Court of Appeal for Ontario

Citation: R. v. Mahmood, 2015 ONCA 442

Date: 2015-06-16

Docket: M44911 (C59069)

Watt J.A. (In Chambers)

Between

Her Majesty the Queen

Respondent

and

Najam Mahmood

Applicant

Najam Mahmood, acting in person

Erin Carley, for the respondent

Heard: April 8, 2015

Application for appointment of counsel under s. 684 of the Criminal Code.

Reasons for Decision

Watt J.A.:

[1] Najam Mahmood had a business. He taught foreign exchange trading. He earned a lot of money. About $3,000,000. He also collected GST.

[2] Mahmood was much better at earning money than at paying his bills. Tax bills, in particular. For the taxation years 2003 to 2006, Mahmood did not file any income tax returns. He paid no income tax. Nor did he remit the GST collected during those same years.

[3] A jury found Mahmood guilty of eight counts of tax evasion. He has appealed his convictions. The Attorney General of Canada has appealed the sentence imposed at trial, the carceral portion of which Mahmood has already served.

[4] Mahmood had a lawyer at trial. He is now self-represented. However, he wants a lawyer to pursue his appeal from conviction and to respond to the Crown’s appeal from sentence. He also wants the Attorney General of Canada to pay for this lawyer, a request the Attorney General says is undeserving.

[5] To this end, Mahmood filed an application under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46. In these reasons, I will explain why I reject Mahmood’s application.

The Background Facts

[6] Nothing more than a brief overview of the circumstances underlying Mahmood’s convictions and the procedural course the proceedings have taken since conviction is required.

The Allegations

[7] During a four year period between 2003 and 2006, Mahmood operated a business teaching foreign exchange trading. By his own admission, he earned revenues of nearly $3,000,000. He filed no income tax returns, thus paid no income tax for any of those taxation years.

[8] Mahmood also collected GST, which he failed to remit to the Canadian Revenue Agency.

[9] The prosecution alleged that Mahmood evaded payment of nearly $500,000 in exigible taxes.

The Trial Proceedings

[10] Mahmood was represented by privately-retained counsel at trial. The trial lasted three months. The jury found Mahmood guilty of eight counts of tax evasion in respect of the 2003 to 2006 taxation years.

[11] The trial judge sentenced Mahmood to a term of imprisonment of 12 months, which the judge reduced to 11 months because of time spent in pre-trial custody. He was also ordered to pay a fine of $687,000 within ten years.

The Appellate Proceedings

[12] On August 1, 2013 the Attorney General of Canada filed a notice of appeal against the sentence imposed at trial. The remedy sought is an increase in the carceral portion of the sentence and a reduction in the time within which Mahmood is to pay the fine.

[13] About the same time the Attorney General filed the notice of appeal against sentence, Mahmood completed an Inmate Notice of Appeal against conviction. For reasons that are not readily apparent, that notice of appeal was not recorded as filed in this court until almost a year later.

[14] Mahmood has served the carceral portion of his sentence. He has successfully completed his period of parole supervision.

The Pursuit of Legal Aid Funding

[15] Mahmood applied for Legal Aid funding to retain counsel to act on his behalf on both appeals.

[16] About a month after the notices of appeal had been filed or completed, Legal Aid Ontario notified Mahmood that his request for funding had been refused. The Area Committee refused the request because members of Mahmood’s family, who are considered as part of the assessment unit for financial eligibility purposes, had not provided the financial information that Legal Aid Ontario had requested. The Committee concluded that Mahmood appeared to have access to financial resources to retain counsel privately.

[17] Mahmood appealed this decision. Several months later, the decision to deny funding on the basis of incomplete financial disclosure was affirmed.

The s. 684 Application

[18] In August of last year, Mahmood filed an application under s. 684 of the Criminal Code. He sought an order appointing counsel to represent the “Cross-Appellant” and asked that the “Attorney General of Ontario” [sic] be directed to pay the fees of that counsel, as well as disbursements including the costs of preparing the transcripts of his three-month trial.

[19] In the months that elapsed between the filing of the s. 684 application and the hearing, Crown counsel cross-examined Mahmood on the affidavit he filed in support of his application. Mahmood had counsel appointed under a limited s. 684 order to protect his interests at the cross-examination.

The Arguments Advanced

[20] Mahmood says the interests of justice require the appointment of counsel under s. 684.

[21] Mahmood contends that his appeal from conviction has significant merit. The charge to the jury, he says, was confusing and cumbered by legal error, both in the instructions that were provided and those that were wrongly omitted. The convictions are unreasonable. He is entitled to legal assistance and payment of the costs associated with it, including payment for the transcripts of the entire trial. Although the appeal from sentence has no merit, counsel should be appointed to act on his behalf to resist the Crown’s submissions that he should go back to jail and have less time to pay his fine.

[22] Mahmood submits that he has insufficient means to retain counsel privately. He has not fully paid his trial counsel. He is an undischarged bankrupt. He is on social assistance and lives with his parents and other family members. While out of custody prior to and during trial, he was unable to get a job because his bail terms did not permit him to work in his chosen field.

[23] Mahmood adds that he is incapable of presenting his appeal, which involves complex legal issues, without professional assistance. For similar reasons, he is ill-equipped to respond to the Crown’s appeal from sentence, unaware of the principles of sentencing or their application to his case.

[24] The respondent resists the application. The conviction appeal has no merit. Mahmood has not established that he lacks the financial means to retain counsel as he did at trial. As an in-person appellant and as the respondent on the Crown sentence appeal, he will have the assistance of experienced duty counsel paid for by the state and aided by an adequate evidentiary record.

[25] The respondent says Mahmood’s complaints about the correctness and completeness of the trial judge’s final instructions to the jury fall on barren ground.

[26] The trial judge explained the essential elements of tax evasion in accordance with the decision of this court in R. v. Klundert (2004), 2004 CanLII 21268 (ON CA), 187 C.C.C. (3d) 417 (Ont. C.A.). He was under no obligation to go further to explain the difference between tax evasion and tax avoidance, or between an audit and a prosecution.

[27] The evidentiary issues Mahmood complains about – the introduction of expert evidence from a witness not qualified as an expert and the admission of hearsay – are belied by rulings of the trial judge and the record at trial. The witness who is said to have given expert evidence without being qualified to do so gave evidence of fact, not of opinion. What is alleged to be hearsay was not tendered or admitted for its truth. The evidentiary references provided by the trial judge in his final instructions were fair and balanced.

[28] The respondent adds that Mahmood has failed to establish that he is without sufficient means to retain counsel privately. Legal Aid Ontario refused to provide funding because Mahmood’s family members, part of the assessment unit for Legal Aid Ontario’s purposes, failed to provide the financial information requested of them. By his own admission, Mahmood earned nearly $3,000,000 during the period specified in the indictment. He lived with his parents who provided funds to pay for counsel who acted for Mahmood at trial on a private retainer. Mahmood himself provided funds for the purchase of a new family home.

[29] The respondent points out that Mahmood has structured his activities to avoid holding assets in his own name. He has failed to provide a clear and concise statement of his assets and liabilities so that meaningful assessment of his financial means can be made. He has failed to provide a credible explanation for an alleged depletion of $5,300,000 in gross revenues from 2003 until 2007. He continues to be an undischarged bankrupt because the bankruptcy proceedings are awaiting the result of these outstanding appeals.

The Governing Principles

[30] Section 684(1) of the Criminal Code permits, but does not require, a single judge or a panel of this court to 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 to this court. The judge or panel of judges must be satisfied that it appears desirable in the interests of justice that an accused should have legal assistance and it appears further that the accused has insufficient means to obtain that assistance. The conditions precedent are cumulative.

[31] Section 684(2) controls where counsel is assigned and Legal Aid is not granted under the prevailing Legal Aid program. Where this occurs, the fees and disbursements of appointed counsel are to be paid by the Attorney General who is a party to the appellate proceedings.

[32] Several basic principles inform the exercise of discretion under s. 684(1).

[33] First, the phrase “the interests of justice” appears frequently in the Criminal Code. It takes its meaning from the context in which it appears and signals the existence of a judicial discretion that is to be exercised on a case-by-case basis: R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16. The phrase “the interests of justice” must take cognizance of the broad access to appellate review provided in s. 675, as well as the expansive remedial authority of an intermediate appellate court under s. 686 of the Criminal Code: Bernardo, at para. 20.

[34] Second, the factors to be considered reflect the operation of two closely related principles. Counsel should be appointed where an accused cannot effectively present an appeal without a lawyer’s help. Counsel should also be appointed where the court cannot properly decide the appeal without the assistance of counsel. Most of the time neither principle or both will operate to require the appointment of counsel. But, sometimes, one or the other, on its own, will justify the appointment: Bernardo, at para. 21.

[35] Third, to determine whether counsel should be appointed, we begin with an inquiry into the merits of the appeal. Typically, the merits assessment, as here, is hampered by the incompleteness of the record. In the result, the merits inquiry extends no further than a determination of whether the appeal raises arguable issues: Bernardo, at para. 22. Appeals uninhabited by merit cannot be repopulated by the appointment of counsel: Bernardo, at para. 22.

[36] Fourth, an assessment of the financial resources of an accused to retain counsel, an integral component of the inquiry under s. 684(1), is not to become a judicial review of decisions made by provincial Legal Aid authorities: R. v. Peterman (2004), 2004 CanLII 39041 (ON CA), 70 O.R. (3d) 481 (C.A.), at para. 22; and R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302, at para. 18.

[37] Finally, the applicant must show that counsel should be appointed under s. 684(1) on a balance of probabilities.

The Principles Applied

[38] Several reasons persuade me that this application fails.

[39] First, even making generous allowance for grounds of appeal cast in the language of a self-represented litigant without legal training, an arguable ground of appeal remains elusive.

[40] The case against Mahmood at trial proceeded on the basis that despite acknowledged earnings of nearly $3,000,000 in the relevant taxation years and collection of exigible GST, Mahmood neither filed tax returns nor remitted any GST he collected. The instructions of the trial judge, provided by the respondent, tracked the language used in Klundert to describe the essential elements of the offence. The omissions alleged by Mahmood lack merit. The same may be said of the suggestion of an inadequate or improperly weighted evidentiary review.

[41] Further, the complaints of improper admission of expert evidence from a non-expert and the reception of inadmissible hearsay fall on barren ground. The trial judge’s ruling clarifies the nature of the evidence admitted and puts paid to any suggestion that the evidence was other than a factual recounting of steps taken during the investigation. As for the alleged hearsay, the evidence was not admitted for a prohibited purpose and the jury instructions did not invite improper use.

[42] Second, Mahmood’s claim of lack of financial means to retain counsel privately rings hollow. He was represented at trial by counsel who was privately retained. The trial lasted three months. He acknowledges having earned a total of nearly $5,300,000 between 2003 and 2007. He offers no credible explanation for its disappearance. Certainly none of it made its way to the tax authorities. Other family members have declined to provide financial information so that an informed assessment may be made about financial means. Mahmood’s sense of entitlement to state funding from the authority which prosecuted him is misplaced.

[43] Third, dismissal of his application does not mean that Mahmood will be deprived of legal assistance or required to make his submissions on the basis of an inadequate evidentiary record. As a self-represented party, he is entitled to the assistance of duty counsel, an experienced appellate lawyer well qualified to assess the adequacy of any record compiled by the Attorney General of Canada for the determination of the issues raised on appeal and to make submissions on Mahmood’s behalf.

[44] Mahmood is obviously an intelligent man. He is out of custody and thus not inhibited in access to resources not available to those confined within prison walls. Nothing he advances raises any novel issue or inhabits some jurisprudential wilderness devoid of guidance. The response to the Crown appeal against sentence is straightforward.

Conclusion

[45] For these reasons, the application fails and is dismissed.

“David Watt J.A.”