R. v. Vaughan, 2007 ONCA 803

ENDORSEMENT

1Gerald Michael Vaughan applies for leave to reopen appeals from dispositions made by the Ontario Review Board in 2005 and 2006, which were dismissed by a panel of this court on April 11, 2007 as moot.

2We see no reason to grant leave to permit these appeals to be reopened for hearing on their merits.

3In support of his application, Mr. Vaughan relies on the decision of this court in R. v. LePage (2006), 2006 37775 (ON CA), 214 C.C.C. (3d) 105. His reliance is misplaced. In LePage, unlike here, the detainee had not taken an appeal against the prevailing disposition. Here, on the other hand, Mr. Vaughan has an appeal outstanding against the Board’s current disposition under which he is detained. What is more, he was offered the opportunity of proceeding with that appeal today but, for reasons of his own, declined to do so.

4The appeal against the 2007 disposition raises the same issues as had the appeals from the dispositions of 2005 and 2006. A review of the notice of appeal filed in connection with the 2007 disposition contains the same allegations of constitutional infringements that appeared in the corresponding notices from the 2005 and 2006 dispositions. Nothing raised in the appeals dismissed as moot is absent from the current outstanding appeal. In other words, the applicant is not deprived of an opportunity to litigate the same issues on the appeal from the disposition to which he is currently subject.

5Finally, Mr. Vaughan seeks an order from this court appointing counsel for him under s. 684 of the Criminal Code. Although amicus curiae was previously appointed by the court (and Mr. Brodsky appeared before us today in that capacity), Mr. Vaughan correctly points out that Mr. Brodsky is not his counsel and that no privilege attaches to any communications Mr. Vaughan may have with the amicus for the purpose of receiving legal advice. Mr. Vaughan wishes his own counsel, both for the purpose of his pending appeal and to receive advice about a constitutional challenge to part XX.1 of the Criminal Code that he today indicated he apparently wishes to bring.

6In our view, it is desirable in the interests of justice that Mr. Vaughan have the benefit of legal counsel concerning his pending appeal. He has been unable to secure legally-aided assistance. The Crown, we note, does not oppose Mr. Vaughan’s request for the appointment of counsel, although Mr. Scrutton queried Mr. Vaughan’s need for such counsel. We are satisfied that such a need exists and, as we have said, that counsel should be so appointed. Accordingly, we direct that counsel be appointed for Mr. Vaughan under s. 684 of the Criminal Code in respect of his pending appeal. Mr. Vaughan shall inform the court by letter or email to the registrar of the court of his choice of counsel within twenty-one days of this date and of that counsel’s willingness to serve. In the absence of any indication that counsel has been retained, this order appointing counsel shall expire and the appointment of Mr. Brodsky as amicus curiae shall continue. If named counsel for Mr. Vaughan is appointed in accordance with these reasons, Mr. Brodsky shall be free to move before this court for an order removing himself as amicus curiae.

7Mr. Vaughan is at liberty to raise with his counsel appointed in accordance with these reasons such constitutional issues relevant to his pending appeal as he considers necessary. It is also open to him to seek the assistance of his counsel to expedite the hearing of his pending appeal.

8For these reasons, the motion to reopen is dismissed. The motion to appoint counsel under s. 684 of the Criminal Code is allowed in accordance with these reasons.