COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Le, 2016 ONCA 798

DATE: 20161027

DOCKET: M47002 (C58466)

Laskin J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

John Le

Applicant (Appellant)

Brian H. Greenspan and Peter Hamm, for the applicant

Benita Wassenaar, for the respondent

Heard: October 13, 2016

Laskin J.A.:

A. Introduction

[1] Mr. John Le applies under s. 684(1) of the Criminal Code to have Mr. Brian Greenspan assigned as his counsel for his appeal. The Crown opposes the application.

[2] Under s. 684(1), I may appoint counsel if, in my opinion, "it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance" (emphasis added). Thus, to qualify for government funding for an appellate lawyer, an applicant must meet two criteria: the interests of justice criterion and the financial eligibility criterion.

[3] The first criterion is not in issue on this application. The Crown accepts, and I agree, that the appeal is sufficiently complex and important that it is in the interests of justice for Mr. Le to have a lawyer.

[4] This application turns on the second criterion: financial eligibility. Mr. Le says that he meets this criterion. His sworn evidence on the application, together with that of his mother and brother, shows that Mr. Le does not have the financial means to retain a lawyer. In opposing the application, the Crown says that Mr. Le has not exhausted his legal aid remedies; and he has not been clear and transparent in disclosing his financial affairs.

[5] I am satisfied that Mr. Le has met the financial eligibility criterion. I therefore order under s. 684(1) that Mr. Greenspan be assigned to represent Mr. Le on his appeal.

B. Background

(a) Mr. Le's convictions

[6] Mr. Le is 44 years old. He has been in custody since 2009. In December 2013, he, together with his co-accused Mr. Singh, was convicted of two counts of second degree murder, two counts of kidnapping, and one count of committing an offence for organized crime. On his convictions for murder, Mr. Le was sentenced to two life sentences without eligibility for parole for 23 years.

[7] According to the reasons of the sentencing judge, Mr. Singh was an "upper echelon" drug dealer, and Mr. Le worked for his criminal organization. One of the two people murdered had apparently stolen 35 kilograms of cocaine from Mr. Singh's organization, and Mr. Singh wanted to send a message that thefts of drugs would not be tolerated. The other person murdered was unfortunately in the wrong place at the wrong time.

(b) Mr. Le's financial means

[8] The evidence of Mr. Le's financial means is both historical and current.

[9] Historically, Mr. Le had some income and access to other income. There is evidence that he worked for Mr. Singh and was paid $5,000 per month. Also, he apparently was a successful poker player and pocketed up to $2,000 per week in cash from his winnings. These two sources of income ended when he and Mr. Singh were incarcerated seven years ago. On Mr. Le's arrest, however, a large amount of cash was found in the house where he lived with his mother and brother.

[10] Mr. Le had a lawyer at his trial. His trial costs for his defence were about $130,000. They were funded by Mr. Singh, who is still incarcerated.

[11] The last available tax return for Mr. Le, for the 2006 tax year, showed income of $33,800.

[12] Mr. Le's current financial situation paints a different picture. Mr. Le has sworn under oath that he has no assets, other than a 2006 Mercedes, which would need to be repaired before it could be sold. Ministry of Transportation records show that he is the owner of two other old cars.

[13] Mr. Le's mother and brother swore affidavits on this application and were cross-examined on them. His mother's evidence is that she has no assets and that to support herself she formerly relied on payments from the Ontario Disability Support Program and now relies on Canada Pension Plan payments. Mr. Le's brother earns $1,000 every two weeks and has a child to support.

(c) Mr. Le has been refused Legal Aid

[14] In March 2015, Mr. Le applied for Legal Aid for his appeal. The Area Committee denied his application on financial grounds. The Committee said that it appeared Mr. Le had other financial resources available to obtain a lawyer privately. The Committee noted that Mr. Le's family and friends had paid roughly $130,000 for his defence at trial.

[15] Mr. Le appealed the Area Committee's denial of funding, but his appeal was dismissed. In its reasons, Legal Aid found that Mr. Le's family and friends were part of his "assessment unit". Legal Aid commented that if Mr. Le's family and friends are no longer able to assist him financially, they may complete financial assessments to demonstrate this inability. Absent their doing so, Legal Aid held, Mr. Le fails to qualify.

[16] Mr. Le did not ask his mother or brother to complete financial assessments, and neither has provided any information to Legal Aid.

C. Analysis

[17] The financial eligibility criterion in s. 684(1) reflects two values. First, the government's resources to fund legal representation are limited. Second, if it is in the interests of justice for an appellant to have a lawyer to argue the appeal, yet the appellant cannot afford to retain one, then the denial of a s. 684(1) order will adversely affect the appellant's fair appeal rights.

[18] In opposing Mr. Le's application, the Crown relies on the observation of my colleague Gillese J.A. in R. v. Staples, 2016 ONCA 362, [2016] O.J. No. 3280, at para. 40:

To obtain the exceptional relief of government funded counsel, the Applicant must satisfy the court that he has exhausted all other means of paying for counsel. He must also be clear and transparent in disclosing his financial affairs. In my view, the Applicant has done neither.

[19] The Crown contends that I should dismiss Mr. Le's application because he has failed to exhaust his Legal Aid remedies, as he has not had his mother and brother complete financial assessments, and because he has failed to be candid about his financial situation. Thus, he has not met the onus of showing he meets the financial eligibility criterion in s. 684(1).

[20] I accept that Mr. Le bears the onus. I also accept that he was not candid about his sources of income before he was incarcerated, as Ms. Wassenaar effectively demonstrated during her cross-examination of Mr. Le. For example, under cross-examination Mr. Le admitted that some of his tax returns were inaccurate and that he had not been forthright with Legal Aid about the cars he owned. Finally, I accept that Mr. Le did not do what Legal Aid suggested: arrange for his mother and brother to fill out financial assessments to demonstrate that they could not assist him financially.

[21] But two considerations weigh against the Crown's position. First, Mr. Le's lack of candour relates to the period before he was incarcerated – over seven years ago. I am satisfied that his disclosure of his current financial means has been "clear and transparent".

[22] The second consideration is that I am not, on this application, judicially reviewing Legal Aid's decision to deny funding. Instead, if I am to preserve Mr. Le's fair appeal rights, I must do so on the basis of the current evidence about Mr. Le's financial means, not the historical evidence. See R. v. Peterman (2004), 2004 39041 (ON CA), 70 O.R. (3d) 481 (C.A.), at para. 22.

[23] The reality of Mr. Le's financial means today is as follows:

• He has been incarcerated for seven years and no longer receives income from Mr. Singh, nor is he able to accumulate cash by playing poker;

• He has no assets other than a 2006 Mercedes and possibly two other old cars, which, even if sold, would not come anywhere near generating enough money to retain a lawyer for his appeal;

• Although his mother did not file a financial assessment with Legal Aid, her sworn evidence shows that she has no assets. She survives on a pension;

• Although Mr. Le's brother also did not file a financial assessment, he earns at best about $26,000 per year, out of which he has to support a child; and

• Mr. Le has no one else he can turn to in order to fund his appeal.

[24] In light of these considerations, Mr. Le has shown that he does not have sufficient means to obtain legal assistance and has no other source to obtain funding.

[25] Therefore, I assign Mr. Greenspan to act on Mr. Le's behalf on the appeal. I assume counsel can agree on any other terms of my order. If not, they can arrange a conference call with me.

Released: October 27, 2016 ("J.L.")

"John Laskin J.A."