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PROCEDURE - Trial judge’s duties - Where accused unrepresented

Wednesday, July 28, 2021 @ 5:42 AM  

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Appeal by the accused from conviction for trafficking in cannabis. In 2015, he sold marihuana and derivative products to customers permitted to possess them pursuant to a valid medical authorization. The appellant dismissed counsel before trial and represented himself. On the third day of trial, the appellant notified the judge that he wished to offer no defence and that he wished to abandon his motions relating to entrapment, officially induced error and abuse of process. Instead, he stated, he wished to proceed with only the constitutional challenge and the s. 601 motion to quash the information. The motion was dismissed. The judge granted the Crown’s application to dismiss the constitutional challenge summarily. The appellant argued that the trial judge failed to provide him with the assistance he required and to which he was entitled as a self-represented accused. He argued the judge’s failure to provide him with sufficient assistance to enable him to present his case properly compromised the trial’s fairness and gave rise to a miscarriage of justice. The appellant argued the trial unfolded in a procedurally complex manner that obviously confused and seriously prejudiced him. The judge thus should have sought clarification on certain matters and provided more extensive guidance than he did. 

HELD: Appeal dismissed. The judge did not fail to provide the appellant with sufficient assistance when he dismissed his counsel and chose to represent himself at the trial. Nothing suggested that the appellant might have been confused or hesitant about dismissing counsel or that further questioning on the surrounding circumstances might be necessary or appropriate. The judge was not required to recommend that he bring a Rowbotham application after he dismissed counsel and announced his intention to represent himself. The court accepted that the appellant was confused at some points in the trial and that his confusion was sometimes obvious. The judge, however, dealt with the appellant’s confusion on this point as soon as it became apparent by reminding him to question Crown witnesses on all issues at stage one of the trial. He also agreed to make allowances based on the appellant’s status as a self-represented accused and assured him that he could recall Crown witnesses at stages two and three for further questioning, if necessary. He provided this assistance in an ongoing and interactive manner. The judge also provided sufficient assistance when the appellant’s decision to abandon certain aspects of his defence and focus on the constitutional challenge and his motion to quash was a tactical choice that was his alone to make. It was not for the judge to second guess the appellant, take on the role of counsel and advise him on the tactical choices he should be making. To the extent the judge erred by failing to alert the appellant to the fact that the presumptive ceiling established in Jordan had been exceeded prior to the trial’s conclusion, in the context of this trial that error was minor, and it did not give rise to a miscarriage of justice.

R. v. Woolsey, [2021] B.C.J. No. 1401, British Columbia Court of Appeal, D.C. Harris, G. Dickson and P. Abrioux JJ.A., June 29, 2021. Digest No. TLD-July262021005