Appeal by accused from his convictions for assault, mischief under $5,000 and uttering threats. When trial commenced on April 19, 2011 accused’s request for adjournment to retain counsel was denied. On first day of trial accused was unrepresented but on second day, which occurred on May 31, 2011 he had benefit of counsel. On appeal accused applied for leave to introduce fresh evidence. Appeal allowed. Fresh evidence, which consisted of prior inconsistent statements, was not admitted because it could have been adduced at trial if accused exercised due diligence; evidence was not decisively relevant to trial; it was not reasonably capable of belief; and evidence could not have reasonably affected result. Trial judge did not err in not granting adjournment for accused was represented for remainder of trial and any deficiencies in first day of trial were cured when accused’s counsel appeared at continuation of trial. However, judge prevented accused, when he was unrepresented, from mounting what could have been meritorious attack on complainant’s credibility. While some intervention and assistance was obviously appropriate in case of unrepresented accused, judge went far beyond bounds of propriety and he effectively stopped accused from mounting defence. On this ground of appeal, in which judge impaired accused’s ability to present his case, convictions were set aside and new trial was ordered. Appeal was also allowed and new trial was ordered because judge failed to address major inconsistencies in witnesses’ evidence. Judge did not meet his duty to assess whole of evidence and this made it incumbent on appellate court to intervene.
R. v. McQuillan (Aug. 26, 2013, Ont. S.C.J., J.E. Ferguson J., File No. Cobourg 915/11) 109 W.C.B. (2d) 255.