Court File and Parties

CITATION: R. v. Sadiqi, 2011 ONCA 226

DATE: 20110323

DOCKET: (C51399), M39733

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Hasibullah Sadiqi

Applicant/Appellant

H. A. McArthur, for the applicant/appellant

C. Tier, for the respondent

Heard: March 21, 2011

ENDORSEMENT

[1] This is a motion brought by the appellant pursuant to s. 684(1) of the Criminal Code to have counsel appointed to represent him on his appeal and to have counsel’s fees and disbursements paid by the Attorney General for Ontario. The respondent resists the motion.

[2] Section 684(1) provides:

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.

[3] Section 684(2) provides that in the event that the Court appoints counsel and legal aid has been refused, the Attorney General shall pay counsel.

[4] The appellant was convicted before a judge and jury on two counts of first degree murder for having killed his sister and her fiancé. The appellant admitted to having shot the couple. The Crown alleged that these were first degree murders, having been planned and deliberate. The appellant’s defence to first degree murder charges was that he was provoked into committing the killings. He contended that a comment made by one of the victims had caused him to lose control and shoot the couple in a state of provocation. Thus, the defence argued that he should be convicted of manslaughter, not murder.

[5] The appellant’s application for legal aid to appeal his conviction was refused on the ground that the appeal lacked sufficient merit to justify granting a legal aid certificate. He appealed the funding refusal. The Director of Appeals refused to grant his appeal.

[6] In R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.), Doherty J.A. stated the approach to be taken in disposing of an application under s. 684(1), at paras. 21-22:

The factors identified in these cases and others reflect two closely related principles. 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. 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.

In deciding whether counsel should be appointed, it is appropriate to begin with an inquiry into the merits of the appeal. Appeals which are void of merit will not be helped by the appointment of counsel. The merits inquiry should not, however, go any further than a determination of whether the appeal is an arguable one. I would so limit the merits inquiry for two reasons. First, the assessment is often made on less than the entire record. Second, any assessment beyond the arguable case standard would be unfair to the appellant. An appellant who has only an arguable case is presumably more in need of counsel than an appellant who has a clearly strong appeal.

[7] The appellant makes two submissions. First, he asserts that there are two arguable grounds of appeal. Secondly, given the individual characteristics of the appellant, together with the complexity of the legal issues and the extent of the record, he is incapable of effectively arguing his case.

[8] The respondent’s position is that there is no merit to the appeal, on either of the two grounds identified by the appellant. The crown further contends that the appellant is capable, with the assistance of duty counsel, of adequately advancing the arguments on his appeal on his own behalf.

[9] I will first deal with the question of whether the appeal discloses an arguable case on behalf of the appellant. Two grounds of appeal are identified. The first relates to the admissibility of the expert evidence tendered by the Crown. This evidence, adduced through the testimony of Dr. Mojab, a professor at the University of Toronto, was about the socio-cultural phenomenon known as “honour killing.” The evidence was ruled admissible by the trial judge, after a voir dire, on the basis that it was relevant to the issues of provocation, planning and deliberation. The appellant concedes that the issue of the admissibility of this evidence is the weaker of the two grounds of appeal; nevertheless, he argues that it meets the low threshold of arguability necessary to meet the test required to appoint counsel under s. 684(1).

[10] The second ground of appeal was that a W.D. jury instruction ought to have been given. The appellant testified on his own behalf. At trial, defence counsel (not counsel on the motion) submitted that a W.D. instruction was required to be given to the jury. The Crown did not oppose this request and instead stated that, in light of the special circumstances of this case, the instruction would have to be modified. The trial judge declined to include a modified W.D. instruction in his charge to the jury.

[11] The appellant contends that, particularly because of the juxtaposition of the evidence of the Dr. Mojab and the appellant, which provided two alternative explanations for the behaviour of the appellant, it was necessary to instruct the jury on the proper treatment of the appellant’s testimony and the consequences of disbelieving him.

[12] In my view, although the first ground of appeal is not as strong as the second, both meet the test of being arguable. On the first ground, this appeal raises the novel issue of whether expert evidence regarding honour killing is sufficiently probative to outweigh any prejudicial impact it may have. Dealing with the second ground, the issue of whether a modified W.D. instruction should have been given in the context of this appeal, where the appellant is advancing a defence of provocation in response to the Crown’s theory that the appellant was engaged in a planned and deliberate honour killing, is a complex argument that cannot be simply dismissed as meritless.

[13] The next question is whether the appellant can “effectively present his or her appeal without the help of a lawyer.” I am not satisfied that the appellant is capable of doing so. The appellant did not complete his high school education. Although he testified at trial in English, English is not his first language. His high school English marks reflect this reality. The record in this case includes approximately 2100 pages of evidence, 100 pages on the relevant voir dire, exhibits numbering some 500 pages and a jury charge of 100 pages. Although not a huge record, it is substantial. In this case, although the legal issues are relatively few, they are complicated.

[14] The appellant’s language skills must be assessed against the complexity of the case. Here the motion record affirms that the appellant’s skills are not likely to be up to the task. Given the complexity of the issues, the extent of the record and the appellant’s relative language skills, the appellant is not capable of effectively presenting his case without the assistance of a lawyer.

[15] I cannot leave this question without emphasizing that, given the nature and novelty of the issues raised, the Court hearing the appeal will be greatly assisted by the appointment of counsel.

[16] Accordingly, I appoint counsel for the appeal pursuant to s. 684(1) of the Criminal Code. I designate Ms. Heather McArthur as counsel.

[17] The respondent urged the Court to restrict the appointment of counsel such that it only applies to arguing the grounds of appeal put forward to support this motion. The appellant did not oppose this request. Accordingly, I so order.

[18] The respondent asked that the Court not deal with the scale of fees to which counsel will be entitled pursuant to this order. Accordingly, I will not address this issue.

“W. Winkler C.J.O.”