Court of Appeal for Ontario
Date: 20220114 Docket: M53075 (C67988) Before: Brown J.A. (Motion Judge)
Between: Her Majesty the Queen Respondent/Responding Party
And: Shaun Rootenberg Appellant/Applicant
Counsel: Bryan Badali, for the applicant Nicolas de Montigny, for the responding party
Heard: January 7, 2022 by video conference
Endorsement
Overview
[1] The applicant, Shaun Rootenberg, applies under s. 684(1) of the Criminal Code, R.S.C. 1985, c. C-46, for the appointment of counsel.
[2] The basic facts of this case are set out in the trial judge’s Reasons for Judgment (2019 ONSC 4145), Decision Reopening Stay of Proceedings Application (2020 ONSC 171), and Reasons for Sentence (2020 ONSC 5928). MacPherson J.A. also provided an overview of the case in his reasons denying bail pending appeal: R. v. Rootenberg (October 7, 2020), Toronto, M51295 (C67988) (Ont. C.A.).
[3] The applicant has exhausted his efforts to obtain legal aid for his appeal.
[4] Pursuant to s. 684, a court may assign counsel where, in its opinion, “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.” The jurisprudence requires an applicant to demonstrate the following: (i) the appeal is arguable; (ii) the appointment of counsel is necessary, having regard to whether the applicant is capable of effectively advancing the grounds of appeal without a lawyer and whether the court will be able to properly decide the appeal without the assistance of defence counsel; and (iii) it appears the applicant lacks sufficient means to obtain such legal assistance: R. v. Brown, 2018 ONCA 9, at paras. 7-8.
[5] The Crown opposes the application, taking the position that the applicant has failed to establish elements (i) and (ii).
Arguability
[6] Defence counsel, in his opinion letter to Legal Aid Ontario (the “Opinion Letter”), identified three grounds of appeal:
Unreasonable verdict: The trial judge convicted the applicant of one count of “fraud over $5000” pursuant to s. 380(1) of the Criminal Code. Although the trial judge was not persuaded beyond a reasonable doubt that the applicant defrauded the complainant by “deceit” or “falsehood”, she was persuaded that he had done so by “other fraudulent means”, within the meaning of s. 380(1). The applicant contends that result was the product of inconsistent reasoning by the trial judge and inconsistent with certain factual findings she made;
Error in dismissing stay application: The applicant had sought to stay the criminal proceedings against him on the basis that strip searches conducted of him during pre-trial custody – namely, searches when taken from and returned to the detention centre and searches upon leaving the institution’s kitchen where he worked – violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge gave extensive reasons for dismissing the stay application. Although defence counsel acknowledges that “[t]here has been little jurisprudence addressing the use of strip searches in a detention centre or correctional facility”, the applicant plans to argue that the trial judge’s analysis was deficient and that she erred in the balance she struck between the applicant’s privacy rights and the safety and security concerns of the detention facility;
Error in imposing a harsh and excessive sentence and in failing to award additional credits for pre-sentence detention: The Crown sought a 6 to 7-year prison term; the defence argued for a 3.5 to 4-year term. The sentencing judge imposed a 6-year prison term, against which she gave Summers credit for the applicant’s pre-sentence custody. In rejecting the applicant’s submission for enhanced Duncan credits, as they were then called, the sentencing judge took into account, in part, that his work on the kitchen range had resulted in fewer restrictions on his movement in the institution. In her reasons, the sentencing judge also explained why she would not reduce the sentence on the basis of the principles in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, or award any Downes credit for the conditions faced by the applicant while on judicial interim release. The applicant intends to argue on appeal that the sentencing judge erred by failing to grant him Duncan and Downes credits.
[7] The Crown submits that there is insufficient merit to any of the applicant’s proposed grounds of appeal and, as a result, the applicant has not established that his appeal is arguable.
[8] In his reasons denying the applicant bail pending appeal, MacPherson J.A. wrote: “Although I cannot say that the applicant’s proposed appeal is frivolous, I do say that, to my eyes, it looks very weak.” Applicant’s counsel fairly points out that those comments were made about differently framed grounds of appeal, not those described in the Opinion Letter, which the applicant now intends to advance.
[9] Although the three grounds of appeal identified in the Opinion Letter strike me as weak, I cannot say they are not arguable for the purposes of a s. 684 application.
Necessity
[10] The applicant is a university graduate, although he failed to provide details of his university studies in his affidavit in support of this application.
[11] The applicant is familiar with the basic workings of the banking and property financing systems. Prior to the conviction under appeal, the applicant had been convicted of uttering forged documents (2006) and several fraud-related offences (2009), which included defrauding his brother of $1.8 million. It is clear from the facts found by the trial judge that the applicant is familiar at least with the basics of the banking and property financing systems.
[12] In his affidavit in support of this application, the applicant described himself as a “business consultant”. He deposed that while on interim release he performed consulting work for a medical marijuana company. Although his affidavit does not provide particulars of his employment history, from the Reasons for Judgment it appears that prior to committing the offence under appeal the applicant was involved in developing technology-related business ventures.
[13] In his affidavit, the applicant asserts that he does “not feel equipped to advance the grounds of appeal myself.” However, his conduct to date strongly indicates that the applicant is a well-educated and sophisticated individual.
[14] While the applicant does not have formal legal training, the first ground of appeal he advances – unreasonable verdict – is not complicated or factually complex. The size of the record would be manageable by a self-represented appellant. As well, the trial judge gave extensive reasons for conviction that provide the applicant with a focused “target” for his submissions.
[15] However, the second and third grounds of appeal, which are based on the legal implications of common strip searches that were conducted on the applicant in the institutions in which he has been detained, contain a significant legal component. The second ground of appeal is novel. Combined, those factors lead me to conclude that the appointment of state-funded counsel is necessary to achieve fair and effective appellate review of the second and third grounds of appeal. Yet, I see no practical way to separate the first ground of appeal from the rest since the second ground of appeal also falls within the ambit of the conviction appeal. Given that circumstance, I think the most practical way to achieve the interests of justice is to appoint counsel to advance all three grounds of appeal.
Disposition
[16] For the reasons set out above, I conclude that the interests of justice warrant the appointment of counsel to advance the three grounds of appeal identified in the Opinion Letter. An order shall go granting the application to that extent. Mr. Badali is prepared to act for the applicant on the appeal.
“David Brown J.A.”
