



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.D.C., 2021 ONCA 134

DATE: 20210304

DOCKET: C62193

Strathy C.J.O., Watt and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.D.C.

Appellant

Craig Zeeh and Alison Craig, for the
    appellant

Karen Papadopoulos, for the respondent

Heard: November 10, 2020 by videoconference

On appeal from the conviction entered by
    Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a
    jury, on May 15, 2014.

Zarnett J.A.:



INTRODUCTION

[1]

The appellant was convicted by a jury of sexual
    assault, criminal harassment, and breach of recognizance, contrary to sections
    271(1), 264(2)(b) and 145(3) respectively of the
Criminal

Code

of Canada
, R.S.C. 1985, c. C-46.

[2]

The appellant was represented by counsel before,
    and for a substantial portion of, his trial. However, just before the Crown
    closed its case, the appellant discharged his counsel. He was self-represented
    for the balance of his trial through to his conviction.

[3]

The appellant appeals that conviction on five
    grounds. Three of the grounds relate to what the appellant contends should have
    occurred in the aftermath of his decision to discharge his counsel. The
    appellant argues that the trial judge erred by:


i.

refusing to grant a mistrial when counsel was
    discharged;


ii.

failing to appoint
amicus

curiae
(
amicus
) after counsel was discharged;


iii.

failing to adequately protect the appellants
    rights as an unrepresented accused in the continuing trial.

[4]

The appellant also argues that the trial judge
    erred by:


iv.

failing to reconsider a similar fact ruling he
    made; and


v.

failing to properly instruct the jury on the
    sexual assault charge with respect to the issue of consent.

[5]

For the reasons that follow, I would dismiss the
    appeal.

[6]

I begin by describing the circumstances of the
    offences to the extent required by the nature of the issues raised on the
    appeal. I then turn to what occurred before and at the trial concerning the
    appellants representation by counsel, the requests made of the trial judge for
    a mistrial and appointment of an
amicus,
and how those requests were
    dealt with. Against that background, I discuss each of the appellants grounds of
    appeal.

BACKGROUND

The Offences

[7]

For several years, the appellant was in a
    relationship with the complainant, N.S. They had a child together.

[8]

In the fall of 2012, N.S. and the appellant were
    living in separate residences. N.S. wanted to end the relationship completely,
    but the appellant was highly resistant to that occurring.

[9]

In September or October 2012, N.S. and the
    appellant were at the appellants apartment with their child. N.S. attempted to
    leave to put the child to bed, but the appellant told her she had to have sex
    with him before she left. N.S. told him that she did not want to. The
    complainant and the appellant fought physically and verbally. He prevented her
    from calling the police, and initially prevented her from leaving his apartment
    at all. When he finally relented to the extent of allowing her to go to his
    parents apartment in the same building, he took her purse from her.

[10]

When N.S. arrived at the appellants parents
    apartment, she explained to his mother that she wanted to go home, that the
    appellant had her stuff, and that he was demanding they have sex despite her
    not wanting to. The appellants mother told her to have sex with the appellant
    and get it over with.

[11]

The appellant then arrived at his parents
    apartment, and he and his parents engaged in a heated argument. After ten to fifteen
    minutes, N.S. returned with the appellant to his apartment where sexual
    intercourse occurred. She testified that I didnt consent really. II did it
    so I could go home. So Im not really consenting. She explained that she did
    not really have a choice. If she had not engaged in intercourse with the
    appellant, (t)here would have been more fighting, moreId be a prisoner,
    wouldnt be allowed to go home.

[12]

On October 31, 2012, N.S. contacted the police
    to report that the appellant had been harassing her and that she feared he was
    going to kidnap her children. She had received numerous phone calls and text
    messages from the appellant containing threats and demands. Changing her
    telephone number did not stop the messages. The police told the appellant that N.S.
    wished no further contact with him and that he could be charged with criminal
    harassment. However, he continued to repeatedly text and call N.S. making
    demands that she come to his place for sex, stop ignoring him, and come back to
    him. He also made threats of various consequences to her, their child, and her
    family if his demands were not met. These caused N.S. to further fear for her
    and her familys safety.

[13]

On November 25, 2012, the appellant was arrested
    and subsequently charged with sexual assault and criminal harassment. He was
    released on bail on November 30; one of the conditions was that he not contact N.S.
    He continued, nonetheless, to do so. On December 9, the appellant was arrested
    for breach of recognizance and a no contact order was made. He continued to make
    calls to the complainant.

[14]

The appellant did not testify at trial. His
    position was that the offences had not been proven beyond a reasonable doubt.
    He submitted to the jury that, with respect to the sexual assault charge, the
    sex had been consensual.

The Appellant Raises and then Withdraws a Complaint
    Concerning Legal Representation

[15]

The appellant was represented by counsel during
    the proceedings leading up to trial. Mr. Lyons (trial counsel) appeared for
    the appellant at judicial pre-trials and other pre-trial matters, including the
    scheduling of the trial.

[16]

Between March 31 and April 11, 2014, there were
    seven motions heard by the trial judge relating to particulars, quashing
    counts, severance, similar fact evidence, s. 276 of the
Code
, the
    exclusion of certain text messages, and the voluntariness of statements to the
    police. The appellant was represented by trial counsel on all of them.

[17]

On April 11, the trial judge ruled on the
    motions with reasons to follow and set jury selection for April 23.

[18]

On April 23, the trial judge delivered his
    reasons on the motions and requested trial time estimates from counsel. The
    Crown estimated a trial length of five days. On behalf of the appellant, trial
    counsel estimated five to seven days. The jury panel was told to be available
    for two weeks, to be on the safe side.

[19]

However, on April 23, before jury selection
    commenced, the appellant advised the trial judge that he was dissatisfied with
    trial counsel. He wanted the trial judge to order trial counsels more senior
    colleague to attend to conduct the trial. Trial counsel advised the trial judge
    that he had no prior notice of the appellants alleged dissatisfaction or that
    he would be making any such request. Upon being contacted, trial counsels senior
    colleague advised that he had no prior notice of the appellants request, and
    that the appellant had no basis to expect him to conduct the trial. The
    appellant told the trial judge that he had contacted Legal Aid and was told
    that another lawyer would not be funded.

[20]

The trial judge adjourned jury selection to
    April 28, giving the appellant five days to decide whether to keep his current
    counsel, proceed without counsel, or make a request for an adjournment of the
    trial to seek new counsel.

[21]

On April 28, the appellant appeared with trial
    counsel, ready to proceed. He advised that he no longer wished to discharge
    trial counsel.

The Trial Proceeds

[22]

The trial proceeded and the jury was selected.
    Between April 29 and May 6, the Crown called 16 witnesses, representing almost
    all of the Crowns case. The witnesses included the complainant. They also
    included the appellants former partner, C.D.G., who, under a similar fact
    ruling the trial judge had made on a pre-trial motion, gave evidence of the
    appellants behaviour when their relationship ended. Crown witnesses were
    cross-examined on behalf of the appellant by trial counsel.

[23]

On May 6, the trial judge adjourned the trial to
    May 8 to hear the two remaining Crown witnesses, who were expected to be brief,
    after which the defence could begin its case if an election were made to call
    evidence.

The Appellant Discharges Trial Counsel

[24]

On May 8, when court commenced, trial counsel
    advised the trial judge that the appellant wished to address the court. The
    appellant was cautioned by the trial judge about the risk involved when a
    represented party addresses the court directly, but the appellant confirmed
    that he still wished to do so.

[25]

The appellant then advised the trial judge that
    he had made an executive decision to terminate the services of trial counsel.

[26]

The trial judge warned the appellant that if he
    discharged his counsel the trial may continue in any event. He referred to
    the advanced stage of the trial, as well as the opportunity the appellant had been
    given before the trial to ask for an adjournment based on concerns about his
    representation. The appellant responded that he understood the possibility that
    the trial judge would direct that the trial continue. He confirmed that he
    still wished to terminate the services of his counsel.

[27]

At the same time, the appellant told the trial
    judge that he was not capable of continuing the trial as he lacked a degree in
    law. He stated that he had not understood his rights when he failed to take up
    the trial judges earlier invitation to request an adjournment, due to the
    absence of resources available to him while in custody. He stated that his
    desire was for the trial to start over again, and mentioned a lawyer acting for
    him on other charges who perhaps could become involved in this matter. He also referred
    to a
Rowbotham
application for court-ordered counsel.

[28]

The trial judge confirmed that the appellant had
    legal advice available to him both when he decided not to apply for an
    adjournment and now about discharging his counsel. He confirmed with both the
    Crown and trial counsel his understanding of the law that the appellant was
    entitled to terminate counsel with or without a reason.
[1]
The trial judge confirmed with
    the appellant that when he said he wanted to start the trial over again, he
    wanted a mistrial.

[29]

The trial judge held the matter down for
    approximately an hour. He advised the appellant that when court recommenced, if
    he still wanted to discharge trial counsel even though the trial may continue,
    he would be allowed to do so. The trial judge also advised that he would then
    hear the appellants mistrial application.

[30]

Upon court resuming, the appellant confirmed
    that he wanted to discharge trial counsel. The trial judge confirmed that
    counsel was discharged.

The Mistrial Application

[31]

The appellant advised that he was making an
    application for a mistrial. His grounds were various points of dissatisfaction
    with the performance of trial counsel; that if he were found guilty the Crown
    would seek a dangerous offender designation; that the jury was not taking notes
    which indicated that they had prejudged the matter; and that his lack of legal
    training and the absence of resources available to him while in custody
    prejudiced his ability to defend himself and have a fair trial.

[32]

The trial judge dismissed the mistrial
    application. He referred to the opportunity given the appellant prior to trial
    to apply for an adjournment to deal with any dissatisfaction with his legal
    representation. He noted that the appellant had not made such an application
    and, as a consequence, the trial had proceeded since April 28 almost to the
    completion of the Crowns case. He noted that it had been made clear to the appellant
    that if he discharged counsel at this point, the trial could be ordered to
    continue. Finally, the appellant was aware that Legal Aid would not provide him
    with another lawyer.

[33]

The trial judge stated that he had observed
    nothing to substantiate the appellants concerns about his counsels
    performance, that the jury had no obligation to take notes, and that if there was
    a conviction, the appellant would have time to retain counsel to act at any sentencing
    proceeding including to deal with the dangerous offender issue.
[2]
Given that it was the
    appellants choice to terminate counsel, the complaints of the appellant that
    he could not receive a fair trial without counsel were without merit. He concluded
    that no substantive cogent reason for a mistrial had been raised. He further stated,
    this appears to be nothing more than an attempt by [the appellant] to delay
    this trial.

The Trial Judge Refuses to Appoint
Amicus

[34]

The same day, the trial judge considered whether
    to appoint
amicus
to assist with the closing address and the jury
    charge. The appellant suggested that his lawyer in another case serve as
amicus
,
    but the trial judge expressed concern about that. The trial judge asked if
    Legal Aid could arrange for a lawyer to serve as
amicus
.

[35]

On May 9, a representative of Legal Aid attended
    at trial and told the trial judge that it would endeavour to have a lawyer
    serve as
amicus
, but could not guarantee it would be by the Monday of
    the following week.

[36]

The trial judge then decided not to appoint
amicus
.
    He cited the delay that would be involved, and his ability to provide the same
    kind of procedural guidance that an
amicus
would to [the appellant].

The Completion of the Trial

[37]

The Crown completed its case on May 8. The trial
    judge adjourned the matter to May 12 to allow the appellant to decide whether
    to testify and/or call witnesses. On May 12, the appellant asked again for an
    adjournment and to make a
Rowbotham
application, which were both refused.
    The appellant called one witness and filed certain exhibits. He did not
    testify.

[38]

On May 13, the appellant again requested a
    mistrial, this time alleging that the trial judge was biased against him. The
    request was rejected due to a lack of evidence. The Crown and the appellant
    addressed the jury, which began to deliberate the next day. On May 15, the jury
    returned verdicts of guilty on the counts of sexual assault, criminal
    harassment, and breach of recognizance. The jury acquitted on a count of breach
    of court order.

ANALYSIS

Ground (i): The Failure to Declare A Mistrial

[39]

A trial judges broad power to manage the trial
    process includes a discretion to grant what is a remedy of last resorta
    mistrial. A mistrial is to be granted only where there is a real danger that
    trial fairness has been compromised and in order to avoid miscarriages of
    justice. Given that the trial judge is in the best position to determine these
    matters, a decision about a mistrial is entitled to significant deference on appeal:
R v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 832 at para. 52;
R v. G.C.
,
    2018 ONCA 392, 146 W.C.B. (2d) 332 at paras. 2-5.

[40]

The appellant, while acknowledging that the
    decision to grant a mistrial is discretionary, argues that the trial judge
    erred in the exercise of his discretion in two ways. First, he says that the
    trial judges reliance on the appellants motive to delay was procedurally
    unfair, as the existence of this motive was neither put to the appellant nor
    argued by the Crown, and rested on an insufficient evidentiary basis. Second,
    he says the trial judge failed to consider options, other than an outright
    refusal of a mistrial and continuation of the trial, to protect the rights of
    the appellant as an unrepresented person.

[41]

I would not give effect to these arguments.

[42]

As soon as the appellant raised his desire to
    discharge trial counsel and coupled that with his position that he would not be
    able to continue without counsel, the trial judge let the appellant know his
    concerns. He advised the appellant that he was concerned about the stage of the
    proceeding when this was being raised, especially since the appellant had been
    afforded, and had not taken up, the opportunity to request an adjournment before
    the jury was selected. The concern that this was a delay tactic was thus
    effectively put on the table. On the record before him, the trial judge was
    entitled to draw the conclusion that a desire for delay motivated the request
    for a mistrial.

[43]

Moreover, the trial judge examined and rejected
    each of the grounds that the appellant put forward in support of his request
    for a mistrial. His conclusion that the appellant provided no substantive
    cogent reasons for a mistrial was an appropriate one, and was sufficient to
    justify the rejection of the mistrial request whether or not it was motivated
    by a desire for delay.

[44]

I see no merit in the argument that the trial
    judge erred by not considering alternatives beyond the outright dismissal of
    the mistrial request. The trial judge did consider how the trial would go
    forward. He considered the appointment of
amicus
and the assistance
    and accommodation required for the appellant as a self represented accused.
    These are discussed below. He did not err in failing to consider alternatives
    raised for the first time on appeal, such as having the appellant re-elect
    trial by judge alone.

[45]

The appellant made a voluntary decision to
    discharge his counsel when the trial was at an advanced stage. The appellant
    does not contend in this court that the assistance the appellant received from
    his trial counsel was ineffective. There was no basis to conclude that anything
    had occurred up to the point the appellant decided to discharge his counsel that
    compromised trial fairness. The decision of the appellant to render himself
    unrepresented for what remained of the trial was not, in these circumstances,
    something that necessitated a mistrial to avoid a miscarriage of justice. The
    mistrial request was properly refused.

Ground (ii): The Failure to Appoint
Amicus


[46]

A trial judge has a well-recognized discretion
    to appoint amicus:
R. v. Imona-Russel
, 2019 ONCA 252, 145 O.R. (3d)
    197 at para. 80. But
amicus
need not necessarily be appointed simply
    because an accused chooses to be unrepresented:

(T)he power to appoint
amicus
is
    to be used sparingly and with caution ... in response to specific and
    exceptional circumstances,  where the assistance of
amici
[is]
    essential to the judge discharging her judicial functions in the case, that
    is, to ensure the orderly conduct of proceedings and the availability of
    relevant submissions ... [on] contested, uncertain, complex and important
    points of law or of fact:
Imona-Russel
at para. 77, citing
Ontario
    v. Criminal Lawyers Association Ontario
, 2013 SCC 43, [2013] 3 S.C.R. 3 (
CLA
)
    per Karakatsanis J., at para. 47 and per Fish J. (dissenting, but not on this
    point), at para. 108.

[47]

The appellant argues that the trial judges
    initial consideration of whether to appoint
amicus
shows that he
    thought it was an appropriate thing to do, but that he overlooked appointments
    that could have been made, and was inappropriately influenced by any delay that
    would be involved. The appellant submits that the trial judge failed to
    properly consider appointing, as
amicus
, either trial counsel or the
    lawyer who was acting in another matter for the appellant. He also argues that
    the trial judge erred in not appointing any
amicus
because Legal Aid
    could not guarantee there could be one without some delay in the resumption of
    the trial.

[48]

I would reject these arguments.

[49]

I see no error in the trial judges decision not
    to appoint, as
amicus,
either trial counsel or the appellants lawyer
    in another case. There is a sharp distinction between the duties of a lawyer
    acting as
amicus
and the duties of defence counsel, so much so that a
    lawyer appointed as
amicus
who takes on the role of defence
    counsel is no longer a friend of the court:
CLA
, at paras. 49-56. The
    same issue of conflicting duties to the court and the accused that arise when
    the role of
amicus
is expanded to the role of defence counsel, the
    point addressed in
CLA
, would be present if former defence counsel, or
    defence counsel in another case (each of whom owed duties to the appellant),
    were given the role of
amicus
.

[50]

Nor did the trial judge err in deciding not to
    appoint
amicus
after learning that Legal Aid could not guarantee the
    attendance of a lawyer when the trial was scheduled to resume. The trial judge
    did not over-emphasize the significance of the delay. His reason for not
    appointing
amicus
was that he could provide guidance to the appellant.
    This was the pivotal consideration. The appointment of
amicus
is to
    take place when it is essential. It is not essential in the vast majority of
    cases, as long as the trial judge provides guidance to the unrepresented
    accused so that a fair and orderly trial can be ensured without the assistance
    of an
amicus
:
CLA
, at para. 116, per Fish J. (dissenting,
    but not on this point). The appellant has not identified a complex issue on
    which the trial judge required the assistance of
amicus
in order to
    ensure the courts duty to an unrepresented accused was fulfilled.

Ground (iii): The Failure to Protect the Rights of an
    Unrepresented Accused

[51]

Upon the appellant becoming self-represented,
    the trial judge had a duty, through the provision of guidance and assistance,
    to ensure he received a fair trial. As this court stated in
R. v. Breton
,
    2018 ONCA 753, 366 C.C.C. (3d) 281 at paras. 13-14:

It is well settled that where an accused is
    self-represented at trial, the presiding judge has a duty to ensure that the
    accused has a fair trial. To fulfill that duty, the trial judge must provide
    guidance to the accused to the extent that the circumstances of the case and
    those of the particular accused may require it. Within reason and without
    becoming counsel for the accused, trial judge must provide assistance to aid
    the accused in the proper conduct of his defence and to guide him, as the trial
    unfolds, in such a way that the defence is brought out with its full force and
    effect.

No one gainsays that the onus on a trial judge
    to assist a self-represented accused is a heavy one. It is not enough that the
    verdict at the end of the trial is or appears correct. What matters is whether
    the trial has been fair for the self-represented accused:
R. v. Tran
(2001),
    156 C.C.C. (3d) 1 (Ont. C.A.), at para. 22.

[52]

The appellant submits that the trial judge did
    not provide helpful responses to questions the appellant raised, and that he
    displayed impatience, imbuing the proceedings with an air of unfairness. He
    also argues that the trial judge failed to provide the necessary guidance and
    assistance to the appellant in connection with three specific matters:


i.

the appellants desire to re-open
    cross-examination of witnesses called by the Crown who had been cross-examined
    by trial counsel before he was discharged;


ii.

the decision of the appellant about whether to
    testify; and


iii.

calling witnesses to testify for the defence.

[53]

The appellant also submits that the trial judge
    should have adjourned or slowed-down the trial to allow the appellant to be
    better prepared or to make decisions without being rushed.

[54]

I do not accept these arguments.

[55]

The assistance and guidance that the trial judge
    had to provide was that necessary to ensure the appellant had a fair trial, not
    a perfect trial, nor the exact trial the appellant would have had if he
    continued to be represented by counsel. In deciding how to accomplish this, the
    trial judge had to exercise his discretion based on the context.

[56]

Here, the context included the fact that the
    bulk of the trial was conducted while the appellant was represented by counsel,
    the appellant had chosen to discharge counsel, the appellant was in custody, and
    the appellant was legally untrained.

[57]

To address the circumstance that the appellant
    was taking over the conduct of his defence from counsel while in custody, the
    trial judge ensured that the appellant was given access to the Crown disclosure
    and his counsels notes so that he could have them over the weekend before the
    trial resumed. The Crown provided him with a copy of the
Code
and the
    cases that the appellant said he wanted. The trial judge directed that a laptop
    be made available to the appellant if reasonably possible by the institution in
    which the appellant was in custody. Finally, the trial judge directed that arrangements
    be made so that the appellant would have access to a telephone while in the
    courthouse to make calls to a lawyer.

[58]

In terms of the overall responsiveness of the
    trial judge to the appellants need for guidance and assistance, the trial
    judge provided the appellant with a comprehensive information package about the
    remaining steps in the trial including the cross-examination of witnesses, an
    accuseds decision whether to testify, and the making of closing submissions.
    The trial judge advised the appellant of the importance of this package and on multiple
    occasions reminded him that he should review it. The trial judge supplemented
    this with his own explanations. He provided guidance to the appellant regarding
    cross-examining the remaining Crown witnesses. He provided the appellant with a
    summary of the Crown evidence before he had to call his defence to assist in its
    preparation. He gave the appellant assistance about calling witnesses, such as
    by providing the appellant with an information sheet on summoning witnesses. He
    explained the considerations that go into deciding whether to testify, as well
    as guidance on what to focus on in closing. He drafted both the summary of the
    Crown position and the defence position for his jury charge so that the
    appellant would not be at any disadvantage due to drafting ability. He
    encouraged the appellant to seek assistance from the lawyer on his other case
    and from duty counsel on any decision he needed to make.

[59]

At times, the trial judge reacted sternly or
    with impatience toward the appellant. But against the backdrop of the
    substantial guidance and assistance the trial judge did provide, I am not
    persuaded that those occasional reactions deprived the appellant of basic
    procedural fairnessthe hallmark of a fair trial:
R. v. Harrer
, [1995]
    3 S.C.R. 562 at para. 45.

[60]

Nor was the appellant deprived of a fair trial
    because of a failure of the trial judge to explain the process by which Crown
    witnesses, who had testified and been cross-examined by trial counsel, could be
    re-called so that the appellant could re-cross-examine them. Other than the
    appellants assertion to the trial judge that his counsels cross-examination
    was improper, nothing was provided to the trial judge to justify re-calling
    any witnesses. Moreover, there is nothing in the appellants argument in this
    court that identifies the deficiencies in counsels cross-examination or why
    further cross-examination should have been entertained.

[61]

There was no meaningful lack of guidance and
    assistance offered to the appellant on the decision about whether to testify.
    The appellant had been represented by counsel until May 8. He was provided with
    an information package covering this decision on that day. He was also encouraged
    to consult the lawyer acting for him on another matter for any additional
    assistance. He had until May 12 to consider the options. In these
    circumstances, his decision not to testify does not indicate that he received
    less than a fair trial.

[62]

Similarly, there was no lack of meaningful
    guidance and assistance concerning the calling of defence witnesses. On May 8,
    the appellant was given an information sheet about calling witnesses and was
    told by the trial judge that this was the time for him to summon his witnesses.
    Court assistance was provided for the immediate issuance of as many subpoenas
    as the appellant wanted. The appellant decided to subpoena one witness who testified
    on May 12. The appellant has not supported his complaint that he was not given a
    later opportunity to subpoena more unspecified witnesses with anything
    suggesting who they were, why they were not summoned for May 12, or what
    relevant information they would have had.

[63]

I see no merit in the appellants argument that
    the trial judge failed to sufficiently slow the pace at which the trial
    proceeded from May 8, when the appellant discharged his trial counsel, to May
    15, when the verdict was rendered.

[64]

At the time of the discharge of trial counsel,
    the Crowns case was almost complete, and the jury had been hearing the case
    since April 28. The appellant had received the benefit of counsel through most
    of his case. Nevertheless, the appellant was afforded additional timing
    accommodations. He was given from May 8 to May 12 to start his defence, and to
    decide if he would testify. On May 12, after calling one witness, and electing
    not to testify, he was given a further day to prepare his closing submissions.
    On May 13, even though he had called evidence, he was given the benefit of
    listening to the Crowns closing before making his own. He was given a further
    short break before beginning his closing.

[65]

In addition to the accommodations required by
    the appellant, the trial judge was entitled to consider the public interest in
    seeing the proceedings conclude in a timely way. (A) fair trial is a trial
    that appears fair, both from the perspective of the accused and the perspective
    of the community:
Harrer
, at para. 45. I see no error in the manner
    in which the trial judge took into account these interests and controlled the
    pace of the trial to its conclusion.

Ground (iv): The Failure to Reconsider the Similar Fact
    Evidence Ruling

[66]

One of the pre-trial rulings made by the trial
    judge was to allow the Crown to call evidence of the appellants conduct toward
    his former partner, C.D.G., as similar fact evidence admissible on the charges
    of sexual assault and criminal harassment. The appellant does not take issue
    with the correctness of that ruling. He argues, however, that when the evidence
    of C.D.G. was led, it varied from what had been presaged before trial. He
    submits that the trial judge should have revisited its admissibility on the
    sexual assault charge. He also submits that the trial judge erred by failing to
    correct the Crowns invitation, in closing to the jury, to use the evidence of
    C.D.G. on the sexual assault charge. He makes neither complaint in relation to
    the criminal harassment charge.

[67]

I would not give effect to this ground of
    appeal.

[68]

When the evidence of C.D.G. was led, the
    appellant was represented by trial counsel. No request to revisit the earlier ruling
    was made to the trial judge.

[69]

More importantly, when the evidence was led, the
    trial judge gave a mid-trial instruction to the jury that they could not infer
    the appellants guilt because he had committed offences or engaged in other
    conduct against C.D.G. He also told them: At the end of the trial I will tell
    you how this evidence may be used.

[70]

When charging the jury at the end of the
    trial, the trial judge told them that they were required to follow his
    instructions on legal matters, in preference to what counsel may have said to
    them. He repeated how they were not permitted to use the similar fact evidence,
    and told them the only ways in which they were permitted to use it, which was
    in relation only to the charge of criminal harassment.

[71]

To the extent that the pre-trial ruling as to the
    charges on which the similar fact evidence was admissible needed to be revised,
    it was. The jury was never told by the trial judge that they could use the
    evidence on the sexual assault chargehe told them the opposite. Moreover, in
    light of the clear instruction to the jury that they could only use the
    evidence on the charge of criminal harassment, no other correction of what the
    Crown had said about the use of the evidence was required.

Ground (v): The Failure to Adequately Instruct the Jury on
    Consent

[72]

The trial judge instructed the jury on the issue
    of consent as follows:

Consent is required regardless of whether the
    parties are married, in a common law relationship or acquaintances. It matters
    not. The other person's consent to the physical contact is required. To decide whether
    [N.S.] consented to the physical contact, you must consider [N.S. 's] state of
    mind. Consider all the evidence, including the circumstances surrounding [the
    appellants] physical contact with [N.S.], to decide whether [N.S.] consented
    to it. Take into account any words or gestures, whether by [the appellant] or
    [N.S.], and any other indication of [N.S.' s] state of mind at the time. Just
    because [N.S.] submitted or did not resist does not mean that [N.S.] consented
    to what [the appellant] did. Consent required [N.S.'s] voluntary agreement, without
    the influence of force, threats, fear, fraud or abuse of authority to let the
    physical contact occur.

Unless you are satisfied beyond a reasonable
    doubt that [N.S.] did not consent to the application of force, you must find [the
    appellant] not guilty. Your deliberations would be over. If you are satisfied
    beyond a reasonable doubt that [N.S.] did not consent to the application of
    force, you must go on to the next question.

[73]

The appellant argues that the charge failed to
    distinguish between the two steps of the consent inquiry required by the
    decision of the Supreme Court of Canada in
R. v. Hutchison
, 2014 SCC
    19, [2014] 1 S.C.R. 346. The first step is to determine whether the evidence
    establishes that there was no voluntary agreement of the complainant to engage
    in the sexual activity in question under ss. 273.1(1) and it
    requires proof that the complainant did not voluntarily agree to the touching,
    its sexual nature, or the identity of the partner. If the complainant
    consented, or her conduct raises a reasonable doubt about the lack of voluntary
    agreement to the sexual activity in question, the second step is to consider
    under ss. 265(3) and 273.1(2) whether there are any
    circumstances that may vitiate the complainants ostensible consent.

[74]


Subsection 265(3) of the
Code
provides that consent is not
    obtained if the complainant submitted or did not resist due to, among other
    things, threats or fear of the application of force to the complainant or
    another person.

[75]

The appellant argues that the jury should have
    been specifically instructed to first consider whether there was voluntary
    agreement, and if so, to go on to consider the consent vitiated only if there
    were threats or fear of the application of force.
[3]
The appellant argues that because the jury was not instructed to
    follow the two-step process, it could have found that N.S. voluntarily agreed
    to sexual activity, but improperly thought that the consent was vitiated due to
    a generic or generalized fear of continuing argument, rather than what the
Code
requires, a fear of the application of force.

[76]

I would not give effect to this argument
.

[77]

Where a person does not actually choose to
    participate in the sexual activity, there is no voluntary agreement. The
    absence of this subjective mental statevoluntary agreement to participate in
    sexual activityestablishes the requisite
actus

reus
of the
    offence, and makes it unnecessary to enter into an inquiry as to whether ss.
    265(3) or 273.1(2) applies to vitiate the consent
: R v. Ewanchuk
, 1999
    SCC 711, [1999] 1 S.C.R. 330 at paras. 39-40;
R v. Stender
(2004), 72
    O.R. (3d) 223 (C.A.) at paras. 45-54, affd 2005 SCC 36, [2005] 1 S.C.R. 914;
R.
    v. G.F.
, 2019 ONCA 439, 146 O.R. (3d) 289, at paras. 42, 46, leave to
    appeal granted, [2019] S.C.C.A. No. 331.

[78]

This was not a case, like
Hutchison
, where
    an ostensible voluntary agreement was vitiated by fraud later discovered by the
    complainant. Here, the issue was whether there was any voluntary agreement at
    all.

[79]

The Crowns case turned on the credibility of
    the complainant. Her evidence was of an absence of any voluntary choice to
    participate in sexual activity. She testified that she did not want to engage
    in sexual activity, never communicated consent, and only engaged because she
    felt she had no choiceotherwise she would not be allowed to go home. Neither
    her evidence, nor the Crowns theory at trial, presented a situation of an ostensible
    voluntary communicated consent requiring a separate second step consideration
    of whether that consent was vitiated.

[80]

The adequacy of the instruction is a function of
    whether it allowed the jury to comprehend the case and equipped them to fulfil
    their adjudicative mandate on the sexual assault charge, given the evidence and
    the theory of the case:
R. v. Bonnell
, 2015 NBCA 6, 321 C.C.C. (3d)
    247 at para. 84, leave to appeal refused, 2015 CarswellNB 311. In my view, the
    instruction given met that standard. The jury was asked whether N.S.
    voluntarily agreed to engage in sexual activity without the influence of force,
    threat, fear, fraud, or abuse of authority. In the context of this case, the
    instruction directed them to consider whether N.S. had made an actual voluntary
    choice to participate in sexual activity. The appellant was not prejudiced in
    this case by the instruction given.

CONCLUSION

[81]

I would therefore dismiss the appeal.

Released: March 4, 2021 G.R.S.

B.
    Zarnett J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. David Watt J.A.





[1]
The appellant at times offered reasons why he wanted to discharge
    counsel, but the trial judge advised him it was unnecessary and inadvisable for
    him to elaborate on them.



[2]
In fact, the appellant was represented by counsel for sentencing.
    On March 29, 2016 he was designated a dangerous offender and received a global
    sentence of 7.5 years less 5 years of credit for pre-trial custody, and a
    10-year Long Term Supervision Order.



[3]
The trial judges charge largely followed the specimen charge in
    use at the time of the trial, which began in the month that
Hutchison
was decided. The specimen
    charge was updated in 2015: David Watt,
Watts
    Manual of Criminal Jury Instructions
, 2nd ed.

(Toronto: Carswell,
    2015).


