PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION BLAIR EARL ROSS HER MAJESTY THE QUEEN

Transcription

1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Citation: Ross v. The Queen Date: PESCTD 11 Docket: S1-GC-356 Registry: Charlottetown BETWEEN: BLAIR EARL ROSS APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Before: The Honourable Justice David H. Jenkins Appearances: Blair Ross representing himself David E. Larter for the Crown Place and Date of Hearing: Place and Date of Decision: Charlottetown, Prince Edward Island July 19, 2005 Charlottetown, Prince Edward Island February 9, 2006

2 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Citation: Ross v. The Queen Date: PESCTD 11 Docket: S1-GC-356 Registry: Charlottetown BETWEEN: AND: BLAIR EARL ROSS HER MAJESTY THE QUEEN Prince Edward Island Supreme Court - Trial Division Before: Jenkins J. Date Heard: July 19, 2005 Date of Decision: February 9, 2006 (17 pages) APPELLANT RESPONDENT CRIMINAL LAW: Summary conviction appeal common assault criminal harassment resisting lawful arrest appeal of conviction and sentence right to counsel disclosure accused to be present; removal of accused from trial appeal allowed STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms, Being Part I of the Constitution Act, 1982 CASES CONSIDERED: Larkin v. R., [2005] PESCTD 44; R. v. Manning, [2001] PEIJ No. 106 (PESCAD); R. v. Fabrikant (1995), 97 C.C.C. (3d) 544 (Que.C.A.); R. v. Morley (1987), 87 Cr. App. R. 218 (C.A.); R. v. Grimba (1980), 117 D.L.R. 740 (Ont.C.A.); R. v. Lambie (1996), 28 O.R. (3d) 360 (Ont. Ct. Gen. Div.) Appearances: Blair Ross representing himself David E. Larter representing the Crown

3 Jenkins J.: [1] This is a summary conviction appeal, following convictions for criminal harassment, common assault, and resisting arrest, and an appeal of the sentence. [2] The Appellant Blair Ross was charged with the following Criminal Code summary conviction offences: 1. Criminal harassment contrary to Section 264(2)(b), that during the period June 1, 2003, to August 15, 2003, at or near Lower Montague, knowing that Ann Marie Ross was harassed or being reckless as to whether she was harassed, without lawful authority he repeatedly communicated directly or indirectly with her thereby causing her to reasonably, in all of the circumstances, fear for her safety. 2. Common assault contrary to Section 266(b), that on the night of July 29-30, 2003, at Morell he assaulted Ann Marie Ross. 3. Assault with a weapon contrary to Section 267(a), that on or about August 18, 2003, at Lower Montague he committed an assault on Cst. Eveleigh using a weapon, namely his walking cane. 4. Resisting lawful arrest contrary to Section 129(a), that on or about August 18, 2003, at or near Lower Montague he resisted a peace officer, R.C.M.P. officer Eveleigh who was engaged in the execution of his duty of a Criminal Code investigation. [3] Mr. Ross appeared in Provincial Court on seven occasions between August 21, 2003, and November 20, On that date, the judge entered not guilty pleas for each charge on behalf of Mr. Ross and scheduled the trial for December 4, [4] At the commencement of the trial, Mr. Ross conducted himself in a disruptive manner, and he advised the trial judge that he intended to continue with that behaviour. In response, the trial judge removed him from the courtroom for the remainder of the trial and the sentencing hearing, and then had him brought back before the Court for explanation of his sentence. [5] In the trial, the Crown presented evidence of the complainant Ann Marie Ross, the manager of Ms. Ross s place of employment, and four police officers. At the conclusion of the trial, the trial judge gave reasons and then convicted Mr. Ross of criminal harassment, common assault, and resisting arrest, and acquitted him on the charge of assault using a weapon.

4 Page: 2 [6] The judge then entertained submissions from the Crown on sentence, after which she suspended passing of sentence and placed Mr. Ross on probation for a period of two years on statutory terms and additional conditions including refraining absolutely from any contact with Ann Marie Ross or her place of employment. The reasons for sentence recognized that Mr. Ross had no previous criminal record, except for a couple of very dated and unrelated incidents, and that Mr. Ross had already served 81 days when he was on remand for the offences charged which the sentencing judge considered equivalent to four months incarceration. [7] Mr. Ross filed his Notice of Appeal of conviction on December 30, He did not perfect his appeal, and his appeal sat dormant until the Court Registrar initiated dismissal proceedings for delay in February, With the consent of the Crown, the Court allowed Mr. Ross to continue his appeal and to amend to include an appeal of sentence. Interlocutory proceedings involving a defence motion for legal assistance and other relief occurred between March and June, 2005, regarding which decisions of this Court have already been rendered. Mr. Ross filed his Amended Notice of Appeal, which includes an appeal of sentence, on July 8, The relief sought by Mr. Ross is that (i) the convictions be set aside; (ii) the matters be remitted to Provincial Court for a new trial before a different judge; (iii) the criminal proceedings be stayed until a constitutional lawyer is provided to the accused; and (iv) direction be given to the accused as to how to pursue Charter relief. [8] Mr. Ross has represented himself throughout this appeal proceeding. I dismissed his motion for Court appointed legal assistance because he did not pass the first step of seeking legal aid: decision April 4, 2005 (not published). The route to the hearing has been challenging for all involved. Mr. Ross s extensive grounds of appeal, all of which I have read and considered, are wide ranging, sometimes difficult to follow, and list 15 grounds of appeal. Those grounds cover both pre-trial and trial occurrences. [9] Having read the Amended Notice of Appeal, the Appellant s Memorandum on Appeal and Notice of Constitutional Questions, I decipher this summary of his grounds: 1. Refusal to compel evidence from the police; 2. Failure to appoint legal counsel and to stay the proceedings in the absence of legal counsel; 3. Denial of representation by an agent; 4. Failure to adjourn to enable full disclosure;

5 Page: 3 5. Failure to have the trials of the accused and of Deborah Hawkes proceed together; 6. Failure to deal with the unlawful remand; 7. Failure to properly apply the legal test applicable to conviction; 8. Failure to properly assess the accused s arrest without a warrant; 9. Proceeding with the trial in the absence of the accused, refusing to allow the accused to cross-examine the complainant, and improperly acting on behalf of the accused without his consent. Mr. Ross also alleges infringement of Charter Sections 7, 9, 10, 11, 12 and 15(1). 10. Regarding sentence, failure to properly assess and apply the applicable principles including, without limitation, time served, and imposing an unfit sentence with unconscionable restrictions. [10] The Crown too experienced difficulty in gleaning the grounds of appeal from Mr. Ross s Notice of Appeal. In order to formulate its response, Crown counsel identified and stated what he considered might be arguable issues as these two: 1. The right of the Appellant to counsel, and if entitled to such, then the right of the Appellant to counsel of choice; 2. Did the learned trial judge err in allowing the trial to proceed in the absence of the Appellant? The Court entertained Crown s submissions, and did not confine the Crown to particular issues. [11] I have considered in full the record before the Provincial Court Judge, from Mr. Ross s first appearance on August 21, 2003, onward through to the trial and sentencing proceeding on December 4, 2003, and the submissions of both parties. Bearing in mind the right of the accused to a fair trial, the limited scope of an appeal court to interfere with a decision of a trial judge, the basis stated in the Criminal Code upon which appeals should be allowed, and the circumstances involved in this case as reflected by the record, I have decided: (1) for two separate reasons, that the appeal of conviction must be allowed; and (2) that the appeal of sentence would be allowed: In summary: a) Mr. Ross s grounds of appeal 1, 2, 3, 4, 5 and 8 will be dismissed;

6 Page: 4 b) The appeal of conviction on the charge of criminal harassment will be allowed, due to insufficient evidence of the required mens rea to sustain a conviction, and an acquittal will be entered. c) The appeal of conviction for all three offences for which a conviction was entered will be allowed, because, while the trial judge acted properly in removing Mr. Ross from the trial due to his disruptive behaviour, her denial of his request, delivered through a friend, to present witnesses following the close of the Crown s case, denied Mr. Ross his opportunity to make full answer and defence. As a result, Mr. Ross did not receive a fair trial. The conviction for criminal harassment is already disposed of under (b) above; the convictions for assault and resisting arrest will be set aside, and a new trial ordered should the Crown wish to proceed. d) The appeal of sentence is moot, due to the appeal of conviction being allowed, and also due to sentence having expired by the passage of time. The appeal of sentence would be allowed because the accused was denied his right to be present in the sentencing hearing and to speak to sentence. [12] I will address each of the Appellant s grounds individually. 1. Refusal to compel evidence from the police [13] During his first court appearance on August 21, 2003, after the Provincial Court judge read each of the charges and ascertained that Mr. Ross understood them, Mr. Ross declined to enter a plea until he was fully informed about the alleged offences and he demanded to be released from his remand in custody. Mr. Ross explained that he was arrested without a warrant, which came as a shock to him, and during the arrest he experienced physical trauma. He stated that he was denied medical attention, while the police officer who assaulted him was given medical attention immediately. He stated that he needed pictures of himself to show that he was assaulted by a police officer in the process of pretending to do his duty. He asked the judge to order that he be taken to the hospital and be examined and documented. [14] The Provincial Court Judge advised Mr. Ross that she had no ability to review his remand; that she had no ability to release him; and she declined to order that he be taken to the hospital for the purpose of developing evidence.

7 Page: 5 [15] I agree with the response of the Provincial Court Judge. Those requests made by Mr. Ross were not within her preview in the August 21 st appearance. She did not make an error in declining to order the Mr. Ross be taken to the hospital for the mentioned purpose. 2. Failure to appoint legal counsel and to stay the proceedings in the absence of legal counsel [16] A number of adjournments occurred and plea was deferred while Mr. Ross sorted out the issue of legal representation. On November 6, 2003, which was Mr. Ross s sixth appearance in Provincial Court, when Mr. Ross still declined to enter a plea, the Provincial Court Judge reiterated her concern that the length of time Mr. Ross was already in custody may well end up exceeding any amount of time to which he would be sentenced on these charges if convicted, therefore the need for an early trial date was compelling, and she entered not guilty pleas on each charge. She then invited Mr. Ross to bring his application for legal representation before her as the trial judge, and she schedule the hearing for November 20, [17] Mr. Ross brought his application for legal representation, and the trial judge dealt with it by dismissing it with reasons. [18] I agree with the disposition of Mr. Ross s motion. The evidence before her in the November 20, 2003, hearing was that Mr. Ross had not been refused legal aid; that the services of a staff lawyer would be provided; or alternatively, that the accused could speak to a lawyer in the private sector, and if he could come to terms with that lawyer, then he could have that lawyer speak to Legal Aid to see if they could reach a satisfactory arrangement for the lawyer to represent him; and that Mr. Ross appeared satisfied with that arrangement. Accordingly, the trial judge concluded that she could not make any order for appointment for counsel at that time, because the first step is to ascertain whether legal aid has been denied, and only then would the provision of state-funded legal counsel be entertained. [19] Mr. Ross did not make any arrangement with legal aid. When he appeared at trial on December 4, 2003, he advised that he was not ready to proceed because he did not have counsel. He advised that that he had telephoned a Halifax lawyer the previous night and had not yet heard back from her. The trial judge ruled, through a gamut of interruptions, that Mr. Ross had been given adequate opportunity to obtain counsel and had not done so, and that the matter should proceed. [20] I agree with this second ruling on legal representation by the trial judge as well. Regarding this conclusion, reference can be made to the authorities and rationale mentioned in my decision on the Appellant s motion for court-appointed

8 Page: 6 legal assistance in this appeal rendered April 4, 2005 (not published) and the decision of Chief Justice Matheson in Larkin v. R., [2005] PESCTD Denial of representation by an agent [21] On September 11, 2003, Mr. Ross advised the Provincial Court judge that he had retained the services of Vaughn Barnett, BA, LLB, legal researcher and advocate as his agent in the proceeding. [22] The Provincial Court Judge declined to allow Mr. Barnett to act as Mr. Ross s agent because of the prohibition contained in Section of the Criminal Code. She properly stated that despite Subsections 800(2) and 802(2), which permit a defendant to be represented in summary conviction offence matters by an agent, Section stipulates that a defendant may not appear or examine or crossexamine witnesses by agent if he or she is liable on summary conviction to imprisonment for a term of more than six months,..., and observed that the third offence charged, assault with a weapon contrary to Section 267(a), provides a maximum term of imprisonment of 18 months. 4. Failure to adjourn to enable full disclosure [23] In every hearing from August 21 st to November 6 th the accused advised the Provincial Court Judge that there were disclosure issues. The Provincial Court Judge properly advised Mr. Ross on numerous occasions that she could not entertain an application for disclosure until he entered pleas and she became the trial judge. In the November 6 th appearance, after she entered not guilty pleas on behalf of the accused, as the trial judge she invited Mr. Ross to bring his application for full disclosure from the Crown and police, and she scheduled the hearing for November 20 th. The hearing occurred: Reference transcript November 20, 2003, pp The record indicates that the trial judge canvassed each of Mr. Ross s expressed concerns. She then concluded that she was satisfied the Crown had provided Mr. Ross with all of the information that they have in respect of the charges that was relevant, and subject to an incidental matter, declined to order any further or other disclosure. [24] In my assessment, the trial judge employed the applicable legal principles and applied them properly to the facts of the case. 5. Failure to have the trials of the accused and of Deborah Hawkes proceed together

9 Page: 7 [25] The Provincial Court Judge told Mr. Ross, and Ms. Hawkes, that she could not hold the trials together, because Mr. Ross had not entered pleas on his charges when Ms. Hawkes trial was ready to proceed on November 6 th : Reference October 23, 2003, page 2. I agree with the approach taken by the Provincial Court Judge. In any event, the Provincial Court Judge did not make an error in proceeding with the separate accuseds in separate trials. 6. Failure to deal with unlawful remand [26] This issue is introduced in Ground No. 1 above. In the pre-trial proceedings, when the accused asked or demanded the Provincial Court Judge to release him from unlawful remand, she properly advised him that an order for release was beyond the purview of her court, and that the appropriate procedure was to make an application in the Supreme Court. Mr. Ross then did that. 7. Failure to properly apply the legal test applicable to conviction [27] On the hearing of an appeal against a conviction, a court of appeal may allow the appeal where it is of the opinion that: (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence; (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or (iii) on any ground where there was a miscarriage of justice: See Section 686(1)(a) of the Criminal Code. On such a hearing of appeal against conviction, a court of appeal may dismiss the appeal where, inter alia, notwithstanding that the Court is of the opinion that on any ground of a wrong decision on a question of law, the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred: See Section 686(1)(b)(iii) of the Criminal Code. [28] In approaching this assessment, I respect the admonition that a trial judge s findings on matters of fact are not to be tampered with unless they are unreasonable. In the absence of any error as to the applicable principles or conclusions based on unreasonable findings, an appeal court should defer. It might be that another judge or this Court if trying the matter in the first instance might have come to a different conclusion, but that does not mean that the trial judge s conclusion was unreasonable, and it does not give me the right to substitute my opinion: R. v. Manning, [2001] PEIJ No. 106 (PESCAD) at pp. 6 and 7. [29] I have taken into account the two fundamental requirements: (i) appellate restraint toward a trial judge s handling of the evidence; and (ii) an accused s right to

10 Page: 8 a fair trial before his conduct is determined to be criminal. I will address the charges separately. a. Criminal Harassment [30] The offence of criminal harassment created by Section 264(1)(b) of the Criminal Code involves all of the elements of: (i) repeatedly communicating with, either directly or indirectly, the other person; (ii) carrying on the impugned act without lawful authority; (iii) carrying out the impugned act knowing that the other person is harassed, or proceeding recklessly as to whether the other person is harassed; (iv) causing the other person, reasonably in all the circumstances, to fear for her safety. In her reasons, the trial judge recognized that the Crown has to prove the case beyond a reasonable doubt. [31] In her reasons for judgement: Reference transcript December 4, 2003, pp , the trial judge summarized the impugned conduct of Mr. Ross attending at Mrs. Ross s home and workplace, noted that Ms. Ross did not tell him to go away or stay away from her place of work, considered what constituted criminal harassment under the Criminal Code, and addressed the mens rea required for the offence. The trial judge properly noted that it was necessary that it be proven that the accused knew that his conduct caused the complainant to be harassed, or he was aware of such a risk and was reckless or wilfully blind as to whether or not Mrs. Ross was harassed. She observed that accordingly an honest mistake is defence to this offence. She stated she was satisfied on the evidence that Ms. Ross was indeed harassed; and that the accused who engaged in such conduct knew that Mrs. Ross was harassed or was reckless or wilfully blind as to whether she was harassed, and concluded at the very least that Mr. Ross was reckless or wilfully blind as to whether or not the complainant was harassed, and that Mrs. Ross was fearful for her safety, and such fear was, in all the circumstances reasonable. I also take note, as the trial judge mentioned, that in considering mens rea, she had the advantage of observing Mr. Ross appear in court on six or seven occasions, and his conduct and demeanor there for her supported the evidence of the Crown witnesses that Mr. Ross would do what Mr. Ross wants to do, and that he does not listen. [32] Upon reading and considering the full transcript of the trial proceedings, which is comprised of the Crown evidence, I conclude that the verdict of the trial judge cannot be sustained by the evidence. Regarding the requirement of accused s knowledge, there is no evidence that Mrs. Ross ever told Mr. Ross that he was harassing her or not to communicate with her, the evidence does not permit an inference of that fact, and the evidence suggests, to the contrary, that Mr. Ross did not know that his conduct was in the nature of harassment or causing Mrs. Ross to

11 Page: 9 reasonably fear for her safety. That is my primary concern. I have a second concern about another weakness in the Crown evidence. A reasonable viewing of the evidence necessarily leaves one with a reasonable doubt as to whether Mrs. Ross indeed feared for her safety (except during the assault incident on July 29 th, which is the subject matter of a separate charge) until she went to the police on August 15 th. A third, but incidental, deficiency in the conviction is that the Information says that the harassment occurred at Lower Montague, which is where Ms. Ross worked, while the majority of the conduct found by the trial judge to be offensive occurred at the Ross residence at Morell, which is a different place with different circumstances. I will address the evidence regarding the subject of my primary concern, the accused s mens rea. [33] The period over which harassment is alleged to have occurred is June 1 to August 15 th. The main Crown evidence is that of the complainant, Ann Marie Ross. She testified that during the period in issue there was never any judicial or police intervention obtained to require Mr. Ross to stay away or not communicate with her. Mrs. Ross contacted the police once prior to August 15 th, in July, for harassing her at work, asking him not to come there or phone as often because it was just getting to me. The evidence does not indicate either that she then sought a restraining order or that the police informed Mr. Ross of anything. [34] In the trial on December 4, 2003, the complainant testified that she was at all material times still married to Mr. Ross: I m his wife, soon to be ex. They were married in 1999 and lived together before that. She described the accused as in the past having been a wonderful husband, until after he was injured on the job site, and after that his mental health and physical health deteriorated, so that he was like a different person. Mrs. Ross stated that she did not know whether he had developed a mental disease or what happened to him, but that he is not the man she married. She noticed the biggest change from January 2003 onward when he... really went overboard, so that his raving became unreal. During the time period in issue, Mrs. Ross did not tell Mr. Ross not to communicate with her, and she did not clearly tell him that the marriage was over. [35] This is the evidence on these points: Mr. and Mrs. Ross separated in May, 2003, not because Mrs. Ross wanted to end the marriage, but because Mr. Ross took off to Toronto, and he would not come back home. Mrs. Ross stated that he thought people were watching him, and that he was mentally out of it. Mr. Ross went to Toronto because he wanted to visit his daughter, and Mrs. Ross didn t think he was going to come back. She testified there was very little communication between them while he was in Toronto, only periodic phone calls. In early July, Mrs. Ross paid $500

12 Page: 10 for Mr. Ross s travel arrangements to come back to the Island, and upon his return, she picked him up at the bus depot. During July on the Island up to July 29 th, Mrs. Ross described the parties as being separated because he, Mr. Ross, wanted no contact, and he didn t really want to be around. When she asked him if he wanted a divorce, he didn t say much; except that he just couldn t stay at the family home in Morell. After that, she told him that she was seriously thinking of leaving him and that I was wanting a divorce., to which his reaction was not too kindly. In Mrs. Ross s view, Mr. Ross responded irrationally he tried to persuade her employer to give her two weeks off so that they could go away and deal with their marriage problem. At that time, Mrs. Ross took Mr. Ross to Caledonia, where he was staying. Her reason was: he wouldn t come home to Church Road. She testified that he then did everything to make her life miserable he would sometimes phone four times a day, and other times not phone at all for two or three days so she wouldn t know what to expect. Sometimes he would come to the family home, or be there when she arrived. He always had a key to the house, and she did not take his key away. She said he would rave and call her bad names, and that she was scared, but she did not tell him that, because she didn t know which way was best to approach and try to stop the outrage. At all times, Mr. Ross had an ownership interest in the home, and Mrs. Ross never denied him access. During this time, Mr. Ross also visited Mrs. Ross s place of employment in Lower Montague, which was next door to the residence of his friend, Deborah Hawkes. Mrs. Ross testified that some days he wouldn t be too bad, and other days he would be very unradical and very impatient and he d try to corner me in places.... Asked by Crown counsel whether she was ever threatened in any way, either at home or at work, she responded: Kind of, but it s not the way, not the words he says, it s the way he says it and the way, his demeanor is, like he, he knew what he meant. She said that her approach to his visits at work was to try to ignore him as much as she could. Asked whether she ever told him not to come to her place of work or her residence, she responded: Yes. I kind of, I didn t come out and right tell him don t come back or whatever, because when you tell Blair that, he does it, he does it twice as much, so I kind of

13 Page: 11 On the evening of July 29 th, the accused was already at the family home when Mrs. Ross arrived home from work. The physical incident that occurred is covered by the charge of common assault. As evidence of the charge of criminal harassment, it is noteworthy that on that occasion Mrs. Ross described Mr. Ross as being very upset, raving, and angry. He forcibly picked her up and carried her from the bathroom to the bed, threw her on the bed, straddled her, and blocked her release, and put his hand over her mouth. She described his purpose as being sex, I believe, and testified that when she told him to leave her alone, her responded: that he had a right, or something, back to me. Mrs. Ross kneed him. He then stopped, and told her if you treat somebody like an animal, they become an animal, said he would not touch her further, got dressed, left the room, and watched t.v. for the rest of the evening. Mrs. Ross was emotionally and mentally hurt. (But, regarding the harassment charge) she did not ask or tell Mr. Ross to leave or not to communicate with her. He slept on the couch, and she slept in the bed, with no door between them. Mrs. Ross said she let Mr. Ross stay, because I didn t want a great big raucous to happen. In the morning, she drove him to Caledonia, a half hour drive away, he acted like nothing happened, he didn t say too much, and she played the radio so she would not have to listen to him. When they were departing, he said he d see her later. From July 29 to August 15 Mrs. Ross did not see or hear from Blair Ross for a few days. He then came to her work place and borrowed or took the car. She didn t have any difficulties with him that day because... when he gets his way, there s no difficulties. She testified that she then tried to minimize her contact with him, and that he kept calling her at work and home and going to her work place. She described the nature of his communication as wanting to know what she was doing and where she was going and if he could come out, and she would tell him no. He would usually visit her workplace no more than once or twice a day, usually for less than one-half hour; although it could be every day of the work week. Her response was to try to ignore him and try to fulfill his requests as quickly as I could. During this two-week period, Mr. Ross came to their residence perhaps five times. He would rave on about his politics, what happened at the orphanage, everything that was happening to him and was going on, and he never physically hurt her. He drove her vehicle often, and often without permission; he kept using his own key, until August 13 th when Mrs. Ross changed the ignition. On August 15 th Mrs. Ross went to the RCMP and requested a restraining order be put against Mr. Ross. She said that she was then becoming...a little bit more nervous of his actions. He seemed to be getting more in, radical by then. She stated that she delayed requesting a restraining order until August

14 Page: th, because until then: I was hoping, and hoped that I wouldn t have to do it. I don t like... making my life more public than it already is. She first reported the July 29 th incident when she met with the police on August 15 th. At no time during the period in issue did Mr. Ross or Mrs. Ross engage a lawyer to deal with separation. Prior to the July 29 th incident, Mrs. Ross testified that she thought about separation:... but I never really planned on doing it. She thought the marriage was too far gone, and her understanding was that he thought they should be able to do something by way of reconciliation. [36] Mrs. Ross s employer, Jackie MacKay, testified about Mr. Ross s visits to the manor. She never complained to the police about Mr. Ross s presence there. She testified that she was horrified of him ; Mr. Ross is not charged with harassment against Ms. MacKay. [37] Cst. Eveleigh testified that the communication on August 15 th involved Mr. Ross leaving a birthday card for Mrs. Ross at the front desk of the manor at a time when Mrs. Ross was not on duty. [38] In my view, the finding that the accused knew that the complainant was harassed or was reckless or wilfully blind as to whether she was harassed is not supported by the evidence. No one told Mr. Ross he was harassing Mrs. Ross; no one told him to cease and desist. There was known to be a problem with his mental state, manifested by his raving behaviour. The evidence of Mrs. Ross not only leaves a reasonable doubt about the requisite mens rea element, it suggests that the accused did not know he was harassing, at least not criminally, Mrs. Ross, who at all times was the person whom he considered was still his wife, and toward whom he considered he still had full right of communication. [39] The evidence leaves reasonable doubt regarding a second element of the offence, namely that Mr. Ross was repeatedly communicating directly or indirectly with Mrs. Ross in a manner that caused her to reasonably fear for her safety. There was no such communication while he was in Toronto. Mrs. Ross arranged for his return. After that, he freely communicated with her at the family residence and elsewhere. The July 29 th incident is covered by a separate charge. During the first few days of August there was no conduct. After that, the evidence about Mrs. Ross s state of concern is equivocal. It was only on August 15 th that she considered the matter sufficiently serious to request the police issue a restraining order.

15 Page: 13 [40] In the circumstances, the conviction for criminal harassment must be set aside. I find that the finding of guilt cannot be supported by the evidence. For these reasons the appeal is allowed, and an acquittal shall be entered. b. Common Assault [41] The trial judge had the Crown evidence of the July 29 th event. Unchallenged by any other evidence, that evidence is sufficient to sustain a charge of common assault. There is no demonstrated error in the trial judge s application of the legal test applicable to conviction. c. Resisting lawful arrest [42] Cst. Eveleigh testified that he announced to Mr. Ross his intention to detain him, and commanded him to stop, and that he sought to arrest him, and Mr. Ross physically resisted being restrained or arrested. Subject to the arrest being lawful, which issue is addressed in the next ground of appeal, that evidence is sufficient to sustain the charge. There is no demonstrated error in the trial judge s application of the test applicable to conviction. 8. Failure to properly assess the accused s arrest without a warrant [43] Cst. Eveleigh arrested Mr. Ross without a warrant. He saw Mr. Ross at the manor. When Mr. Ross saw him, he quickly left. Cst. Eveleigh was aware of Mrs. Ross s harassment complaint made at the Souris Detachment earlier that same day; he was in the process of investigating that complaint. He called the Detachment and confirmed his expectation that Mr. Ross was arrestable. He knew he was proceeding without a warrant. According to Cst. Eveleigh, Mr. Ross responded to Cst. Eveleigh s attempts to stop him by asserting that the police had no right to stop him, detain him, or arrest him, and then when Cst. Eveleigh physically constrained him, a struggle ensued. They went to the ground, and Mr. Ross fought his way free by striking Cst. Eveleigh in the fact with his walking cane. Mr. Ross then screamed as he moved off to the safety of Ms. Hawkes residence that the police were assaulting him and violating his rights. [44] Section 495 of the Criminal Code contains provision for arrest without a warrant. As it applies to this case, a peace officer may arrest without warrant a person who he finds committing a criminal offence; and shall not arrest a person without a warrant for an offence punishable on summary conviction in any case where he believes on reasonable grounds that the public interest, including the need to prevent the continuation or repetition of the offence, may be satisfied without arresting the

16 Page: 14 person without warrant. Notwithstanding that constraint, a police officer acting under this provision is deemed to be acting lawfully and in the execution of his duty unless it is alleged and established by the person arrested that he was not. [45] In her reasons for decision, the trial judge probed the question of whether the police could make the arrest in question without a warrant. (Transcript, December 4, 2003, at pp ) She identified the only available explanation that Cst. Eveleigh made his decision in order to prevent the continuation of an offence. She decided that the arrest without a warrant was proper in the circumstances as she described them. [46] The trial judge was aware of the competing considerations involved in Cst. Eveleigh s decision. I imply from her assessment of the evidence that she recognized her decision was a close call. She apparently decided not to second-guess the actions of the police officer in keeping the peace. As a reviewing court, I am not going to interfere with the decision of the trial judge. I cannot say the decision was wrong or unreasonable. The evidence before the trial judge does not satisfy the s. 495(3) proviso of establishing that the peace officer did not comply with the requirements of subsection (2). Denial of this ground of appeal involves application fo the admonition in R. v. Manning. Whether or not I would have come to the same conclusion as the trial judge, her decision is not shown to be unreasonable. 9. Proceeding with the trial in the absence of the accused, refusing to allow the accused to cross-examine the complainant, and improperly acting on behalf of the accused without his consent [47] Mr. Ross made it clear to the trial judge that he was going to continue to act out; and that she should go ahead and pursue her stated only remaining recourse of ejecting him from the courtroom. The circumstances were that Mr. Ross was upset because the trial judge was proceeding with the trial despite his most recent motion for adjournment to obtain legal counsel. The trial judge painted a picture for a reviewing court (see transcript December 4, 2003, at p. 143) of Mr. Ross s obstreperous conduct which could not be fully reflected in the transcript of trial proceedings. [48] Regarding Mr. Ross s specific complaints mentioned in this ground of appeal, I find that the trial judge responded appropriately in all the circumstances: (1) by proceeding with the trial in the absence of the accused, and (2) by asking the witnesses questions in the absence of the accused, up to the close of the Crown evidence.

17 Page: 15 [49] After the Crown closed its case, when she took her break to consider her decision, and before the trial judge rendered her decision, her clerk advised her that the accused, through is friend, Mr. Kolesar had told her that...mr. Ross had witnesses that could be called to prove his innocence in respect of this matter. The trial judge declined to entertain witnesses on behalf of the accused, because the accused had caused himself to be removed from the trial,...and therefore, he is not here and was not here to call upon him, to call any witnesses that he may have.... (Transcript December 4, 2003, at p. 153). Upon this statement being rendered, Mr. Kolesar stated that was not exactly what he had said to the clerk. The trial judge declined any clarification, and ruled that whatever was said, Mr. Ross was not present, by his choice, and the convictions would be entered. [50] Section 650 of the Criminal Code stipulates an accused shall be present in court during the whole of his trial; subject to provisos for appearance by counsel, by closed-circuit television, and for removal for misconducting himself in some circumstances. Section 650(2)(a) states: 650(2) The court may (a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible. Immediately following this provision for removal, s. 650(3) states: 650(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel. [51] The jurisprudence supports the removal of an accused from a trial where it becomes necessary because the accused persistently disrupts the proceedings and frustrates the trial. The right of the accused is viewed as conditional upon the accused using the right for the purpose for which it was given, which is to advance and not defeat the course of justice and for the proper conduct of the trial. As to the frequency with which the power is to be exercised, it is viewed as a reserved power, to be exercised exceedingly sparingly and only in an obvious case and only where there is really no alternative. It is to be considered and exercised in harmony with our tradition of justice and values as reflected in the Criminal Code and the Charter. The exercise of the power is also viewed as temporary, to be limited to the duration necessary. These principles are discussed in R. v. Fabrikant (1995), 97 C.C.C. (3d) 544 (Que.C.A.), leave to appeal to the Supreme Court of Canada refused; which

18 Page: 16 adopts the English jurisprudence in R. v. Morley (1987), 87 Cr. App. R. 218 (C.A.); see also R. v. Grimba (1980), 117 D.L.R. 740 (Ont.C.A.); and R. v. Lambie (1996), 28 O.R. (3d) 360 (Ont. Ct. Gen. Div.) per Watt J. [52] In the present case, by the conclusion fo the Crown case, considerable time had passed, and Mr. Ross had communicated to the trial judge that he wished to participate, in particular by adducing evidence in response to the Crown evidence. Respecting that the trial judge was well-entitled to eject the accused from the trial, and to proceed through the Crown s case in his absence, her refusal to either hear the accused s witnesses, or to invite the accused back into the court to assess his willingness and ability to participate in his own defence before concluding the trail had two consequences. First, (and recognizing the benefit of hindsight) it probably extended the removal of the accused from his trial beyond what was necessary in the circumstances. Second, and more importantly, it had the effect of denying Mr. Ross his legal right to make full answer and defence. This right was not vitiated by the initial ejection; it was only temporarily suspended. In the result, Mr. Ross did not receive a fair trial. [53] The conviction entered shall be set aside, and a new trial is ordered regarding the changes of common assault and resisting lawful arrest, should the Crown wish to pursue those charges. 10. Regarding sentence, failure to properly assess and apply the applicable principles including, without limitation, time served, and imposing an unfit sentence with unconscionable restrictions. [54] Upon entering the convictions, the trial judge moved directly into sentencing. She proceeded in the absence of Mr. Ross. She entertained a victim impact statement, which Ann Marie Ross read in Court. Crown counsel made fairly extensive and forceful submissions, which asserted two very serious domestic assaults and sought time served followed by three years probation. The trial judge then proceeded with her sentence. She commenced by explaining that the usual practice of submissions from the accused would unfortunately not occur, and she then passed sentence. Upon completion, the trial judge recessed so that the Sheriff could bring Mr. Ross before the Court to hear his sentence. [55] Mr. Ross reappeared, and then conferred with the trial judge on the record in an apparently lucid and respectful manner. [56] The trial judge then explained the trial proceedings, the outcome, and the sentence to Mr. Ross. This was followed by another apparently lucid and respectful

19 Page: 17 discussion between Mr. Ross and the trial judge about operation of the conditions of probation and the consequences of a breach of probation. [57] The Criminal Code contains provisions at ss for a sentencing proceeding following conviction. This involves a hearing, opportunity for a victim impact statement, and a pre-sentence report from a probation officer, and opportunity for an offender to present evidence and submissions. Section 726 is an express provision: Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say. [58] In the present case, Mr. Ross did not receive the benefit of a sentencing proceeding required by the Criminal Code. He could have been given an opportunity to participate in a sentencing hearing, on December 4 th, or the sentence hearing could have been held on a subsequent date. A pre-sentence report could have been requested in any event, so that the insight of the probation officer regarding the offender would be available to the Court before sentencing. Had he been given the opportunity, Mr. Ross could have made submissions, and could have exercised his right to speak to the Court under s [59] In these circumstances, whatever the disposition fo the appeal against conviction, the sentence imposed is quashed. Should any convictions be reinstated for any reason, then a proper sentencing proceeding must be held before any sentence is imposed. [60] The appeals of conviction and of sentence are allowed. February 9, 2006 Justice David H. Jenkins