R. v. Innocente (D.J.), 2000 NSCA 74

• Judge: Chipman, Freeman and Pugsley, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 07, 2000
• Jurisdiction: Nova Scotia
• Citations: 2000 NSCA 74;(2000), 185 N.S.R.(2d) 1 (CA)

R. v. Innocente (D.J.) (2000), 185 N.S.R.(2d) 1 (CA);

 575 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. JN.022

Daniel Innocente (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 155817; 2000 NSCA 74)

Indexed As: R. v. Innocente (D.J.)

Nova Scotia Court of Appeal

Chipman, Freeman and Pugsley, JJ.A.

June 7, 2000.

Summary:

The self-represented accused was con­victed following a jury trial on two counts of con­spiracy with Henneberry and others to traffic in cannabis resin. Henneberry was the princi­pal Crown witness. The accused appealed submitting that, inter alia, Crown counsel violated the rule against oath-help­ing in examining Henneberry, proper dis­closure was not made, the trial judge erred in refus­ing an adjournment to permit the accused to obtain counsel, erred in permit­ting the accused to be tried without counsel, failed to adequately assist the accused in the conduct of his defence, failed to properly instruct the jury and erred in convicting him of two counts of conspiracy.

The Nova Scotia Court of Appeal allowed the appeal to the limited extent of setting aside the conviction on one conspiracy count. The evidence supported only one conspiracy. In all other respects, the appeal was dismissed.

Civil Rights - Topic 4635

Right to counsel - Appointment of counsel by the court or the state - Duty of trial judge - [See Criminal Law - Topic 4488 ].

Criminal Law - Topic 2675

Attempts, conspiracies, accessories and parties - Conspiracies - Form and content of indictment or charge - The accused was convicted following a jury trial on two counts of conspiracy with Henneberry and others to traffic in cannabis resin - The accused appealed, submitting that the evidence disclosed only a single agree­ment, accordingly, he could not be con­victed on two counts of conspiracy - The Nova Scotia Court of Appeal set aside one of the two conspiracy convictions - Only one conspiracy was alleged and proved - While the two counts referred to separate time periods, the agreement constituting the conspiracy covered both time periods and could support conviction on only one count - See paragraphs 174 to 179.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and func­tions of - Where accused not repre­sented - A self-represented accused appealed his conviction on the ground that the trial judge failed to adequately assist him in his defence - The Nova Scotia Court of Appeal, in dismissing the appeal, stated that "a trial judge is under a duty to pro­vide reasonable assistance to an unrep­resented accused to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect" - The court set out the limits to the scope of the assistance to be given by the trial judge, noting that the trial judge could not be the accused's advocate and impartial arbiter at the same time - See paragraphs 151 to 171.

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - A self-represented accused appealed his convic­tion on the ground that the trial judge erred in refusing to exercise his discretion to grant an adjournment to permit the accused to obtain counsel - The trial judge, noting that this was not the first adjournment request, concluded that the accused deliber­ately failed to retain counsel with the intent of forestalling any trial - The accused had the financial resources to retain counsel - The Nova Scotia Court of Appeal held that there was evidence to support the trial judge's con­clusion and he did not err in refusing a further adjourn­ment - See paragraphs 102 to 147.

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - An accused who had sufficient opportunity and financial resources to retain counsel was refused legal aid and represented himself at trial - The accused appealed his conviction on the ground that the trial judge erred in permitting a trial without counsel - The Nova Scotia Court of Appeal held that an accused who had the financial resources to retain counsel, but refused to do so, was considered to have chosen to defend himself and could not complain that he was forced to trial without legal representation - See para­graphs 148 to 150.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Crown's key witness in a con­spiracy to traffic jury trial was one of the alleged co-conspirators, who had a lengthy criminal record and was paid for his testi­mony - The Crown disclosed the witness's criminal record and all informa­tion respect­ing the payment for his testi­mony - On the eve of the trial, the accused sought disclos­ure of information respecting further charges against the witness and any other deals to testify in other jurisdictions - At trial, the witness admitted to being a cheat, liar and thief and the trial judge issued a strong Vetro­vec warning - The Nova Scotia Court of Appeal held that even if full disclosure was not made, it did not affect the fairness of the trial where any additional informa­tion could not have painted the witness in any worse light, given the effective cross-examination of him on the information available - Further, there was a lack of due diligence on the accused in pursuing the information - The trial judge was justified in concluding that the accused was doing whatever he could to ensure the trial did not proceed - See paragraphs 71 to 101.

Criminal Law - Topic 4735.2

Procedure - Information or indictment - Charge or count - Indictable offences - Form and content requirement of one count for each transaction - [See Criminal Law - Topic 2675 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - The Crown's key witness in a conspiracy to traffic jury trial was one of the alleged co-conspirators who was paid for his testimony - The Crown, in exam­ining the witness, stressed that the witness, at personal risk to himself, came out of hiding to testify - The accused submitted that this was an attempt to bolster the witness's credibility and offended the rule against oath-helping - The Nova Scotia Court of Appeal held that the rule excluded evidence adduced "solely" for the purpose of bolstering a witness's credibil­ity - Such evidence, if relevant for another purpose, was admissible - The court stated that the rule was not offended - The Crown adduced evidence of the witness's lengthy criminal record, but made no suggestion that he possessed any admirable characteristics prompting his co-operation with police - The Crown also conceded to the jury that they could not convict on the basis of this witness's evidence alone - The witness was not presented as an ad­mirable witness in whose testimony the jury could have confidence absent corrob­orating evidence - The overriding and dominant purpose for introducing the evidence was to lay a proper foundation for a Vetrovec warning - See paragraphs 37 to 70.

Evidence - Topic 4023

Witnesses - General - Credibility - Oath-helping or oath-attacking - [See Criminal Law - Topic 5404 ].

Cases Noticed:

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 63 C.R.(3d) 113 (C.A.), refd to. [para. 12].

R. v. Vetrovec; R. v. Gaja (1982), 41 N.R. 606; 67 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 47].

R. v. Bevan and Griffiths (1993), 154 N.R. 245; 64 O.A.C. 165; 82 C.C.C.(3d) 310 (S.C.C.), refd to. [para. 47].

R. v. Brooks (F.A.) (2000), 250 N.R. 103; 129 O.A.C. 205; 141 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 47].

R. v. MacDonald (L.R.) (2000), 184 N.S.R.(2d) 1; 573 A.P.R. 1 (C.A.), refd to. [para. 47].

R. v. Beland and Phillips (1987), 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(2d) 481 (S.C.C.), refd to. [para. 52].

R. v. Defrancesca (J.) et al. (1995), 82 O.A.C. 35; 104 C.C.C.(3d) 189 (C.A.), refd to. [para. 52].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 322 A.P.R. 1, refd to. [para. 52].

R. v. Burns (R.H.) (1994), 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 52].

R. v. Clarke (1991), 63 C.C.C.(2d) 224 (Alta. C.A.), refd to. [para. 53].

R. v. Kylselka (1962), 133 C.C.C. 103 (Ont. C.A.), refd to. [para. 53].

R. v. Burkhart (1965), 3 C.C.C.(2d) 210 (Sask. C.A.), refd to. [para. 53].

R. v. Bramwell (H.L.) (1996), 72 B.C.A.C. 125; 119 W.A.C. 125; 106 C.C.C.(3d) 365 (C.A.), refd to. [para. 85].

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. 92].

R. v. Taylor (J.W.) (1995), 142 N.S.R.(2d) 382; 407 A.P.R. 382 (C.A.), refd to. [para. 120].

R. v. Barrette (1976), 10 N.R. 321; 29 C.C.C.(2d) 189 (S.C.C.), refd to. [para. 120].

R. v. Kuldip, [1990] 3 S.C.R. 618; 114 N.R. 284; 43 O.A.C. 340; 61 C.C.C.(3d) 385, refd to. [para. 132].

R. v. McCallen (J.B.) (1999), 116 O.A.C. 308; 131 C.C.C.(3d) 518 (C.A.), refd to. [para. 134].

R. v. Beals (1993), 126 N.S.R.(2d) 130; 352 A.P.R. 130 (C.A.), refd to. [para. 135].

R. v. Manhas, [1980] 1 S.C.R. 591; 32 N.R. 8, refd to. [para. 136].

R. v. Smith (J.J.) (1989), 35 O.A.C. 301; 52 C.C.C.(3d) 90 (C.A.), refd to. [para. 142].

R. v. Howell (D.M.) (1996), 146 N.S.R.(2d) 1; 422 A.P.R. 1; 103 C.C.C.(3d) 302 (C.A.), refd to. [para. 143].

R. v. McGibbon (1988), 31 O.A.C. 10; 45 C.C.C.(3d) 334 (C.A.), refd to. [para. 151].

R. v. Campbell (1981), 49 N.S.R.(2d) 307; 96 A.P.R. 307 (C.A.), refd to. [para. 152].

R. v. Taubler (1987), 20 O.A.C. 64 (C.A.), refd to. [para. 153].

R. v. Kennie (1993), 121 N.S.R.(2d) 191; 335 A.P.R. 191 (C.A.), refd to. [para. 156].

R. v. Sherratt (1991), 122 N.R. 241; 73 Man.R.(2d) 161; 3 W.A.C. 161; 63 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 163].

R. v. Cotroni; R. v. Papalia (1979), 26 N.R. 133; 45 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 176].

R. v. Douglas and Douris (1991), 122 N.R. 1; 47 O.A.C. 1; 63 C.C.C.(3d) 29 (S.C.C.), refd to. [para. 176].

R. v. Kienapple (1974), 1 N.R. 322; 15 C.C.C.(2d) 524 (S.C.C.), refd to. [para. 177].

R. v. Cox and Paton (1963), 28 C.C.C. 148, refd to. [para. 177].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 13 [para. 123].

Authors and Works Noticed:

Salhany, Criminal Trial Handbook (1992), generally [para. 170].

Counsel:

Warren K. Zimmer, for the appellant;

Paula R. Taylor and Douglas L. Richard, for the respondent.

This appeal was heard on January 28, 2000, before Chipman, Freeman and Pugs­ley, JJ.A., of the Nova Scotia Court of Appeal.

On June 7, 2000, Chipman, J.A., deliv­eered the following judgment for the Court of Appeal.

Note that Pugsley, J.A., did not participate in the judgment.