COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stevenson, 2013 ONCA 645

DATE: 20131025

DOCKET: M42975-C51209

Doherty J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Stevenson

Appellant (Applicant)

Michael Lacy, for the appellant (applicant)

Alex Alvaro, for the respondent

Heard: October 22, 2013

Doherty J.A.:

[1] This is a motion for an order under s. 684(1) of the Criminal Code assigning Greenspan Partners LLP to act on behalf of the appellant on his first degree murder appeal. The Crown fairly acknowledges that but for the legal aid history of this matter this would be an appropriate case for a s. 684 appointment. In light of that concession, properly made in my view, I need not set out the details of the trial or the issues raised on appeal.

[2] The appellant was convicted of first degree murder in October 2009 after an eight-week trial. He obtained a Legal Aid certificate for his appeal. The appellant’s trial counsel filed a Notice of Appeal, but the appellant subsequently retained appellate counsel. This is quite common. No one suggests that this change in counsel was unnecessary or added any cost to the preparation of the appeal.

[3] Appellate counsel ordered the transcripts and obtained a production order referable to some potential fresh evidence. In due course, the transcripts were delivered and appellate counsel prepared a draft factum. The production order has not been executed and the possibility of fresh evidence remains outstanding.

[4] Sometime after the draft factum was prepared, the appellant and counsel had a falling out over communication issues, the involvement of junior counsel, and the arguments to be advanced on the appeal. Appellate counsel successfully moved to be removed from the record. By that point, he had spent 520 hours on the appeal. The Legal Aid certificate authorized 600 hours.

[5] The appellant applied to Legal Aid for a change of counsel. In February 2013, the Area Committee refused that request. The appellant appealed that refusal to Senior Legal Counsel at Legal Aid. She also refused the request, stating:

I cannot conclude that counsel has acted inappropriately in his representation of the applicant. There are no exceptional circumstances shown at this time to warrant a change of counsel. Although the applicant is presently unrepresented, I am unable to conclude that further Legal Aid authorization should be granted in this matter. [Emphasis added.]

[6] Counsel does not suggest that I can or should go behind the decision of Legal Aid. For the purposes of this motion, I proceed on the basis that the applicant, through choices he has made, finds himself in a position where Legal Aid has properly determined that it is not prepared to fund the added costs associated with allowing the appellant to change representation at this stage of the appeal.

[7] If a person is appointed to act for an appellant under s. 684, Legal Aid Ontario, pursuant to a Memorandum of Agreement entered into with the Attorney General’s office, treats the matter as if the appeal was funded by Legal Aid and the lawyer appointed under s. 684 deals with Legal Aid as if the appeal was being funded by Legal Aid. However, any funds eventually paid to the lawyer come from the Ministry of the Attorney General and not from Legal Aid.

[8] Mr. Lacy advised that if the s. 684 order is granted, he anticipated that the perfection and argument of the appeal would involve another 200 to 250 hours of work or about 150 hours more than the 600 hours authorized by Legal Aid.

[9] The “interests of justice” considered in the context of s. 684 usually refers to the appellant’s ability to present his appeal without counsel and the court’s ability to determine the appeal without the assistance of counsel: see R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.). The phrase is, however, flexible enough to encompass other societal interests that may arise in any particular s. 684 application.

[10] Clearly, it would not be in the interests of justice to allow an appellant to abuse the process by which criminal appeals are publically funded, either through the Legal Aid process or through a s. 684 order. In my view, conduct intended to precipitate a breakdown in the client-solicitor relationship to be followed by an application for the appointment of new counsel, would be an abuse of the public funding process. If the circumstances before the court supported the conclusion that the appellant’s conduct toward his former counsel that led to the breakdown in their relationship was intended by the appellant to have that effect so that the appellant could seek out a new counsel at public expense, a s. 684 order would not be in the “interests of justice”.

[11] In rejecting the appellant’s appeal from the decision of the Area Committee refusing his request to change counsel, Senior Legal Counsel did not find that the appellant acted in bad faith or for some improper motive in the course of his dealings that led to the breakdown of the client-solicitor relationship with appellate counsel. Senior Legal Counsel, as was her mandate, determined only that there were “no exceptional circumstances” justifying a change in counsel at that point in the Legal Aid retainer.

[12] On a s. 684 motion the court is concerned with the “interests of justice” as they relate to the determination of the appeal. If it is agreed that the appellant otherwise meets the s. 684 criteria, I do not think the absence of “exceptional circumstances” justifying a change of counsel is enough to refuse a s. 684 motion. A finding of some kind of improper motive or misconduct by the appellant would, however, warrant a dismissal of the motion.

[13] Nothing in the material before me suggests that the appellant set out to effect the breakdown of the client-solicitor relationship with his prior counsel. Nor is there a pattern of conduct on the appellant’s part that would justify the conclusion that the appellant is not really interested in prosecuting his appeal with the assistance of counsel, but instead has some other agenda or improper purpose such as the delay of the proceedings or the maximization of the costs to the public purse of his representation.

[14] It would appear that the breakdown in the client-solicitor relationship was a result of the appellant’s genuine, albeit misguided belief, that he was entitled to both require that senior counsel do the preparation and dictate the arguments that would be advanced on the appeal. The appellant acted unreasonably in taking those positions. Hopefully, he now understands that he must let senior counsel decide what work can be done by junior counsel and he must accept the reasonable advice of counsel as to the issues that can properly be raised on appeal. The appellant must let counsel do his or her job and must accept reasonable legal advice or face the prospect of proceeding without further public funding.

[15] As I am not prepared to find that the appellant precipitated the breakdown in the prior client-solicitor relationship for some improper purpose, and as the appellant otherwise qualifies for a s. 684 order, I will make that order. In doing so, I stress the absence of any pattern of conduct by the appellant that would permit the inference that he intentionally precipitated the breakdown in the client-solicitor relationship for some oblique motive. Obviously, if a second breakdown occurred with counsel appointed under s. 684, a very different inference as to the appellant’s motive could well be drawn.

[16] In making the s. 684 order, I rely on counsel to take all steps, consistent with the proper representation of the appellant, to minimize any costs beyond the 600 hours initially allocated by Legal Aid. Counsel advises that apart from the potential fresh evidence application, this appeal can be perfected by the end of the year. Counsel should proceed to perfect the appeal without regard to any fresh evidence application. The appeal is to be perfected by December 31, 2013.

[17] Counsel briefly addressed the potential fresh evidence. The production order relates to certain business records. I am told that a review of those records could well be determinative of whether a fresh evidence application will be brought. It was suggested that the quickest way to get the documents would be through the execution of the production order by the police. I am sure counsel will cooperate in gathering the necessary documents. Counsel for the appellant will advise the Crown and the court by the end of the year whether he intends to proceed with a fresh evidence application.

[18] I assume counsel can agree on the terms of the s. 684 order appointing Greenspan Partners LLP as counsel to the appellant on the appeal. If not, a conference call can be arranged with me. I can also make myself available to deal with any other case management issues that may arise.

RELEASED: “DD” “OCT 25 2013”

“Doherty J.A.”