R. v. McGibbon, (1988) 31 O.A.C. 10 (CA)

• Judge: Goodman, Grange and Griffiths, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 02, 1988
• Jurisdiction: Ontario
• Citations: (1988), 31 O.A.C. 10 (CA);1988 CanLII 149 (NS CA);1988 CanLII 149 (ON CA);45 CCC (3d) 334;[1988] OJ No 1936 (QL);31 OAC 10;6 WCB (2d) 159

R. v. McGibbon (1988), 31 O.A.C. 10 (CA)

MLB headnote and full text

Her Majesty the Queen (respondent) v. Edwin J. McGibbon (appellant)

(956/87)

Indexed As: R. v. McGibbon

Ontario Court of Appeal

Goodman, Grange and Griffiths, JJ.A.

December 5, 1988.

Summary:

The accused was convicted of sexually assaulting an eight year old girl, contrary to s. 246.1 of the Criminal Code. The accused was sentenced to three years' imprisonment. The accused appealed against conviction and applied for leave to appeal against sentence.

The Ontario Court of Appeal dismissed the appeal from conviction, but granted the appeal from sentence and reduced the sentence to two years less a day.

Civil Rights - Topic 4609

Right to counsel - Duty of judge to notify accused or explain right to counsel - The Ontario Court of Appeal held that "the trial judge ... has a duty to the accused to see that he or she has a fair hearing and that duty will generally cast upon the judge an obligation to point out to the accused that he or she would be in a distinct disadvantage in proceeding without the assistance of competent counsel and that the accused is entitled to have such counsel. Where the accused expressly desires counsel, it is clear that unless the accused has deliberately failed to retain counsel, or has discharged counsel, with the intent of delaying the process of the court, the trial judge should afford the accused an opportunity to retain counsel either at his expense or through the services of Legal Aid. If Legal Aid will not fund counsel it may be necessary at least in long complicated trials to stay the proceedings until counsel is funded" - See paragraph 29.

Civil Rights - Topic 4609

Right to counsel - Duty of judge to notify accused or explain right to counsel - An accused's counsel was allowed to withdraw at the commencement of the preliminary inquiry, but subsequently appeared for the accused on two occasions to fix a trial date - The preliminary inquiry judge had twice urged the accused to retain counsel - The accused appeared unrepresented at trial - It was apparent that the accused wished to defend himself - The Ontario Court of Appeal held that the trial judge had no right to force the accused to retain counsel against his will and was under no duty or obligation to advise the accused of his right to counsel at trial or inquire of the accused whether he wished to be defended by counsel or to urge him to retain counsel - See paragraphs 29 to 31.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - [See second Civil Rights - Topic 4609 above].

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - The Ontario Court of Appeal held that "consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the 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. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must of necessity be a matter of discretion ... it seems ... to place far too heavy a burden on the trial judge, where the accused is unrepresented, to expect the trial judge to review the transcript of evidence and to pick out discrepancies in the evidence from that given at trial. A judge is not required to become the advocate for the accused. Moreover, there may be matters contained in the transcript of the preliminary inquiry that the trial judge should not be made aware of" - See paragraphs 32, 37.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - The accused, who represented himself on a sexual assault charge, alleged that the trial judge failed to provide him with appropriate assistance during the trial - The accused did pose helpful and rational questions in his cross-examination of the young complainant, although some of his theories and notions bordered on the bizarre - The Ontario Court of Appeal referred to 11 instances in which the trial judge assisted the accused - In particular, the court noted that the judge explained to the accused how to use the transcript of the preliminary inquiry in his cross-examination of the complainant, but the court held that the trial judge was not obliged to go further - See paragraphs 33 to 39.

Criminal Law - Topic 5932

Sentence - Sexual assault - A 43 year old accused was convicted of sexually assaulting an eight year old girl whom he was babysitting - At the time of sentencing, he was a "born again Christian" - The sexual assaults were of short duration, without proof of penetration, and the complainant had made a relatively good recovery - First offender - The Ontario Court of Appeal reduced the sentence from three years' imprisonment to two years less a day - See paragraphs 41 to 43.

Cases Noticed:

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

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 10(b), sect. 11(d) [para. 25].

Counsel:

Kevin LaRoche, for the appellant;

J.A. Ramsay, for the respondent.

These appeals were heard before Goodman, Grange and Griffiths, JJ.A., of the Ontario Court of Appeal on November 2, 1988. The decision of the Court of Appeal was delivered by Griffiths, J.A., and released on December 5, 1988.