



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Sullivan,









2013 BCCA 32




Date: 20130128

Docket: CA038415

Between:

Regina

Respondent



And

Kathleen
Mary Sullivan

Appellant






Before:



The Honourable Mr. Justice Donald





The Honourable Madam Justice Newbury





The Honourable Mr. Justice Hinkson




On
Appeal from the Supreme Court of British Columbia, June 23, 2010

(
R.
v. Sullivan
, Victoria Registry, Docket Number
148943-2.)




Counsel for the Appellant:



D.J. McKay





Counsel for the Respondent:



T. Stokes





Place and Date of Hearing:



Victoria, British
  Columbia

November 27, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 28, 2013









Written Reasons by:





The Honourable Mr. Justice Hinkson  (At page 18, paragraph
  37)





Concurred in by:





The Honourable Mr. Justice Donald





Dissenting Reasons by:





The Honourable Madam Justice Newbury








Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

Ms. Sullivan was charged with one count of assault under s.
266 of the
Criminal Code
and one count of mischief under s.
430 in connection with an incident alleged to have occurred outside the
University Club on the campus of the University of Victoria on November 19, 2009.
Ms. Sullivan had attended the campus to serve a writ on the University, from
which she had previously been banned.  She was alleged to have thrown some
papers at the complainant, Ms. St. John, knocking off Ms. St. Johns
eyeglasses, and then to have  ground the glasses into the ground with her foot.
 She was tried in Provincial Court on March 1 and 26, 2010, at which time she
was unrepresented.  She appealed her conviction to
the summary conviction
appeal judge below, Mr. Justice Johnston, who dismissed her appeal for
reasons delivered orally on June 23, 2010 in Supreme Court
Docket
148943-2, Victoria Registry.  She was also unrepresented on
that appeal.

[2]

At para. 18 of his reasons, Johnston J. stated that
there were two principle aspects to Ms. Sullivans appeal.  The first was
whether the Provincial Court judge had made a palpable and overriding error in
her findings of fact and credibility.  Johnston J. was not persuaded that such
error had been shown, stating at para. 19:

This of course was not then, that
is at the trial, nor is it now simply a matter of whose story is to be
preferred, because the obligation on the Crown throughout is to prove its case
beyond a reasonable doubt.  There is some difficulty in that the trial judge
did not specifically deal with whether or not, even if she disbelieved Ms.
Sullivans evidence, that evidence had left her with a reasonable doubt, but
having reminded herself that her task was to determine whether or not the Crown
had proved its case beyond a reasonable doubt, it seems to me that absence is
not sufficient for me to overturn the conviction.

[3]

The second aspect of Ms. Sullivans appeal below was described by the
Court as follows:

There is a second element of this
appeal and that is Ms. Sullivans complaints that the judge was rather too
interventionist in the conduct of the trial.  That is largely in preventing Ms.
Sullivan from pursuing lines of cross-examination, particularly of the
complainant, Ms. St. John, with fairly frequent and I should say interruptive
rulings on relevance.  [At para. 20.]

In this regard Johnston J. said he
had looked through the transcript of the trial and noted various conversations
between the trial judge and Ms. Sullivan concerning what was relevant and what
was not.  He noted that the trial judge had been correct in stating that it was
up to her to rule on relevance whether or not there were objections from a
party or counsel.  He continued:

While, as I have said, some of
the rulings might well be questionable in hindsight, rulings made by a trial
judge in the course of a trial ought not to be weighed so finely as they can be
weighed with the luxury of the time one has on a review of transcript and
argument on appeal.  I am not persuaded that those rulings were so clearly
wrong or that any of the rulings that might have approached questionable status
would, if they had gone the other way, have made any difference whatsoever to
the outcome, that that aspect of the matter should lead me to allow the appeal. 
[At para. 22.]

In the result, he dismissed the appeal.

On Further Appeal to
This Court

[4]

Ms. Sullivan was represented on her appeal to this court.  On her behalf
Mr. McKay submits that the summary conviction appeal judge erred in his
assessment of whether the trial judge provided adequate assistance at trial to
Ms. Sullivan as an unrepresented accused, such that she was unable to
bring forward her defence or any defence the proceedings might have disclosed,
resulting in an unfair trial.

[5]

The cornerstone of Mr. McKays submission was this courts decision in
R. v. Moghaddam
2006 BCCA 136. 
In that case, Levine J.A. for the Court held that a trial judge had failed to
assist an appellant in putting forward his defence and indeed had effectively
precluded the defence by ruling that his evidence of bias on the part of a
police officer was irrelevant.  (Para. 46.)  The Court did not accede to a
further argument that the trial judges failure to make explanatory remarks to
assist the appellant at the opening of the trial had resulted in unfairness. 
Citing and adopting the reasons for judgment of Fruman J.A. in
R. v.
Phillips
2003 ABCA 4,
aff'd
2003 SCC 57, Levine J.A. observed:

Whether the trial of an unrepresented accused is fair,
however, is not determined, as a matter of law, by a single failure to provide
explanations at the opening of the trial about the trial process, the elements
of the offences, cross-examination, or any other aspect of the trial. Nor does
the law require that trial judges provide certain explanations at the beginning
of a trial. This is because, as Fruman J.A. commented (at para. 22):

Perhaps some judges are beguiled by the consistency and
simplicity of boiler-plate language. But trials involving unrepresented
accuseds are rarely consistent or simple. Their need for guidance varies
depending on the crime, the facts, the defences raised and the accused's
sophistication.
The judge's advice must be interactive, tailored to the
circumstances of the offence and the offender, with appropriate instruction at
each stage of a trial
.

Madam Justice Fruman reiterated the principles articulated in
Darlyn, B.K.S.
, and
Parton
(at paras. 23 and 25):

How far a trial judge should go in
assisting an accused is therefore a
matter of judicial discretion
:
McGibbon,
supra
, at p. 347.

...

In cases in which the trial judge's guidance is alleged to
have been inadequate, trial fairness is determined by considering whether the
lack of guidance compromised the unrepresented accused's ability to properly
bring out his defence.  [At paras. 50-1; emphasis added.]

In conclusion
,
the Court in
Moghaddam
stated:

In determining whether an
unrepresented accused has had a fair trial, the overriding question is whether
he has received adequate assistance from the trial judge to bring out his
defence "with full force and effect". In this case, the trial judge
placed restrictions on the content of the appellant's cross-examination of
Crown witnesses and his testimony, and those restrictions precluded the
appellant from effectively putting forward his defence. It cannot be said that
if the appellant had testified as to his version of the events, the outcome of
the trial would have been the same.  [At para. 54.]

[6]

Mr. McKay argues that similarly in the case at bar, the trial judge was
not concerned with assisting the appellant in bringing forward her defence but
was concerned about getting the matter over with in a timely manner.  As for
the judgment of the summary conviction appeal judge, counsel submits that he
did not consider that the trial judge had limited Ms. Sullivans right to
cross-examine (including, counsel says, dismissing witnesses before they
testified); decided which witnesses she was allowed to present to the Court by
denying the appellant an opportunity to have them present; denied her an
adjournment in order to obtain photographic evidence that she wanted to use in
her cross-examination of the complainant; denied her access to a transcript of
the proceedings; moved the matter along when insufficient court time was set
aside for the matter to be heard in the one day originally scheduled; and then
forced her to proceed on the continuation date while denying her the
opportunity to obtain further witnesses that she could not obtain on her own.

[7]

As can be seen below, I am of the view that in the unusual circumstances
of this case, the trial judge conducted the trial fairly and provided adequate
assistance as to the trial process and that this appeal should therefore be
dismissed. In contrast to the situation in
Moghaddem
, the trial judge
here was dealing with an accused who was flippant, wandering, and paid little
attention to the Courts directions.  As became apparent during the trial, she
has a longstanding grudge against the University of Victoria.  Since the
alleged assault, of a university employee, was alleged to have taken place on
campus, she was using the occasion to investigate the motives and actions of
various University employees with whom she had come in contact at various
times, both before and after November 19, 2009.  Any connection these employees
had with the charges against Ms. Sullivan was tenuous at best.

[8]

This was not a case in which an accused who is unfamiliar with the trial
process was unable to put forward her defence.  Rather, this was case in which
an accused was attempting to run away with the trial process, making various
demands that the Court supply items (transcripts, white boards and photographs)
that the judge was not in a position to supply; and trying to turn the trial of
the assault charge made against her into an inquiry into an alleged conspiracy
on the part of the University.  Clearly, Ms. Sullivan was entitled to question
the credibility of the witnesses called against her or to suggest that a
conspiracy existed.  But finding herself unable to discover evidence of such a
conspiracy, she embarked, or attempted to embark, on an uncontrolled fishing
expedition.  In my view, the trial judge, after giving Ms. Sullivan a
certain amount of leeway, rightly prevented her from pursuing avenues of
inquiry that were clearly leading nowhere and from holding the trial process
hostage to her personal whims.

[9]

I will provide a few examples which I have taken from the transcript. 
The first witness at trial was the complainant Ms. St. John, who was
the Director of Ceremonies and Events for the University.  She was examined in
chief by Crown counsel as to the events of November 19, 2009, when she had
noticed Ms. Sullivan outside the entrance to the Club, where the President
of the University, Mr. David Turpin, was expected to attend an event in the
late afternoon.  Ms. St. John testified that she asked Ms. Sullivan
if she could help her, and that Ms. Sullivan said she was waiting for Dick
Turpin to arrive and wanted to serve some papers on him. 
Ms. St. John testified that she told Ms. Sullivan that the President
was not coming that evening (in fact he was), and offered to give him a message
for Ms. Sullivan.  Ms. St. John testified that Ms. Sullivan
became angry and began shouting at her, raised a sheaf of papers up in front of
her face, hitting Ms. St. John on the left cheek, knocking off her
glasses.  Ms. Sullivan then stepped on the glasses, breaking them.  Ms. St. John
said she was left with a scratch on her cheek (of which the Crown adduced
photographic evidence).

[10]

Ms. St. John went inside the Club, asked someone in the
managers office to call security, and was told that they had already been
called.  She testified that the glasses cost about $1,000 to replace, which was
paid by the University.

[11]

Ms. Sullivan began her cross-examination of the witness beginning with
Are you familiar with this fabled character, Pinocchio?  The trial judge
interrupted to say that she gathered Ms. Sullivan was not trained as a lawyer. 
Ms. Sullivan said that was correct, but that she did watch a lot of television. 
The judge told her this was her opportunity to ask specific questions that
relate to the evidence this witness has given, or ... other relevant areas ...
with respect to the charges that she was facing.  Ms. Sullivan responded by
asking the trial judge if it was an appropriate time for the Court to caution
the witness what the penalty is for perjury.  The trial judge replied that
Canadian courts dont do that and the cross-examination resumed.

[12]

Ms. Sullivan asked questions about Ms. St. Johns previous
jobs.  One of these had been with a local art gallery, leading Ms. Sullivan to
ask if most arts organizations receive government grants. 
Ms. St. John answered yes, they did from both provincial and federal
governments.  When Crown counsel objected that the witnesss employment history
was not the subject of the matter being tried, Ms. Sullivan replied:

THE ACCUSED: 
Oh.  I need to know the back -- her background because
I'm -- I need to figure out why she's making these false allegations,
and not just a false allegation of assault but expounding on it with a
fabrication of a -- of a story.  So I do want to know -- I
want -- and -- and because I have a lawsuit against the
provincial government, I've been in a lot of hot water with a lot of the people
that I've dealt with in the system that are -- have some funding from
government, like hospitals --

THE COURT:  Ms. Sullivan, the --

THE ACCUSED:  -- charities.

THE COURT:  She
has given you her general background and in my view, that's what you're
entitled to know.  You needn't ‑‑ there's no necessity
for what I have to decide for any further probing into this woman's background
as far as her employment goes.

THE ACCUSED:  Okay.

[13]

Ms. Sullivan then returned to question the witness about the job she
held at the University, how she had got it and whether it had been advertised
in the newspaper.  The following exchange then took place:

Q         ...
Now, you say that you saw me -- oh.  I want you to visualize
the --actually, I should have asked for a board where I could draw
the -- the --

THE COURT:  What's your question?

THE ACCUSED:

Q         The question is, I want you to picture the
university when you walk in the door and --

THE COURT:  Of the University Club?

THE ACCUSED:

Q         Of the University Club.

A          Yes.

Q         And I've been there three times, very, very, very
briefly.

THE COURT:  Go ahead.

THE ACCUSED:  I don't feel comfortable with people in the
courtroom.

THE COURT: 
Unfortunately, courtrooms are public places and people can be in the courtroom.

THE ACCUSED: 
Could we ask them if they would mind leaving and if they don't want to leave
they can stay?  Could we ask that, because I'm very sensitive to UVic people
sitting in on my hearings.

THE COURT:  I'm not going to ask these
people to leave, Ms. Sullivan.  It's a public courtroom.

[14]

After an extended discussion about the physical set-up of the University
Club layout (in the course of which Ms. St. John drew a diagram), Ms.
Sullivan said she was not comfortable at all with ... this set up here and
photographs have to be taken for accuracy ... I cannot agree on the map shes
written according to my memory of it.  The trial judge told her that it was
not necessary for her to agree with anything the witness said and that at the
end of the day she, Ms. Sullivan, would have the opportunity to give evidence
if she chose to do so.

[15]

Ms. Sullivan nevertheless asked for an adjournment.  The judge refused
and Ms. Sullivan objected that the Crown had not supplied photographs, because,
she said, every scene of ... an assault, an alleged assault or a crime, they
take photographs.  I was expecting photographs.  After further discussion and
a short adjournment, Crown counsel suggested that two maps be filed, one drawn
by the witness and one drawn by Ms. Sullivan.  The Court permitted both to be
filed as exhibits, with the accused going on record to say that I dont
understand her map at all.  Id like that to go on the record.

[16]

Ms. Sullivan then questioned the witness about what other people had
been in the Club at the time of the alleged assault, whether invited guests had
arrived for the event, and what Ms. St. John had been doing before
she had gone outside and seen Ms. Sullivan, all in considerable detail.  On
several occasions, she interrupted the witness from giving her answers.  The Court
warned her to wait for an answer to be completed before asking her next
question.  The following exchange took place:

Q         Why didn't you have an umbrella then?

A          Because
I was standing underneath the main canopy, it was protected from the rain.

Q         Actually, it wasn't raining.

A          It was --

Q         It stopped.

A          It was pouring with rain.

THE ACCUSED:  It
stopped.  I remember that.  It had stopped by the time I walked --

THE COURT:  Ms. Sullivan --

THE ACCUSED:  -- from the admin building.

THE COURT:  -- you're not giving evidence.

THE ACCUSED:  Okay.  I -- I'd like a bathroom
break, please.

THE COURT:  Well,
it's time to have the afternoon break, in any event.  Ms. Sullivan, Crown
has three witnesses and a fourth that apparently you have asked to be here.  We
only have until 4:30.

THE ACCUSED:  Well, we've got tomorrow.

THE COURT:  Unfortunately, the courts are all booked, well in
advance.

THE ACCUSED:  Oh well,
we'll -- a little bit of overtime won't hurt anybody.

[17]

When the cross-examination of Ms. St. John resumed, Ms.
Sullivan went into painstaking detail regarding Ms. St. Johns
statement that campus security had already been called by the time she
(Ms. St. John) went inside and asked for them to be called.  The
Court pointed out that the acting manager had to be called to answer the
questions, and told Ms. Sullivan that her questions about what time the President
had arrived, and what time the event ended were not relevant.  The following
exchange is typical of several pages of questions and answers:

Q         And
then you -- I would like to now know because I don't know now, you
were never asked the chain of events when you officially made a complaint. 
That --

THE COURT:  It's not relevant.

THE ACCUSED:

Q         -- we've not covered that.

THE COURT:  It's not relevant.

THE ACCUSED:

Q         And who you officially made the complaint to?

THE COURT:  It's not relevant.

THE ACCUSED:

Q         Are you married?

THE COURT:  It's not relevant.

THE ACCUSED:

Q         How much are they paying you to give this false
evidence?

THE COURT:  Not relevant.  It's an improper question.

THE ACCUSED:

Q         So --

THE COURT:  Do not answer --

THE ACCUSED:

Q         -- do you intend to stay in Canada?

THE COURT:  Not
relevant.  Do you have any relevant questions for this witness?

THE ACCUSED:  Well, they're all relevant as far as I'm
concerned.

THE COURT:  I'm the one who makes that decision.

THE ACCUSED:

Q         Do you have a criminal record?

A          No, I don't.

Q         Would you like one?  Because you've
told so many lies here today you're well on the way to perjury --

Eventually the trial judge told Ms. Sullivan she could ask
one more relevant question, which she did, and the witness was stood down.

[18]

Crown counsel advised the Court that since identification did not seem
to be an issue, she did not intend to call two of the witnesses she had
anticipated calling.  In response to Ms. Sullivans question as to who those
witnesses were, the trial judge explained that the prosecutor had decided she
did not require the two witnesses but she is quite prepared to call the
witness you wanted and Im going to allow her to do that.  Mr. Brewer, the bar
manager at the Club, was called and described his dealings with Ms. Sullivan on
November 19.

[19]

In cross-examination, Ms. Sullivan first asked him to tell the Court
how we first met and led him through a description of an incident earlier in
November 2009 when she had taken a poppy and later returned to pay something
for it.  The trial judge found it necessary to interrupt Ms. Sullivans
questioning to remind her that Mr. Brewer was the witness, not Ms. Sullivan,
and that she would have an opportunity at the end of the day should you decide
to give evidence.  Ms. Sullivan said she did not understand my being blocked
from a non-hostile witness who could speak as to the nature of our encounter. 
The judge explained that having Mr. Brewer on the stand was not her
opportunity to give evidence.  Again, Ms. Sullivan said she did not
really understand but Ill carry on and if you ... you can object again if
you dont like the line of questioning.  At the end of her cross-examination,
Ms. Sullivan said that all she had wanted to establish was that there was no
anger or hostility in that hallway for the few minutes that you and I
inter-reacted.  The witness agreed.

[20]

Crown counsel advised the Court she did not intend to call further
witnesses, whereupon Ms. Sullivan objected that a Cst. Graham was to have been
called and that she wanted to call him.  When the trial judge asked if she was
going to take the stand herself, Ms. Sullivan said she thought she needed legal
advice and was being railroaded.  After some comments on her part about the
pack of lies she had heard in court, Ms. Sullivan confirmed that she wanted
legal advice and the Court adjourned to permit this to occur.

[21]

The trial resumed more than three weeks later, on March 26.  Early in
the day, scheduling for the day was discussed.  Ms. Sullivan asked if the trial
judge anticipated the trial would end that day and was told it
would
end
that day.  Ms. Sullivan said she wanted to recall Ms. St. John. 
After the morning recess, Ms. Sullivan confirmed that she was acting on
her own behalf and requested a transcript of Ms. St. Johns
evidence.  She said she wished to apply for indigent status in order to get the
transcript without paying for it.  Further, she said:

THE ACCUSED:  Yes.  I intend to -- I'm
prepared to go ahead this morning, but I will be adjourning to recall [Ms.] St.
John, and I want the security people from the University of Victoria here, and
I want -- the woman I served the writ to, I want her here and the security
officers that were there at the time I served the writ.  So I've still got a
bit of work to do.  Of course it's restricting for me because I can't go on
campus and deliver.

[22]

The Court asked why she wished to recall Ms. St. John and Ms.
Sullivan replied that Shes perjured herself in this action.  She said she
also wanted to call the security people from the University who were present
when she had served her writ (on a Ms. Wormsley) before she had gone to the
University Club on November 19.  As well, she said, she wished to call a Ms.
Eastman, the university secretary, who had advised Ms. St. John to
report the assault.  Crown counsel said she was having some difficulty with
the relevance with most of the proposed evidence since it had preceded the
assault, and that she did not take issue with the fact that Ms. Sullivan had
served a document on the University on the day of the alleged assault.

[23]

At this point, the trial judge ruled against Ms. Sullivans three
applications.

[24]

Two further witnesses were called ‒ Cst. Graham, whose first
involvement in the case had been on the day after the alleged incident when
Ms. St. John had reported the assault to him, and Cst. Prill, who had
encountered Ms. Sullivan in the university cafeteria after the incident.  He
had been called by staff when Ms. Sullivan refused to leave the cafeteria. 
Cst. Prill had had a conversation with her about the incident and recalled what
she had told him.  At one point, Ms. Sullivan interrupted him and said:

Q         Well, unfortunately your memory
is a little vague, so I'm going to have to add your partner's name to the list
of people that I want to talk to on this matter, Birtwistle, because I believe
that if I did discuss anything with you, it would've been the fact that I had
just served a writ on the university and that I tried to serve it on the super
-- president, but was unable to do so, because I wanted to embarrass him at
this conference.

[25]

When Ms. Sullivan asked the witness whether she had at that time
mentioned anything about an assault, the trial judge interrupted to advise her
that it was not in her best interests to ask that question.  The witness was
excused.

[26]

Ms. Sullivan decided to testify.  The Court conducted her examination in
chief, taking her through the events at the University Club on November 19. 
Ms. Sullivan testified that she had been trying to serve the President of the University
with a writ that day and had been told by officials at the administration
building that he was not there.  She declined to leave the writ with them.  She
testified that she then went up to the second floor and was approached by a
woman who said she was the Provost and would take the writ.  Ms. Sullivan testified
that she gave it to her and then headed downstairs when she noticed a sign
indicating that the President was giving some kind of function at the
University Club.  Still having a copy of the writ in her handbag, she headed to
the Club and asked two ladies outside if David Turpin was there yet and was
told he was not.  She encountered the bartender, Mr. Brewer, who said the
President had not arrived yet.  She said she decided not to hang around, but went
to use the bathroom before she left.  She then headed outside, where she saw a
woman holding a clipboard.  She asked this woman if she was waiting to greet
Dick Turpin or David Turpin and was told that he was not coming and had
cancelled.  She testified that although she did not believe this, she did not
want to waste any more time at the Club and proceeded to the Cadboro Cafeteria,
where Cst. Prill eventually spoke to her.

[27]

In cross-examination, Ms. Sullivan was asked if the woman with the
clipboard was Ms. St. John.  Ms. Sullivan said she had not recognized her
at all and in fact never saw her full face.  She insisted that she had decided
not to hang around waiting for the President and that in any event she had
had her fun at the administration building.  Although she testified she had
not had a conversation with the complainant, she also testified soon after that
she, Ms. Sullivan, had told the woman with the clipboard that she just
wanted to serve [the President] this but had already served it in admin. 
Later in the summary conviction appeal hearing, she described a conversation
very similar to the conversation described by Ms. St. John in her
testimony, but said she had then simply walked away.

[28]

In response to the Crowns questions at trial, Ms. Sullivan absolutely
denied striking Ms. St. John in the face and knocking off her
glasses.  The following exchange then took place:

Q         And then she had a conversation
with you in an attempt to get you away and offered you a cup of tea and gave
you some money for a cup of tea.

A          The woman's a liar, and I want
to know motive.  That's what I'm interested -- that's why I want to investigate
this woman.  There's got -- but I believe the motive is that the campus -- they
wanted me off campus.  I've got notes here where I overheard a conversation
with the security while they were chasing me all over the campus on the 10th of
September, and I stood in an open window and heard them laughing and planning,
"It's been fun and we get paid for it."

THE COURT:  This is what date?

A          The 10th of September.

[29]

In her closing submissions, Ms. Sullivan spoke briefly again about the
incident in September previously adverted to, in which she had overheard a
conversation at 4:00 a.m. between a couple of security men.  There was no
apparent connection between this conversation and the alleged assault.  Crown
counsel then made her submissions before the trial was adjourned.  The trial
judge prepared her reasons, which were delivered orally on the same day.

[30]

It is fair to say that the trial judge was concerned on the first day
with finishing the trial in the time that had been allotted.  As long as the
fairness of the trial did not suffer as a result, a judge should not be
criticized for this.  Judges in the Provincial Court of British Columbia are
under the pressure of very heavy workloads and must necessarily be conscious of
time limitations.  Ms. Sullivan seemed to be under the impression that she
could request an adjournment at any time for any reason and that it would be
granted.  The adjournments Ms. Sullivan requested ‒ one to obtain
photographs of the University Club building and one to obtain a transcript of
Ms. St. Johns evidence ‒ were ones that most trial judges
would not grant at the late stage they were made.  It was far from clear how
the layout of the University Club building was relevant to Ms. Sullivans
claims that there was a conspiracy against her at the University and that
Ms. St. John had fabricated her testimony.  The request for a
transcript and for the recalling of Ms. St. John on March 26 were
simply too late and Ms. Sullivan had been allowed considerable latitude in
cross-examining the complainant.

[31]

Nor do I think the trial judge acted unreasonably in moving the matter
along when insufficient time was set aside for the matter to be heard
originally as Mr. McKay contended.  The trial judge was naturally
reluctant to have to adjourn the trial at the end of the first day, but
ultimately she did so and reconvened on March 26.  Mr. McKay submits in
addition that Ms. Sullivan was forced to proceed on that date and denied
the opportunity to obtain witnesses that she could not obtain on her own.  It
is not, of course, for the court to obtain witnesses.  As will be seen from
some of the quotations above, Ms. Sullivan simply listed off all the University
personnel she could think of and said she wanted to examine them.  She did not
indicate how the evidence of any of them would be relevant to the charges
before the Court, as opposed to her on-going differences with the University
itself.  Again, the trial judge gave her considerable latitude in the
questioning of Mr. Brewer and the two constables, both with respect to events
before and after the alleged assault took place.

[32]

With respect to Mr. McKays submission that the judge dismissed witnesses
before the appellant had finished cross-examining them (and here I understand
from her factum that counsel is referring to the complainant), Ms. Sullivan did
not have an absolute right to cross-examine on irrelevant matters for as long
as she wished.  The relevance of her questions was not apparent, even if one
assumes a conspiracy.  When asked by Johnston J. on the first appeal to explain
their relevancy, Ms. Sullivan replied:

THE ACCUSED: 
Well, she kept -- she -- I was digging.  I was digging, and she
kept saying, It's not relevant, but I wanted to dig and dig and find out the
motive for this woman fabricating this incident.  That was the reason why I was
asking her questions.

I wanted to ask her questions,
for example, on the fact that she -- the victim made big, big -- a
big deal about being -- living in Nova Scotia and being given this
wonderful job in Victoria working at the museum, I believe it was.  But she
only stayed at this wonderful job for six months and then she took another
wonderful job and only stayed there a few months and then she -- then she
came to the university, and I wanted to say, "Why would you come all the
way from Nova Scotia to Victoria for this wonderful job and only stay six
months?"  These were the kinds of things I wanted this woman to answer.

[33]

When pressed further, she replied that Ms. St. John and the police had
been suckered into laying charges.  Eventually, after more questions from the
conviction appeal judge, she said she could not remember now exactly what was
on [her] mind when she was asking the questions regarding the complainants
past and whether she intended to stay in Canada.  Her explanation for inquiring
about the complainants chain of command was that the complainant must have been
told something about Ms. Sullivan to have fabricated this little scenario. 
In the course of this submission to the Court, she claimed not to have received
disclosure from the Crown of Ms. St. Johns statement to the police, but then
acknowledged she had received the statement, but had expected it to be
handwritten.

[34]

In general terms, it must be said that while a trial judge must ensure a
fair trial, there are limitations on how far a court must go in assisting an
unrepresented accused.  Such an accused cannot expect simply to come to court
on the trial date and expect the court to summon witnesses whose names pop into
her head on that date, or to adjourn the proceedings anytime she requests it. 
Considerable time and resources are devoted by the state to trial scheduling
and trials should proceed when scheduled if at all possible.  While it is true
that the trial judge in this case might have realized at an earlier time that
this trial would go into another day, this fact did not make the trial unfair.

[35]

With respect to my colleagues concerns about the trial judges limiting
Ms. Sullivans cross-examination of Cst. Graham, I cannot agree that in
the circumstances of this trial (including what had transpired before this
point) this amounted to a failure to provide the accused with a fair trial. 
She was entitled to a fair trial, but not to an unlimited enquiry into each and
every matter that she found to be of interest.  Nor, with respect, do I agree
that had the trial judge not asserted that this witnesss evidence was
irrelevant, there was any realistic possibility the result of the trail would
have been different.

[36]

In all the circumstances, I am not persuaded the appellant did not
receive a fair trial or that the summary conviction appeal judge erred in dismissing
the appeal from the order of the court below.  I would dismiss the appeal.

The Honourable Madam Justice Newbury

Reasons for Judgment of the Honourable
Mr. Justice Hinkson:

[37]

I have had the privilege of reading the draft reasons for judgment of
Madam Justice Newbury in this case. While I agree with much of my colleagues
analysis, I am, with respect, unable to agree with the conclusion that she
reached.

[38]

Like my colleague, I recognize that trial judges face a difficult task
with some self-represented litigants, and in particular some self-represented
accused, in ensuring that such individuals receive sufficient assistance in
bringing out their defences. The Crown in this case properly concedes that the
assistance by the trial judge of an unrepresented accused is part of the
judges larger duty to ensure trial fairness.

[39]

In
R. v. Parton
, 24 W.C.B. (2nd) 642, [1994] B.C.J. No. 2098 at
paras. 7 and 16, Ryan J., as she then was, observed that trials conducted by
lay litigants can often be much longer than those where counsel is present, and
can try the most patient of judges. Madam Justice Ryan also commented that such
litigants must, however, be assisted by the Court to ensure that their defence
is brought out in full force and effect. She referred to the decision of this
Court in
R. v. Darlyn
(1946), 88 C.C.C. 269, [1947] 3 D.L.R. 480
(B.C.C.A.) at 482, where Mr. Justice OHalloran, for the majority, wrote:

... if the accused is without
counsel, the Court shall extend its helping hand to guide him throughout the
trial in such a way that his defence, or any defence the proceedings may
disclose, is brought out to the jury with its full force and effect.

[40]

How far a trial judge should go in assisting an accused is a matter of
judicial discretion, and does not require the judge to become the advocate for
the accused (
R. v. McGibbon
(1988), 31 O.A.C. 10, 45 C.C.C. (3d)
334 (Ont. C.A.) at paras. 32, 37).  While there is a minimum level of
assistance that is required in order to ensure that the accused has a fair
trial (
R. v. Tran
(2001), 55 O.R. (3d) 161(Ont. C.A.) at para.
31), the level of assistance required by the accused will vary with each trial,
depending on factors such as the offence charged, the facts, the defences
raised and the sophistication of the accused (
R. v. Parton
,
supra
at para. 33;
R. v. Phillips
, 2003 ABCA 4, at para. 22).

[41]

In
R. v. Moghaddam
, referred to by Madam Justice Newbury, the
appellant had been charged with dangerous driving and wanted to challenge the
credibility of one of the arresting constables by establishing that the
constable was biased against him.  He was prevented from cross-examining that
witness on events which occurred both before and after the incident leading to
the charges. The trial judge ruled that the appellant could not cross-examine
the constable on the incidents because they were not relevant to whether or not
he was guilty of dangerous driving. On appeal, Levine J.A. allowed the appeal
and ordered a new trial.  At para. 46 she wrote:

In this case, the trial judge not
only did not assist the appellant in putting forward his defence, she
effectively precluded it by ruling irrelevant the appellants evidence of bias
on the part of Constable Siddiqui. For that reason alone, I would allow the
appeal.

[42]

While I agree that the summary conviction appeal judge properly rejected
the appellants submissions that the trial judge erred in dismissing witnesses
before they testified, in denying her adjournment application, in requiring
that she proceed on the continuation date, in rejecting the appellants
submissions that she ought to have been provided with a transcript of the
complainants evidence, in limiting her right to cross-examine, and in refusing
to permit her to recall the complainant on the resumption of the trial, I am of
the view that the summary conviction judge erred in law in failing to find that
the trial judge erred in law by limiting the appellants ability to lead evidence
in her defence.

[43]

My point of departure from the reasoning of my colleague begins with the
conclusions of the summary conviction appeal judge at paras. 19 and 22 of his
reasons, which I repeat for ease of reference:

19        This
of course was not then, that is at the trial, nor is it now simply a matter of
whose story is to be preferred, because the obligation on the Crown throughout
is to prove its case beyond a reasonable doubt. There is some difficulty in
that
the trial judge did not specifically deal with whether or not, even if
she disbelieved Ms. Sullivans evidence, that evidence had left her with a
reasonable doubt
, but having reminded herself that her task was to
determine whether or not the Crown had proved its case beyond a reasonable
doubt, it seems to me that absence is not sufficient for me to overturn the
conviction.

...

22        While, as I have
said,
some of the rulings might well be questionable in hindsight
,
rulings made by a trial judge in the course of a trial ought not to be weighed
so finely as they can be weighed with the luxury of the time one has on a
review of transcript and argument on appeal.
I am not persuaded that those
rulings were so clearly wrong or that any of the rulings that might have
approached questionable status would, if they had gone the other way, have made
any difference whatsoever to the outcome
, that that aspect of the matter
should lead me to allow the appeal.

[Emphasis added.]

[44]

Unlike in
Moghaddam
, there was no improper interference here with
the appellants cross-examination of any of the witnesses called by the Crown.
The issue, as I see it, is whether the trial judge effectively prevented Ms. Sullivan
from putting forward her defence with the full force and effect contemplated
in
Darlyn
.

[45]

The appellants defence at trial was not simply a denial of the
complainants evidence, but was, as described by the summary conviction appeal
judge, that there was or is a conspiracy involving university personnel,
including [the complainant] to cause [the appellant] legal harm ... to achieve
the end of keeping [the appellant] off the University of Victoria campus, and
that the complainant, in the furtherance of that conspiracy, fabricated her
testimony.

[46]

Neither the trial judge nor the summary conviction appeal judge came to
the conclusion that the appellant was sufficiently familiar with the trial
process to be able to put forward her defence without the assistance of the
trial judge, and the interchanges between the appellant and the trial judge, in
my opinion, show that she was not capable of doing so.

[47]

While the she gave Ms. Sullivan some leeway in the presentation of her
case, the trial judge prevented Ms. Sullivan from pursuing avenues that she
considered fruitless. I agree that the trial judge is entitled to prevent the
pursuit of fruitless questioning, but I am unable to agree that that the avenue
of inquiry respecting Ms. Sullivans conspiracy defence was destined to be
fruitless, and am of the opinion that the trial judge did not sufficiently
assist Ms. Sullivan to fully and effectively explore that avenue.

[48]

At the resumption of the trial in this case, after the Crown had closed
its case, the following exchange took place:

THE ACCUSED: Yes.
I intend to -- Im prepared to go ahead this morning, but I will be adjourning
to recall [the complainant], and I want the security people from the University
of Victoria here, and I want -- the woman I served the writ to, I want her here
and the security officers that were there at the time I served the writ. So
Ive still got a bit of work to do. Of course its restricting for me because I
cant go on campus and deliver.

THE COURT: All
right. So I understand you have applications. First of all, youre applying for
a typed transcript of [the complainants] evidence --

THE ACCUSED: Correct.

THE COURT: -- from March 1
st
.

THE ACCUSED: Please, yes.

THE COURT: And youre applying to the court to recall [the
complainant]?

THE ACCUSED: I will.

THE COURT: And is there -- what is your reason for that?

THE ACCUSED:
Well, that is because, you see, she -- shes perjured herself in this action.

THE COURT: And youre going to apply to call --

THE ACCUSED: Indigent state.

THE COURT: -- other--

THE ACCUSED: Oh,
yeah. I want the -- I want the -- I want the security people from the
university that were in attendance when I served the writ on Ms. Wormsley
[phonetic], who I think is the provost at the admin building, which was five
minutes before I went into -- prior to me going into the university.

THE COURT: And --

THE ACCUSED: What that hall is called, the club, the
University Club.

THE COURT: So the security people, and who else?

THE ACCUSED:
Well, I have no way of getting -- oh, Id like to have Julia Eastman here, too,
the university secretary.

THE COURT: And what would that evidence tell the court?

THE ACCUSED: Julia Eastman is the person
who advised [the complainant] to report the assault. That was what I recollect
from the evidence that she gave.

[49]

The trial judge dismissed the appellants various applications, and
directed that the trial proceed. With respect to the appellants application to
call the security people and Ms. Eastman, the trial judge held, at para. 3 of
her ruling on defence applications:

... there is no evidence from
which this court could conclude that either of those classes of people were
present at the alleged incident, and therefore in the view of this court, would
be in a position to provide any relevant evidence ...

[50]

Ms. Eastmans evidence was potentially relevant to the appellants
conspiracy defence, but without any persuasive submission from the appellant as
to what she might have said, and we received no such submission, I am not
persuaded that the failure to ensure that Ms. Eastman was called as a witness
assists the appellant.

[51]

When the trial resumed, the appellant did lead the evidence of Constable
Graham, the police officer who arrested her the day after the complainant
alleged that she was assaulted. She asked him if he had any notes of his
discussion with the complainant on the day after the assault, to which he
responded in the affirmative. The trial judge interrupted the officers
evidence and the following exchange occurred:

THE COURT:  Ms.
Sullivan, I am wondering, given that this officer was not involved until a day
later, what the relevance of his evidence is.

THE ACCUSED: Well, if youll let me get to it, maybe we can
find out.

THE COURT:  No, just tell me. Tell me what the relevance is.

THE ACCUSED:
Well, the relevance is that this whole thing is a lie. The whole scenario is a
lie and its very difficult to ask the questions to uncover a lie or a bunch of
lies. Thats what makes -- thats what makes court so difficult. People dont
come in and tell the truth.

THE COURT: My
concern is what the relevance is of anything that this witness can say. He was
not present at the alleged incident and he was not involved until the following
day. I just want you to tell me what evidence you expect to get from this
witness that is relevant to my decision.

THE ACCUSED: Well, something convinced him that he needed to
arrest me.

THE COURT: Well, perhaps you can
ask him why he arrested you.

[52]

I am not satisfied that counsel, acting reasonably would ask such an
open-ended question, even when questioning a witness in chief, and the
appellant did not. The question as proposed by the trial judge would not have
assisted the appellant in establishing what she was attempting to prove, that
the whole thing is a lie and part of a greater conspiracy against her. The
appellant did, however, resume her questioning of the officer:

THE ACCUSED: So
what did Ms. St. John tell you? Oh, how long did you meet? How long was your
meeting with her?

[53]

The appellant did not receive an answer to her first question in that
series, but before she returned to that question, the following exchange took
place:

THE COURT: ... You were going to ask why he arrested you.

THE ACCUSED: You
see, Im running into the same problem that I ran into before. You interrupt
too much. You -- you dont let me ask what I need to do.

THE COURT: Its
my -- its my duty to control the courtroom and to ensure that relevant
questions are asked and answered because if its not relevant, its not
admissible.

THE ACCUSED: But thats relevant according to what you think.

THE COURT: And Im the one --

THE ACCUSED:  Since its --

THE COURT:  -- in charge.

THE ACCUSED:
Yeah, but the point is whats relevant to me may not be relevant to you.

THE COURT: Thats exactly right, and therefore its not
admissible.

THE ACCUSED: Oh, okay.

[54]

I agree with the summary conviction appeal judge that some of the
rulings [of the trial judge] might well be questionable, but, more importantly,
in my opinion, the appellant was not given sufficient assistance by the trial
judge to enable her to put forward her own defence with full force and effect,
and her articulated defence was not so put forward.

[55]

Although she asked some further questions, the appellant never returned
to the content of Cst. Grahams notes or his discussion with the complainant
the day following the assault.

[56]

In order to provide the appellant with the appropriate helping hand to
guide [her] throughout the trial the trial judge should have provided some
guidance to the appellant to focus her questions on matters relevant to her
conspiracy defence.

[57]

To exacerbate her failure to properly assist the appellant, the trial
judge found that the complainant had no reason to fabricate her allegation of
the assault that she alleged.  The failure on the part of the trial judge to
assist the appellant in putting forward her defence coupled with her comment
that she questioned the relevance of anything that Ms. Eastman or Cst. Graham
might be able to say may well have dissuaded the appellant from pursuing a
basis upon which to cause the trial judge to question whether the complainant
had a reason to fabricate her evidence and thus cause her to question whether
the Crown had proven the charges against the appellant beyond a reasonable
doubt.

[58]

I conclude that the summary conviction appeal judge erred in failing to
recognize that the trial judge did not guide the appellant to bring out her
defence with its full force and effect, and that his conclusion that the
outcome of the trial would not have differed had she done so, cannot be upheld.

[59]

I would therefore allow the appeal and order that there be a new trial
of the charges against the appellant.

The Honourable Mr. Justice Hinkson

The Honourable Mr. Justice
Donald


