COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dickson, 2016 ONCA 665

DATE: 20160908

DOCKET: M46815 (C58692)

Epstein J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Responding Party (Respondent)

and

Brian Dickson

Applicant (Appellant)

Counsel:

Eva Tache-Green, for the applicant

Grace Choi, for the responding party

Heard: August 23, 2016

ENDORSEMENT

[1] Brian Dickson brings this application under s. 684 of the Criminal Code seeking an order requiring the Attorney General of Canada to pay for a lawyer to represent him in his appeal to this court from a conviction of first degree murder. The Attorney General resists the application.

[2] On April 15, 2011, Quan Liu was chatting via webcam with a friend in Beijing. Mr. Dickson knocked on her door and forced his way into her room. The friend on the webcam heard several bangs and heavy breathing. He then saw Mr. Dickson - naked from the waist down – turn off the webcam feed. Ms. Liu was found dead the next morning. Her laptop had been taken. Mr. Dickson’s semen was found on her thigh and abdomen. His DNA was found under her fingernails.

[3] The Crown’s theory was that Mr. Dickson came to Ms. Liu’s room to sexually assault her and did so. The case for first degree murder rested on a finding that Mr. Dickson killed Ms. Liu by choking her during or after the sexual assault.

[4] The defence agreed that Mr. Dickson assaulted Ms. Liu and accidentally caused her death in the course of the assault and that therefore the appropriate verdict was manslaughter.

[5] Mr. Dickson was represented by privately-retained counsel at trial. The trial lasted twelve days.

[6] At the beginning of the pre-trial motions, Mr. Dickson was arraigned and pleaded not guilty to first degree murder but guilty to manslaughter. The Crown rejected the plea of guilty to manslaughter. Counsel for Mr. Dickson undertook to enter the same plea before the jury and undertook that he would not tell the jury that a verdict of not guilty was appropriate. Mr. Dickson did not admit that he caused Ms. Liu’s death by way of the specific unlawful act of a sexual assault and made no undertakings as to whether he would testify or call a defence.

[7] At trial, the Crown sought to adduce into evidence a formal statement Mr. Dickson gave to the Toronto Police on April 19, 2011. The statement was videotaped and audio recorded. It contained a false and innocent account of his actions the night of Ms. Liu’s death.

[8] The defence objected to the admission of the statement, taking the position that once culpability for Ms. Liu’s death had been admitted, the statement had no probative value, since the post-offence conduct of lying to police was as consistent with manslaughter as it was with first degree murder. The defence also argued that the prejudicial effect of the statement outweighed its probative value. The Crown argued that since the plea and inherent admissions had not been accepted, culpability was a live issue for the jury and Mr. Dickson’s statement was probative of a number of live issues relevant to culpability, such as his general level of lucidity about the events of the night in question, and, by extension, his level of intent.

[9] The trial judge allowed the statement into evidence. On April 7, 2014, Mr. Dickson was convicted of first degree murder arising out of Ms. Liu’s death.

[10] Mr. Dickson has appealed his conviction on the basis that the trial judge erred by finding that the Crown properly refused to accept the factual admissions underpinning Mr. Dickson’s guilty plea. Alternatively, Mr. Dickson appeals on the basis that the trial judge erred in admitting the statement as its prejudicial effect exceeded its probative value.

[11] Mr. Dickson applied for Legal Aid funding to retain counsel to act on his behalf on the appeal. Legal Aid Ontario notified Mr. Dickson that his request for funding had been refused. The Area Committee refused the request because of its view that his appeal lacked merit. Mr. Dickson appealed this decision. Legal Aid has affirmed the decision to deny funding on the basis of lack of merit.

The Governing Legal Principles

[12] Section 684(1) of the Criminal Code permits 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. These conditions are cumulative.

[13] Section 684(2) controls where counsel is assigned and Legal Aid is not granted. 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.

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

[15] First, the phrase “the interests of justice” 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.

[16] Second, the factors to be considered are closely related. 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. One or the other, on its own, will justify the appointment: Bernardo, at para. 21.

[17] Third, to determine whether counsel should be appointed, the first step involves an inquiry into the merits of the appeal. As here, the merits assessment is typically hampered by the incompleteness of the record. In the result, the merits inquiry involves only the question of whether the appeal raises arguable issues: Bernardo, at para. 22.

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

The Arguments Advanced

[19] Mr. Dickson argues that he is entitled to legal assistance and payment of the costs associated with it, including payment for the transcripts of the entire trial.

[20] Mr. Dickson submits that he has insufficient means to retain counsel privately. He adds that he is incapable of presenting his appeal, which involves complex legal issues, without professional assistance.

[21] Mr. Dickson further contends that his appeal from conviction has significant merit. He says that the trial judge erred in permitting the Crown to artificially keep an issue alive in order to introduce evidence that had significant prejudicial effect and no probative value; namely, his statement to the police.

[22] The respondent resists the application primarily on the basis that the conviction appeal has no merit. The respondent says Mr. Dickson’s complaints about the correctness of the trial judge’s pre-trial rulings are doomed to fail.

[23] Moreover, says the Crown, Mr. Dickson, an intelligent man and relatively sophisticated litigant himself, will have the assistance of experienced duty counsel paid for by the state and aided by an adequate evidentiary record.

Analysis

[24] Several reasons persuade me that this application must be dismissed.

[25] First, it is conceded that Mr. Dickson does not have the means to retain counsel.

[26] However, even making generous allowance for grounds of appeal that are capable of being expanded upon, I am not persuaded that there is an arguable ground of appeal.

[27] I do not see how it could be said that, in the circumstances of this case, the trial judge erred by allowing the Crown to reject Mr. Dickson’s proposed plea of guilty to manslaughter and its inherent admissions. The Crown’s response to the proposed plea lies at the heart of prosecutorial discretion.

[28] I also do not see how it could be said that the trial judge committed reversible error by exercising her discretion and allowing Mr. Dickson’s statement to police to go into evidence. This experienced trial judge provided detailed reasons for her decision. In the light of the trial judge’s strong caution in her instructions, the statement to the police, one that had some relevance, could have little, if any, prejudicial effect.

[29] The Crown’s case against Mr. Dickson was very strong. As noted above, among other things, it was supported by Mr. Dickson’s admission that he caused Ms. Liu’s death and by proof that his semen was found on her body and his blood under her fingernails.

[30] Moreover, the dismissal of his application does not mean that Mr. Dickson 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 Mr. Dickson’s behalf. This observation is particularly compelling in this case given the narrow and discrete basis upon which Mr. Dickson in challenging his conviction.

[31] In addition, the record supports the conclusion that Mr. Dickson is a capable and intelligent man. He has completed three quarters of the credits he needs to graduate with an undergraduate degree from York University where he was actively involved in activities such as Model UN, NATO and where he served as vice-president of External Affairs for the undergraduate political science student council and fundraising.

Conclusion

[32] For these reasons, Mr. Dickson has not demonstrated, on balance, that it is desirable in the interests of justice to allow this application. Mr. Dickson’s application is therefore dismissed.

“Gloria Epstein J.A.”