COURT OF APPEAL FOR ONTARIO
Juriansz J.A. (In Chambers)
BETWEEN
Her Majesty the Queen
Respondent
and
Brandon Adamson
Applicant/Appellant
Lance Beechner, for the applicant
Megan Stephens, for the respondent
Heard: July 29, 2014
On application for the appointment of counsel pursuant to section 684 of the Criminal Code.
ENDORSEMENT
1This is an Application for an order pursuant to s. 684(1) of the Criminal Code appointing counsel to represent the applicant in his appeal against his convictions for attempted murder, assault with a weapon, break and enter and aggravated assault. He was granted a Legal Aid Certificate for his sentence appeal and refused a Certificate for his convictions appeal.
2The Crown concedes that he is without the means to retain counsel privately, that the appeal, while weak, has sufficient merit to meet the threshold required by s. 684(1), and that the applicant cannot personally present his appeal effectively. The question is whether the court can properly decide the appeal without the assistance of counsel.
3Counsel for the applicant advanced a thoughtful argument that the existence of the Inmate Duty Counsel Program should not be a relevant consideration in determining a s. 684 application. He provided the court with the Legal Aid Bylaw relating to the “Ontario Inmate Appeal Duty Counsel Program”, and a number of affidavits and letters of experienced defence counsel who regularly act as duty counsel in the Program. Relying on this material he submitted that it is not the intention of the Duty Counsel Program to supplant the Legal Aid Ontario Certificate Program, and that it cannot be assumed that duty counsel will take on each and every matter. He said the Duty Counsel Program relies on the sympathy, empathy and desire for accessible justice of defence counsel who essentially work on a volunteer basis. If s. 684 applicants were denied funding solely because of the existence of the Duty Counsel Program, some duty counsel might rethink their participation in the Program. The Program would not be sustainable in the longer term.
4In response Crown counsel was careful to place no reliance on the presumed availability of duty counsel in this case. She submitted that the appeal could be dealt with in the inmate stream without duty counsel and still satisfy the interests of justice. She submitted that the record required would not be large. The jury charge, the pre-charge conference, the draft charge provided in writing ahead of time, were already available. The only additional material needed might be the closing addresses of counsel. She pointed out that the three identified grounds of appeal all relate directly to the jury charge. She submitted that even if the charge were found to be technically deficient in some way, the Crown would have a compelling argument that the curative proviso would apply. Granting the young applicant could not advance the legal arguments on his own, she stated the basis of his appeal was clearly articulated in the material filed on this motion. That material, she said, could be included in the Appeal Book. Finally, she submitted, as was recognized in R. v. Bernardo, 1997 CanLII 2240 (ON CA), [1997] O.J. No. 5091, at para. 26, that Crown counsel at the hearing of the appeal could be relied on to alert the court to matters that were favourable to the appellant and to assist him in making his submissions.
5I am persuaded it appears desirable in the interests of justice that the applicant should have legal representation for his convictions appeal. He is young, just 19 at the time, and has been convicted of extremely serious offenses. Even if his sentence appeal is successful he faces a substantial term of imprisonment. That the appeal has sufficient merit is conceded. Judicial economy would be served by having his sentence appeal and convictions appeal proceed together in the same stream. Counsel on his sentence appeal will already have some familiarity with the trial proceeding. Much more of the record might be required to properly address the application of the curative proviso. Crown counsel should not be placed in difficult position of arguing the curative proviso applies and at the same being expected to assist the applicant in making submissions why it doesn’t apply. It is desirable in the interest of justice that the applicant has his own advocate.
6This endorsement is to be provided to the Legal Aid Director. If the Director does not issue a certificate, the applicant will be represented by counsel appointed under s. 684(1) and counsel’s fees and disbursements, including preparation for and attendance on this motion shall be paid by the Attorney General under s. 684(2) of the Criminal Code.
“R.G. Juriansz J.A.”