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. Pieszkor’s first language.

[3]                The thrust of Mr. Pieszkor’s 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. Pieszkor’s 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 applicant’s cross-examination of the complainant, and in terminating the applicant’s own evidence in chief. 

[9]                Neither of those matters raises an issue of law alone.  Both relate to the exercise of the trial judge’s 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”