R. v. Harris (R.L.), 2009 SKCA 96

• Judge: Cameron, Richards and Smith, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: August 27, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKCA 96;(2009), 331 Sask.R. 283 (CA)

R. v. Harris (R.L.) (2009), 331 Sask.R. 283 (CA);

    460 W.A.C. 283

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. SE.002

Reggie Lee Harris (appellant) v. Her Majesty The Queen (respondent)

(Nos. 1514; 1515; 2009 SKCA 96)

Indexed As: R. v. Harris (R.L.)

Saskatchewan Court of Appeal

Cameron, Richards and Smith, JJ.A.

August 27, 2009.

Summary:

The accused was convicted of two counts of assault with a weapon for throwing beer bottles at two individuals at a party. He was sentenced to 12 months' imprisonment. One month later, the accused was convicted of assault causing bodily harm for punching another individual while at a gathering in a house. The trial judge allowed the Crown's application to have the accused designated a long-term offender. The accused was sentenced to 30 months' imprisonment followed by a five year community supervision order. The accused appealed all of the convictions and sentences, as well as the long-term offender designation.

The Saskatchewan Court of Appeal dismissed the conviction and sentence appeals respecting the two counts of assault with a weapon. The court allowed the assault causing bodily harm conviction and ordered a new trial. As the conviction was overturned, the 30 month sentence and long-term offender designation were set aside.

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - The Saskatchewan Court of Appeal discussed prosecutorial discretion respecting the calling of witnesses - See paragraphs 37 to 44.

Criminal Law - Topic 127.1

General principles - Rights of accused - Right to self-representation - The accused was convicted of two counts of assault with a weapon for throwing beer bottles at two individuals - He elected to represent himself at trial by choice, not out of financial necessity - On appeal, the accused submitted that the trial judge did not provide him with adequate guidance, denying him a fair trial - The Saskatchewan Court of Appeal stated that "an accused who decides to proceed absent the assistance of a lawyer cannot, after the fact, attack a conviction on the basis that he or she did not have representation as effective as what might have been provided by counsel" - However, the judge was still obligated to ensure the trial was fair and that there was no miscarriage of justice - The court stated that "the right to a fair trial is fundamental and is not diminished by a person's decision to act on his or her own behalf" - In this case, the accused was familiar with the court system, having 40 prior convictions - He was also intelligent, having an IQ of 123 - The charges were straightforward and uncomplicated - The evidence was limited - The accused needed less judicial guidance than that required by other accused with less experience or ability - The court examined the judge's alleged failings, and found that the assistance provided was adequate - The judge had no duty to ensure that the accused took full advantage of the Crown disclosure in the course of his defence - That would require the judge to review all of the disclosure material, recognize its significance and then advise the accused about how to use the report in his defence - See paragraphs 20 to 46.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - [See Criminal Law - Topic 127.1 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused was convicted of assault causing bodily harm - There were three witnesses, the accused, the victim and a neutral witness (Bryant) - Bryant gave a statement to police, which was disclosed to the accused - However, she gave a clarifying statement to police several weeks later, which differed in some respects from the first statement - The second statement was inadvertently not disclosed - The Saskatchewan Court of Appeal ordered a new trial on the ground that but for the Crown's breach of its duty to disclose, the verdict might have been different - Bryant was the only neutral witness - Her testimony was pivotal - Had the second statement been disclosed, the accused could have used it to cross-examine Bryant, challenging her credibility and the reliability of her first statement, which was relied on by the trial judge - See paragraphs 47 to 67.

Criminal Law - Topic 4949

Appeals - Indictable offences - New trials - Grounds - New evidence - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The accused was convicted of two counts of assault with a weapon for throwing beer bottles at two individuals at a party - The accused appealed his convictions and sought to introduce fresh evidence on the appeal - The self-represented accused had been given police disclosure prior to the trial, including a police occurrence report outlining the victims' versions of the alleged assault - The accused neglected to bring the report to trial - Subsequently, the accused noticed that the occurrence report version of events allegedly differed from that testified to at trial by the victims - The Crown objected to admission of the fresh evidence on the grounds that it was hearsay and, in any event, could have been adduced at trial had the accused acted with due diligence - The Saskatchewan Court of Appeal held that the occurrence report was sought to be introduced as fresh evidence not for the truth of its contents, but to show that the accused's defence was not properly conducted, resulting in an unfair trial or miscarriage of justice - The court admitted the report for that limited purpose, as the due diligence criterion did not preclude admission where its application might create a miscarriage of justice - See paragraphs 12 to 19.

Practice - Topic 9032

Appeals - Evidence on appeal - Criminal cases - [See Criminal Law - Topic 4970 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 15].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1, refd to. [para. 18].

R. v. Smith (S.A.) (2007), 299 Sask.R. 312; 408 W.A.C. 312; 223 C.C.C.(3d) 114 (C.A.), refd to. [para. 18].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 26].

R. v. Peepeetch (K.D.), [2004] 1 W.W.R. 552; 238 Sask.R. 14; 305 W.A.C. 14; 2003 SKCA 76, refd to. [para. 26].

R. v. Romanowicz (J.) (1999), 124 O.A.C. 100; 138 C.C.C.(3d) 225 (C.A.), refd to. [para. 27].

R. v. Phillips (M.A.) (2003), 320 A.R. 172; 288 W.A.C. 172; 172 C.C.C.(3d) 285; 2003 ABCA 4, refd to. [para. 29].

Boucher v. R., [1955] S.C.R. 16, refd to. [para. 38].

R. v. V.T., [1992] 1 S.C.R. 749; 134 N.R. 289; 7 B.C.A.C. 81; 15 W.A.C. 81, refd to. [para. 39].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 39].

R. v. Caccamo, [1976] 1 S.C.R. 786; 4 N.R. 133, refd to. [para. 40].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 40].

Lemay v. R., [1952] 1 S.C.R. 232, refd to. [para. 41].

Seneviraten v. R., [1936] 3 All E.R. 36, refd to. [para. 41].

R. v. Franks (1991), 4 B.C.A.C. 72; 9 W.A.C. 72; 67 C.C.C.(3d) 280 (C.A.), refd to. [para. 41].

R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161, refd to. [para. 42].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 42].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 58].

R. v. Taillefer (B.) (2003), 313 N.R. 1; 2003 SCC 70, refd to. [para. 67].

Counsel:

Peter A. Abrametz, for the appellant;

William R. Campbell, for the Crown.

This appeal was heard on February 20, 2009, before Cameron, Richards and Smith, JJ.A., of the Saskatchewan Court of Appeal.

On August 27, 2009, Richards, J.A., delivered the following judgment for the Court of Appeal.