WARNING

The Judge hearing this application directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (1.1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or the justice who will preside at the proceedings or, if that judge or justice has not yet been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider

(a) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants who are involved in the proceedings;

(f) whether effective alternatives to the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the proposed order; and

(h) any other factor that the judge or justice considers relevant.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c. 43, ss. 4, 8; 2010, c. 3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

Court Information

Court of Appeal for Ontario

Date: 2018-01-08

Docket: M48639 (C63301)

Trotter J.A. (In Chambers)

Between

Her Majesty the Queen Respondent

and

Suvaughan Brown Applicant

Counsel

Paul J.I. Alexander, for the applicant

Andrew Hotke, for the respondent

Heard: December 29, 2017

Decision

Trotter J.A.:

A. INTRODUCTION

[1] This is an application for an order under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46, appointing counsel to represent the applicant on his appeal.

B. THE FACTS

[2] The applicant was charged with sexual assault causing bodily harm (s. 271(1)) and forcible confinement (s. 279(2)). After a two-day trial before Peter A.J. Harris J. of the Ontario Court of Justice, he was found guilty of both offences and sentenced to 48 months' imprisonment. The applicant appeals both his conviction and sentence.

[3] A brief summary of the evidence will suffice for the purposes of this decision. The case involves a serious sexual assault perpetrated by the applicant on a stranger. The complainant testified that she went to a local bar one night. When she started to feel intoxicated, she decided to walk back home. As she walked, two men in a car stopped and offered her a ride. The men spoke in the Somali language (as did the complainant), and she decided to go with them. Instead of taking her home, the men drove her to a secluded parking lot, where she was punched in the face, then sexually assaulted by the two men. She was penetrated vaginally and anally. The complainant was able to get away. She called a friend immediately, and then 911 a few hours later.

[4] The complainant sustained injuries that night. She had cuts and bruises to her face, as well as a chipped tooth. The applicant's semen was found in her vaginal and rectal areas.

[5] The applicant, an admitted drug dealer, testified that he went to the same bar as the complainant. His purpose was to collect drug debts. The applicant testified that he saw the complainant sitting on the ground outside the bar. She had fallen and injured her face. He testified that they hung out in his car for a while. Even though the complainant was injured and bleeding, she consented to (indeed, initiated) unprotected vaginal and anal sexual intercourse with the appellant, a stranger, outside a car.

[6] In thorough reasons for judgment, the trial judge rejected the applicant's evidence because it "falters badly in term[s] of plausibility, credibility and reliability." Citing R. v. W.(D.), [1991] 1 S.C.R. 742, and after cautioning himself against applying differential standards of scrutiny to the Crown and the defence evidence, he was satisfied of the applicant's guilt beyond a reasonable doubt.

C. THE APPOINTMENT OF COUNSEL

(1) Section 684

[7] The decision whether to appoint counsel is governed by s. 684(1) of the Criminal Code. An applicant must establish on a balance of probabilities that he or she does not have "sufficient means" to obtain legal assistance, and that "it appears desirable in the interests of justice" that counsel be appointed.

[8] This court has considered the meaning of "desirable in the interests of justice" in this context in numerous decisions, most of them drawing upon the leading case of R. v. Bernardo, 121 C.C.C. (3d) 123 (Ont. C.A.). To succeed under this part of s. 684(1), an applicant must show that:

a. the appeal is "arguable"; and

b. it is "necessary" that counsel be appointed, having regard to,

(i) whether the applicant is capable of effectively advancing his grounds of appeal without a lawyer; and

(ii) whether the court will be able to properly decide the appeal without the assistance of defence counsel.

[9] Addressing the two necessity factors above, Doherty J.A. said in Bernardo, at para. 21: "In most situations, both or neither principle will operate to require the appointment of counsel. Sometimes, however, one or the other, standing alone, will justify the appointment of a lawyer for the appellant." See also R. v. Mahmood, 2015 ONCA 442, [2015] 6 C.T.C. 230 (in Chambers), at para. 34; R. v. Adams, 2016 ONCA 413, 350 O.A.C. 110 (in Chambers), at para. 26.

(2) Financial Means

[10] At trial, the applicant's defence was funded by Legal Aid Ontario ("LAO"). However, after having pursued all avenues, LAO has refused to fund his appeal, based on lack of merit. Mr. Hotke for the Crown concedes that the applicant has established that he does not have the financial means to fund his appeal. I agree.

(3) Arguable Merit

[11] The applicant plans to advance five grounds of appeal, as outlined in an opinion letter to LAO: (i) the trial judge improperly found that the applicant's evidence was tailored to the disclosure he received; (ii) the trial judge applied different standards of scrutiny to the evidence of the applicant and the complainant; (iii) the trial judge resorted to speculation; (iv) the trial judge effectively reversed the burden of proof; and (v) the trial judge improperly used the content of the 911 call to bolster the complainant's credibility.

[12] Mr. Hotke argues that none of these grounds have merit. I agree that some of the grounds of appeal appear meritless. The suggestion that the trial judge reversed the burden of proof is not borne out in his thorough reasons, which specifically refer to W.(D.). The assertion of differential standards of scrutiny, a difficult ground on which to succeed at the best of times (see R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39), also seems unlikely to succeed here.

[13] However, some of the grounds appear to be arguable. In particular, the contention that the trial judge misused the content of the complainant's statements made during a 911 call is arguable. The passage from the trial judge's reasons that the applicant's counsel relies upon is, at best, ambiguous.

[14] Moreover, the argument that the trial judge found that the applicant had tailored his evidence to meet the disclosure may also pan out, but that remains to be seen. The trial judge said the following about the applicant's evidence: "I found his answers had the air of being scripted, practiced and tailored". If the trial judge was referring to testimony being scripted to the Crown's case at trial, that would not be problematic. However, Mr. Alexander submits that the trial judge's remarks were in response to the Crown's closing submissions, which referenced disclosure. If this was the point of reference, it could well turn out to be problematic: see R. v. White, 132 C.C.C. (3d) 373 (Ont. C.A.), at para. 20. It will be necessary to examine the closing submissions in order to decide this ground of appeal.

[15] Lastly, the applicant points to a passage in the trial judge's reasons where he speculated about whether the applicant was able to converse in Somali (an important fact in the complainant's narrative). The applicant testified that he does not speak Somali. The trial judge said: "…in spite of [the applicant's] statements to the contrary, it may be that he is able to communicate some expressions in the Somalian language." In my view, this ground is arguable.

[16] Mr. Hotke submits that, even if some of the grounds of appeal are arguable, none of them, alone or in combination, will win the day. He relies on the curative proviso in s. 686(1)(b)(iii). This position may well have merit, but it is difficult to properly evaluate at this stage.

(4) Necessity

[17] The applicant has not met the necessity threshold.

[18] The materials filed on this application offer little more than conclusory observations about the applicant's ability to pursue his appeal without the assistance of counsel. The opinion letter to LAO states that the applicant, "is a 24 year old recidivist (not for sexual assault though). He has spent a huge proportion of his young life in custody. He does not have the ability or sophistication to represent himself." The affidavit in support of the application simply states that the "grounds of appeal are complex and cannot be effectively argued by the appellant, a lay person with no legal training."

[19] I accept that the ground concerning the use of the 911 call taps into a body of law (i.e. prior consistent statements) that can sometimes be complicated: see R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused, [2017] S.C.C.A. No. 139. However, the issue in this case is straightforward (i.e., whether the trial judge improperly used the complainant's utterances to corroborate her testimony). The issue is well-developed in the opinion letter, which will be available to the panel that hears the appeal.

[20] The other grounds of appeal are largely factual in nature. As noted above, the complainant and the applicant were the main witnesses at trial. Given the presence of the applicant's semen in the complainant's vaginal and anal areas, the only live issue was consent. The case turned on credibility. The applicant has not established that he is incapable of advancing these arguments on appeal.

[21] Another factor that weighs against the applicant on the necessity scale is the size of the record. Previous decisions of this court have recognized that a voluminous trial record, combined with complex issues, often present challenges for self-represented appellants: see Bernardo, at para. 24; and R. v. Lubin, 2016 ONCA 780 (in Chambers), at para. 19. This case is different. The trial took only two days, and the main issue was straightforward. Assuming that it is necessary to obtain a transcript of the entire trial, and I am not convinced that it is, the record would still be manageable for a self-represented litigant.

[22] Turning to the other branch of the necessity inquiry, this court will be able to properly decide the straightforward issues raised on this appeal without the assistance of defence counsel. The panel will have the benefit of the LAO opinion letter, as well as the assistance of experienced counsel from the Crown Law Office (Criminal). An appointment of state-funded counsel is not necessary to achieve fair and effective appellate review.

[23] Lastly, I mention the Ontario Inmate Appeal Duty Counsel Program (the "Program"). I recognize that the availability of assistance from the Program should not undermine meritorious s. 684 applications: see Lubin, at para. 18; and R. v. Fiorilli, 2016 ONCA 814, 133 O.R. (3d) 161 (in Chambers), at para. 19. Although I have decided that this application must fail, this case may be deserving of consideration by the Program, especially given the manageable record and the focused grounds of appeal: see Mahmood, para. 43; and R. v. Dickson, 2016 ONCA 665 (in Chambers), at para. 30. Of course, it will be for the Program to decide whether this appeal is worthy of assistance, based on the application of its own criteria.

D. CONCLUSION

[24] The application is dismissed.

"Trotter J.A."