Court of Appeal for Ontario

Date: 2017-04-13

Docket: M47639 (C62159)

Lauwers J.A. (In Chambers)

Between

Her Majesty the Queen Respondent

and

James McCullough Applicant/Appellant

Counsel

Catriona Verner, for the applicant

Elise Nakelsky, for the respondent

Heard

April 4, 2017

Application for the Appointment of Counsel

Application for the appointment of counsel pursuant to s. 684(1) of the Criminal Code.

Endorsement

[1] Overview

[1] James McCullough was convicted of first degree murder and of committing an indignity to a human body. He applies for the appointment of publicly-funded counsel under s. 684(1) of the Criminal Code to argue his appeal.

[2] For the reasons that follow, I allow the application on a limited basis.

A. Overview

[3] The applicant was tried by Pomerance J. of the Superior Court of Justice sitting with a jury. Following his conviction he was sentenced to life imprisonment without parole for 25 years.

[4] The basic facts are not in dispute. The applicant and the deceased took a taxi from Orangeville to a hotel in London. Sometime after checking in, the applicant killed the deceased, dismembered him and placed the body parts into two hockey bags. Some tissue was found to be missing from the deceased's arm.

[5] The Crown's theory was that the applicant planned the deceased's murder in order to act out his fantasies of murder, dismemberment and cannibalism. The defence position was that the applicant was provoked to kill the deceased by an unwanted sexual advance and attempted sexual assault. The applicant acknowledges the use of disproportionate force, but asserts that he is guilty only of manslaughter or, at worst, second degree murder.

B. The Governing Principles

[6] Section 684(1) of the Criminal Code provides for the appointment of appellate counsel in certain circumstances:

684(1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.

[7] The elements of the test under s. 684(1) of the Criminal Code were summarized by Gillese J.A. in R. v. Staples, 2016 ONCA 392, at para. 34:

1. Does the applicant have the means to hire counsel privately?
2. Has the applicant advanced arguable grounds of appeal?
3. Does the applicant have the ability to effectively advance his or her appeal without the assistance of counsel?

[8] The court must be satisfied, in the words of s. 684(1), that: "it appears desirable in the interests of justice that the accused should have legal assistance". The onus is on the applicant: R. v. Abbey, 2013 ONCA 206, at para. 31. In Abbey, Watt J.A. observed, at para. 29, that the phrase, "the interests of justice", is a "legal chameleon that takes its meaning from its surroundings" and explained that it "contemplates a judicial discretion exercisable on a case-by-case basis", citing R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16.

[9] Justice Watt noted at para. 30 of Abbey:

The "interests of justice" in s. 684(1) must take cognizance not only of the broad access to appellate review contemplated by s. 675 of the Criminal Code, but also of the expansive remedial powers of a court of appeal for which s. 686 provides. Justice demands that an accused who appeals against conviction for an indictable offence under s. 675 be afforded a meaningful opportunity to establish the merits of the grounds of appeal he or she advances. Justice demands, equally, that the court to which the appeal is taken be able to fully and properly exercise its broad review jurisdiction at the conclusion of the appeal: Bernardo, at para. 20.

[10] After it is established that the accused does not have the means to hire counsel privately, which is conceded by the Crown here, s. 684 requires the court to undertake two inquiries. The first is into the merits of the appeal on the basis of the record. Given that, as in this case, the available record will often be incomplete, Watt J.A. stated in Abbey, at para. 32, "the merits inquiry simply requires the judge … to determine whether the grounds of appeal to be advanced are arguable", citing Bernardo, at para. 22. He added: "This standard or threshold of an arguable case is a modest one".

[11] The second inquiry is that after arguable grounds are found to exist, the judge must determine whether the applicant is able to argue the appeal without counsel's assistance. I now undertake the inquiries.

C. The Merits of the Appeal

[12] The focus of the proposed appeal is set out in Mr. Lockyer's appeal letter to Legal Aid Ontario. The applicant would attack the trial judge's pre-trial ruling on the Crown's theory of the case, and her rulings on the admissibility of several pieces of evidence: R. v. McCullough, 2016 ONSC 1014.

(1) The Ruling on the Crown's Theory of the Case

[13] The trial judge determined that the Crown would not be permitted to advance the theory that the applicant had cannibalized the deceased's remains. She found the evidence to be "too speculative to be placed before the jury", at para 21, and stated, at para 23: "There is not sufficient evidence to indicate that an act of cannibalism occurred, and this allegation shall not be placed before the jury." She ruled accordingly that the charge of indignity to a human body "shall be restricted to an allegation that the accused dismembered the body of the deceased."

[14] While the applicant agrees with this ruling, he disputes her conclusion that the Crown could pursue its theory that the applicant planned the deceased's murder in order to act out his fantasies of murder, dismemberment and cannibalism.

(2) The Rulings on the Evidence

[15] The Crown sought to adduce three pieces of evidence supporting its theory, described by the trial judge in para. 28, that "the accused's desire to cut up and eat a person was the motive behind the murder."

(a) The Applicant's Conversation with Brendan Carmichael

[16] The applicant had a conversation with a psychiatric nurse, Brendan Carmichael, a year before the deceased was killed, in which he expressed an interest in killing and in cannibalism. The trial judge summarized the evidence, at para. 27:

Mr. McCullough told the nurse that he had killed cats and cut up their insides. He said that he would do the same with a person and would consider eating it. He stated that, when you eat someone you take on their traits, you get their good qualities and their muscles.

[17] The trial judge concluded that the probative value of the nurse's evidence exceeded its prejudicial effect (at para. 32). She found there to be "a logical nexus between the statements to Mr. Carmichael and the circumstances of the offence" given "the highly specific and unusual manifestation of violence – the dismemberment of a human body and consumption of the flesh" (at para. 29). She was confident that a limiting jury instruction would allay the prejudicial effect.

[18] The applicant's counsel argues the evidence of Mr. Carmichael should have been admitted only with the references to cannibalism removed because it was overwhelmingly prejudicial and of limited probative value.

(b) The Rap Lyrics

[19] The second item of evidence the Crown wanted to introduce was a sheet containing rap lyrics written by the applicant. The police found it in searching the applicant's home after the murder. The Crown argued the lyrics demonstrated the applicant's fascination with murder, dismemberment and cannibalism:

Its me when I come thru the scene, homie, another day another dollar. Only things in my dreams is your girl and your money, homie thinks im joking but aint a damn thang funny,

I'll dig ur pockets breack and jaw and ram a knife thru your tummy

You aint been thru half the shit I been through, ill go through, your whole crew, a routine used to

Chop em up and mail their parts to you

Im so fucking sick my favorite drink is the blood of a jew,

Always in the kitchen cooking but its never stew

Homie pass the pipe time for this rack to brew

[20] The trial judge instructed herself, at para 36:

There is a risk that rap lyrics may be misinterpreted thus inflating the probative value of the evidence. The courts must be cautious in admitting this type of evidence: see R. v. Simard, 2000 SCC 61, as discussed in David Tanovich, R. v. Campbell: Rethinking the Admissibility of Rap Lyrics in Criminal Cases (2016), 24 C.R. (7th) 27, at p. 33.

[21] The trial judge considered, at para. 38, whether there was "a concrete nexus between the specific details of the lyrics and the specific details of the crime" and found, at para. 39, there to be "an interconnection between the lyrics, the crime, and other evidence." In her view, the applicant's statements to Mr. Carmichael provided "a context that strengthens the nexus between the lyrics and the crime" (at para. 39). She considered the evidence to be "sufficiently probative" to put to the jury, along with a limiting instruction "to circumvent the potential for prejudicial reasoning" (at paras. 42-43).

[22] Applicant's counsel submits the trial judge accurately described the rap lyrics in the jury charge as "graphic and morbid and could be seen by some to be repulsive." Counsel points out that the trial judge's discussion of dismemberment did not rely on the applicant's ideation of cannibalism, and argues the rap lyrics ought to have been edited to remove any possible allusions to cannibalism.

(c) The Dexter Photograph

[23] The police found a photograph of the lead actor in the TV series "Dexter" in the applicant's backpack. This is a character who murders people, dismembers them and disposes of the body parts. The trial judge excluded it on the basis that it did not have "sufficient probity". I include this detail to complete the context for the trial judge's rulings.

(3) The Principles Respecting the Merits Inquiry Applied

[24] The Crown opposes the application on the basis that the appeal does not have sufficient merit to warrant the appointment of counsel for the applicant at public expense.

[25] It is not my task in an application for the appointment of publicly-funded counsel under s. 684(1) of the Criminal Code to decide the merits of the appeal, but only to determine whether they are arguable.

(a) The Crown's Position

[26] On the relevance of the applicant's cannibalistic ideation, the Crown points to the distinction the trial judge made, at paras. 22-24 of her ruling, between an act of cannibalism and the ideation of cannibalism. She did not allow the Crown to proceed with cannibalism as an allegation within the offence of committing an indignity to a human body because there was no evidence the applicant consumed the deceased's flesh. The Crown argues that the ideation of cannibalism is quite distinct, and was part of the applicant's motivation for the killing. The trial judge understood the difference and allowed the Crown to proceed because the evidence of cannibalistic ideation was strong and relevant to the applicant's state of mind and his motivation.

[27] The Crown accordingly takes the position that trial judge "properly admitted the applicant's utterances to Nurse Carmichael and his rap lyrics as evidence of his ideations of cannibalism on the basis that it was relevant to his motive for the murder." The Crown adds that the trial judge "committed no error of law in her probative versus prejudicial analysis and deference ought to be given to her judgment in this regard." The Crown argues that the limiting instruction in relation to cannibalism was sufficient, as was the limiting instruction regarding the use of the rap lyrics and the precise and correct use to be made of the bad character evidence.

[28] Finally, even if it was an error for the trial judge to permit the reference to cannibalism, the Crown submits the error is of minor importance because the evidence of the applicant's planning and deliberation was significant, so that "this was an overwhelming case of first degree murder".

(b) The Applicant's Position

[29] The nub of the proposed appeal is this: the applicant will argue that the trial judge rightly ruled that the Crown could not pursue the theory that the applicant had cannibalized the deceased. That ruling rendered irrelevant any evidence related to the applicant's cannibalistic ideation. But then, inconsistently with this ruling, the trial judge permitted the Crown to advance the theory the applicant planned the deceased's murder in order to act out his fantasies of murder, dismemberment and cannibalism. The evidence was laced with prejudicial references to cannibalism, made considerably more salient because some of the deceased's tissue was missing.

[30] The applicant would argue that the trial judge got the probative value versus prejudicial effect balance right on the initial cannibalism ruling. However, the evidentiary rulings got the assessment of the probative/prejudicial balance wrong. The result, was a difficult jury charge that did not correct but instead compounded the prejudice, and inevitably led the jury to find the applicant guilty of first degree murder in the face of the otherwise available convictions of second degree murder and manslaughter.

(4) Conclusion on the Merits Inquiry

[31] As I noted earlier, it is not my task to decide the appeal, but only to decide if the merits are arguable. Moreover, it is incumbent on me to do little more than describe the parties' arguments in view of the disposition of this application. I should avoid expressing a view on matters that will be the subject of a panel's deliberations. As Watt J.A observed in Abbey, at para 32: "This standard or threshold of an arguable case is a modest one". Put simply, I find that the applicant has met that modest standard. I am persuaded that the trial judge's admission of the statements to Mr. Carmichael and the rap lyrics gives rise to arguable grounds of appeal. This is particularly so given the relatively unsettled state of the law in relation to the admission of evidence of rap lyrics.

[32] I turn to the second s. 684 inquiry.

D. Can the Applicant Argue the Appeal Alone?

[33] I must now determine whether the applicant should be left to argue this appeal on his own. In Abbey, at para. 33, Watt J.A. explained: "This inquiry examines the complexities of the arguments to be advanced and the appellant's ability to make legal argument in support of the grounds of appeal to be advanced".

[34] The Crown submits this applicant could effectively present his appeal without the help of a lawyer, particularly since Mr. Lockyer's opinion letter appealing Legal Aid Ontario's refusal to fund the appeal argues the legal issues very well.

[35] I disagree. The stakes for the applicant in the appeal, with a conviction for first degree murder, could not be higher. In my view, this appeal contemplates a complex and nuanced legal argument that requires careful excavation of the facts, the evidence, the jury charge and the law. The exercise would daunt many lawyers, let alone a lay person like the applicant, who is unsuited to the task by experience, education, capacity and personal disposition.

[36] To paraphrase Watt J.A. in Abbey, in this case justice demands that the applicant be given a meaningful opportunity to establish the merits of the grounds of appeal, something he cannot do on his own. Justice also demands that the panel hearing the appeal be properly assisted by competent counsel.

E. Disposition

[37] For these reasons, I have concluded that it would be appropriate to make an order under s. 684 of the Criminal Code. The next question to be determined is whether there should be limits on the scope of the appointment.

[38] There are two issues about the scope. First, the applicant filed a rudimentary notice of appeal addressed to both conviction and sentence, citing the grounds of "counsel incompetence" and "inadequate representation". This issue was not raised by Mr. Lockyer in his appeal letter to Legal Aid Ontario.

[39] Second, in the course of her oral submissions, applicant's counsel raised another area of possible appeal relating to the use of evidence of the applicant's post-offence conduct by the Crown. This was not raised by trial counsel in her letter to Legal Aid Ontario, nor was it raised by Mr. Lockyer.

[40] I would not include either of these issues in the mandate of appellate counsel. If the applicant wants to pursue the issues of post-offence conduct or ineffective assistance of counsel, he should bring another application to Legal Aid Ontario for funding in respect of that particular ground.

[41] The position advanced by Mr. Lockyer in his letter, and discussed in these reasons, focused entirely on errors in the trial judge's pre-trial rulings, which he asserts gave rise to a miscarriage of justice. I would limit the mandate of appellate counsel to addressing the effects of the pre-trial rulings on the fairness of the trial.

[42] In my view, it would be appropriate to limit the appointment to a certain number of hours. I request the parties to advise the court if they are able to agree on this issue, and on the identity of appellate counsel to be appointed. If they are not, then I will accept written submissions from the applicant within 10 days of the date of this decision, followed by the Crown's submissions within an additional 5 days.

[43] The applicant will be represented by counsel appointed under s. 684(1) Criminal Code 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).

P. Lauwers J.A.