Court of Appeal for Saskatchewan Docket: CACR2965 Citation: Hayter, 2018 SKCA 65 Date: 2018-08-23 Between: Larry Hayter And Her Majesty the Queen Before: Caldwell, Whitmore and Schwann JJ.A. Disposition: Appeal allowed; new trial ordered Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice Schwann On Appeal From: Crim 12 of 2016, Melfort Appeal Heard: June 12, 2018 Counsel: Jeremy A. Caissie for the Appellant Erin L. Bartsch for the Respondent Caldwell J.A. I. introduction [1] After trial, judge convicted Larry Hayter of one count of fraud over $5,000, contrary to s. 380(1)(a) of the Criminal Code. The judge found Mr. Hayter had defrauded the Saskatchewan Workers’ Compensation Board [WCB] of $137,377.76. But, in the course of the trial, Mr. Hayter’s counsel had justifiably withdrawn, leaving him to conduct his own defence. The issues in this appeal are whether the judge’s refusal to grant an adjournment was based on reasons that are not well-founded in law and whether the decision affected Mr. Hayter’s right to make full answer and defence or his right to fair trial. [2] In the circumstances of this case, I would allow the appeal and order a new trial. [3] Mr. Hayter also appeals against his sentence but, given my conclusion on the conviction appeal, have not addressed the sentence appeal in these reasons. [4] The facts are procedural and may be explained briefly. Mr. Hayter requested adjournments before, during and after his trial. At the commencement of trial, Mr. Hayter’s counsel requested an adjournment because Mr. Hayter’s wife had been hospitalised and could not attend court. His counsel said Mr. Hayter’s “mind is not here in the courtroom” and that it “is very stressful for him with his spouse being in the hospital.” Mr. Hayter was prepared to waive delay if the judge granted an adjournment. There was no mention of Mr. Hayter’s wife testifying or as being material witness. The Crown opposed this first adjournment request because the charge had been laid more than three years previous, the preliminary hearing had been rescheduled four times, and it had scheduled ten out-of-town witnesses to testify. [5] The judge stepped down for ten minutes to consider the request. When he returned, he advised that the next available trial date in the Melfort judicial centre was almost year away. Mr. Hayter’s counsel suggested another judicial centre and the judge checked to see if an earlier date could be secured elsewhere. No other judicial centre could offer an earlier trial date. While expressing sympathy for Mr. Hayter’s situation, the judge denied his adjournment request. [6] Following this, the trial proceeded for the morning session, with the Crown leading witness in examination-in-chief. After returning from the lunch break, Mr. Hayter’s counsel addressed the court and stated that, after speaking to Mr. Hayter, she was seeking leave to withdraw as his counsel. Over lunch, Mr. Hayter had expressed concerns, because his counsel was employed by Legal Aid Saskatchewan and because Mr. Hayter was alleged to have defrauded WCB, that as government employee his counsel had some stake in seeing him prosecuted successfully. His counsel advised the judge she felt, as an officer of the court, that she had an obligation to seek leave to withdraw. As for the reason, she said Mr. Hayter no longer had confidence in her ability to represent him. She also said she had advised Mr. Hayter that her withdrawal did not guarantee the court would grant an adjournment. [7] In response to defence counsel’s application, the judge informed Mr. Hayter that, in his opinion, Mr. Hayter’s counsel was “as good as they get,” and asked if Mr. Hayter needed few minutes to reconsider and apologise to her. Following which, this exchange took place: THE ACCUSED: It’s just I’m so stressed out, Your Honour (sic), with my medical conditions and that, just don’t know what I’m doing. don’t even know what’s going on. THE COURT: Well, then maybe you should take the guidance from Ms. Bodnar [defence counsel]. THE ACCUSED: Pardon? THE COURT: Maybe you should take the guidance from your legal counsel you already have rather than trash it and really have some problems. ‘Cause if you think now you don’t know which way you’re going, just wait until you start acting for your own as your own lawyer. [8] The judge then adjourned the trial for five minutes so Mr. Hayter could speak with his counsel. This exchange then followed: THE COURT: Okay, what is your decision? You realize that we’re going ahead anyway? This isn’t going to get you an adjournment. THE ACCUSED: I’d like I’d like an adjournment for THE COURT: You’re not going to get one. THE ACCUSED: Can’t get one. THE COURT: You’re not going to get one. THE ACCUSED: (INDISCERNIBLE) just just can’t THE COURT: You don’t get to tell the Court what to do. You are going ahead on your own if you don’t have counsel. THE ACCUSED: Yeah and don’t know nothing, so THE COURT: So THE ACCUSED: So that’s the you’re going ahead without THE COURT: I’m going ahead whether you have lawyer or you don’t. THE ACCUSED: can’t fight it by myself, so I’ll have to guess I’ll have to ask her if she’d come back and work for me then. [9] The discussion between the judge and Mr. Hayter continued for some time until the judge again adjourned the trial for five minutes to allow Mr. Hayter to apologise to his counsel. The judge also instructed Mr. Hayter to determine whether his counsel would still represent him. When the matter reconvened, Mr. Hayter’s counsel informed the judge that she remained of the view she could no longer represent Mr. Hayter, reiterating that she did not believe he had confidence in her ability to represent him. The trial then resumed with Mr. Hayter representing himself. The Crown continued with the examination-in-chief of its first witness for the remainder of the afternoon session. The following morning, Mr. Hayter was called upon to cross-examine the Crown witness. [10] Later, following his conviction, Mr. Hayter again sought unsuccessfully an adjournment to obtain counsel for the sentencing hearing. Ultimately, the judge sentenced Mr. Hayter to two-and-a-half years in prison. [11] Mr. Hayter now challenges the judge’s decision not to grant any of the requested adjournments, but particularly the denial after his counsel had withdrawn mid-trial. He does so on the basis that the denials deprived him of his rights to make full answer and defence and to fair trial. He acknowledges the Charter does not afford him right to be represented by counsel at trial. III. standards of review [12] The right to make full answer and defence and the right to fair trial are encompassed within ss. and 11(d) of the Charter: Harrer, 1995 CanLII 70 (SCC), [1995] SCR 562 at para 13; Seaboyer; Gayme, 1991 CanLII 76 (SCC), [1991] SCR 577. An accused’s entitlement to make full answer and defence is also set out in s. 650(3) of the Criminal Code. [13] In Chu, 2016 SKCA 156 (CanLII), 344 CCC (3d) 51, Jackson J.A. observed that, where right is grounded in the Charter, request to adjourn trial on the basis of an infringement of that right is request for remedy under s. 24(1) of the Charter. In such circumstances, it follows that an order denying an adjournment is an order made under s. 24(1). The standard of appellate review of orders made under s. 24(1) is deferential: Bellusci, 2012 SCC 44 (CanLII) at para 17, [2012] [14] However, on the facts of this case, the identified Charter rights could not have been breached at the time the judge denied the adjournment request because the trial had just started. That is, Mr. Hayter’s request for an adjournment was not request for remedy under s. 24(1) of the Charter because there had been no infringement of his right to fair trial or to make full answer and defence to remedy. While his request in this Court for new trial may be seen as request for remedy under s. 24(1) of the Charter, the Charter was not invoked in the decision under appeal. [15] Nonetheless, decision to deny an adjournment request remains appealable to this Court outside of the Charter under and according 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): Chu at para 81; Moosomin, 2008 SKCA 168 (CanLII) at para 27, [2009] WWR 577. If approached as potential error of law under s. 686(1)(a)(ii), the appellate review is that of discretionary decision of trial judge (see Chu; Ironchild (1984), 1984 CanLII 2666 (SK CA), 30 Sask 269 (CA); Barrette The Queen, 1976 CanLII 180 (SCC), [1977] SCR 121). If approached as potential miscarriage of justice under s. 686(1)(a)(iii), the appeal court reviews what occurred in the trial to see whether there was in fact miscarriage of justice or the appearance of one (R Moosomin; Khan, 2001 SCC 86 (CanLII), [2001] [16] In Khan at para 63, Arbour J., who wrote for the majority, recognised there is sometimes “a fine line between what can constitute ‘a wrong decision on question of law’ and ‘miscarriage of justice’” and she declined to draw that line; nonetheless, she did characterise miscarriages of justice as being “akin to procedural irregularities” (at para 61). Whether error of law or miscarriage of justice, Arbour J. noted that both may be cured under s. 686(1)(b) of the Criminal Code, meaning “the circumstances must be considered to see if the error could have played significant role in the legal validity of the verdict or rendered the trial unfair, in reality or in appearance, or was merely peripheral” (at para 66). [17] When approached under s. 686(1)(a)(ii), the standard of appellate review of decision to decline an adjournment is that set out in Barrette The Queen at 125, where the majority wrote: It is true that decision on an application for adjournment is in the judge’s discretion. It is, however, judicial discretion so that his decision may be reviewed on appeal if it is based on reasons which are not well founded in law. This right of review is especially wide when the consequence of the exercise of discretion is that someone is deprived of his rights, whether in criminal or in civil proceedings. At glance, have found in the last few years no less than half dozen judgments in civil proceedings where decision depriving litigant of an important right was reversed on account of insufficient reasons given. (Frank v. Alpert; Basarsky v. Quinlan; Ladouceur v. Howarth; Whitco Chemical Co. v. Oakville; General Foods v. Struthers; Hamel v. Brunelle). This being so in civil proceedings, there is all the more reason to so regard discretionary decision in criminal proceedings, the effect whereof is to deprive the accused of his right to obtain the assistance of counsel and to summon witnesses in his defence. This principle is fully recognized in the English case law which was cited to us. [Footnotes omitted] [18] This Court applied the framework for review from Barrette The Queen in Ironchild, where the accused had argued the trial judge’s refusal to grant an adjournment deprived him of the rights to make full answer and defence under the Criminal Code, to fair hearing pursuant to s. 11(d) of the Charter, and to not be deprived of his liberty unless in accordance with the principles of fundamental justice under s. of the Charter. In that case, Tallis J.A. wrote: [13] It is clear from the majority judgment in Barrette v. The Queen (1976), 1976 CanLII 180 (SCC), 10 N.R. 321; 29 C.C.C.(2d) 189 (S.C.C.), that the exercise of the trial judge’s discretion in refusing an adjournment may be reviewed by an appellate court if it is based upon reasons that are not well founded in law and results in deprivation of the accused’s right to make full answer and defence. However, it is also clear that such right must be weighed conscientiously and delicately along with the public interest in the orderly administration of justice. ... [Emphasis added] IV. analysis [19] As understand his arguments, Mr. Hayter has framed his claim for relief under error of law and miscarriage of justice. will address the matter first under s. 686(1)(a)(ii) as an error of law. [20] As Barrette The Queen, Ironchild and Chu indicate, an appeal court’s review of the judge’s decision to decline to grant an adjournment looks first to see whether the decision was based upon reasons that are not well-founded in law. If so, the appeal court’s focus shifts to determination of whether the error has resulted in deprivation of the accused’s right to make full answer and defence or to fair trial. [21] As the decision in this case was made in the course of the trial, there are no separate, written reasons for it. Rather, as is common, the judge was called upon to make his ruling during the to-and-fro of the trial. For this reason, his decision was understandably oral and brief, but it leaves little to which to refer in appellate review. In Barrette The Queen at 124, Pigeon J., who wrote for the majority, said this about the exercise of judicial discretion: There is nothing in the record which could legally support the presumption that counsel’s absence was premeditated scheme in complicity with the accused. It was the first time the case was being called and there was nothing to justify such inference rather than mere suspicion. The accused has the right “to make full ... defence personally or by counsel” (s. 577(3) Cr. C.). An adjournment necessary for the exercise of this right may be refused only for reason based on established facts. [Underlining in original, italics emphasis added] As such, where the decision itself leaves 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 the decision to deny the adjournment request. [22] Before turn to the record in this case with that view, would first set out, in non-exhaustive terms, what am looking for. That is, would first identify the factors that ground the proper exercise of judicial discretion to grant or deny an adjournment where counsel has withdrawn at or shortly before trial. In that regard, again turn to the decision in Barrette The Queen. [23] As well as setting out the standard of review, the decision in Barrette The Queen is instructive because, in that case, the trial judge had dismissed an accused’s request for an adjournment after his lawyer had failed to show up for court. The trial judge had reasoned that judges postpone too many cases in similar circumstances, there had already been delay of six months, and the case was simple. Justice Pigeon allowed the appeal, quashed the conviction, and ordered new trial, stating “I cannot find that the accused, who was sentenced to year in prison, had fair trial” (at 127). Of particular importance, given the circumstances of this matter, is the fact that the accused in Barrette The Queen was not at fault for his lawyer’s absence and there was no evidence to suggest it was deliberate plot to delay the trial. [24] In Rak (1999), 1999 CanLII 12229 (SK CA), 172 Sask 301 (CA), this Court approached similar matter from different angle and reached the opposite conclusion but, in doing so, the Court identified several factors for consideration: [7] We are all of the view there is no tenable basis for interfering with the trial judge’s discretion in refusing to grant the adjournment and the consequent verdict. The appellants had ample opportunity to obtain counsel and their refusal to cooperate with counsel led to refusal of Legal Aid. The failure to have counsel did not result in an unfair trial. Gregory Rak handled the defence rather adroitly on his own and his father’s behalf and was effective in his cross-examination. He demonstrated clear ability to understand the documentary evidence. As well the trial judge was extremely helpful to the appellants throughout the course of the trial. We are all of the view the appellants were not deprived of their right to fair trial or their right to make full answer in defence and there was no miscarriage of justice. [25] One important distinction to draw on the facts of Barrette The Queen and of Rak is that the accused in the latter case had had the time to obtain counsel before trial. Moreover, it was the accused’s own failure to co-operate with Legal Aid that had led to the absence of counsel at trial. In those circumstances, this Court nonetheless also examined the effect of counsel’s absence on the trial as it had been conducted by the self-represented accused and on its outcome, concluding the accused’s demonstrated ability and the assistance offered by the trial judge confirmed he had not been deprived of his right to fair trial or to make full answer and defence. As well, in Rak, the trial had been rescheduled twice prior to the trial in question. [26] In Ironchild, Tallis J.A. found the accused had deliberately dismissed his counsel as trial tactic so as to obtain an adjournment. He also observed there was nothing in the record to indicate the accused had lost confidence in his counsel. Justice Tallis stated that, while an accused has the right to dismiss counsel, the appellate court may take into account the circumstances of dismissal when considering an appeal of this nature. [27] Outside Saskatchewan, the Court in Beals, 1993 CanLII 5636 (NS CA), 1993 NSCA 215, 126 NSR (2d) 130, dealt with this issue and helpfully summarised the law as follows: [30] In summary the following propositions emerge from the cases to which have referred: 1. The decision whether to grant or refuse request for an adjournment because an accused is not represented by counsel in criminal trial is discretionary one but one that must be based on reasons well-founded in the law. (Barrette v. R., 1976 CanLII 180 (SCC), [1977] S.C.R. 121). 2. An accused has constitutional right to fair trial. Representation by counsel at trial is generally essential to fair trial if an accused is charged with serious offence and complex trial can be anticipated. (R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1). 3. The right to counsel at trial is not absolute. (R. v. Richard and Sassano (1992), 55 O.A.C. 43); there is no constitutional right to be represented by state funded counsel at trial. (R. v. Rowbotham, supra, and R. v. Prosper (1992), 1992 CanLII 2476 (NS CA), 113 N.S.R. (2d) 156 N.S.C.A.). 4. The right of an accused to retain counsel to represent the accused at trial must be exercised honestly and diligently so as not to delay scheduled trial. (R. v. Richard and Sassano, supra). 5. Each application for an adjournment on the ground that the accused will not have counsel at trial must be decided on its facts. Relevant facts to be taken into account by the trial judge are: (a) whether or not there have been prior adjournments due to the unavailability of counsel and the accused was warned well in advance of trial that the trial would be proceeding on the scheduled date with or without counsel. (R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334); (b) the accused’s criminal record which reflects on the accused’s degree of familiarity with the criminal justice system and legal aid programmes (R. v. Richard and Sassano, supra); (c) whether the charge against the accused is simple or complex which fact impacts on the critical question whether or not the accused can get fair trial without counsel (Barrette v. R., supra); (d) the public interest in the orderly and expeditious administration of justice (R. v. B. (J.E.) (1990), 1989 CanLII 1495 (NS CA), 52 C.C.C. (3d) 224 and R. v. Richard and Sassano, supra); (e) if the accused has been refused legal aid and when the refusal was communicated to the accused. 6. As general rule an accused should not be refused an adjournment if the fact that he is without counsel on the scheduled trial dates is not his fault but that of his counsel and he had no complicity in the matter (Barrette v. R., supra). 7. As general rule an accused should be refused an adjournment if he has not acted diligently and honestly in attempting to obtain counsel and it can be inferred from the circumstances that he failed to avail himself of the opportunity to do so for the purpose of delaying the proceedings (Manhas v. R. (1980), 1980 CanLII 172 (SCC), 17 C.R. (3d) 331). 8. On an appeal from refusal it would appear that court of appeal will not find the learned trial judge erred notwithstanding his reasons may not be fully articulated if the record discloses evidence from which it can be inferred that the absence of counsel was brought about by the accused for the purpose of delaying the proceedings (Barrette v. R., supra; Manhas v. R, supra; R. v. Richard and Sassano, supra). 9. The scope of review by an appeal court of refusal, notwithstanding it involves the review of the exercise of discretionary power, is wide as the consequences of refusal are to deprive an accused of his right to be represented by counsel. On appeal the appellant must show that in refusing the adjournment the trial judge deprived the appellant of his right to make full answer and defence and thus made an error in principle which constituted miscarriage of justice (Barrette v. R. and Manhas v. R., supra). [28] The appellate courts in White, 2010 ABCA 66 (CanLII), 252 CCC (3d) 248, Tortora, 2010 BCCA 547 (CanLII), 265 CCC (3d) 264, and Le (T.D.), 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, and this Court in Bitternose, 2009 SKCA 54 (CanLII), 244 CCC (3d) 218, have endorsed the foregoing list of propositions from Beals. Further, in White, citing G.(J.C.) (2004), 2004 CanLII 66281 (QC CA), 189 CCC (3d) (Que CA), the Court added the following factors for consideration by trial judge: [16] When asked for postponement, it is appropriate for trial judge to consider relevant circumstances such as the gravity of the charges, the number of previous postponements and the consequences of postponement for the Crown and for the accused: J.C.G. at para. 12. The decision whether or not to grant an adjournment must be made in the light of the realities of each case consistent with the interests of justice: J.C.G. at para. 13. Whether it is just to deny trial adjournment to an unrepresented accused depends upon many different factors, including the personality and skills of the accused. [29] In Tortora, after citing the propositions from Beals, Bennett J.A. added the following qualification: [23] It is not necessary for these factors to be articulated verbatim by judge each time an unrepresented litigant applies for an adjournment. However, where the record shows that judge has refused an adjournment without properly weighing the factors or taking into consideration irrelevant factors, miscarriage of justice may result if the accused is deprived of his right to make full answer and defence. [30] To summarise and paraphrase all of this, when an accused seeks an adjournment at or shortly before trial for the purposes of obtaining legal counsel, the trial judge will want to examine the evidence and the record and then turn his or her mind to at least four areas of inquiry: (a) Has the accused failed to exercise the right to counsel honestly and diligently? trial court may properly consider an accused who, having the means and opportunity to do so, fails to obtain counsel for trial to have chosen to defend himself or herself: Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 CCC (3d) 1; 63 CR (3d) 113 (Ont CA). trial court should not be inclined to grant an adjournment where the accused has failed to act diligently or honestly in attempting to obtain counsel. This is particularly so where there is evidence the accused has not availed himself or herself of the opportunity to do so for the purpose of delaying the proceedings. In that regard, the following inquiries may help assess whether an accused has acted honestly and diligently: (i) Has the accused had an adequate opportunity to obtain counsel? (ii) Has the accused been warned that he or she will have to proceed with trial without counsel? Has the accused been made aware of the potential consequences of that? (iii) Has Legal Aid or private counsel withdrawn or refused to represent the accused? If so, when was the accused advised of this? Keeping in mind the principles discussed in Cunningham, 2010 SCC 10 (CanLII), [2010] SCR 331, does the record disclose why counsel withdrew? (iv) Has the accused acted or failed to act so as to thwart the appointment of counsel? Has the accused acted in any other way to delay the proceedings? (v) Is there evidence that the absence of counsel at trial is part of an orchestrated attempt by the accused to delay the proceedings? (b) Would granting an adjournment inordinately delay the trial? Keeping in mind the policy concerns underlying and reflected in Jordan, 2016 SCC 27 (CanLII), [2016] SCR 631, the object of this question is to determine whether an adjournment would negatively affect the public interest in the orderly and expeditious administration of justice. This will be particularly important where judge is sitting with jury, given the additional requirements in trials of that nature. Without attempting to restate the considerations set forth in Jordan, the following may assist in assessing the delay of the trial and its potential effect on the orderly and expeditious administration of justice: (i) How long has it been since the charges were laid? Is this the first scheduled date for trial? If not, how many times has the matter been postponed or adjourned since the charges were laid? Who was responsible for prior adjournments? Were any of the prior postponements due to unavailability of defence counsel? (ii) Is the accused in custody? If not, what are the terms of interim release? (iii) How serious is the offence with which the accused has been charged? (iv) How long of an adjournment is the accused requesting? Is it reasonable in the circumstances? Would shorter adjournment suffice? (v) When is the next available trial date? Would the accused and the Crown consent to change in venue if that would facilitate an earlier trial date? (vi) Does the accused agree that the delay brought about by the requested adjournment will not count against the s. 11(b) of the Charter right to be tried within reasonable time? (c) Would granting an adjournment potentially affect trial fairness from the Crown’s perspective? Where an accused seeks an adjournment at or shortly before trial for the purposes of obtaining legal counsel, the more serious the prejudice that will befall the Crown by reason of an adjournment, the more likely it is that the court will deny the accused’s request for an adjournment. trial judge will understand that the passage of time typically has some adverse effect on trial fairness through failure of witnesses’ memories, loss or destruction of physical evidence, etc. In that regard, the following inquiries may assist in assessing the effect an adjournment may have on trial fairness from the Crown’s perspective: (i) Are there co-accused? Are they being tried separately? If so, when are their trials scheduled? If not, what is the co-accuseds’ position on an adjournment? (ii) What is the expected duration of the trial? (iii) How many witnesses is the Crown expected to call? What are their characteristics? Are any of them children? Experts? Will any of them require translator? (iv) Was the Crown put to subpoenaing its witnesses? Is there real risk witness may fail or be unable, for any reason, to testify at an adjourned trial? Is there evidence that the accused may be seeking tactical adjournment to see if that risk materialises? (v) Where are the witnesses located? Will it be inordinately difficult for the Crown to arrange for witness attendance at later trial date? (vi) Is there real risk that physical evidence may be lost or destroyed before trial if the matter were adjourned? (vii) What, if anything, can be done to address or mitigate the consequences of an adjournment? (d) Is the accused reasonably capable of making full answer and defence to the charges without the assistance of legal counsel? Some of the inquiries under the previous question may be relevant here too, in the sense of ensuring the accused’s right to fair trial is not infringed. Under this question, the trial judge may more directly assess the personal characteristics of the accused, being alert to the nature of the Crown’s case, the relevant law and possible defences to the charges in question. The trial judge will have to ascertain whether, in the circumstances, the accused reasonably possesses the skills, capacity and experience necessary to proceed without legal counsel at trial with minimum level of competency having regard for the right to fair trial. In that respect, the following questions may assist: (i) What is the accused’s level of education and intellectual sophistication? Is the accused in good physical and mental health? What is the accused’s employment background? What level of family or other support is available to the accused? (ii) Is the accused’s criminal record such that it indicates the accused would be familiar with the criminal justice system and the criminal trial process? (iii) Was there preliminary hearing? If so, what does the transcript indicate about the issues that will arise (where trial is by judge and jury: Asapace, 2011 SKCA 139 (CanLII), 279 CCC (3d) 427)? (iv) Was the matter case managed such that the legal issues have been narrowed before trial? Is there an agreed statement of facts? (v) Will the trial be lengthy, complex or legally complicated? Is the matter likely to give rise to complex or unusual points of law or of evidence or complicated defence strategies? (vi) Is the accused facing multiple charges or charges with multiple lesser-included offences? (vii) Is the accused in jeopardy of serving significant incarceral term if convicted? [31] To be clear, there is no general duty on trial judge to probe each and every one of the itemized questions in ritualized fashion. The foregoing are merely non-exhaustive suggestions. Each request for an adjournment will give rise to its own set of relevant questions and considerations. The scope of the inquiry is best left to the insight and experience of the trial judge. Some of the considerations and questions itemized above may carry more weight than others based on the facts and circumstances in any given situation. Some considerations will overlap and necessarily compete against others. On one hand, the trial judge is bound to see that the accused receives fair and public hearing (Charter, s. 11(d)), which includes the right to fair trial, and that an accused is not deprived of his or her liberty except in accordance with the principles of fundamental justice (Charter, s. 7). On the other hand, the judge has duty to ensure the orderly and expeditious administration of justice and to prevent the abuse of court processes. In this context, the relative weight assigned to each consideration is for the trial judge to assess and to balance, with the balancing exercise largely matter of judicial discretion. At the 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 an adjournment. [32] In keeping with this general direction, the trial judge is not required to provide detailed reasons for refusing to grant an adjournment. Indeed, the reasons for the ruling may be obvious from the record itself. That said, in terms of the sufficiency of reasons, trial judges may be guided by the instruction in Barrette The Queen that the reason or reasons for denying an adjournment must be based on established fact and well-founded at law, and by the instructions in Sheppard, 2002 SCC 26 (CanLII), [2002] SCR 869, in terms of sufficiency in the expression of those reasons. [33] On that footing, would turn to examine the record in this appeal. To begin, find no reason to interfere with the trial judge’s refusal to adjourn the trial at its commencement. Even though the trial judge gave no reasons for his decision, the record strongly supports the conclusion that his decision was well-founded at law and based on established fact. On the evidence, the reasons for adjournment advanced by Mr. Hayter were not compelling and the Crown had cogently explained the prejudice that would befall it. I find there is no basis to conclude the judge erred in denying the first requested adjournment. [34] To clear the table for the analysis that follows, I also find that the third request for adjournment—coming as it did after the verdict had been rendered—could have had no bearing on trial fairness or the right to make full answer and defence with respect to the trial proper. It is relevant to trial fairness in the sentencing hearing, but would not interfere with the decision in the context of this conviction appeal. [35] However, find the evidence relevant to the exercise of judicial discretion in the matter of the second request for an adjournment—namely, when Mr. Hayter’s counsel had withdrawn mid-trial—pulled both in favour of granting and of denying the request for an adjournment. [36] Without canvassing the record in ritualized way, note first that this was the first return date for trial and, while there had been three adjournments of the preliminary inquiry, two of those had been at the request of the Crown. [37] Second, Mr. Hayter faced fraud charge, which often results in complex trial. This trial had been scheduled for week. The charge related to allegedly fraudulent activity that had occurred over number of years. There were 22 exhibits entered at trial (16 by the Crown and by Mr. Hayter). The trial involved factual and legal issues relating to Mr. Hayter’s ostensible employment relationship with several different corporations, his health status and the claims documentation he had filed with WCB. The Crown had subpoenaed ten witnesses to testify. During her application to withdraw, Mr. Hayter’s counsel stated, “I don’t want to leave Mr. Hayter in the lurch. mean, it is complicated matter”. All of which suggests Mr. Hayter was facing complex criminal trial. [38] Trial complexity cuts at least two ways in these cases. It speaks to the ability of self-represented accused to properly defend him or herself, but it also extends expectations about how quickly the matter ought to come to trial for the purposes of s. 11(b) of the Charter. For example, the majority of the Supreme Court of Canada had this to say on the issue of trial complexity in Jordan: [77] As indicated, exceptional circumstances also cover second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, large number of witnesses, significant requirements for expert evidence, and charges covering long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, large number of charges and pre-trial applications, novel or complicated legal issues, and large number of significant issues in dispute. Proceeding jointly against multiple co‑accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. In this case, trial complexity pushed more toward adjournment than not in my assessment. [39] Third, the judge in this case was aware of some of Mr. Hayter’s personal circumstances, which did not lend to an understanding that he could adequately defend himself. For example, before the request for adjournment, Mr. Hayter had stated: It’s just I’m so stressed out, Your Honour (sic), with my medical conditions and that, just don’t know what I’m doing. don’t even know what’s going on. There is no suggestion in the record that the judge disbelieved Mr. Hayter about this or that he understood Mr. Hayter to be exaggerating his state of mind. Mr. Hayter went on to state that he was stressed about his wife being in the hospital and that “I can’t do nothing by myself.” At one point, Mr. Hayter said his former counsel was “beautiful lady”, suggesting he did not understand appropriate courtroom conduct. [40] Further, an accused’s criminal record can show degree of familiarity with the criminal justice system. While Mr. Hayter does have criminal record, his convictions occurred 50 years prior to this trial. This suggests he was unlikely to have familiarity with the criminal justice system such that he could ably manage his own defence. All of this evidence indicates Mr. Hayter lacked the basic skills and disposition necessary to competently run his own defence in this trial. [41] Fourth, as noted, Mr. Hayter had been accused of defrauding WCB of substantial sum but in comparison to violent offences or offences where the public would be in immediate danger, his alleged crime was of less-serious nature. While not impossible, it is unlikely Mr. Hayter would have perpetrated new fraud upon WCB if an adjournment had been granted. That is, there was little risk to the public if the trial were adjourned. [42] Fifth, the factual matters at issue in the trial occurred between 2006 and 2011. At the time of trial in 2017, the witnesses, whether for the Crown or the defence, would have already lacked fresh memory of the events. While this circumstance does not reduce the prejudice to the Crown and to the defence if an adjournment were granted, it indicates state of affairs in which much of the prejudice of memory loss and loss or destruction of evidence might well have already occurred. Notably, the Crown had already sought and received the court’s permission to have two of its witnesses testify via video conference, limiting the prejudice to the Crown in respect of rescheduling these witnesses to give their evidence. [43] Finally, but importantly, Mr. Hayter’s counsel had withdrawn due to breakdown in the solicitor-client relationship. Given the recorded comments of his former counsel, it does not appear Mr. Hayter intentionally brought about a circumstance where his counsel felt—and I might say properly so—compelled to withdraw or that he had done that for the purpose of delaying trial. The transcript suggests Mr. Hayter’s issue with his counsel arose after she had raised the issue of him accepting plea bargain with the Crown, following the Crown’s opening statement, in the midst of the examination-in-chief of the Crown’s first witness. This apparently, but wrongly, caused Mr. Hayter to question his counsel’s loyalty to him. Nonetheless, regardless of its origin, this appears to be genuine breakdown of the solicitor-client relationship, not plan to delay the trial. Indeed, the judge permitted Mr. Hayter’s counsel to withdraw. As such, Mr. Hayter had what appears to be good reason to ask for an adjournment: he suddenly found himself without counsel in the midst of trial. In addition, when his counsel made the first request for an adjournment at the start of trial, she had said Mr. Hayter was willing to waive delay, indicating he was not attempting to delay matters with hopes of bringing successful application under s. 11(b) and Jordan. [44] That said, there were also number of factors that supported the judge’s refusal to grant the second adjournment. First, notwithstanding what have noted above, the potential consequences to the Crown of an adjournment could have been significant. If adjourned, the next available trial date in Melfort was nearly year away. During argument for the initial adjournment request, the prosecutor had made it clear that this would be significant inconvenience for the Crown’s witnesses. majority of the Crown’s witnesses were from places outside of Melfort and they had been required to travel to Melfort for the trial. While two of the Crown’s witnesses had been allowed to testify via video conference, eight others had taken time off work and travelled to testify. [45] Second, it is clear the judge was considering the public interest in the orderly and expeditious administration of justice. In the initial adjournment request, which had been made only hours before the adjournment request at issue here, the judge stated: Ms. Bodnar, have considered your request and sincerely sympathize with your client, but also know how much everything has been adjusted for this and if we adjourn it, the next possible date would be almost year away. ... Delay of year is relevant factor and cuts in favour of declining an adjournment request for the reasons identified in Jordan. [46] Third, the judge appears to have determined judicial assistance with the conduct of trial could ameliorate the consequences of lack of counsel. This is not evident on the record of the adjournment request, but the judge did give considerable assistance to Mr. Hayter during the trial. He explained the required elements of the offence, the definition of reasonable doubt, the presumption of innocence, and the fact that Mr. Hayter was not obligated to testify. In addition, the judge advised Mr. Hayter that he should study his files and materials for the purposes of conducting cross-examination of witnesses, after the Crown had finished its examination-in-chief, and he adjourned the trial for the remainder of the day to allow Mr. Hayter the time to do so. Mr. Hayter was not being held in remand, so he had the liberty to avail himself of this and other opportunities to prepare and respond to matters arising in his trial. [47] Finally, while his counsel may have withdrawn by reason of breakdown of the solicitor-client relationship, that breakdown had apparently resulted from Mr. Hayter’s own misperception of things and his misguided comments about her loyalty to him. Intentional or not, Mr. Hayter put his counsel in an untenable ethical position by questioning her ability to adhere to her duty of loyalty to him. His supposed reason for doing so is unfounded and shows an utter and complete lack of understanding of a lawyer’s ethical duties and professional responsibilities as well as of the paramountcy of a lawyer’s ethical obligations over employment and other obligations. For this reason, it is quite difficult to say with any degree of certainty that Mr. Hayter had sought to exercise his right to counsel in completely honest and diligent manner. The judge certainly felt it was open to him to conclude that Mr. Hayter may have connived to cause his counsel to withdraw mid-trial. Nonetheless, as Pigeon J. cautioned in Barrette The Queen at 124 (cited above), such conclusions must be based on established facts, not speculation. [48] The fact is that the judge did not record the reason or reasons he had for denying the mid-trial request for an adjournment. Where reasons are given, the mere fact there is evidence that weighs against the trial judge’s reasons is not determinative of the matter provided the trial judge took all relevant considerations into account in his or her decision-making. Similarly, where reasons are given, the fact the appellate court might have weighed some of the relevant considerations differently than the trial judge does not give rise to reversible error. That is, had the judge articulated the basis for his decision in this case, might have been hard-pressed to conclude it was not well-founded in law. [49] Where there are no reasons given for decision, the appellate right of review is especially wide because, as Pigeon J. observed in Barrette The Queen, the consequence of that exercise of judicial discretion is that an accused may have been deprived of the right to fair trial or to make full answer and defence. In making this remark, Pigeon J. noted he had found “in the last few years no less than half dozen judgments in civil proceedings where decision depriving litigant of an important right was reversed on account of insufficient reasons given” (emphasis added). He then said “there is all the more reason to so regard discretionary decision in criminal proceedings, the effect whereof is to deprive the accused of his right to obtain the assistance of counsel and to summon witnesses in his defence” (at 125). [50] In the circumstances of this case, I am persuaded to conclude the judge erred in law by failing to provide sufficient reasons for denying Mr. Hayter’s mid-trial request for an adjournment, but that does not mean the conviction must be set aside. Rather, it leads to the second question under the framework in Barrette The Queen, which is whether that denial resulted in deprivation of Mr. Hayter’s right to make full answer and defence or to fair trial. Put in terms of the appellate power under s. 686(1)(b)(iii), having determined that the appeal might be decided in favour of Mr. Hayter under s. 686(1)(a)(ii), must now determine whether the error resulted in no substantial wrong or miscarriage of justice. [51] In that regard, I conclude Mr. Hayter’s poor conduct of his own defence favours intervention in this matter. Throughout the trial, it appears Mr. Hayter had difficult time hearing or understanding what was going on. He mentions this himself several times and is recorded as saying “pardon” many times. Whether an inability to hear or to understand, it speaks negatively to his ability to competently conduct his own defence. [52] The transcript bears out his incompetence. It contains examples of Mr. Hayter making mistakes in carriage of his defence. He did not cross-examine Crown witness after expressing an intention to do so, he believed erroneously that he would not have right of appeal if he did not testify, he attempted to tender exhibits himself instead of through the appropriate witness, and he struggled generally to ask relevant questions of witnesses or questions material to the issues at hand in his cross-examinations of witnesses. Unlike the accused in Rak, cannot safely characterise his self-advocacy as adroit or capable. cannot say he handled his cross-examinations effectively or that he showed clear ability to understand the documentary evidence. As such, conclude the denial of the mid-trial adjournment “could have played significant role in the legal validity of the verdict or rendered the trial unfair, in reality or in appearance” (R Khan at para 66). [53] Finally, although the evidence of Mr. Hayter’s guilt on the charge of fraud over $5,000 was considerable, am not prepared to find that Mr. Hayter was manifestly guilty on the basis of it or that the outcome of the trial would necessarily have been the same had the judge granted the adjournment and had Mr. Hayter been later represented by counsel at trial. V. conclusion [54] For the foregoing reasons, I find the verdict must be set aside and a new trial ordered. “Caldwell J.A.” Caldwell J.A. concur. “Whitmore J.A.” Whitmore J.A. concur. “Schwann J.A.” Schwann J.A.
HELD: The appeal was allowed and a new trial ordered. In this case, the court found that the judge had not erred in his decisions regarding the first and the third requests for adjournment but had in the second request by failing to provide sufficient reasons for his denial. Amongst many factors it considered, the court found that most importantly, the appellant had not caused his counsel to withdraw for the purpose of delaying trial. It concluded that the error resulted in a miscarriage of justice based upon the appellant’s poor conduct of his own defence and lack of understanding of trial process.