Court of Appeal for Ontario

Citation: R. v. Wills, 2010 ONCA 128

Date: 2010-02-17

Docket: (C48195) M38114

Between:

Her Majesty the Queen (Responding Party)

and

Richard Wills (Appellant)

Before: MacPherson, Cronk and Blair JJ.A.

Counsel:

Richard Wills, appearing in person

Michal Fairburn, for the responding party

Heard and released orally: February 10, 2010

ENDORSEMENT

The adjournment request

[1] The appellant appeared today and, on learning that duty counsel who were present were unavailable to assist him due to a conflict, requested that the hearing of his s. 684 application be adjourned to April 21, 2010 to permit him to obtain assistance of other duty counsel.

[2] Crown counsel vigorously opposed the requested adjournment. She informed the court of her understanding, based on her communications with the head of the duty counsel program, that duty counsel would be unable to assist the appellant with his s. 684 application. By correspondence to him in January 2010, Crown counsel so informed the appellant and, in accordance with this court’s endorsement dated November 17, 2009, confirmed to him that the argument of his s. 684 application was to proceed on this date.

[3] The requested adjournment is denied. This matter has been pending for a lengthy period of time. The November 17, 2009 endorsement of this court made it clear, in blunt and unambiguous terms, that the argument of the appellant’s s. 684 application was to proceed on this date “whether or not duty counsel is available to provide him with assistance”. Crown counsel quoted from this direction in her January 2010 correspondence to the appellant.

[4] In the circumstances, there can be no doubt that the appellant had ample advance notice that his s. 684 application was to be argued today, even if duty counsel was not available to assist him.

The s. 684 application

[5] The appellant makes an application pursuant to s. 684 of the Criminal Code for funding to provide legal assistance for his appeal from his conviction for first degree murder.

[6] The test on a s. 684 application was set out by this court in R. v. Bernardo (1997), 1997 2240 (ON CA), 121 C.C.C. (3d) 123 at para. 21:

First, counsel must be appointed where an accused cannot effectively present his or her appeal without the help of a lawyer. Second, counsel must be appointed where the court cannot properly decide the appeal without the assistance of counsel.

[7] On the basis of the record before us and the oral submissions of the appellant, the appellant has not established either of these criteria.

[8] Although the appeal involves the most serious criminal offence, with particularly serious consequences for the appellant (life imprisonment with no chance of parole for 25 years), we cannot say that the appellant is incapable of effectively presenting his appeal without the assistance of counsel. The appellant is a well-educated man with long experience as a police officer in the criminal justice system. He presented an organized argument on this application, including references to the leading authority and test on a s. 684 application.

[9] Nor do we think that it would be impossible or even difficult for this court to decide the appeal without the assistance of counsel. Although the appellant has raised 35 possible grounds of appeal, there is nothing unusual or unduly complex about these grounds. A panel of this court should have little difficulty understanding and resolving the various issues raised by the appellant. Moreover, it is probable that the issues can easily be reduced to a small number of central ones.

[10] The appellant raised a concern that because he is being held in a segregated unit he would not have access to the prison legal library in order to prepare for his appeal. The information the Crown obtained confirmed that a prisoner in segregation cannot use the library in the normal course; however, the library will provide legal materials to the appellant in his cell on request to the head librarian. In the circumstances, we direct that the appellant be provided ongoing access in his cell to the legal materials in the institution’s library on his request to the head librarian. Moreover, we note that Ms. Fairburn has indicated that, if requested, she is prepared to provide assistance to the appellant in accessing relevant legal materials.

[11] The application is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“R.A. Blair J.A.”