



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Pieszkor,







2008 
          BCCA 36



Date: 20080124

Docket: CA034822

Between:

Regina

Respondent

And

Czeslaw 
    Pieszkor

Applicant




Before:


The 
          Honourable Chief Justice Finch




(In 
          Chambers)








C. 
          Pieszkor


Appellant Appearing On His Own Behalf




F. 
          Tischler


Counsel for the Respondent

(Crown)




Place 
          and Date of Hearing:


Vancouver, British Columbia




16 January 2008




Place 
          and Date of Judgment:


Vancouver, British Columbia




24 January 2008



Reasons 
    for Judgment of the Honourable Chief Justice Finch:

[1]

Mr. Pieszkor applies for leave to appeal from the order of the British 
    Columbia Supreme Court pronounced by Mr. Justice Crawford on 22 January 2007, 
    dismissing his summary conviction appeal from the judgment in British Columbia 
    Provincial Court, pronounced by Judge Ball on 23 August 2005 holding him guilty 
    of criminal harassment contrary to s. 264 of the
Criminal Code
.

[2]

On this application for leave, Mr. Pieszkor was assisted by an interpreter, 
    Mr. Jaworski, who is fluent in both English and Polish, the latter being Mr. 
    Pieszkors first language.

[3]

The thrust of Mr. Pieszkors oral submissions for leave to appeal was 
    that the trial in Provincial Court was unfair.  He says he did not have the 
    assistance of an interpreter, that his English was inadequate, and that he 
    has no hearing in his left ear.  He says the trial started late in the day, 
    not all of his witnesses could be called that day, and that some witnesses 
    could not be called at a later date because the judge instructed that subpoenas 
    not be issued for them.  He says he was not allowed to complete his cross-examination 
    of the complainant, and that the judge would not let him complete his own 
    testimony, nor call some of the further defence witnesses.  He also objected 
    to the content and admissibility of a pre-sentence report which contained 
    a psychological evaluation of him.

[4]

As can be seen from the above, Mr. Pieszkors submission addressed 
    only what he says were the inadequacies and unfairness of his trial in Provincial 
    Court.  He did not address any submissions to alleged errors in the judgment 
    of the summary conviction appeal judge, and more particularly, did not identify 
    any errors of law in that judgment which might form the basis of an appeal 
    to this Court.

[5]

Despite my efforts to assist, I am not certain that Mr. Pieszkor as 
    a lay person understood the burden he faced on this application of showing 
    that his proposed appeal raised an issue of law alone, that such an issue 
    was one of importance, and that his appeal would have a reasonable possibility 
    of success.

[6]

On his appeal to the Supreme Court of British Columbia, Mr. Pieszkor 
    appears to have raised most of the arguments against the unfairness of his 
    trial that I have summarized above, although not all of them.  The summary 
    conviction appeal judge reviewed the trial proceedings and transcripts, and 
    concluded that there was a full and fair hearing, that the trial turned on 
    issues of credibility, and that there was no basis on which he could interfere 
    with the conviction.

[7]

Many of the grounds asserted by Mr. Pieszkor before me were not raised 
    on the summary conviction appeal.  Those grounds cannot form the basis of 
    an appeal to this Court, because not having been asked to address them, the 
    summary conviction appeal judge could not have made any error, whether of 
    law or otherwise, in respect of them.

[8]

Crown counsel was able to identify two possible grounds of appeal to 
    this Court from the judgment in the court below.  The first was whether Mr. 
    Justice Crawford erred in finding that the trial judge had adequately assisted 
    the unrepresented applicant at trial.  The second was whether Mr. Justice 
    Crawford made an error of law in finding that the trial judge exercised his 
    discretion reasonably in terminating the applicants cross-examination of 
    the complainant, and in terminating the applicants own evidence in chief.

[9]

Neither of those matters raises an issue of law alone.  Both relate 
    to the exercise of the trial judges discretion in supervising and controlling 
    what was obviously a difficult trial.  Whether the trial judge erred in the 
    exercise of his discretion, in the circumstances of this case, is a question 
    of both law and fact.  Nor is either question one of importance, since they 
    are specific to the circumstances of this case, and do not raise any unsettled 
    question of law requiring further consideration or refinement.

[10]

Finally, if an appeal on either of these issues were permitted to proceed, 
    it would in my view be bound to fail.  The summary conviction appeal judge 
    concluded that the trial judge exercised his discretion reasonably in controlling 
    the trial.  In my view, no division of this Court would disagree with that 
    conclusion.

[11]

The application for leave to appeal is refused, and the conviction 
    affirmed.

The Honourable Chief Justice Finch


