WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lubin, 2016 ONCA 780

DATE: 20161024

DOCKET: M47039 (C61474)

Feldman J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Joshua Lubin

Applicant (Appellant)

Zachary Kerbel, for the applicant

Andrew Hotke, for the respondent

Heard: October 18, 2016

ENDORSEMENT

Introduction

[1] The applicant has appealed his conviction and sentence for sexual assault, following a judge-alone trial in the Superior Court. His lawyer filed a solicitor notice of appeal. He is on bail pending appeal. He seeks an order under s. 684 of the Criminal Code for the appointment of counsel for his appeal. This is a renewal of a previous application that was denied on July 28, 2016 by Gillese J.A. on financial grounds. Based on new evidence or a correction of the evidence regarding the ability of his girlfriend to contribute to the cost of retaining appeal counsel, he asks the court to reconsider his request.

[2] The Crown opposes the application. It takes the position that having been denied Legal Aid on financial grounds, the applicant has not shown that he cannot afford to retain counsel. Further, the Crown’s position is that the appeal is not meritorious and that the applicant is capable of arguing it on his own.

[3] For the following reasons, the application is granted.

The Test

[4] Under s. 684, a judge of the Court of Appeal may appoint counsel to represent an accused on appeal where two criteria are met: 1) it appears desirable in the interests of justice that the accused should have legal assistance; and 2) it appears that the accused has not sufficient means to obtain that assistance.

The Financial Ground

[5] I will first address the second criterion, because that was the basis for the original denial of this application. The court is told that the applicant was denied Legal Aid for the appeal based solely on the fact that he earns more than the financial threshold imposed by Legal Aid, and that Legal Aid did not address the merits of the appeal. The applicant, who is now 25 years old, filed a detailed affidavit regarding his income. It shows that he has a job with a salary of approximately $30,000, significant debt to his trial lawyer, student loans, and no savings. After covering his basic living expenses, he has approximately $1,000 per month available to put towards his debt and other expenses.

[6] On the first application, the affidavit originally filed by his girlfriend as a proposed surety for his bail application showed that she had a salary of $31,000 and some assets. On that basis, Gillese J.A. denied the s. 684 application, noting that it is expected that applicants will seek the assistance of family and loved ones to the extent possible as sources of funds to pay for an appeal lawyer before making a court application for funding.

[7] Counsel has now filed a further affidavit from the applicant’s girlfriend, clarifying that even at the time of the application she no longer had the same income as she had reduced her hours of work, and is not able to provide financial assistance to the applicant.

[8] All of this evidence is unchallenged and accepted by the Crown. However, counsel asserts that the applicant has not met his onus and that it is not the court’s role to review the decision of Legal Aid.

[9] In the case of R. v. Assoun, 2002 NSCA 50, 203 N.S.R. (2d) 316, Cromwell J.A. addressed the issue of the relationship between the denial of Legal Aid on financial grounds and the role of the court under s. 684. He pointed out that the primary obligation to assist those in financial need to obtain counsel rests with Legal Aid, and that the power to appoint counsel “should be read together with and in light of that obligation” (para. 47). However, Legal Aid’s decision (which in Ontario relies on its own threshold criterion) “is not, and cannot be, conclusive of the issue under section 684 of whether the applicant lacks sufficient means to obtain legal assistance for the appeal” (para. 49). The court is not sitting on appeal or review of the decision by Legal Aid. The court rather must make its own decision on the record before it as to whether the applicant has the means to obtain legal assistance. See also R. v. Adams, 2016 ONCA 413, at para. 28; R. v. Peterman (2004), 2004 CanLII 39041 (ON CA), 70 O.R. (3d) 481 (C.A.), at para. 22; R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302, at para. 18.

[10] In this case I believe it is clear that the applicant is not financially able to retain counsel, nor does he have loved ones or family who would be able to assist him. The financial source that Gillese J.A. understood was available was based on a mistake in failing to update the record that was placed before her on the original application.

The Interests of Justice Ground

[11] The interests of justice take into account the potential merit of the appeal, the ability of the applicant to present the case to the court without counsel, and the ability of the court to properly decide the case without the assistance of counsel. They reflect the broad access to appellate review as well as the wide remedial powers of the Court of Appeal contemplated by ss. 675 and 686 of the Criminal Code. See R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 105 O.A.C. 244 (C.A.), at paras. 20-22.

[12] The first inquiry is into the potential merit of the appeal. The test is whether the appeal is an arguable one. The test is set no higher for two reasons. First, the full record is not available on the application to make a full assessment of the merits and second, it can be said that an appellant with a merely arguable case is more in need of counsel than one who has a clearly strong appeal. Bernardo, at para. 22.

[13] Counsel on this application spent considerable time arguing about the potential merit of the appeal. I do not think it wise to discuss the merits in great detail. I am satisfied that counsel for the applicant, who was trial counsel as well, has demonstrated that the applicant has an arguable case on appeal.

[14] The issue at the trial was whether the sexual encounter between the applicant and the complainant was consensual. Both the complainant and the applicant testified. The issue turned significantly on credibility findings made by the trial judge. The main argument is that the trial judge failed to address a number of pieces of evidence that contradicted his findings, and relied on post offence demeanor evidence to an unwarranted extent in the face of other evidence. Although credibility findings are given significant deference on appeal, if errors are made in the perception of the evidence, there can be room for appellate interference.

[15] The second inquiry is whether the applicant is able to effectively argue the appeal without the assistance of counsel. This is not a case like Adams where the applicant was convicted of fraud in connection with complex business dealings and was found to be well-able to advance his claims using the extensive material prepared by trial counsel.

[16] In this case, the applicant is a young man of 25 years with no criminal record who completed two years of post-secondary education and works at a retail store. His counsel advises the court that he is unable to present the nuanced legal issues that will be raised on this appeal. There is no basis for the court to reject this submission.

[17] Crown counsel also raised the possibility that the interests of justice would be satisfied by moving this appeal from the solicitor appeal stream to the inmate appeal stream. In the inmate appeal stream, the Crown is normally responsible for ordering the relevant portions of the transcript and preparing the appeal book, and the applicant could have the assistance of pro bono duty counsel.

[18] Crown counsel is referring to the pro bono duty counsel program run by senior members of the defence bar, in cooperation with the Crown and the court, to assist inmates who have been denied Legal Aid for their appeals. Members of the pro bono duty counsel roster appear on inmate sitting days in Toronto and Kingston to assist appellants who are incarcerated throughout Ontario and across Canada. The pro bono duty counsel program is run by volunteer members of the defence bar. Unlike the Legal Aid program, the pro bono duty counsel are not obligated to assist unrepresented litigants - they give their time as a public service in the best traditions of the bar. Their presence is not a substitute for fully-funded counsel, whether through Legal Aid or a s. 684 order, where circumstances warrant such assistance.

Decision

[19] Based on the record and submissions on the motion, this is a case where the assistance of funded counsel is required in the interests of justice. The court has been told that this was a 7-day trial with 12 witnesses including 2 expert witnesses. The applicant is not in a financial position to order the necessary portions of the transcript on his own or to know what they are. The legal issues raised regarding the trial judge’s reasons and approach to the critical credibility findings are nuanced. The applicant requires the assistance of a lawyer to properly and effectively present his case.

Result

[20] The application to appoint s. 684 counsel is granted. Crown and defence counsel are to discuss and agree on what portion of the trial record will be required for the appeal.

“K. Feldman J.A.”