R. v. Phillips (M.A.),

• Judge: Russell, Berger and Fruman, JJ.A.
• Neutral Citation: 2003 ABCA 4
• Date: 09 April 2002
• Court: Court of Appeal (Alberta)

R. v. Phillips (M.A.) (2003), 320 A.R. 172 (CA);

    288 W.A.C. 172

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. JA.075

Her Majesty The Queen (respondent) v. Michael Alan Phillips (appellant/accused)

(0103-0191-A3; 2003 ABCA 4)

Indexed As: R. v. Phillips (M.A.)

Alberta Court of Appeal

Russell, Berger and Fruman, JJ.A.

January 10, 2003.

Summary:

An accused was charged with attempted murder, unauthorized possession of a prohibited weapon, possession of a weapon for purpose dangerous to the public peace, assault with a weapon and discharging a firearm with the intent to endanger life. The unrepresented accused applied for court appointed counsel.

The Alberta Court of Queen's Bench denied the application and ordered the trial to proceed. A jury found the accused guilty on all charges. The accused appealed, asserting that the trial judge erred in refusing to appoint counsel and in not giving him adequate guidance during the trial.

The Alberta Court of Appeal, Berger, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 4656

Right to counsel - Entitlement - Criminal cases - An accused was charged with, inter alia, attempted murder - He discharged his first lawyer and obtained an order adjourning the trial - The accused appeared unrepresented at arraignments - He indicated that he was in the process of retaining a second lawyer - The accused was told to appear with counsel on a rescheduled date so that the trial dates could be confirmed - The accused appeared on the rescheduled date with a third lawyer acting as the second lawyer's agent - The second lawyer was removed as counsel of record - The third lawyer indicated that he would be unavailable on the dates set for trial - The judge refused to reschedule the trial until an application was made by counsel who had been retained by the accused - Three other lawyers were contacted who were available for the trial - The accused refused to appoint them - At the commencement of trial, a fourth lawyer applied on the accused's behalf for court appointed counsel - The trial judge dismissed the application - The accused had not been diligent in his efforts to retain counsel - Although the charges were serious, the case was not complex - With reasonable assistance from the court, the accused would obtain a fair trial without legal representation - The Alberta Court of Appeal held that the trial judge had considered the appropriate factors and had not made a reviewable error - See paragraphs 7 to 14.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - The Alberta Court of Appeal stated that where a trial judge's guidance to an unrepresented accused is alleged to have been inadequate, trial fairness is determined by considering whether the lack of guidance compromised the accused's ability to properly bring out his defence - The judge's actions had to be carefully evaluated in the light of the accused's sophistication, the seriousness of the offence, the nature of the defence and many other factors individual to each case - The totality of the circumstances had to be considered - The complete trial record had to be examined carefully and in detail - The record might or might not demonstrate that the accused's ability to defend was compromised - Although the concept of trial fairness was flexible, there had to be some air of reality to a potential defence - Therefore, an accused could apply to adduce additional evidence on appeal to substantiate a claim that the trial was unfair - Because such evidence was not directed at a finding made at trial, but at the validity of the trial process, admission was not dependent on meeting the fresh evidence requirements - See paragraphs 24 to 27.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - An accused was charged with, inter alia, attempted murder - The accused was denied court appointed counsel - The accused declined the trial judge's invitations to cross-examine the Crown witnesses, indicating that he could not adequately do so without counsel - Prior to the close of the Crown's case, the judge advised the accused that specific intent to kill was required for the Crown to obtain a conviction for attempted murder - The accused elected not to call evidence - In his closing address to the jury, the accused raised an identification defence which, if successful, would have resulted in acquittals on all charges - The jury found the accused guilty on all charges - The accused appealed, asserting that the trial was unfair where the trial judge had not advised him of the elements of the offence at the beginning of the trial - The Alberta Court of Appeal dismissed the appeal - The record clearly showed that the accused would not have advanced a lack of intent defence because of the strategies he adopted and maintained throughout the trial - While it might have been desirable for the trial judge to have advised the accused of the specific intent requirement at the commencement of the trial, his failure to do so did not compromise the accused's ability to properly bring out his defence and his trial was not unfair - See paragraphs 29 to 52.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - The Alberta Court of Appeal stated that while advising an unrepresented accused about the elements of offences at the beginning of a trial might be a sensible practice, there was no requirement to intone particular words of advice at a specific time to have a fair trial - An accused's need for guidance varied depending on the crime, the facts, the defences raised and the accused's sophistication - The judge's advice had to be interactive, tailored to the circumstances of the offence and the offender, with appropriate instruction at each stage of the trial - How far a judge should go in assisting an accused was a matter of judicial discretion - The overriding duty was to ensure that the unrepresented accused had a fair trial - Consistent with that duty, the judge was required within reason to assist the accused, aid him in the proper conduct of his defence and guide him throughout the trial in such a way that his defence was brought out with full force and effect - A judge had to exercise great care not to descend from the bench and become a spectre at the accused's counsel table - A judge was required to respect the accused's strategy in conducting his defence - See paragraphs 20 to 24.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - [See both Criminal Law - Topic 128 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See first Criminal Law - Topic 128 ].

Cases Noticed:

R. v. Rain (M.M.) (1998), 223 A.R. 359; 183 W.A.C. 359; 130 C.C.C.(3d) 167 (C.A.), leave to appeal refused (1998), 239 N.R. 197; 250 A.R. 192; 213 W.A.C. 192; 61 C.R.R.(2d) 375 (S.C.C.), refd to. [para. 10].

R. v. McGibbon (1989), 31 O.A.C. 10; 45 C.C.C.(3d) 334 (C.A.), refd to. [paras. 11, 58].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 12].

R. v. Karaibrahimovic (J.J.) (2002), 303 A.R. 181; 273 W.A.C. 181 (C.A.), refd to. [para. 16].

R. v. Hardy (1991), 120 A.R. 151; 8 W.A.C. 151; 84 Alta. L.R.(2d) 362; 69 C.C.C.(3d) 190 (C.A.), refd to. [para. 20].

R. v. Hardy (1990), 111 A.R. 377; 79 Alta. L.R.(2d) 211; 62 C.C.C.(3d) 28 (Q.B.), affd. (1991), 120 A.R. 151; 8 W.A.C. 151; 84 Alta. L.R.(2d) 362; 69 C.C.C.(3d) 190 (C.A.), refd to. [paras. 20, 61].

R. v. Romanowicz (J.) (1999), 124 O.A.C. 100; 138 C.C.C.(3d) 225 (C.A.), refd to. [paras. 21, 61].

R. v. Taubler (1987), 20 O.A.C. 64 (C.A.), refd to. [para. 24].

R. v. Turlon (1989), 32 O.A.C. 396; 49 C.C.C.(3d) 186 (C.A.), refd to. [para. 24].

R. v. B.K.S. (1998), 104 B.C.A.C. 149; 170 W.A.C. 149 (C.A.), refd to. [para. 24].

R. v. E.K. (1999), 132 B.C.A.C. 21; 215 W.A.C. 21; 181 D.L.R.(4th) 210 (C.A.), refd to. [paras. 24, 60].

R. v. Parton, [1994] B.C.J. No. 2098 (Sup. Ct.), refd to. [paras. 25, 63].

R. v. Khanoukaev (M.), [2001] O.T.C. 410 (Sup. Ct.), refd to. [paras. 25, 64].

R. v. King (S.J.) (1993), 61 O.A.C. 228 (C.A.), leave to appeal refused [1993] 3 S.C.R. vii; 161 N.R. 160; 67 O.A.C. 79, refd to. [para. 26].

R. v. Kennie (G.D.) (1993), 121 N.S.R.(2d) 91; 335 A.P.R. 91 (C.A.), refd to. [para. 26].

R. v. Jones (S.L.) (1994), 154 A.R. 118 (Q.B.), refd to. [para. 26].

R. v. Halnuck (P.J.) (1996), 151 N.S.R.(2d) 81; 440 A.P.R. 81; 107 C.C.C.(3d) 401 (C.A.), affd. (1997), 209 N.R. 4; 158 N.S.R.(2d) 125; 466 A.P.R. 125; 113 C.C.C.(3d) 478 (S.C.C.), refd to. [para. 26].

R. v. Innocente (D.J.) (2000), 185 N.S.R.(2d) 1; 575 A.P.R. 1 (C.A.), refd to. [para. 26].

R. v. Tran (V.P.) (2001), 149 O.A.C. 120; 55 O.R.(3d) 161 (C.A.), refd to. [para. 26].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 14 C.R.(3d) 22 (Eng.); 106 D.L.R.(3d) 212; 50 C.C.C.(2d) 193; 17 C.R.(3d) 34 (Fr.), refd to. [para. 27].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 100 C.C.C.(3d) 225 (C.A.), refd to. [para. 27].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201, refd to. [para. 27].

R. v. R.H.B. (1999), 131 B.C.A.C. 199; 214 W.A.C. 199 (C.A.), refd to. [para. 28].

R. v. Darlyn (1946), 88 C.C.C. 269 (B.C.C.A.), refd to. [para. 59].

R. v. Ancio, [1984] 1 S.C.R. 225; 52 N.R. 161; 2 O.A.C. 124; 10 C.C.C.(3d) 385, refd to. [para. 69].

R. v. Calder (1984), 51 A.R. 80; 11 C.C.C.(3d) 546 (C.A.), refd to. [para. 78].

R. v. Proverbs (1984), 2 O.A.C. 98; 9 C.C.C.(3d) 249 (C.A.), refd to. [para. 78].

R. v. Chomenko (1975), 18 C.C.C.(2d) 353 (Ont. C.A.), refd to. [para. 78].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1, refd to. [para. 79].

R. v. Seymour (J.), [1996] 2 S.C.R. 252; 197 N.R. 81; 76 B.C.A.C. 1; 125 W.A.C. 1; 106 C.C.C.(3d) 520; 135 D.L.R.(4th) 225, refd to. [para. 79].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321; 93 C.C.C.(3d) 1, refd to. [para. 79].

Authors and Works Noticed:

Ogloff, R.P., Judicial Instructions and the Jury: A Comparison of Alternative Strategies (October 1998), pp. 26, 28, 37 [para. 17].

Rose, V. Gordon, and Ogloff, James R.P., Evaluating the Comprehensibility of Jury Instructions: A Method and an Example (2001), 25(4) L. and Hum. Behaviour 409, generally [para. 17].

Counsel:

D.C. Marriott, for the Crown;

K.E. Moore, for the appellant.

This appeal was heard on April 9, 2002, by Russell, Berger and Fruman, JJ.A., of the Alberta Court of Appeal. Reserved reasons for judgment of the court were filed on January 10, 2003, including the following opinions:

Fruman, J.A. (Russell, J.A., concurring) - see paragraphs 1 to 52;

Berger, J.A., dissenting - see paragraphs 53 to 83.