you may call no evidence.

You may be content to say theCrown’s case is so weak, that you don’t wish to call any evidence whatsoever. There’s a bit of a risk to that, because that means that I’veonly heard the evidence and I must decide the case based on the evidence. I can’t speculate. I can’t guess. I have to make a decision basedon what I’ve heard. … When we say reasonable, we say that any doubt as to the Crown establishing proof must be based on admissible evidence, acceptedevidence. That’s what reasonable means. It means that it has to be based -- that the doubt has to be based on evidence.

So, you see, again,while all kinds of things are possible, I’m not permitted to speculate to establish a doubt, there must be a basis for that doubt. (Emphasis added) [29] The Crown properly concedes that those passages are inconsistent with the law.

In R v Lifchus, (SCC), [1997]3 SCR 320, the Supreme Court made it clear that a reasonable doubt can arise from the evidence or from the absence of evidence: “It willsuffice to instruct the jury that a reasonable doubt is a doubt based on reason and common sense which must be logically based upon theevidence or lack of evidence” (emphasis added, at para 30). [30] In spite of its concession, the Crown maintains that a careful review of the entire record demonstrates how the trial judge hadtouched on the absence of evidence in several places.

For instance, the Crown points to the following additional instructions that weregiven to Mr. Wilde during the course of the trial: (a) “the Crown is required to provide sufficient evidence”; (b) “[t]here is no burden on the defence, whatsoever, to prove anything at any time”; and (

c) the trial judge must consider whether there “is sufficient proof”, and, if there are gaps in the evidence, then the Crown will nothave met its burden. [31] I am satisfied that, by not explicitly instructing Mr. Wilde that a reasonable doubt can arise from the absence of evidence, thetrial judge provided an incorrect statement of the law. This error may have left Mr. Wilde with the impression that he had to adducepositive evidence in order to defend himself against the charge. Had he been armed with a proper understanding of the reasonable doubtprinciple, Mr.

Wilde asserts that he may have tailored his defence to focus on the deficiencies and discrepancies in the Crown’s evidencewith a view to undermining its version of events. However, he submits, the flawed instruction suggested that he needed to adduce evidencein order to raise a reasonable doubt about the commission of the offence and that only positive evidence would support an acquittal.Mr.

Wilde submits that, given his self-represented status at trial, it was imperative for the trial judge to have correctly summarized thesebasic and foundational principles so that he could advance his defence to the fullest extent possible. [32] I agree with Mr. Wilde. I am not persuaded that the trial judge’s subsequent instructions cured his earlier misstatements. Whilethe operation of a defence like self-defence involves legal subtleties that may be difficult for a layperson to understand, it is little more

than speculation to say that, even with proper instructions, Mr. Wilde would have been incapable of grasping the significance of the reasonable doubt concept in the overall context of his defence. It is important to bear in mind that Mr. Wilde had no prior legal training, and, as noted above, a correct instruction may well have affected his trial strategy by causing him to highlight the deficiencies and inconsistencies in the Crown’s evidence that could have led to a finding of reasonable doubt. 3. Interference with Mr. Wilde’s cross-examination of Cpl. Dunphy [ 33 ] Mr.

Wilde next argues that the trial judge improperly interfered with his cross-examination of Cpl. Dunphy, a Crown witness. She testified that shortly before noon on June 10, 2020, while on patrol in Meadow Lake, Mr. Harty flagged her down for a ride back to his work camp. [ 34 ] The thrust of Cpl. Dunphy’s testimony concerned her observations of Mr. Harty’s physical state at that time. She said he was upset, agitated and had trouble speaking. She noted that he had a bruised, swollen eye, and, even though Mr.

Harty had a beard, she could see that he was unable to fully open his mouth when speaking and that he was cradling his jaw. Corporal Dunphy surmised that he was in a great deal of pain. She said Mr. Harty declined to provide a police statement at that time as he was focussed on returning home for medical care. [ 35 ] Mr. Wilde attempted to impeach Mr. Harty’s credibility through his cross-examination of Cpl. Dunphy. He started by asking Cpl. Dunphy if Mr. Harty was impaired and then quickly moved on to a new line of questions, presumably intended to elicit what Mr. Harty had said to her at the time.

Corporal Dunphy expressed hesitancy with answering those questions – perhaps because she viewed them as hearsay – but, when pressed, said she could not remember his exact words. [ 36 ] Mr. Wilde persisted. Corporal Dunphy once again said she could not remember what Mr. Harty had said. Mr. Wilde next tried to elicit evidence from Cpl. Dunphy about why Mr. Harty had not given a statement to the police at that time and, by using Cpl. Dunphy’s statement, attempted to point to discrepancies between her testimony and the Crown’s disclosure.

The trial judge interjected at this point as follows: THE COURT: Just -- just a sec, Mr. Wilde. THE ACCUSED: Okay. THE COURT: A couple of things. The first is, when disclosure is provided, that is the information that the Crown intends to rely upon in this case. That does not mean that the Crown need produce in evidence, everything set out in the disclosure. THE ACCUSED: Okay. THE COURT: Okay? So, when you refer to disclosure and it’s not here and it’s not there, you have to be careful how you use that, because I am not going to decide this case based on the papers in front of you. THE ACCUSED: Okay.

THE COURT: I’m going to decide the case based on what I hear in the witness box. And it might be that a witness may say, I don’t recall what was said, or -- or have a different version, not the precise version of what may have transpired as set out in the disclosure. That’s not likely going to be of great concern. THE ACCUSED: Yeah. [ 37 ] After receiving the trial judge’s instruction, Mr. Wilde said he had no further questions for Cpl. Dunphy. The trial judge then urged Mr.

Wilde to pursue other types of questions and even provided examples of how to refresh a witness’s memory: THE COURT: You -- you can -- you can always ask the witness, is it possible that so and so said such and such. THE ACCUSED: Yeah. THE COURT: Because you may have some information that that is in fact or could be a possibility. That’s perfectly permitted. THE ACCUSED: Okay. THE COURT: But when the witness says, I don’t recall, or I can’t remember, or -- or even, it could be, but I can’t recall clearly, that’s where that ends. THE ACCUSED: Okay.

THE COURT: Unless you have some other way to -- THE ACCUSED: No, no further -- THE COURT: -- to -- to refresh the witness’s memory, or -- or you have another way to attack the witness’s recollection of what happened. THE ACCUSED: Okay. THE COURT: Okay? THE ACCUSED: Yeah, no further questions. THE COURT: Are you sure, sir? Make sure that you’re -- you’re clear that you’ve asked whatever questions -- THE ACCUSED: Yeah.

[38] Mr. Wilde submits his cross-examination of Cpl. Dunphy was designed to impeach the credibility of Mr. Harty by firstreferencing his state of impairment and (attempting at least) to highlight discrepancies in the statement he had given to the police.However, as Mr. Wilde submits, the trial judge failed to provide him with any sort of guidance on how to use a complainant’s priorstatement. Instead, the trial judge told him that he was going to decide the case based on what he heard in the witness box, and then stated“that’s where that ends” when a witness says they cannot recall something.

Viewed as a whole, Mr. Wilde asserts this direction severelyimpaired his ability to make full answer and defence because he took the trial judge to have instructed him that any attempt to impeach thecredibility of a Crown witness was futile, and by shutting down his attempts to draw out evidence of Mr. Harty’s memory limitations fromCpl. Dunphy. [39] There is merit to Mr. Wilde’s arguments. This case turned on the credibility and reliability of the complainant, Mr. Harty.Although the cross-examination of Cpl.

Dunphy was brief and somewhat awkward, it is clear that the trial judge’s interjections had anobvious chilling effect on Mr. Wilde: it deterred him from putting to her any further questions that were designed to discredit Mr. Harty’sevidence by pointing to what he perceived to be inconsistencies in Mr. Harty’s prior statement. However, instead of providing Mr. Wildewith an explanation on how to make use of a prior inconsistent statement, the trial judge shut down that line of questioning by stating asfollows: “I’m going to decide the case based on what I hear in the witness box.

And it might be that a witness may say, I don’t recall whatwas said, or -- or have a different version, not the precise version of what may have transpired as set out in the disclosure. That’s not likelygoing to be of great concern” (repeated here for reference). [40] While it is true to say that Mr.

Wilde could have persisted with his cross-examination, indeed, the trial judge encouraged him toask further questions, that exhortation was tepid and misleading because it may have left him with the impression that probinginconsistencies in earlier statements was both unfruitful and unnecessary. [41] The ability of a party to cross-examine a witness has long been recognized as a mainstay in the adversarial process: “The oft-quoted words of Wigmore that cross-examination is ‘beyond any doubt the greatest legal engine ever invented for the discovery of thetruth’ indicate its great value in the conduct of litigation” (Sidney N.

Lederman, Alan W. Bryant, and Michelle K. Fuerst, The Law ofEvidence in Canada, 5th ed (Toronto: LexisNexis, 2018) at §16.130). This point was emphasized in R v Osolin, (SCC),[1993] 4 SCR 595 [Osolin], where Cory J., in concurring reasons, stated as follows (at 663): There can be no question of the importance of cross-examination. It is of essential importance in determining whether a witness iscredible. Even with the most honest witness cross-examination can provide the means to explore the frailties of the testimony. … It is theultimate means of demonstrating truth and of testing veracity.

Cross-examination must be permitted so that an accused can make fullanswer and defence. The opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused.

This is an old andwell-established principle that is closely linked to the presumption of innocence. [42] A decade later, the Supreme Court reinforced the importance of cross-examination in R v Lyttle, 2004 SCC 5, [2004] 1 SCR193 [Lyttle] (emphasis in original): [1] Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justiceand an indispensable ally in the search for truth.

At times, there will be no other way to expose falsehood, to rectify error, to correctdistortion or to elicit vital information that would otherwise remain forever concealed. [2] That is why the right of an accused to cross-examine witnesses for the prosecution — without significant and unwarranted constraint— is an essential component of the right to make full answer and defence. [43] In Osolin, the Supreme Court commented on the enhanced importance of cross-examination where credibility is the centralissue at trial by describing it as “all the more crucial to the accused’s ability to make full answer and defence …” (at 664).

Indeed, theright to cross-examination constitutes a principle of fundamental justice that is “critical to the fairness of the accused’s trial” (at 664): seealso R v Esau, 2009 SKCA 31 at para 17, 324 Sask R 95. [44] A trial judge’s failure to explain the use that could be made of a complainant’s prior out-of-court statements, or inconsistenciesin preliminary inquiry testimony, was raised in R v Buzzard, 1999 BCCA 679, 131 BCAC 199.

There, the British Columbia Court ofAppeal was critical of the trial judge’s failure to assess the self-represented accused’s level of understanding about the elements of theoffence, the Crown’s onus and the burden it bore to prove the case beyond a reasonable doubt.

That court found the explanation providedby the trial judge to be weak and one that “assumed sophistication on the part of the appellant which was unwarranted” (at para 6).However, what the Court found most troubling about the conduct of the trial was the trial judge’s failure to explain the use that could bemade of a prior out-of-court statement and testimonial inconsistencies. Taken as a whole, the Court was not satisfied that the trial judgehad assisted the accused such that his defence was brought out with full force and effect.

The appeal from conviction was accordinglyallowed. [45] In my view, the trial judge’s intervention in this case was significant for several reasons. [46] First, Mr. Wilde was a self-represented accused who had no known training or knowledge of court-room procedures or trialstrategies. Mr. Wilde’s cross-examination of Cpl. Dunphy was aimed at impugning Mr. Harty’s credibility and reliability, which was thecentral issue at trial. Often described as the “ultimate means of demonstrating truth and of testing veracity” (Osolin at 663), cross-examination was an obviously important tool for Mr. Wilde at trial.

Although his attempt to impugn Mr. Harty’s credibility was clumsyand the questions were not well-formed, it is clear from the record that he understood that the prosecution turned on the credibility of thecomplainant; and that, with some guidance, he might have been able to formulate the sorts of questions that would draw outinconsistencies or other reasons to suggest Mr. Harty’s evidence was not reliable. However, that level of assistance was not provided. [47] Second, although the trial judge’s interventions appear to have been well-intentioned, they may have had the effect ofintimidating Mr.

Wilde to the point where he was deterred from asking any further questions. Moreover, not only did the trial judge fail toprovide any guidance about how Mr. Wilde could cross-examine a witness on an inconsistent statement, he arguably left him with theimpression that only direct testimony would be considered and that cross-examination on a prior inconsistent statement was of little value.

[48] While trial judges must remain neutral and cannot become an advocate for the accused, they have a duty to ensure that the trialis fair and are obliged to provide some measure of assistance to a self-represented accused. In this case, given the seriousness of thecharge, and the fact that the outcome of the trial came down to credibility, the trial judge’s interjections and comments during the cross-examination of Cpl. Dunphy called for more. The instructions and comments were not only inadequate and unhelpful, they were alsomisleading. 4. Improper questioning by the trial judge [49] In Mr.

Wilde’s cross-examination of Mr. Harty, he pursued a line of questioning about how much Mr. Harty had to drink on theday of the incident and challenged him on whether he (Mr. Harty) had consumed more alcohol than him. Mr. Harty responded sharply,“You were drinking a lot more. You were sniffing tobacco, you were taking chocolate covered mushrooms and THB. You were honestlywacked out of your mind”. The cross-examination moved on from there to questions about how many cigarettes Mr. Harty smokes eachday and then abruptly ended. [50] Although the Crown did not re-examine Mr.

Harty on any of these matters, the trial judge took it upon himself to put someadditional questions to Mr. Harty; so that, as he said, he could better understand the evidence. He then posed a series of questions toMr. Harty about the substances he had referred to: THE COURT: And so, I’m going to ask a couple of more questions and then when I’m done that, I’m going to permitboth parties to ask follow-up questions in that same area.MS.

ALLEYNE [Crown counsel]: M-hm.THE COURT: Because further questions may be necessary to -- to elaborate on the answers that the witness gives.Q THE COURT: You testified in cross-examination that you thought that Mr. Wilde was drinking more, but youalso mentioned some other -- some other things or items that he was consuming. And I’m not sure that I quiteunderstood what you were saying.A Yes.Q Could you elaborate on that, please?A Mr.

Wilde brought up with him lots of sniffing tobacco from South America and many other places.Q Sniffing tobacco?A Yeah, sniffing tobacco?Q Do you understand that to be tobacco as we understand it, North American type tobacco, or is it some other type?A It’s -- It’s some weird powder from Brazil or -- or, I don’t know where, but it’s some pretty weird -- weird stuff.Q Do -- do you have any experience with this? Do you know what it is -- what the effect is?A I -- I tried a little bit, a little tiny bit, but it just had a very debilitating effect on me. It -- it was not a -- not a goodexperience.Q Okay.

And was there anything else that -- and you saw him consume this tobacco?A Much -- much of it. Much of it. In fact, he had this little pipe thing that he’d pack full of the tobacco, and he’d askme to blow it into his nose, that night included.Q And you mentioned something about mushrooms?A Yes, he had brought up chocolate -- chocolate ground up psilocybin mushrooms.Q Psilocybin?A Yeah, yeah, pardon my pronunciation.Q Chocolate covered mushrooms?A Yeah, chocolate mushrooms. They were ground up powder, and yeah.Q And did you see him consume this -- this drug?A Yes.

Yes.Q And did you see him consume these items, both the tobacco and the mushrooms that night -- that day -- thatevening?A Yes.Q And did you also participate in the consumption of those items?A A very minute amount of the mushrooms, the chocolate mushrooms, yes. Very, very small. [51] Mr. Wilde submits those questions were leading and prejudicial.

He relies on R v Switzer, 2014 ABCA 129, 310 CCC (3d) 301,for the proposition that where a trial judge asks leading questions or where the effect of the questioning is to blur the line between judgeand counsel, “trial fairness [is] undermined” (at para 15). [52] A trial judge is permitted to intervene in limited circumstances.

Switzer framed the boundaries of appropriate intervention inthis way: [13] We acknowledge that trial judges may intervene to clarify an unclear answer, to resolve a misunderstanding of the testimony, to askquestions if counsel fails to address an issue, to correct inappropriate conduct by counsel or witnesses, and to otherwise ensure a fair trial.However they must not do so in a manner that undermines the function of counsel and that disrupts or destroys counsel’s strategy … . [53] The Alberta Court of Appeal in R v Schmaltz, 2015 ABCA 4, 320 CCC (3d) 159, provided additional guidance on the scopeand effect of judicial intervention, by reference to the following principles: [19] In this case, where trial unfairness is said to arise in part from the trial judge’s interventions in defence counsel’s cross-examination ofa witness, several principles ought to be borne in mind:

(1) The right of an accused to present full answer and defence by challenging the Crown’s witnesses on cross-examination flows from thepresumption of innocence and the right of the innocent not to be convicted: R v Seaboyer, (SCC), [1991] 2 SCR 577 atpara 39, [1991] SC J No 62 (QL); Osolin at para 25. This is particularly so when credibility is the central issue in the trial: Osolin atpara 27, citing R v Giffin, 1986 ABCA 107, 69 AR 158 at 159.

(2) The trial judge may intervene in certain instances, including to clarify an unclear answer, to resolve misunderstanding of the evidence,or to correct inappropriate conduct by counsel or witnesses. …

(3) When the trial judge does intervene, he or she must not do so in a manner which undermines the function of counsel, that frustratescounsel’s strategy, or that otherwise makes it impossible for defence to present the defence or test the evidence of Crown witnesses:Valley [(1986), (ON CA), 26 CCC (3d) 207 (Ont CA)] at para 55; R v Brouillard, (SCC), [1985] 1SCR 39 at 44–47; R v Konelsky, 1989 ABCA 201 , 98 AR 247 at 248, 68 Alta L R (2d) 187 (CA).

(4) If a trial judge “enters the fray” and appears to be acting as an advocate for one side this may create the appearance of an unfair trial: Rv Switzer, 2014 ABCA 129 at para 7, 572 AR 311 [Switzer].

(5) In determining whether the trial judge’s interventions deprived the accused of a fair trial, those interventions should not be consideredseparately and in isolation from each other, but cumulatively: R v Khan, 2001 SCC 86 at para 77, [2001] 3 SCR 823 [Khan]; R v Stucky,2009 ONCA 151 at para 72, 303 DLR (4th) 1, R v Watson (2004), (ON CA), 191 CCC (3d) 144 at para 14, 192 OAC263.

The concern here is that incidents which, considered in isolation, might be viewed as insignificant might combine to lead areasonably minded person to consider that the accused had not had a fair trial: Khan at para 76; R v Stewart (1991), (ON CA), 62 CCC (3d) 289 at para 46, 1991 CarswellOnt 1317 (CA) [Stewart]. [20] The test for considering a ground of appeal citing trial unfairness depends on the kind of unfairness alleged.

Here, the question to beanswered is whether the appellant’s right to make full answer and defence was breached by significant and unwarranted constraintsimposed by the trial judge upon defence counsel’s cross examination of the complainant: Lyttle at 196. [54] Returning to the matter at hand, while some of the questions posed by the trial judge were matters of clarification (e.g., whethersniffing tobacco is the same thing as a tobacco commonly used in North America), in my view, the queries that followed exceeded thatpurpose. For instance, the trial judge asked Mr.

Harty about what sort of effect sniffing tobacco might have on a person, what elseMr. Harty saw Mr. Wilde consume that night, whether he saw Mr. Wilde consume the mushrooms, and whether he (Mr. Harty) had alsoparticipated in the consumption of these items. [55] In my view, the questioning could be seen as giving the impression that the trial judge was supplementing the Crown’s caseand thereby appearing as though he was acting as an advocate for it. Furthermore, his intervention was centrally important to the casebecause it served to bolster Mr.

Harty’s testimony, which was highly significant because, as noted, the trial turned on credibility. [56] Respectfully, the judicial intervention went too far. However, the question I must remain focussed on is whether itcompromised Mr. Wilde’s right to make full answer and defence or made the trial unfair. On its own, the interventions may not have risento that level; but, as discussed below, I must assess trial fairness from the perspective of the cumulative actions or inactions of the trialjudge. 5. Absence of a Browne v Dunn instruction [57] Mr.

Wilde had testified that while the three of them were sitting in Mr. Metz’s vehicle, Mr. Metz encouraged Mr. Harty topunch him out, yet, at the same time, he also urged Mr. Wilde not to back down. Mr. Wilde did not, however, put that suggestion toMr. Metz in his cross-examination of him. Mr. Wilde submits that, had the trial judge provided him with a Browne v Dunn (1893), 6 R 67(HL) [Browne v Dunn], instruction, he would have put that suggestion to both Mr. Metz and Mr. Harty, which, in turn, would have allowedthe trial judge to observe their answers and how they reacted to that line of questioning.

He argues that either or both of those witnessesmay have modified their evidence had they been confronted with this suggestion on cross-examination. [58] The rule in Browne v Dunn was summarized in R v Wapass, 2014 SKCA 76, 314 CCC (3d) 561 [Wapass], in this way: [21] As the Court explained in R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, the rule in Browne v. Dunn “requires counsel to give noticeto those witnesses whom the cross-examiner intends later to impeach” (para. 64).

Giving notice in this context means that if counselintends to challenge the credibility of a witness by calling contradictory evidence on matters of significance to the facts in issue, “thewitness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box” (R. v.Henderson (1999), (ON CA), 134 C.C.C. (3d) 131 at 141). [59] The Browne v Dunn rule is said to serve these three purposes: “the need to treat the witness and the parties fairly”, “to preventthe fact finder from being misled”, and “to promote the orderly presentation of the evidence at trial” (The Honourable S.

Casey Hill,David M. Tanovich, and Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, loose-leaf (Rel 1, Feb 2022) 5th ed (Toronto:Thomson Reuters, 2013) at §21:113 (WL)). [60] Where a Browne v Dunn breach arises at trial, several options are open to the trial judge to rectify the issue.

In R v Maxie, 2014SKCA 103, 316 CCC (3d) 396 [Maxie], quoting from R v Dexter, 2013 ONCA 744, 313 OAC 226, this Court outlined the options asfollows: “One is for the trial judge to take into account the failure to cross-examine when assessing a witness’s credibility and decidingthe weight to be given to that witness’s evidence: see Werkman, [2007 ABCA 130] at paras. 9–11; R. v. Paris (2000), (ON CA), 138 O.A.C. 287, at para. 22.

Another is to allow counsel to recall the witness whose evidence has been impeached withoutnotice” (at para 21). [61] The Browne v Dunn rule is not fixed, and the extent of its application lies at the discretion of the trial judge: Lyttle at para 65and Wapass at para 23. Absent an error in principle, deference is owed to a trial judge’s discretion in determining how to rectify a breachof the rule: Maxie at para 41 and R v Blom (2002), (ON CA), 162 OAC 238 (CA) at para 20. [62] While I am prepared to accept that there was a breach of the Browne v Dunn principle arising from Mr. Wilde’s failure toconfront Mr.

Metz with the alleged statement in his cross-examination of him, there are several reasons why that omission did notcompromise trial fairness.

[ 63 ] First, to the extent Mr. Wilde asserts the trial judge should have provided a Browne v Dunn instruction at the start of the trial, I disagree. There was no way for the trial judge to have known at the commencement of proceedings if Mr. Wilde would take the stand in his own defence, or, if he did, what the nature of his testimony would be. His evidence on this point was obviously unanticipated by the trial judge. [ 64 ] Second, it is not the law that a full-blown, jury-type instruction is required at the commencement of a trial where an accused is self-represented.

A Browne v Dunn instruction is intricate and somewhat confusing and, as the Crown has suggested, would have overly complicated the general instructions and guidance that was provided at the start of the trial. Further, as noted above, the assistance required to be given by a trial judge is variable and left to their discretion. In speaking to this issue in Phillips , the Alberta Court of Appeal remarked as follows: “[a self-represented accused’s] need for guidance varies depending on the crime, the facts, the defences raised and the accused’s sophistication.

The judge’s advice must be interactive, tailored to the circumstances of the offence and the offender, with appropriate instruction at each stage of a trial” (at para 22). [ 65 ] Third, contrary to Mr. Wilde’s position on appeal, the breach of the Browne v Dunn rule worked against the Crown, not him – in that it served to undermine Mr. Metz’s credibility without giving him an opportunity to respond. Crown counsel did not raise a concern at the time the breach occurred, nor did it ask the trial judge to reject Mr. Wilde’s testimony for this reason or to recall Mr. Metz to the stand.

In effect, giving any credence to this argument on appeal would be akin to rewarding Mr. Wilde for his breach of the rule. [ 66 ] In the circumstances at hand, I find no error with the trial judge’s failure to instruct or apply the Browne v Dunn rule in this case. 6. Conclusion on insufficient assistance [ 67 ] As this Court noted in Harris , the question of whether a self-represented accused received sufficient assistance from a trial judge “cannot be properly answered by developing and relying on a rigid list of steps that a judge must undertake when dealing with such accused.

Rather, the obligation of a judge must be determined with reference to the dynamics of the trial in question, the circumstances of the particular accused and the nature of the charges” (at para 29). [ 68 ] This was a serious charge. Mr. Wilde was, by all accounts, a self-represented accused, who was unfamiliar with the law or trial procedure. He did not have the benefit of a pre-trial conference where some of these matters could have been explored in a non-adversarial environment. Setting aside Mr. Wilde’s submission arguments about Browne v Dunn , the remainder of his arguments, taken together, have strength.

In the end result, it is not possible for me to say what, if any effect, a more focussed cross-examination would have yielded or if better instructions would have led to an acquittal. All that can be said is that if Mr. Wilde had been given the correct information about the concept of reasonable doubt, and some guidance with cross-examination, had understood that he did not have to adduce a positive defence, and the trial judge had not interjected in the way that he did, Mr. Wilde may have been able to bring out his defence with more force and effect.

I find the cumulative effect of these trial transgressions resulted in an unfair trial for Mr. Wilde and that his conviction must, therefore, be set aside on the basis of a miscarriage of justice. B. Misapplication of the burden of proof [ 69 ] Given the conclusion I have reached on the first issue, it is unnecessary to consider Mr. Wilde’s ground of appeal relating to the trial judge’s application of W.(D.). VII. CONCLUSION [ 70 ] Mr. Wilde’s appeal is allowed, his conviction is set aside, and a new trial is ordered. “Schwann J.A.” Schwann J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.

I concur. “Kalmakoff J.A.” Kalmakoff J.A.