COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adams, 2016 ONCA 413

DATE: 20160601

DOCKET: (M46536) C60031

Watt J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Herbert Adams

Applicant (Appellant)

Herbert Adams, acting in person

Lou Strezos, duty counsel

Craig Harper, for the respondent

Heard: May 10, 2016

ENDORSEMENT

[1] Herbert Adams is a convicted fraudster. A judge convicted him of four counts of fraud after a lengthy trial. Then the judge sentenced Herbert Adams. Five years, six months in the penitentiary. Restitution of $5.3 million. A fine of $1.6 million in lieu of forfeiture.

[2] Herbert Adams has appealed his conviction and sentence. He wants his convictions set aside. At the very least, he wants his sentence reduced. But he has a problem. He says he can’t argue his appeal himself. The appeal is far too complicated for a person with a Grade 9 education and no legal training. He says he can’t afford a lawyer. He has no money. And anyone in his family who has any money isn’t prepared to spend it on a lawyer to argue his appeal.

[3] Herbert Adams proposes a solution. He asks that I appoint counsel to represent him on appeal under s. 684 of the Criminal Code. He gets counsel. And the Attorney General pays for his counsel.

[4] The Attorney General wants no part of Herbert Adams’ proposed solution.

[5] These reasons explain why I have concluded that Herbert Adams’ application fails.

THE BACKGROUND FACTS

[6] A brief overview of the allegations of fraud proven at trial and the procedural course that has followed since are sufficient for the purposes of this application.

The Allegations

[7] Over a two year period, Herbert Adams (the applicant) is alleged to have defrauded three named persons and the shareholders of Majestic Supply Company Inc. of sums of money exceeding $5,000. The named persons and others were induced to invest in Majestic by representations made by the applicant or by others with his approval that were false, deceitful or otherwise dishonest. In time, Majestic ceased operations and became insolvent.

The Trial Proceedings

[8] At trial, the applicant was represented by privately funded counsel. The trial, including final argument, appears to have lasted about seven weeks.

[9] At the conclusion of the evidence and the final submissions of counsel, the trial judge reserved his decision. Four months later he provided written reasons for his decision. The reasons consist of 1119 paragraphs and nearly 200 pages.

The Appellate Proceedings

[10] Within a month of sentencing, the applicant filed an inmate notice of appeal against both conviction and sentence. He described his grounds of appeal as “such grounds as may be suggested by counsel”.

[11] On August 30, 2015, almost eight months after he had been sentenced, a judge of this court released him pending the determination of his appeal. The applicant was represented by counsel on the application. The release order contains no sunset clause.

The Pursuit of Legal Aid Funding

[12] The applicant sought legal aid funding to retain counsel to represent him on appeal. The Area Committee in Hamilton considered his request, which included a letter from trial counsel setting out what counsel considered were arguable grounds of appeal. The Area Committee rejected his application on April 14, 2015.

[13] The applicant appealed the Area Committee refusal to the Provincial Director. On June 15, 2015, Senior Legal Counsel, Appeals advised the applicant that his appeal of the refusal of the Area Committee to issue him a certificate was dismissed. The Director, like the Area Committee, concluded that the applicant failed to qualify financially for legal aid. Each noted a discrepancy between the applicant’s reported income and much larger deposits to his bank account, as well as unexplained withdrawals. In essence, legal aid authorities found that the information the applicant provided to the agency about his financial means was incomplete and incredible.

[14] About four months later, the applicant renewed his request for legal aid funding. The Provincial Director treated the application as a request for reconsideration. The Director communicated the rejection in these terms:

The previous refusal was based on a conclusion that you failed to provide complete and credible information and you have access to resources through other persons who have assisted you. The information provided by you does not provide a basis for a different conclusion because even were Legal Aid to accept that your information is now complete and credible, Legal Aid considers you to have access to resources through other persons who have assisted you financially, those being your brother, son and sister. In the event that your family is no longer able to assist you, your family members may complete financial assessments in order that a determination may be made as to their financial eligibility. In the absence of your family members completing financial assessments, you fail to qualify financially for legal aid assistance.

[15] About two months later, the applicant renewed his request for legal aid funding. He included some information about the financial circumstances of some members of his family. In rejecting this request, the Provincial Director pointed out that the applicant had access to other financial resources to fund retention of counsel. Legal Aid would not issue a certificate because neither the applicant nor his relatives could meet the required financial guidelines.

The Section 684 Application

[16] In his affidavit filed in support of this application, the applicant explained that he has exhausted all his financial resources and is living on pension income of about $1,300 per month. He owes the Canada Revenue Agency $131,000 and his trial lawyer $31,000. Any family member who could provide financial assistance is not prepared to do so.

[17] The applicant has a Grade 9 education and no legal training. His affidavit contains no reference to his business experience but includes, as an exhibit, a lengthy affidavit from trial counsel, filed in support of his application for release pending appeal, describing the nature of the evidence adduced at trial and listing several proposed grounds of appeal.

The Arguments Advanced

[18] Duty counsel says that the applicant has made out a case for an order under s. 684. The proposed appeal has merit, as is evidenced by the finding of the chambers judge on the application for release pending appeal that the appeal is not frivolous. The applicant is inadequately equipped, by education or experience, to argue the appeal himself. The size of the appeal record means that Duty Counsel will not be a position to make submissions on the applicant’s behalf.

[19] Further, duty counsel continues, the applicant lacks the financial resources to retain counsel privately. His own income is inadequate. His brother, a potential source of funding, has recently filed for bankruptcy. Other family members, even if able, are not prepared to assist. What is more, according to duty counsel, the court would be substantially assisted on the hearing of the appeal if counsel were appointed to focus the argument on the grounds with merit and leave aside those without it.

[20] The respondent joins issue with the applicant on the inadequacy of financial resources to retain counsel, the inability of the applicant to argue the case without the assistance of counsel and, to some extent at least, on the merits of the proposed appeal.

[21] The respondent says that the applicant has provided no credible information that he lacks access to sufficient funds to retain counsel privately. He did so at trial. His claim of penury is contradicted by large unexplained deposits in his bank account. He has never provided any explanation of where the proceeds of his fraud are currently residing. Nor do we have any satisfactory evidence about the state of his relatives’ finances or the fact or reasons of their refusal to assist.

[22] The respondent takes issue with the applicant’s claimed inability to make submissions on his own behalf. After all, despite his limited formal education, the applicant incorporated companies, ran or directed the running of at least two businesses and participated in negotiations with international corporations to obtain the supplies necessary to pursue his business plans and goals. He also has available for assistance the materials prepared by trial counsel summarizing the underlying circumstances and setting out, in substantial detail, proposed grounds of appeal.

[23] The respondent points out that although the chambers judge must have been satisfied that the appeal was not frivolous in order to grant release pending appeal, the test applicable there is a modest one, not dispositive of the merits inquiring for the purposes of an application under s. 684. At bottom, the grounds raised are largely complaints about factual findings, including the credibility of witnesses and the reliability of their evidence. These findings are largely impervious to appellate review, as is the claim of uneven scrutiny in accepting some and rejecting other evidence.

The Governing Principles

[24] The discretion to assign counsel under s. 684 to act on behalf of an accused who is party to an appeal requires an applicant to satisfy two preconditions. The judge or panel of the court must be satisfied that:

i. it appears desirable in the interests of justice that the accused should have legal assistance; and

ii. it appears that the accused has insufficient means to obtain the necessary legal assistance.

[25] The ubiquitous phrase, “the interests of justice”, takes its meaning from its context. It bespeaks 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 takes cognizance not only of the broad access to appellate review furnished by s. 675, but also of the expansive remedial authority of a court of appeal under s, 686 of the Criminal Code: Bernardo, at para. 20.

[26] Further, two closely related principles are reflected in the factors to be considered under s. 684. The first is that counsel should be appointed where an accused cannot effectively present his or her case on an appeal without the help of a lawyer. And the second is that counsel should be appointed where the court cannot properly decide the case on appeal without assistance from counsel. In the majority of cases, neither or both principles will operate to require the appointment of counsel. On other occasions, perhaps fewer in number, one principle or the other on its own will justify the appointment: Bernardo, at para. 21.

[27] Under s. 684, the first inquiry focuses on the merits of the appeal. With due allowance, in most cases at least, for incompleteness or other deficiencies in the record, the merits inquiry does not reach beyond a determination of whether the appeal raises arguable issues: Bernardo, at para. 22. The appointment of counsel cannot convert a desert into a rainforest.

[28] A final point concerns the assessment of the financial resources component of the s. 684(1) inquiry. That inquiry is not and cannot become a judicial review of decisions made by 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.

The Principles Applied

[29] Several reasons persuade me that I should not make an order appointing or assigning counsel under s. 684.

[30] First, the merits of the appeal. Despite the lengthy opinion letter of trial counsel about the merits of the appeal and the finding of the chambers judge on the application for release pending appeal that the appeal was not frivolous, the grounds of appeal advanced by trial counsel contest findings of fact made by the trial judge. Grounds of appeal that assert erroneous acceptance of the evidence of some witnesses and flawed rejection of the testimony of others are notoriously resistant to appellate correction. Likewise, the claim of uneven or unbalanced scrutiny of the appellant’s evidence in comparison with the testimony of other witnesses. A submission often made, but seldom successful.

[31] Absent from the prospective grounds of appeal suggested by trial counsel are any claims of legal error, mistaken admission or rejection of evidence or an assertion of an unreasonable verdict.

[32] Second, financial considerations. The record is barren of any explanation of the current residence of the funds obtained from the investors that are the subject of a $5.3 million restitution order. The applicant has expended no real effort to explain the discrepancies between the claim of penury advanced on his behalf and the reality of significant deposits made to his bank account. His denial of the availability of financial assistance from other family members remains simply his say-so, unconfirmed by any credible information from them.

[33] Third, the applicant’s ability to advance argument on his own behalf. The applicant is a mature adult who ran or directed the running of businesses involved with sizeable commercial entities. He had employees and directed their activities. Despite his lack of formal education beyond early secondary school, it beggars belief that the applicant, with the benefit of extensive materials prepared by trial counsel, cannot advance his claims of error before a panel of this court.

CONCLUSION

[34] The application is dismissed.

“David Watt J.A.”