R. v. Schell (P.J.),

• Judge: Martin,Sulatycky,Watson
• Neutral Citation: 2013 ABCA 4
• Date: 07 January 2013
• Court: Court of Appeal (Alberta)

R. v. Schell (P.J.) (2013), 542 A.R. 1; 566 W.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JA.030

Her Majesty the Queen (respondent) v. Paul James Schell (appellant)

(1201-0079-A; 2013 ABCA 4)

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

Alberta Court of Appeal

Martin and Watson, JJ.A., and Sulatycky, J.(ad hoc)

January 7, 2013.

Summary:

The self-represented accused was convicted of three counts of sexual assault. The accused appealed, arguing principally that the trial judge failed to adequately assist him in his defence and, specifically, that the trial judge failed to permit the accused to testify further after he was cross-examined by the Crown. Further, the trial judge allegedly erred in failing to discuss the issue of representation by counsel at the start of the trial.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to a just and fair trial - [See Civil Rights - Topic 4609 ].

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - The self-represented accused was convicted of sexually assaulting three women - The issues were limited to the facts and credibility, and were not complex - The trial judge did not make inquiries before the start of the trial as to whether the accused had fully pursued the option of obtaining counsel - Nor did the trial judge advise the accused of the benefits of having counsel - However, when the trial commenced, the trial judge explored the issue of counsel with the accused, who advised that, in light of his circumstances, he was prepared to proceed with or without counsel - The accused fully cross-examined the Crown's witnesses (the three victims) - With the trial judge's guidance, the accused admitted exhibits and asked relevant and suitable questions - After the Crown closed its case, the trial judge explained to the accused his right to call or not call evidence and the danger of not calling evidence (i.e., testifying himself) - The accused chose to testify and was then cross-examined by the Crown - The accused's remarks displayed comprehension of the trial process - The trial judge rejected the accused's request to testify further after he was cross-examined - The Alberta Court of Appeal dismissed the accused's conviction appeal, rejecting his submission that "the trial judge not only failed to assist him in the presentation of his case, but ... specifically interfered with what [he] contends was his 'right' to say more in 're-examination' (i.e., to testify further after cross-examination)" - The trial judge did not reversibly err in not discussing the topic of representation by counsel at the outset of the trial - Although the trial judge erred in refusing the accused to "re-examine himself", the accused (on appeal) could not identify what evidence or statement was left unsaid as a consequence of that error - The accused had a full and fair opportunity to present his case and make his arguments - There was no miscarriage of justice - See paragraphs 1 to 28.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented (incl. representation by nonlawyer or agent) - The Alberta Court of Appeal stated that "a judge ordinarily must take steps to ensure that the accused understands the basic concepts and rules of the trial process, and to facilitate the ability of the accused to make full answer and defence as the accused chooses to do so. But the judge is not obliged to forecast the contours or elaborations of that defence, nor need the judge act as surrogate counsel for the accused. ... The trial of an unrepresented person will be scrutinized for its justness and reasonableness according to law. ... Examination of whether there was a miscarriage of justice does not mean the appeal court must intervene merely because procedural events in the trial turned out to be unfavourable to the self-represented person. A miscarriage of justice would turn on whether, viewed on the whole of the record, it is apparent that the defence position was unfairly stifled or impeded, or the Crown's case was materially advantaged by unfair conscription or other abuse of the accused. The mere fact that a mature and educated adult on trial might make tactical errors which could, in effect (a) contribute to or assist the Crown's case or (b) undermine the accused's case, does not automatically, and of itself, constitute a miscarriage of justice. A trial need not be perfect from the accused's perspective in order to be a fair trial." - See paragraphs 1 to 4.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented (incl. representation by nonlawyer or agent) - [See Civil Rights - Topic 4609 ].

Criminal Law - Topic 5234

Evidence and witnesses - Rebuttal evidence - By accused - [See Civil Rights - Topic 4609 ].

Cases Noticed:

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161; 128 D.L.R.(4th) 98, refd to. [para. 4].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 4].

R. v. Currie (E.R.) (2008), 446 A.R. 41; 442 W.A.C. 41; 2008 ABCA 374, refd to. [para. 4].

R. v. Rejzek (A.K.) (2009), 464 A.R. 388; 467 W.A.C. 388; 2009 ABCA 393, leave to appeal denied (2010), 407 N.R. 397 (S.C.C.), refd to. [para. 7].

R. v. Gendreau (D.M.), [2011] A.R. Uned. 343; 2011 ABCA 256, leave to appeal denied (2012), 433 N.R. 399 (S.C.C.), refd to. [para. 7].

R. v. K.M.E., [2009] 2 S.C.R. 19; 389 N.R. 20; 272 B.C.A.C. 1; 459 W.A.C. 1; 2009 SCC 27, refd to. [para. 22].

R. v. Ellard - see R. v. K.M.E.

R. v. Phillips (M.A.) (2003), 320 A.R. 172; 288 W.A.C. 172; 2003 ABCA 4, affd. [2003] 2 S.C.R. 623; 311 N.R. 94; 339 A.R. 50; 312 W.A.C. 50; 2003 SCC 57, refd to. [para. 24].

R. v. Styles (K.T.) (2009), 448 A.R. 339; 447 W.A.C. 339; 2009 ABCA 98, refd to. [para. 24].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 252 C.C.C.(3d) 23; 2010 NSCA 16, refd to. [para. 28].

R. v. Blea (A.J.), [2012] A.R. Uned. 17; 287 C.C.C.(3d) 444; 2012 ABCA 41, refd to. [para. 31].

R. v. Bolianatz (N.C.) (2012), 536 A.R. 26; 559 W.A.C. 26; 2012 ABCA 238, refd to. [para. 31].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 32].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 32].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 32].

R. v. H.C. (2009), 244 O.A.C. 288; 241 C.C.C.(3d) 45; 2009 ONCA 56, refd to. [para. 34].

R. v. H.P.S. (2012), 288 O.A.C. 164; 280 C.C.C.(3d) 500; 2012 ONCA 117, leave to appeal granted [2012] S.C.C.A. No. 223, refd to. [para. 34].

R. v. Sanichar - see R. v. H.P.S.

R. v. Cloutier (B.A.) (2011), 278 O.A.C. 331; 272 C.C.C.(3d) 291; 2011 ONCA 484, refd to. [para. 34].

R. v. J.H., [2005] O.A.C. Uned. 3; 192 C.C.C.(3d) 480 (C.A.), refd to. [para. 34].

R. v. Howe - see R. v. J.H.

R. v. Brost (M.A.), [2011] A.R. Uned. 379; 2011 ABPC 154, refd to. [para. 35].

Counsel:

G. Tomljanovic, Q.C., for the respondent;

R.W. Muenz, for the appellant.

This appeal was heard on December 6, 2012, before Martin and Watson, JJ.A., and Sulatycky, J.(ad hoc), of the Alberta Court of Appeal.

The following memorandum of judgment was filed by the Court on January 7, 2013.