R. v. Halnuck (P.J.), (1996) 151 N.S.R.(2d) 81 (CA)

• Judge: Clarke, C.J.N.S., Hart and Jones, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 29, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 151 N.S.R.(2d) 81 (CA)

R. v. Halnuck (P.J.) (1996), 151 N.S.R.(2d) 81 (CA);

  440 A.P.R. 81

MLB headnote and full text

Paul Joseph Halnuck (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 106370)

Indexed As: R. v. Halnuck (P.J.)

Nova Scotia Court of Appeal

Clarke, C.J.N.S., Hart and Jones, JJ.A.

May 29, 1996.

Summary:

The accused was convicted of first degree murder following a jury trial. The victim was his estranged wife. The accused appealed his conviction on the grounds that the trial judge erred (1) in failing to instruct the jury on the defence of drunkenness; (2) in failing to provide assistance to the unrep­resented accused so as to enable him to make full answer and defence; and (3) that the accused was denied his right to make full answer and defence due to ineffective representation by counsel.

The Nova Scotia Court of Appeal, Jones, J.A., dissenting, dismissed the appeal. There was insufficient evidence of drunkenness to justify putting the defence to the jury. The trial judge provided reasonable assistance to the unrepresented accused. The unrepresent­ed accused received a fair trial.

Civil Rights - Topic 4620.1

Right to counsel - Right to effective as­sistance by counsel - An accused charged with first degree murder was sequentially represented by a number of experienced criminal lawyers, all of whom he dis­charged (the last during the trial) - The accused thereafter represented himself with proper assistance from the trial judge - Suddenly, the accused changed his approach by limiting his involvement to repeated statements that he was unable to represent himself and that he wanted counsel - The trial judge refused an ad­journment, finding that the accused was deliberately attempting to stall the trial - The accused now claimed this advice came to him second-hand from the lawyer who represented him at the preliminary inquiry - He claimed ineffective representation by counsel compromising his right to a fair trial - The Nova Scotia Court of Appeal held that the accused had a fair trial - The trial judge did not abuse his discretion in refusing a further adjournment to the accused to obtain yet another lawyer - The court agreed that the accused was deliber­ately attempting to obstruct the trial rather than bona fide asserting his rights - The present attempt to blame the lawyer was just a further attempt to "derail the trial" - See paragraphs 63 to 96.

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See Criminal Law - Topic 4294 ].

Criminal Law - Topic 1299

Murder - Defences - Jury charge (re intent and drunkenness) - An accused convicted of first degree murder claimed he was too drunk to form the specific intent to kill and that the trial judge erred in failing to charge the jury on drunken­ness and intent - The Crown evidence was that the accused had three beers, but that he did not stagger, did not have slurred speech and displayed none of the common signs of intoxication - The accused did not testify, nor did he call evidence to verify the extent of his alcohol consumption - The Nova Scotia Court of Appeal held that the trial judge did not err in finding that there was no air of reality to the defence of drunkenness - Accordingly, the trial judge was not required to place the defence before the jury for their consider­ation - See paragraphs 15 to 45.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not repre­sented - An accused charged with first degree murder was sequentially represent­ed by three experienced criminal lawyers, but discharged them all (the last during the early stages of the trial) - The accused chose to continue unrepresented - The accused claimed the trial judge failed to render reasonable assistance, thereby pre­venting him from making full answer and defence - The Nova Scotia Court of Appeal held that the trial judge rendered reasonable assistance - The trial judge was not the accused's advocate - The court noted that the trial judge advised the accused of his right to cross-examine Crown witnesses, to testify or not testify on his own behalf and to make final sub­missions to the jury and what they should contain - The trial judge helped the accused frame questions on cross-examin­ation and granted adjournments, as needed, to allow the accused to prepare - The accused effectively cross-examined Crown witnesses and the lack of representation did not impair his right to make full answer and defence - See paragraphs 46 to 62.

Criminal Law - Topic 4302.1

Procedure - Trial judge - Duties and functions of - Respecting adjournments - The Nova Scotia Court of Appeal referred to nine propositions "respecting the discre­tion which the trial judge has in refusing adjournments to an accused person who is unrepresented by counsel" - See paragraph 79.

Criminal Law - Topic 4386

Procedure - Jury charge - Judge's duty to determine if defence available on evidence - [See Criminal Law - Topic 1299 ].

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - [See Civil Rights - Topic 4620.1 ].

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - [See Civil Rights - Topic 4620.1 ].

Cases Noticed:

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 86 C.C.C.(3d) 481, refd to. [para. 34].

R. v. Lemky (T.R.) (1996), 194 N.R. 1; 73 B.C.A.C. 1; 120 W.A.C. 1 (S.C.C.), refd to. [para. 39].

R. v. McGibbon (1988), 31 O.A.C. 10; 45 C.C.C.(3d) 334 (C.A.), refd to. [para. 49].

R. v. Kennie (G.D.) (1993), 121 N.S.R.(2d) 91; 335 A.P.R. 91 (C.A.), refd to. [para. 50].

R. v. Beals (E.W.) (1993), 126 N.S.R.(2d) 130; 352 A.P.R. 130 (C.A.), refd to. [para. 78].

R. v. Taylor (J.W.) (1995), 142 N.S.R.(2d) 382; 407 A.P.R. 382 (C.A.), dist. [para. 82].

R. v. Howell (D.M.) (1995), 146 N.S.R.(2d) 1; 422 A.P.R. 1; 103 C.C.C.(3d) 302 (C.A.), refd to. [para. 85].

R. v. Spataro (1972), 7 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 86].

R. v. Thorpe (1976), 32 C.C.C.(2d) 46 (Man. C.A.), refd to. [para. 94].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 100 C.C.C.(3d) 225 (C.A.), refd to. [para. 113].

R. v. L.C.B. (1996), 88 O.A.C. 81 (C.A.), refd to. [para. 116].

R. v. E.R.S. (1994), 149 A.R. 285; 63 W.A.C. 285 (C.A.), refd to. [para. 119].

United States v. Cronic, 104 S.Ct. 2039 (U.S.S.C.), refd to. [para. 121].

R. v. Deneault (R.Y.) (1993), 33 B.C.A.C. 156; 54 W.A.C. 156 (C.A.), refd to. [para. 122].

R. v. Joanisse (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 123].

Counsel:

Kevin Drolet, for the appellant;

Kenneth W.F. Fiske, Q.C., for the respon­dent.

This appeal was heard on March 29, 1996, before Clarke, C.J.N.S., Hart and Jones, JJ.A., of the Nova Scotia Court of Appeal.

On May 29, 1996, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Clarke, C.J.N.S. (Hart, J.A., concurring) - see paragraphs 1 to 97;

Jones, J.A., dissenting - see paragraphs 98 to 126.