nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 84 Date: 2008 02 22 Docket: Q.B.C.A. No. 17 of 2006 Judicial Centre: Saskatoon BETWEEN: THEODORE DUBELT and HER MAJESTY THE QUEEN Counsel: David K. Rusnak for the appellant Sheryl J. Fillo for the respondent JUDGMENT MILLS J. February 22, 2008 [1] Mr. Dubelt appeals his conviction for common assault under s. 266 of the Criminal Code of Canada on the basis that his non‑lawyer agent, Richard Klassen, provided him with ineffective assistance resulting in a miscarriage of justice. [2] Mr. Dubelt was convicted on April 4, 2006 of common assault. At his trial he was assisted by Richard Klassen. Mr. Dubelt paid Klassen $2,500 for his assistance on the assault charge. Following his conviction Mr. Dubelt utilized the assistance of Klassen in preparing notice of appeal in which the grounds are related to factual issues. [3] Mr. Dubelt abandoned Klassen and retained the services of member of the Law Society of Saskatchewan for the purpose of filing an amended notice of appeal disclosing the grounds of appeal as follows: 1. The Appellant says that due to the ineffective assistance of his trial counsel, there was miscarriage of justice that compromised the reliability of the trial’s result or caused procedural unfairness to the Appellant. 2. Such further or other grounds as the Appellant may advise or as may appear from the transcript of the sentencing proceedings. Included in the amended appeal was an affidavit of Mr. Dubelt explaining how Klassen had come to be his agent in Provincial Court and raising concerns about Klassen’s representations through the trial on Mr. Dubelt’s behalf. [4] Mr. Dubelt’s lawyer withdrew before the appeal was heard and counsel of record on the appeal inherited this situation. Technically the affidavit of Mr. Dubelt is “fresh evidence” meant to demonstrate the ineffective assistance of the agent Klassen at trial. [5] This fresh evidence is not directed to factual issue decided by the trial judge but rather to obtaining an original remedy from this Court on the basis that the agent Klassen’s ineffectual assistance resulted in miscarriage of justice. The process in situations like this has been developed by the courts so that an examination of the fresh evidence now before me is conducted to determine whether miscarriage of justice has occurred and if so the fresh evidence will be admitted and the appeal allowed. An example of this process as it relates to the issue of ineffective counsel being member of the Law Society is Smith v. The Queen, 2007 SKCA 71 (CanLII), 223 C.C.C. (3d) 114 and in the situation involving an agent, R. v. Wolkins, 2005 NSCA (CanLII), 192 C.C.C. (3d) 378. These two cases stand for the proposition that if upon review of the fresh evidence miscarriage of justice has not occurred it is not admissible. Although counsel did not direct themselves to the hearings in this fashion, essentially the process and argument followed that course. [6] Given the facts as will be addressed later the issues come down to the following: (1) What standard of representation if any is an accused entitled to when represented by non-lawyer agent at trial? (2) Did Mr. Dubelt’s conviction result from miscarriage of justice arising from the conduct of the trial? (1) What standard of representation if any is an accused entitled to when represented by non-lawyer agent at trial? [7] The brief of law submitted by Mr. Dubelt’s first counsel argues “that due to the ineffective assistance of his trial counsel there is miscarriage of justice that comprised the reliability of the trial’s result or calls procedural unfairness to the appellant”. [8] Counsel submits that the performance of Klassen although not lawyer is to be assessed against standard expected of lawyer. If indeed that were the case the criteria for reviewing the conduct of counsel is found in R. v. G.D.B., [2001] S.C.R. 520 and found in Smith, supra, from our Court of Appeal. That however is not the test to be applied. The case of R. v. Romanowicz (1999), 1999 CanLII 1315 (ON CA), 138 C.C.C. (3d) 225 contains compelling and thorough analysis of this issue by the Ontario Court of Appeal. Paragraphs 27 through 31 of the judgment provide an analysis that applies to Mr. Dubelt’s situation: 27 Every accused is owed fair trial. That right is guaranteed by s. 11(d) of the Charter. Representation by professionals trained in the law and bound by the ethics and obligations of their profession serves that right. In some cases, legal representation is essential to the securing of fair trial and an accused who wants counsel must be provided with counsel: R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) (Ont. C.A.) at p. 66. If an accused retains counsel, she is constitutionally entitled to competent representation by that counsel: R. v. B. (L.C.) (1996), 1996 CanLII 937 (ON CA), 104 C.C.C. (3d) 353 (Ont. C.A.) at p. 367; R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.) at pp. 56-58. The constitutional right to the effective assistance of counsel recognizes that counsel, by virtue of their professional training, will bring to their task an expertise which others, including the accused, do not possess. An accused who chooses to seek the assistance of legally trained counsel is entitled to assistance which reflects that expertise. 28 An accused is also entitled to proceed without counsel. The accused may choose self-representation, or if the Crown has proceeded summarily, the accused may choose to be represented by an agent: R. v. Vescio, 1948 CanLII 53 (SCC), [1949] S.C.R. 139 at p. 142, 92 C.C.C. 161, [1949] D.L.R. 720; R. v. Littlejohn and Tirabasso (1978), 1978 CanLII 2326 (ON CA), 41 C.C.C. (2d) 161 (Ont. C.A.) at p. 173. By choosing to proceed without counsel, an accused elects to forego the right to the effective assistance of counsel. An accused cannot at the same time exercise the right to proceed without the assistance of counsel and yet demand the right to the effective assistance of counsel. 29 If an accused chooses self-representation, he or she cannot be heard to complain that the conduct of the trial did not rise to the level [page238] of competent counsel. We see no reason why the same conclusion would not follow when an accused chooses to be represented by an agent who is not lawyer. Nor does the fact that the agent is paid create any presumption as to the agent's competence. Just as where an accused chooses self-representation, an accused who chooses to be represented by an agent who is not lawyer has decided against exercising the right to effective assistance of counsel, and cannot be heard to contend that the agent's performance should be tested against the standard reserved to counsel trained in the law: Harrison v. Canada, [1998] A.J. No. 109 (QL) at paras. 15-17 (Alta. Q.B.) [summarized 84 A.C.W.S. (3d) 687]. 30 In holding that an accused who chooses to be represented by an agent and not lawyer has no constitutional right to competent representation, we do not suggest that the accused's right to fair trial is diminished. That right remains in full force and the absence of legally trained counsel puts an added obligation on the trial judge to protect that right: R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.) at p. 347. 31 Nor do we suggest that an accused who is represented by an agent who is not lawyer is foreclosed from raising the conduct of that agent on appeal in support of submission that the conviction constitutes miscarriage of justice. Any such submission cannot, however, be made on the basis that the miscarriage arises because the agent failed to meet the competent lawyer standard. Rather, the accused must demonstrate that the agent's conduct, perhaps combined with other events, produced miscarriage of justice. [9] The Nova Scotia Court of Appeal in R. v. Wolkins, supra, comes to the same conclusion and states the accused has right to chose how they will defend charge, that the accused who choses to be represented by an agent waives the right to effective assistance of counsel and that an agent who is not as competent as lawyer is not ground of appeal. [10] Mr. Dubelt’s affidavit deposes that upon being charged with the common assault of his former spouse, he retained the services of Robert Borden, person he knew was barrister and solicitor. Mr. Borden was also retained to assist Mr. Dubelt with the Family Law matters in the Court of Queen’s Bench Family Law Division that had arisen at the same time. Mr. Dubelt deposed that Mr. Borden was prepared to work with other persons that would assist him in the criminal and family matters and he was referred to Richard Klassen and one Angela Geworsky. He paid them $3,500 directly to assist Mr. Borden in the criminal and family law matters. [11] Mr. Dubelt deposes that on January 16, 2006, Borden withdrew for personal reasons from both the family and criminal law matters and that he did not wish to adjourn the criminal trial as he wished to have the criminal charges resolved before the family matters proceeded to hearing. [12] He was advised that Klassen could represent him at the criminal trial. Dubelt deposed Klassen was familiar with his criminal matter, appeared knowledgeable about the court system and had acted previously in consultation with Mr. Borden. He paid Klassen and Geworsky $2,500 on January 20, 2006 to represent him at the criminal trial and his family law proceedings. He deposed that even after the conviction Klassen prepared the notice of appeal on grounds the two of them thought were appropriate which was the first appeal filed in this matter. [13] Upon cross-examination on his affidavit it was revealed that Mr. Dubelt had originally retained Brian McHolm, member of the Law Society of Saskatchewan, to defend him on his criminal matters. Mr. McHolm appeared on behalf of Mr. Dubelt in September of 2005, entered not guilty plea and set trial date on his behalf. By August of 2005 Mr. Dubelt had discharged Mr. McHolm and retained Mr. Borden who appeared on his behalf in Provincial Court to set new trial date subsequently arranging for its adjournment to February 23, 2006. Mr. Dubelt came to know of Klassen through friend. He went to Klassen’s website for more information on him. Mr. Dubelt was aware that Klassen was not lawyer and sought Klassen’s advice as to who would be good lawyer. Mr. Dubelt testified that Klassen told him that he did ground work and compiled material and that he had worked with Mr. Borden, that his acquaintance, Angela Geworsky, did the same thing. When they met at Mr. Borden’s office Mr. Dubelt retained all three, that is, Klassen, Geworsky and Mr. Borden. Mr. Klassen attended most meetings that Mr. Dubelt had with Mr. Borden. Mr. Klassen was aware of Mr. Dubelt’s plan of defence, i.e. the audio tape. Mr. Borden was the lawyer who retained the audio tape expert. [14] Mr. Dubelt testified that there arose conflict between Klassen and Mr. Borden and Mr. Borden withdrew. Mr. Dubelt then continued looking for another lawyer to assist him on his criminal defence with the assistance of Klassen. He testified that he met two to three other lawyers but that he does not recall their names specifically. He said he was uncomfortable with them and did not want his trial adjourned again. Those were the circumstances that led up to him appearing in court with Klassen to run the trial. [15] Klassen’s lack of ability by itself is not a ground for determining that a miscarriage of justice occurred. There was no unfairness to Mr. Dubelt in the trial process. Mr. Dubelt was entitled to have Klassen represent him. He made that decision freely based on information fully at hand that he consciously chose to rely on. Mr. Dubelt was familiar with the legal process generally. He had interviewed number of different lawyers all of whom he felt were lacking insofar as his needs were concerned. He knew what his options were as it relates to the selection of counsel or agent. He was provided with appropriate disclosure before trial. He was given generous rulings as it related to the issue of his expert witness and co-operation from the Crown in ensuring that police officers were available for providing evidence if he so requested. The trial judge explained to him the procedure including the obligation of the Crown to prove their case and the fact that there was no requirement on him to call evidence but of course that he could do so if he wished to. The court in Wolkins, supra, quoted from the case of Davids v. Davids, 1999 CanLII 9289 (ON CA), [1999] O.J. No. 3930 (C.A.) (QL), summarizing the issue of trial fairness as follows: ... The fairness of this trial is not measured by comparing the appellant’s conduct of his own case with the conduct of that case by competent lawyer. If that were the measure of fairness, trial judges could only require persons to proceed to trial without counsel in those rare cases where an unrepresented person could present his or her case as effectively as counsel. Fairness does not demand that the unrepresented litigant be able to present his case as effectively as competent lawyer. Rather, it demands that he have fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have lawyer’s familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case. nan [16] In the circumstances there certainly was no procedural unfairness to Mr. Dubelt. He did not get the standard of representation that a competent lawyer could provide, that came as a result of the decisions he freely made. [17] Mr. Dubelt was before the Provincial Court as person who was self-represented although he had hired Mr. Klassen to provide him with assistance as his agent. The objective fairness of the trial has not been diminished because of this. [18] The reasoning in Romanowicz and Wolkins conclusively decides that Mr. Dubelt cannot rely on the fact that the standard of representation received was not equal to that of a competent lawyer. (2) Did Mr. Dubelt’s conviction result from miscarriage of justice arising from the conduct of the trial? [19] Romanowicz leaves open the question of whether miscarriage of justice may have occurred resulting in the necessity of new trial (Romanowicz, para. 31). Throughout the trial there are examples of Klassen showing himself not to be reasonably competent or at the very least unknowledgeable at certain times. [20] The first situation surrounds the improper attempt at subpoenaing as defence witnesses two peace officers who had some involvement with the file. Despite being served with defective subpoenas they appeared for the trial and with the co-operation of the Crown were prepared to remain and give evidence if called upon by the defence. Klassen suggested that their evidence was crucial but allowed one officer who was then on maternity leave and breastfeeding her child to leave and not worry about being called back to testify, ostensibly because she was nursing mom. That of course had nothing to do with the issue before the Court nor would it impact on the evidence that officer could have given in relation to the trial. His decision made little sense. However based on his reasoning professed to the Court about the necessity for that witness it was also clear that neither police witness had anything to offer by way of evidence that would provide or assist in providing defence by Mr. Dubelt. The whole process with the attempted subpoena of the police officers, the reason for the subpoena, what he expected to receive by way of evidence from them and the eventual testimony showed Klassen’s inexperience and lack of skill. None of it however could have any impact on the outcome of the trial since Mr. Klassen was offering their evidence as proof of shoddy police investigation, unrelated to the rather simple issues at trial. [21] One must remember that the basis of the charge was common assault upon his spouse. The spouse gave the circumstances of how she was assaulted by Mr. Dubelt. The police investigation was appropriate for what the charge entailed. The fact that the police were not prepared to challenge Mrs. Dubelt more vigorously on her allegations and to seek further corroborative evidence of Mrs. Dubelt’s story before laying the charge has no impact on whether or not he assaulted her. [22] Mr. Klassen showed lack of knowledge with respect to the manner in which expert evidence is to be tendered to the court. He did not provide copy of the report to Crown counsel as required by the Code. He did not understand how to go about qualifying the expert to testify and did not understand that particular area of expertise had to be identified and established. His lack of skill in the area of expert witnesses however did not prevent the court from allowing the expert to be qualified as such and give evidence on behalf of Mr. Dubelt. That result came from rather generous ruling from the trial judge. [23] In argument Klassen cited cases that were legally unrelated to the factual propositions before the Court. None of the above inadequacies had any impact on the trial to the detriment of Mr. Dubelt. This case was not legally challenging. It was simple factual issue and that boiled down to whether Mr. Dubelt assaulted Mrs. Dubelt in the fashion that she testified to. For all the issue taken by Mr. Dubelt with the audio tape it clearly was not part of the Crown’s case. It was attempted to be used by the defence to show that Mrs. Klassen was not credible. There are essentially two ways to defend the charge against Mr. Dubelt. The first was to impeach the credibility of Mrs. Dubelt’s testimony such that the Crown had not proven the case beyond reasonable doubt without himself testifying. Secondly, to testify in his own defence and have the Court assess the entirety of the case on the basis of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.R. 742, Mr. Dubelt felt that the better approach was to utilize the audio tape and attempt to impeach his spouse’s credibility, without testifying. That tactical decision was not effective. Mr. Dubelt has to accept responsibility for the decision not to testify. He was aware that he had the option to testify or not. Part of the initial instructions from the Court included this statement from the trial judge: As say, after the Crown has called all of its evidence, it will be up to you, and you obviously may want to break to discuss this with Mr. Klassen to decide whether you’ll testify yourself or whether you’ll call witnesses. As said at the outset, you do not have to testify. You do not have to call witnesses. You do not have to prove anything, all right? And again, at the conclusion of the Crown’s case the court said: nan I’m just going to make statement and it’s it’s likely not necessary, but just have since the accused is unrepresented, just have to restate the fact that you don’t have to call any evidence. You don’t have to testify yourself. If you do call evidence or testify yourself, it will be under oath. So do you understand that, sir? The accused said he understood. Two witnesses were called by the defence, the expert on audio tapes and one police officer. At the conclusion of the police officer’s testimony Mr. Klassen stated in the presence of Mr. Dubelt the following: Mr. Klassen, have spoken with Mr. Dubelt. We are satisfied that we are going to close our case. We are not going to be calling any more evidence so that day whatever we set will be argument. [24] There would be an opportunity at this time for Mr. Dubelt to indicate to the judge that he wished to testify if in fact that was the case. Dubelt gave no such indication. Of course at the conclusion of the trial judge’s decision and the finding that he had committed an assault it became obvious to Mr. Dubelt that in order to be acquitted he would have had to testify. He now wishes that opportunity. There are only two specific allegations of incompetence directed to Klassen that were contained in the fresh evidence affidavit. The first is failure to ask questions and the second was incorrect advice about not to testify. Mr. Dubelt in his affidavit stated that Klassen failed to ask the complainant number of questions that he believed are relevant to his defence and which were discussed in advance. The affidavit does not disclose what those questions were and regardless of the response that would have been received have no way of knowing whether there would be any relevance attached to them. Mr. Klassen does not disclose anything related to the line of questioning that was not covered or specific issues not raised. The second issue as to whether Mr. Dubelt would testify and why he did not is contained in the following excerpt from his affidavit: nan At the close of the Crown’s case, was advised by Richard Klassen that did not have to testify as he believed that he would raise reasonable doubt about the Complainant’s evidence and credibility through our expert witness (in audio recording) who would testify that the audio tape was not authentic or continuous, and that my denials of the assaults were recorded on the audio tape. 11. That my decision to not testify on my own behalf was made upon the strong recommendation of Richard Klassen, whom believed to be experienced and knowledgeable on such matters. [25] Mr. Dubelt does not disclose the general type of evidence that he would have given if called upon to testify. He does not indicate denial anywhere in his material that the altercations described by the complainant did not occur. have no way of ascertaining if he did testify that the evidence of the complainant would not be sustained as essentially accurate. What does that matter either way? Mr. Dubelt made tactical decision to not testify. He did it because the theory of the defence was to attempt to impeach the credibility of the complainant by use of the audio tape evidence that they introduced. It was not successful. Mr. Dubelt participated in the decision to conduct this trial in that fashion. He was not reluctant to change counsel if he was not comfortable with the approach that they were to take. Clearly he was not someone who appears to have been cowed by Mr. Klassen into making tactical decision that he did not want to. Counsel now argues that once the evidence had been presented by Klassen in relation to the audio tape from legal standpoint it should have been obvious that there was no hope of that defence succeeding, therefore miscarriage of justice has occurred as Klassen’s advice should have then been that Mr. Dubelt had to testify. [26] do not believe that to be the case. The tactical decision to attack the credibility of the complainant through challenge to the audio tape started with Mr. Borden and was discussed and personally approved by Mr. Dubelt. It was continued with Klassen. Mr. Dubelt saw many lawyers in the assault case. He did not have confidence in them and pursued his original line of defence through Klassen. I cannot see a miscarriage of justice as a result of the tactics of Mr. Dubelt and Klassen. The evidence at trial and the fresh evidence offered by Mr. Dubelt’s testimony and his affidavit do not establish a miscarriage of justice that may have occurred outside of Mr. Dubelt’s choice of agent, the test in Romanowicz. The appeal is therefore dismissed. [27] Mr. Dubelt’s counsel did not argue any other basis for the appeal, other than the incompetence of Klassen. Despite this, wish to refer briefly to the appeal on the basis that the verdict is unreasonable or cannot be supported by the evidence. There is no basis in the transcript for accepting such position. The trial judge accepted the fact situation described by the complainant, and there is nothing in any of the evidence led either by the Crown or defence that he found to detract from her evidence. The allegations are not that the judge erred with respect to the facts but rather the judge should not have believed the evidence provided. [28] In this simple factual case, the judge believed the complainant, and as an appellate court, am in no position to review his reasons to determine if simply would have come to different conclusion. The law in this area is well established, and there is little reason to embark on further analysis of overturning the conviction on the basis of finding fact. The most recent and useful discussion in this area from our Court of Appeal is R. v. L.W.T., 2008 SKCA 17 (CanLII), [2008] S.J. No. 75 (QL). [29] The appeal is therefore dismissed.
The appellant appeals his conviction for common assault under s. 266 of the Criminal Code on the basis that his non-lawyer agent, Richard Klassen, provided him with ineffective assistance resulting in a miscarriage of justice. HELD: The appeal is dismissed. 1) Klassen's lack of ability by itself is not a ground for determining that a miscarriage of justice occurred. There was no unfairness in the trial process. The appellant was entitled to have Klassen represent him. He made that decision freely based on information fully at hand that he consciously chose to rely on. There was no procedural unfairness to the appellant. He did not get the standard of representation that a competent lawyer could provide but that came as a result of the decisions he freely made. On appeal the appellant cannot rely on the fact that the standard of representation received was not equal to that of a competent lawyer. 2) The tactical decision to attack the credibility of the complainant through challenge to the audio tape was personally approved by the appellant. The appellant saw many lawyers in the assault case. He did not have confidence in them and pursued his original line of defence through Klassen. The Court cannot see a miscarriage of justice as a result of the tactics of the appellant and Klassen. The evidence at trial and the fresh evidence offered by the appellant's testimony and his affidavit to not establish a miscarriage of justice that may have occurred outside of the appellant's choice of agent, which is the test in R. v. Romanowicz (1999), 138 C.C.C. (3d) 225 (Ont. C.A.).