CASE NO. VOLUME PAGE
Cite as: R. v. Halnuck, 1996 NSCA 148
PAUL JOSEPH HALNUCK HER MAJESTY THE QUEEN
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(Appellant) (Respondent)
C.A.C. No. 106370 Halifax, N.S. Clarke, C.J.N.S.
Hart, J.A., Concurring
Jones, J.A., Dissenting
APPEAL HEARD: March 29, 1996
JUDGMENT DELIVERED: May 29, 1996
SUBJECT: CRIMINAL CODE, Murder, First Degree, s. 235(1)
defence of drunkenness
degree of assistance required to make full answer and defence
ineffective representation of counsel
SUMMARY: Mr. Halnuck went to his wife's apartment in the early morning hours of April 30, 1992. They were estranged. He had made threats on her life. She was afraid of him. Their apartment door was kicked in. There was blood on the floor and walls outside her apartment door. She was found dead on the kitchen floor with the appellant lying on top of her sobbing and crying. She was partially clothed. It appears she had been sexually assaulted. Two bent forks and a knife of the kitchen variety were near her lifeless body. She had been stabbed and her body mutilated. The appellant was covered with blood on his face, hands and clothing.
After the appellant was charged with first degree murder, he had the services of a series of experienced defence counsel, all of whom he discharged. The jury trial was underway when he discharged his last counsel. Thereupon he informed the trial judge that he wished to represent himself. The trial judge agreed. After cross-examining a series of Crown witnesses, and after several adjournments and other accommodations granted by the trial judge, the appellant adopted a policy of refusing to continue the cross-examination of witnesses, refusing to call witnesses although he had subpoenaed a series, and refusing to address the jury. On every occasion he kept saying to the trial judge that for the record he was unable to continue without the assistance of counsel. The jury found him guilty of first degree murder and the trial judge sentenced him. At his appeal he was represented by counsel from Nova Scotia Legal Aid.
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ISSUES: 1. Did the trial judge fail to instruct the jury on the defence of drunkenness.
2. Did the trial judge fail to provide the assistance required by the appellant to make full answer and defence during the time he was unrepresented.
3. Was the appellant denied the right to make full answer and defence by the ineffective representation of counsel.
RESULT: (a) The Court, by a majority decision, dismissed the appeal.
(b) On the first issue they found that there was insufficient evidence of intoxication to require the trial judge to put the defence of drunkenness to the jury. They concluded the trial judge had placed all evidence relevant to that issue fairly and adequately to the jury.
R. v. Osolin (1993), 86 C.C.C. (3d) 481, (S.C.C.), Mr. Justice Cory at 528; Supreme Court of Canada in R. v. Lemky, [1996] S.C.J. No. 33, judgment delivered March 21, 1996.
(c) On the second issue the majority concluded on an analysis of the record that the trial judge had provided the appellant, during that portion of the trial that he was unrepresented, with assistance in keeping with the reasonable standards that could be expected from a trial judge.
R. v. McGibbon (1988), 45 C.C.C. (3d) 334, (Ont. C.A.) at p. 347; R. v. Kennie (G.D.) (1993), 121 N.S.R. (2d) 91 at 97 (para. 9).
(d) On the third issue the majority included the appellant during the time that he was unrepresented received a fair trial and that his efforts were intentionally directed toward obstructing the trial rather than the assertion of his rights.
R. v. Beals (E.W.) (1993), 126 N.S.R. (2d) 130; R. v. Taylor (J.W.) (1995), 142 N.S.R. (2d) 382; R. v. Howell (1995), 103 C.C.C. (3d) 302; Spataro v. The Queen (1972), 7 C.C.C. (2d) p. 1 (S.C.C.); Regina v. Thorpe (1976), 32 C.C.C. (2d) 46 at p. 49.
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(e) The dissenting opinion is primarily based on the third issue. Affidavit evidence introduced at the appeal confirmed that a lawyer who had represented the appellant at his preliminary gave pro bono advice to a cousin of the appellant during the trial. The advice was to the effect that the appellant should not cross-examine, nor call evidence, nor testify, nor address the jury but "explain to the Court he was unable to represent himself and at every opportunity renew his request for an adjournment and appointment of counsel". The appellant followed this course of conduct although the source of it and background for it was unknown to the trial judge.
The Justice in dissent concluded there was a miscarriage of justice in the conduct of the trial. He was satisfied there was a reasonable probability that, but for the unprofessional errors of counsel, the result of the trial may have been different. He would have allowed the appeal, set aside the conviction and ordered a new trial.
Regina v. W.W. and I.W. (1995), 100 C.C.C. (3d) 225 at p. 232; R. v. L.C.B., [1996] O.J. 283 No. C7018; R. v. E.R.S. 149 A.R. and 63 W.A.C. 285, a decision of the Alberta Court of Appeal in 1994; United States v. Cronic 104 S.Ct. 2039, Mr. Justice Stevens in delivering the judgment of the Supreme Court of the United States, at p. 2046; R. v. Deneault (R.Y.) (1993), 33 B.C.A.C. 156; 54 W.A.C. 156 (C.A.), the British Columbia Court of Appeal; R. v. Joanisse 102 C.C.C. (3d) 35 at p. 57.