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In a recent Ontario Court of Appeal decision, the court ordered a new criminal trial after the trial judge refused to grant the accused an adjournment and the trial proceeded without his lawyer.

What Happened?

The accused was charged with two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm. 

The accused had been driving at a high rate of speed on a country road. He came over a hill to find another car coming in the other direction. The driver of the other car was impaired, and his car was over the centre line. The resulting collision caused the death of two people in the oncoming vehicle and serious injuries to one of the passengers in the accused’s vehicle.

The accused experienced difficulty retaining counsel. He had two lawyers prior to trial, both of whom ceased to act for him for different reasons. As a result, the accused’s trial date had been marked “with or without counsel”. 

On the date of his trial, new counsel appeared for the accused. 

The accused asked for a four-week adjournment so that his new counsel could properly prepare for the trial. 

This was the second time the accused had asked for an adjournment of his trial. 

Crown counsel opposed the adjournment citing, among other reasons, that he was not available to do the trial four weeks later. 

The trial judge offered the accused’s counsel a two-week adjournment, but counsel said that would be an inadequate amount of time for him to properly prepare, including preparing the defence expert witness. 

The trial judge then refused the adjournment and ordered the trial to proceed with the accused unrepresented.

After the trial judge ordered the trial to proceed, he told the accused to review the two banker’s boxes of disclosure. The evidence showed that the accused cannot read or write. In fact, the counsel who had asked for the adjournment but had been refused took it upon himself to write to the trial judge and advise him, both of the fact that the accused could not read or write, and that English was not the accused’s first language.

At the end of his trial without counsel, the accused was sentenced to 18 months concurrent on the two counts of dangerous driving causing death and sentenced to 15 months on the one count of dangerous driving causing bodily harm. 

The accused appealed his conviction.

Ontario Court of Appeal Decision

The Court of Appeal began by explaining that when an accused person requests an adjournment of his trial on the date set for trial so that he can have counsel represent him, the trial judge is faced with two conflicting interests: the accused’s right to counsel, including counsel of choice, and the avoidance of delay. 

In this case, the court found that the denial of the adjournment deprived the accused of a fair trial. It stated that this opened the door to various errors in the manner in which the legally-complex trial was conducted that contributed to its unfairness. 

The court found that it was clear to the trial judge that the accused could not read and write; even if this fact had not been clear to the trial judge at the commencement of the trial, although the accused had so advised him, the trial judge became aware of it by the second day of the trial through his counsel’s letter. Notwithstanding this knowledge, the court found that the trial judge failed to take any steps to address the obvious problems that these facts would pose for the fair conduct of the proceedings. 

The court further found that the trial judge had erred by directing the defence expert to conduct the cross-examination of the Crown’s expert, stating that there was no proper legal basis for the trial judge to instruct the defence expert to undertake such cross-examination. The court stated that if the trial judge was concerned that the accused was not able to properly conduct the cross-examination of the Crown’s expert, as he should have been, then he ought to have considered whether it was necessary to appoint amicus for that purpose. 

As a result, the court allowed the appeal and ordered a new trial, stating: 

“The conduct of this trial was anything but fair to the [accused]. We would add that we are troubled by the failure of Crown counsel to intervene to ensure that the obvious problems with the manner in which the trial was proceeding were identified and corrected.

Before concluding, we would add that the counsel, who wrote to the trial judge to draw his attention to the deficiencies from which the [accused] suffered in terms of being unrepresented, is to be commended for taking the step that he did. His actions were in the best spirit of the conduct of members of the Bar and were in the interests of justice.”

Get Advice

If you have been charged with a driving-related offence, including “over 80”, impaired driving, or refusal to provide a breath or blood sample, contact the team of criminal defence lawyers at Campbell Bader LLP in Mississauga. We have experience defending clients against all types of drunk driving and impaired driving due to drug charges.  We have successfully defended clients against even the most serious charges and acquittal is always our goal. Contact us online or at 905-828-2247 to learn how we can help.