COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Fiorilli, 2016 ONCA 814
DATE: 20161101
DOCKET: M47129 (C58518)
MacPherson J.A. (In Chambers)
BETWEEN
Her Majesty the Queen
Respondent
and
Michele Fiorilli
Applicant
Michele Fiorilli, acting in person
Erica Chozik, duty counsel
Hannah Freeman, for the respondent
Heard: October 4, 2016
MacPherson J.A.:
A. introduction
[1] This is an application for an order pursuant to s. 684(1) of the Criminal Code appointing counsel to represent the applicant in his appeal against his convictions for two counts of fraud over $5,000 contrary to s. 380(1)(a) of the Code.
B. facts
[2] The applicant was convicted of four counts of fraud over $5,000, following a judge alone trial before Trotter J. of the Superior Court of Justice. Two of those counts were subsequently stayed pursuant to the Kienapple principle. The frauds related to mortgages obtained on residential real estate properties. The applicant was alleged to have sold two residential properties at inflated prices to obtain a profit from mortgage funds advanced by the Royal Bank of Canada to two “straw purchasers”, who did not have the means to obtain the mortgages, on the basis of fraudulent mortgage applications.
[3] The applicant filed a notice of appeal against conviction. His principal ground of appeal was ineffective assistance of counsel. His allegations were that trial counsel (1) failed to adequately read the disclosure and prepare for the case; (2) failed to properly cross-examine many of the Crown witnesses; (3) failed to let the applicant testify; (4) failed to call various additional defence witnesses; and (5) failed to bring an application for a stay because of significant pre-charge delay.
[4] The applicant applied for legal aid. His initial application was refused. He appealed. In April 2014, Legal Aid Ontario dismissed the appeal, saying “with respect to the appeal against conviction, the Reasons for Judgment do not indicate any error of law on the part of the trial judge.”
[5] The applicant applied for the appointment of counsel, pursuant to s. 684(1). In July 2015, Rouleau J.A. ordered a limited s. 684 appointment that was accepted by counsel John Kaldas to conduct examinations relating to the ineffective assistance of counsel ground of appeal. The applicant was examined in chief on December 18, 2015 and cross-examined on January 6, 2016. Trial counsel was examined in chief on February 8, 2016 and cross-examined on February 8, April 25 and May 9, 2016. These examinations produced 636 pages of transcript.
[6] The applicant then applied again for the appointment of counsel. On July 13, 2016, MacFarland J.A. dismissed the application. She was not persuaded that this was a complicated fraud case and explained that the applicant is an intelligent man who is well able to articulate the areas where he says the conduct of his trial counsel fell short and how those failures affected his ability to defend the charges. At the end of her endorsement, MacFarland J.A. said:
The dismissal of this application does not mean that Mr. Fiorilli will be without legal assistance. His appeal will be placed on the inmate sittings list of this court and he will have the assistance of duty counsel, an experienced well-qualified lawyer to assess the record and make submissions on his behalf.
[7] Subsequent to MacFarland J.A.’s decision, the Ontario Inmate Appeal Duty Counsel Program (the “Program”) determined that it will not provide assistance to the applicant on his appeal. Article 3.3 of the Program’s Bylaw No. 1 provides:
3.3 Discretion – The Corporation and its individual Members at all times retain the discretion as to whether to provide legal services or assistance on any particular case before the Court or to any particular appellant. Without limiting the generality of the foregoing, a Member may decide not to assist on a matter where that Member is of the view that:
(a) it lacks merit or arguable grounds;
(b) an appellant may not be indigent;
(c) the matter is beyond the scope of what is reasonably expected of the Program; or
(d) for any other reason.
[Emphasis added.]
The Program’s decision in this case was based on Article 3.3(c) – the matter is beyond the scope of what is reasonably expected of the Program.
[8] The applicant now applies again for a s. 684 order to provide counsel for his appeal. The principal ground for the application this time is that there has been an important change in circumstances since his last application, namely, that the assistance of duty counsel presaged in MacFarland J.A.’s endorsement is in fact not available for his appeal. The applicant will therefore be entirely without legal assistance for his appeal.
[9] The Crown does not object to the applicant making this s. 684 application; however, it opposes the application on the merits.
C. issue
[10] The sole issue on the application is whether a s. 684 order should be made to provide legal assistance to the applicant on his appeal.
D. analysis
[11] Section 684(1) of the Criminal Code provides:
684(1) A court of appeal or a judge of that court may, at any time, 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 where, in the opinion of the court or judge, 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.
[12] The leading case dealing with the interpretation of s. 684 is R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.). In that case, Doherty J.A. said, at para. 20:
The “interests of justice” referred to in s. 684(1) must take cognizance of the broad access to appellate review contemplated by s. 675 and the wide remedial powers of the court of appeal set out in s. 686. Justice demands that an accused who appeals under s. 675 be afforded a meaningful opportunity to establish the merits of the grounds of appeal advanced by that appellant. That same interest also insists that the court be able to fully and properly exercise its broad jurisdiction at the conclusion of the appeal. Anything less is inconsistent with the statutory scheme created by Part XXI of the Criminal Code.
[13] Doherty J.A. then identified “two closely related principles” that anchor the s. 684 inquiry. He said, at para. 21:
First, counsel must be appointed where an accused cannot effectively present his or her appeal without the help of a lawyer. Second, counsel must be appointed where the court cannot properly decide the appeal without the assistance of counsel. In most situations, both or neither principle will operate to require the appointment of counsel.
[14] Against this backdrop, I turn to the questions that must be addressed in a s. 684 application. In R. v. Staples, 2016 ONCA 362, Gillese J.A. set out the relevant questions, at para. 34:
In deciding an application under s. 684(1), the court must consider three general questions:
Does the applicant have the means to hire counsel privately?
Has the applicant advanced arguable grounds of appeal?
Does the applicant have the ability to effectively advance his or her appeal without the assistance of counsel? In answering this question, the court should examine such matters as the complexity of the legal arguments to be advanced on appeal and the applicant’s ability to make legal argument in support of the grounds of appeal. [Citation omitted.]
[15] I am satisfied that the applicant does not have sufficient means to obtain private legal assistance. I did not understand Crown counsel to suggest otherwise.
[16] The Crown concedes that the applicant’s appeal is, at least in part, arguable.
[17] The real issue on this application is whether the applicant has the ability to effectively advance his appeal without the assistance of counsel. In her endorsement, MacFarland J.A. answered this question in the affirmative. However, she explicitly noted that the applicant would have the assistance of duty counsel, “an experienced well-qualified lawyer to assess the record and make submissions on his behalf.”
[18] In fact, duty counsel will not be able to assist the applicant with his appeal. This is not because duty counsel have examined the record and do not see any possible ground of appeal – a position regularly taken by duty counsel. Rather, it is because the Program has determined that it cannot assist the applicant because his appeal, in the words of Article 3.3(c) of the Program’s Bylaw No. 1, “is beyond the scope of what is reasonably expected of the Program”. Put bluntly, the Program has determined that the applicant’s appeal is too big for it to handle.
[19] I do not criticize the Program’s decision in this case. On the contrary, I accept and respect it. In a very recent decision, R. v. Lubin, 2016 ONCA 780, Feldman J.A. said this about the Program, at para. 18:
[T]he pro bono duty counsel program [is] 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.
[20] I would add this to Feldman J.A.’s description of the duty counsel program. In my experience, it is rare for the Program to decline to provide assistance on the basis of Article 3.3(c) of the Bylaw. Duty counsel are not known to shy away from hard cases. On the contrary, as one of the duty counsel lawyers, Breese Davies, noted in a speech given at this year’s Justice Marc Rosenberg Symposium, defence counsel love a good challenge. Collectively, duty counsel devote hundreds of hours each year to ensuring that unrepresented appellants have meaningful access to appellate review. I think it is fair to say that committed and generous pro bono duty counsel in the inmate appeal stream treat inmates with the same diligence and professionalism as they do their own clients.
[21] So what should be made of the Program’s decision to not provide assistance to the applicant on his appeal because, in the Program’s view, it is outside the scope of what is reasonably expected of the Program? This is obviously a change in circumstances not contemplated by MacFarland J.A., and therefore it is appropriate to consider it on this revised s. 684 application: see R. v. Assoun, 2002 NSCA 119, 208 N.S.R. (2d) 340, at paras. 11-12.
[22] In my view, the Program’s decision tips the balance of the Bernardo analysis in the applicant’s favour. The Program’s decision is significant as it signals to this court that the applicant’s appeal is not as straightforward as it initially appeared to be. While the appeal is not legally complex (the test for ineffective assistance of counsel is well-established), in order to make the arguments necessary to advance the grounds of appeal raised, one must have an in-depth knowledge of the case and how the facts revealed by the record support the legal arguments that must be made. Given the volume of the record (approximately 3,500 pages of disclosure, 300 pages of preliminary inquiry transcript, 280 pages of trial transcript, and 636 pages of transcript of the post-trial examinations and cross-examinations of the applicant and his trial counsel), duty counsel cannot reasonably be expected to engage in a detailed review of it. Nor do I think that this would be a reasonable expectation of the applicant given his limited education (grade 9) and disability (dyslexia).
[23] In addition, in my view the applicant will struggle, without any legal assistance whatsoever, to explain why or how his trial lawyer’s conduct constitutes incompetence. Assessing, for example, which Crown witnesses could have had their credibility fundamentally undermined and demonstrating exactly how trial counsel ought to have gone about this task requires not only detailed knowledge of the trial record but also a firm grasp of trial advocacy. In my view, the applicant, without the assistance of duty counsel, does not have the knowledge or experience necessary to identify and marshal the facts necessary to support the legal arguments he wishes to advance.
[24] In summary, I emphasize two crucial contextual points. First, the Crown concedes that the appeal is, at least in part, arguable. Second, the Inmate Appeal Duty Counsel Program has properly exercised its discretion and decided not to provide assistance to the applicant because his appeal is too big to handle, “beyond the scope of what is reasonably expected of the Program”.
[25] Against the backdrop of these two contextual factors, I return to the two-pronged Bernardo test. First, I do not think that the applicant can effectively present his appeal without the help of a lawyer. This is enough to dispose of the application. Second, although I cannot say definitively that the court cannot properly decide the appeal without the assistance of counsel, I do say that, given the extent of the record and the nature of the legal issues that will be raised on the appeal, the assistance of experienced criminal counsel will be of great assistance to the court.
E. disposition
[26] The application to appoint s. 684 counsel is granted. John Kaldas is appointed to represent the applicant on his appeal.
[27] This judgment is to be provided to the Legal Aid Director. If the Director does not issue a certificate, the applicant will be represented by counsel appointed under s. 684(1) and counsel’s fees and disbursements shall be paid by the Attorney General under s. 684(2) of the Criminal Code, up to a maximum of 40 hours.
Released: “JM” NOV 1 2016
“J.C. MacPherson J.A.”