R. v. Wood (J.D.), (2001) 191 N.S.R.(2d) 201 (CA)

• Judge: Roscoe, Hallett and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 16, 2001
• Jurisdiction: Nova Scotia
• Citations: (2001), 191 N.S.R.(2d) 201 (CA);2001 NSCA 38

R. v. Wood (J.D.) (2001), 191 N.S.R.(2d) 201 (CA);

 596 A.P.R. 201

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. FE.032

John Douglas Wood (appellant) v. Her Majesty the Queen (respondent)

(CAC 150706; 2001 NSCA 38)

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

Nova Scotia Court of Appeal

Roscoe, Hallett and Cromwell, JJ.A.

February 16, 2001.

Summary:

The accused, a former barrister, was con­victed on nine counts of theft and sentenced to a total of five years' imprisonment. He appealed his conviction and applied for leave to appeal his sentence.

The Nova Scotia Court of Appeal dis­missed both appeals.

Editor's note: for previous decisions in this matter see 181 N.S.R.(2d) 193; 560 A.P.R. 193; 180 N.S.R.(2d) 110; 557 A.P.R. 110; 163 N.S.R.(2d) 318; 487 A.P.R. 318.

Civil Rights - Topic 1646

Property - Search and seizure - Unrea­sonable search and seizure - [See Civil Rights - Topic 3165.1 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimi­nation (Charter, s. 7) - The accused, a former barrister, faced criminal charges -He was denied a stay of proceedings pend­ing the appointment of state-funded coun­sel - He was convicted - On appeal, he asserted that his rights to remain silent, have a fair trial and be free from self-incrimination (Charter, ss. 7, 11 and 13) were infringed where he was forced to defend himself - Since he was unrepre­sented, he had to speak, in the course of defending himself, by addressing the jury and questioning and cross-examining witnesses - The Nova Scotia Court of Appeal held that there were no Charter violations - The Crown's burden was not alleviated by the accused being self-repre­sented - He was not compelled to assist the Crown in its case - His participation did not create evidence which was used against him - His tactical obligation to cross-ex­amine or make submissions did not consti­tute any legal obligation to testify - See paragraphs 34 to 47.

Civil Rights - Topic 3165.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Evidence - General - The accused, a former barrister, faced fraud and theft charges relating to clients' trust accounts - The Barristers' Society hired a forensic accountant to audit the accused - The accused was compelled by the Barristers and Solicitors Act to deliver records to the accountant - The police subsequently seized the records from the accountant's office pursuant to a search warrant - The records were admitted at trial - The accused asserted the compelled production resulted in Charter violations - The Nova Scotia Court of Appeal held that there was no unreasonable seizure under s. 8 and that the accused's s. 7 rights were not violated - See paragraphs 98 to 110.

Civil Rights - Topic 4302

Protection against self-incrimination - General - Right to remain silent - [See Civil Rights - Topic 3160 ].

Civil Rights - Topic 4304

Protection against self-incrimination - General - Compellability defined - [See Civil Rights - Topic 3160 ].

Civil Rights - Topic 4304.2

Protection against self-incrimination - General - Compellability - Documents - [See Civil Rights - Topic 3165.1 ].

Civil Rights - Topic 4620.1

Right to counsel - Right to effective assis­tance by counsel - The accused, a former barrister, was accused of fraud and theft - He was denied a stay of proceedings pend­ing the appointment of state-funded coun­sel - He was convicted of theft - He appealed, claiming that he was denied a fair trial because he had to conduct his own defence - Furthermore, his per­formance as a self-represented accused was so deficient that he was deprived of the right to make full answer and defence - The Nova Scotia Court of Appeal rejected this ground of appeal - There was no constitutional right to be provided with state-funded counsel - Furthermore, a stay was only available in exceptional circum­stances where the accused was incapable of representing himself - The accused was a very experienced barrister capable of un­derstanding the case against him - He was also granted an eight month adjournment to prepare for trial and the trial judge assisted him as an unrepresented accused - He was not an incompetent counsel - See paragraphs 20 to 33.

Civil Rights - Topic 4631

Right to counsel - Appointment of counsel by the court or the state - General - [See Civil Rights - Topic 4620.1 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 4620.1 ].

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and func­tions of - Where accused not represented - [See Civil Rights - Topic 4620.1 ].

Criminal Law - Topic 4311

Procedure - Jury - General - Challenging the array - An accused's juror challenge was denied, resulting in a mistrial - The same jury panel was reconvened - The accused challenged the array, asserting that the panel had lost its characteristic of randomness - Since the earlier panel had heard his initial arraignment, a new panel was required to ensure impartiality - The Nova Scotia Court of Appeal rejected the assertion - Section 629(1) of the Criminal Code precluded challenges for reasons other than partiality, fraud or misconduct on the part of the person by whom the panel was returned - There was no other basis to support a challenge to the whole array - See paragraphs 52 to 55.

Criminal Law - Topic 4312

Procedure - Jury - General - Impartiality - The accused, a former barrister, faced criminal charges - An insulting article regarding the accused appeared in the "Frank" magazine - The accused sought an adjournment, asserting that it would be impossible to obtain an unbiased, untainted jury and a fair and impartial trial because of pre-trial publicity - The trial judge denied an adjournment - However, each juror was subjected to a challenge for cause based on publicity - The judge also cautioned the jury respecting media cover­age - The accused was convicted - He appealed, asserting that the trial judge erred by refusing to grant an adjournment -The Nova Scotia Court of Appeal dis­agreed - The extensive challenge for cause procedure and numerous cautions were sufficient to ensure an impartial jury - The trial was not unfair based on pre-trial pub­licity - See paragraphs 59 to 66.

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - [See Criminal Law - Topic 4312 ].

Criminal Law - Topic 5370

Evidence - Witnesses - Documents and reports - Document in possession of accused - The accused, a former barrister, was charged with theft and fraud relating to clients' trust funds - The accused sup­plied his records to an accountant for investigation purposes pursuant to the Barristers and Solicitors Act - These docu­ments were seized by police - The trial judge admitted the documents for the truth of their contents under the doctrine of documents found in the accused's pos­session - On appeal, the Nova Scotia Court of Appeal held that the trial judge had not erred - Actual possession was established where the accused was required to main­tain records - The accused recognized and adopted the documents by personally hand­ing the documents to the accountant - The documents were therefore admissible as evidence of their truth - See paragraphs 11 to 116.

Criminal Law - Topic 5370

Evidence - Witnesses - Documents and reports - Document in possession of accused - The accused, a former barrister, was charged with theft and fraud relating to clients' trust funds - He had provided documents to an accounting firm - The Barristers' Society hired a forensic ac­countant to investigate the accused - The accused gave the accountant permission to ask the accounting firm for information - Documents obtained by the accountant were seized by police - The trial judge admitted the documents for the truth of their contents under the doctrine of docu­ments found in the accused's possession - The Nova Scotia Court of Appeal affirmed the determination - The documents were, as a result of the accused's actions and to his knowledge, in the accounting firm's actual possession - Furthermore, the ac­cused adopted or acted on these docu­ments so as to make them admissible for the truth or their contents - His authori­zation made the firm's action his own - See paragraphs 118 to 123.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5854 ].

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - [See Criminal Law - Topic 5854 ].

Criminal Law - Topic 5803

Sentencing - General - Consecutive sen­tences - [See Criminal Law - Topic 5854 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5854 ].

Criminal Law - Topic 5854

Sentence - Theft - The accused, a former barrister, was convicted of nine counts of stealing trust monies from his clients - The trial judge imposed consecutive sentences totalling five years' imprisonment - The accused was also ordered to pay restitution to the Barristers' Society to compensate it for monies paid out to clients by the Society - He appealed - The Nova Scotia Court of Appeal held that the trial judge did not err in failing to impose a con­ditional sentence nor did he over-empha­size general deterrence - Emphasizing general deterrence was appropriate when sentencing lawyers who stole from clients -There was abuse of trust - Consecutive sentences were appropriate - Finally, the court held that the trial judge had jurisdic­tion to order restitution under s. 738(1)(a) of the Criminal Code and s. 39 of the Barristers and Solicitors Act, but varied the amount - See paragraphs 146 to 191.

Evidence - Topic 3601

Documentary evidence - Private documents - Memoranda and statements - Documents in possession of a party - [See both Crimi­nal Law - Topic 5370 ].

Evidence - Topic 7018

Opinion evidence - Expert evidence - Special knowledge and experience - What constitutes - A former barrister was charged with theft and fraud regarding his clients' trust monies - The Barristers' Society hired Brookfield to investigate the matter - The Crown called Brookfield to provide expert testimony in forensic ac­counting - The accused was convicted - On appeal, he asserted that there was nothing in the documentary evidence requiring an expert's opinion - The Nova Scotia Court of Appeal disagreed - While the jurors might have been familiar with cheques, bank statements and deposit books, they were probably unfamiliar with a lawyer's trust accounts and client ledgers - The expert's evidence was necessary to draw their attention to the details and provide the inferences not readily apparent to an ordinary observer - His assistance was as a guide through the morass of paper pointing out the trail of funds - See paragraphs 67 to 74.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 2].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 13].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81; 52 C.C.C.(3d) 97, refd to. [para. 15].

R. v. Keating (K.K.) (1997), 159 N.S.R.(2d) 357; 468 A.P.R. 357 (C.A.), refd to. [para. 21].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 24].

R. v. Wilson (K.D.) (1997), 163 N.S.R.(2d) 206; 487 A.P.R. 206 (C.A.), refd to. [para. 24].

R. v. Schofield (G.R.) (1996), 148 N.S.R.(2d) 175; 429 A.P.R. 175 (C.A.), refd to. [para. 26].

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. 27].

R. v. McGibbon (1988), 31 O.A.C. 10; 45 C.C.C.(3d) 334 (C.A.), refd to. [para. 30].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 36].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241, refd to. [para. 37].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 37].

R. v. Darrach (A.S.) (2000), 259 N.R. 336; 137 O.A.C. 91; 148 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 40].

R. v. Boss (1988), 30 O.A.C. 184; 46 C.C.C.(3d) 523 (C.A.), refd to. [para. 46].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 50].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, refd to. [para. 70].

R. v. D.D. (2000), 259 N.R. 156; 136 O.A.C. 201 (S.C.C.), refd to. [para. 72].

R. v. Stolar - see R. v. Nielsen and Stolar.

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 82].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 81].

R. v. Dixon (S.) (1997), 156 N.S.R.(2d) 81; 461 A.P.R. 81 (C.A.), affd. [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 82].

British Columbia Securities Commission v. Branch and Levitt, [1995] 2 S.C.R. 3; 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1, dist. [para. 104].

Comité paritaire de l'industrie de la chemise v. Potash et Sélection Milton, [1994] 2 S.C.R. 406; 168 N.R. 241; 61 Q.A.C. 241, dist. [para. 104].

Del Zotto v. Minister of National Revenue, [1999] 1 S.C.R. 3; 252 N.R. 201, dist. [para. 104].

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, dist. [para. 105].

R. v. Fitzpatrick (B.), [1995] 4 S.C.R. 154; 188 N.R. 248; 65 B.C.A.C. 1; 106 W.A.C. 1, refd to. [para. 107].

R. v. d'Eon (1988), 83 N.S.R.(2d) 142; 210 A.P.R. 142 (C.A.), refd to. [para. 116].

R. v. Smart and Young (1931), 55 C.C.C. 310 (Ont. C.A.), refd to. [para. 116].

R. v. Caccamo, [1976] 1 S.C.R. 786; 4 N.R. 133, refd to. [para. 119].

R. v. Saunders (E.R.) (2000), 189 N.S.R.(2d) 126; 590 A.P.R. 126 (S.C.), dist. [para. 155].

R. v. Bunn (T.A.), [2000] 1 S.C.R. 183; 249 N.R. 296; 142 Man.R.(2d) 256; 212 W.A.C. 256, dist. [para. 155].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 158].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 158].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 158].

R. v. Power (1986), 72 N.S.R.(2d) 253; 173 A.P.R. 253 (C.A.), refd to. [para. 164].

R. v. Gruson, [1963] 1 C.C.C. 240 (Ont. C.A.), refd to. [para. 166].

R. v. Scherer (1984), 5 O.A.C. 297; 42 C.R.(3d) 376 (C.A.), refd to. [para. 166].

R. v. Gilhooly, [1986] B.C.J. No. 743 (C.A.), refd to. [para. 166].

R. v. Shandro (1985), 65 A.R. 311 (C.A.), refd to. [para. 166].

R. v. Bowes (J.M.) (1994), 155 N.B.R.(2d) 321; 398 A.P.R. 321 (C.A.), refd to. [para. 166].

R. v. Klykiw (1980), 53 C.C.C.(2d) 350 (Man. C.A.), refd to. [para. 166].

R. v. Farr (1983), 9 W.C.B. 323 (Ont. C.A.), refd to. [para. 166].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 140 C.C.C.(3d) 449, refd to. [para. 171].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321; 114 C.C.C.(3d) 436, refd to. [para. 177].

R. v. Fitzgibbon (C.D.), [1990] 1 S.C.R. 1005; 107 N.R. 281; 40 O.A.C. 81; 55 C.C.C.(3d) 449, refd to. [para. 181].

R. v. Zelensky, Eaton (T.) Co. and Canada (Attorney General) et al., [1978] 2 S.C.R. 940; 21 N.R. 372; 41 C.C.C.(3d) 97; 86 D.L.R.(3d) 179, refd to. [para. 187].

Statutes Noticed:

Barristers and Solicitors Act, R.S.N.S. 1989, c. 30, sect. 39 [para. 180].

Criminal Code, R.S.C. 1985, c. C-46, sect. 629(1), sect. 629(2) [para. 54]; sect. 738(1) [para. 179].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. looseleaf), pp. 44 to 49 et seq. [para. 36].

Phipson on Evidence (15th Ed. 2000), s. 30-10 [para. 113].

Counsel:

Appellant, appeared in person;

William D. Delaney, for the respondent.

These appeals were heard on December 6, 2000, by Roscoe, Hallett and Cromwell, JJ.A., of the Nova Scotia Court of Appeal.

The following decision of the court was delivered on February 16, 2001.