Court of Appeal for Ontario

Date: 2018-09-17

Docket: M49580 (C64134)

Motions Judge: Trotter J.A.

Between

Her Majesty the Queen Respondent

and

Clark Sauve Applicant

Clark Sauve, acting in person

Lorna Bolton, for the respondent

Heard: In Writing

Trotter J.A.:

A. Introduction

[1] Mr. Sauve was found guilty of second degree murder (R. v. Sauve, 2017 ONSC 2577) and sentenced to life imprisonment, with no parole eligibility for 12 years (R. v. Sauve, 2017 ONSC 4425). He appeals conviction and sentence.

[2] Mr. Sauve applies under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46, for an order appointing counsel to represent him on his appeal. For the reasons that follow, the application is dismissed.

B. Factual Background

[3] Mr. Sauve was tried by a judge sitting without a jury. He was convicted of killing his wife, Linda, by shooting her in the head while she was in bed.

[4] Mr. Sauve called 911 to report that he had been beaten and his wife had been shot. He said that they had been attacked by two female intruders who wore Halloween-type masks. When the police arrived, they noticed no signs of a forced entry. Mrs. Sauve's purse was on the kitchen counter and was undisturbed.

[5] The police located Mr. Sauve upstairs, laying on his bed, with his wheelchair at the foot of the bed. In the bedroom next door, they found the body of Mrs. Sauve. The police returned to Mr. Sauve's room and noticed a gun on the floor. One of the officers asked Mr. Sauve: "You did this, didn't you?" He did not respond.

[6] One of the issues at trial concerned the activation and deactivation of the home security system. The alarm had been set off, and then turned off 32 seconds later, before the 911 call. Mr. Sauve's position at trial was that it was not proved that he deactivated the alarm; because of his use of a wheelchair, he could not have got downstairs to the alarm keypad within 32 seconds.

[7] The police created a video in which they used a wheelchair to move from Mr. Sauve's bedroom to the chair lift on the stairs, into a wheelchair at the bottom of the stairs, and then to the alarm keypad. This took 53 seconds.

[8] The trial judge addressed this issue in his reasons for judgment. As he said at para. 81:

I also acknowledge the evidence of the police that one of their members was timed in getting from the accused bedroom to the alarm by using the accused's wheelchair and it took him 52 seconds which was longer than the evidence of the time the alarm was activated until shut off. The officer who performed the actual demonstration did not give evidence, nor was there any video recording of the demonstration to allow the court to see the details of this demonstration. There was no evidence as to how familiar the officer was with wheelchairs, the stair lift or the alarm system. I also note the discrepancy between the evidence of Mr. Holgate and Mr. Radu as to whether the alarm could be turned off remotely by the fob. I give little weight to this evidence and it certainly does not raise any reasonable doubt in my mind as to the guilt of Mr. Sauve. [Emphasis added.]

[9] In addition to other grounds, Mr. Sauve intends to argue on appeal that this paragraph reflects a serious misapprehension of the evidence, and a reversal of the burden of proof.

C. Procedural Background

[10] Mr. Sauve filed a Notice of Appeal for Inmate Appeal. His case proceeded in the inmate appeal stream. The Crown prepared the Appeal Book (four volumes) and ordered transcripts of most of the evidence at the trial. The appeal was listed to be heard on July 11, 2018 in Kingston. Mr. Sauve was to be assisted by Ms. Erin Dann, an experienced appellate counsel, appearing as part of the Ontario Inmate Appeal Duty Counsel Program ("the Program"). Ms. Dann had prepared submissions on the ground of appeal mentioned above. At that time, Mr. Sauve also provided written submissions, advancing further grounds of appeal. However, he also indicated, for the first time, that he wished to pursue a s. 684 application. The hearing was adjourned so that Mr. Sauve could make his application in writing. He has done so, and the Crown has responded.

D. The Denial of Legal Aid

[11] Mr. Sauve was represented at trial. He was able to retain counsel privately. After filing his Notice of Appeal, Mr. Sauve applied for legal aid. The Area Committee of Legal Aid Ontario ("LAO") denied his application, finding that Mr. Sauve failed to satisfy the financial criteria for eligibility.

[12] The Area Committee's decision was affirmed on appeal. LAO determined that Mr. Sauve is in receipt of WSIB and CPP benefits totalling $16,440 annually. After expenses, that are largely discretionary, he receives a net monthly income of roughly $900. To qualify for legal aid, an applicant in Mr. Sauve's situation (being classified as a family of one) must have a gross annual income that is "less than $13,635 in order to qualify for a legal aid certificate on a non-contributory basis, or less than $15,781 to qualify for legal aid assistance with a contribution agreement." Mr. Sauve does not qualify for either type of assistance.

[13] In his materials on this application, Mr. Sauve disclosed that he has bank deposits totalling $11,780.26. It would appear that this was not disclosed to LAO.

[14] There is some dispute about the proceeds from the sale of the matrimonial home that Mr. Sauve shared with his wife, as well as his personal property. However, given Mr. Sauve's income stream and his savings, it is not necessary to resolve this issue.

E. The Appointment of Counsel

[15] The decision to appoint counsel is governed by s. 684 of the Criminal Code. An applicant must establish on a balance of probabilities that he or she does not have "sufficient means" to obtain legal assistance and that "it is desirable in the interests of justice" that counsel be appointed.

(1) "Sufficient Means"

[16] Mr. Sauve has failed to establish that he does not have sufficient means to fund his appeal. Mr. Sauve has savings of nearly $12,000 and a net monthly income of approximately $900. Being in this financial position, Mr. Sauve is capable of funding an appeal, especially when the bulk of the trial proceedings have already been transcribed, and the voluminous appeal book prepared. It would appear that Mr. Sauve would rather retain his funds than retain counsel. This undermines his claim for assistance by government-funded counsel.

(2) "The Interests of Justice"

[17] Mr. Sauve has not established that it is in the interests of justice that he receive government-funded counsel.

[18] This court has considered the meaning of the "interests of justice" in the context of s. 684 in numerous decisions, most drawing upon the leading judgment in R. v. Bernardo, 121 C.C.C. (3d) 123. To succeed under s. 684, an applicant must show that:

a. the appeal is "arguable"; and

b. it is "necessary" that counsel be appointed, having regard to,

(i) whether the applicant is capable of effectively advancing his grounds of appeal without a lawyer; and

(ii) whether the court will be able to properly decide the appeal without the assistance of defence counsel.

See also R. v. Mahmood, 2015 ONCA 442, 122 W.C.B. (2d) 458, at para. 34; and R. v. Adams, 2016 ONCA 413, 350 O.A.C. 110, at para. 26.

[19] As the Crown concedes, the ground of appeal discussed above is arguable. This ground of appeal has already been prepared for argument by Ms. Dann, who was prepared to advance it on Mr. Sauve's behalf earlier this year. The Crown advises that the Program is prepared to further assist Mr. Sauve if he remains self-represented.

[20] The other issues raised by Mr. Sauve in his written submissions are factual in nature and do not appear complex. His written submissions are detailed and reflect no difficulty in communication. I am mindful of the claims by Mr. Sauve (and his sister) about having a head injury and suffering from mental illness. However, there is nothing before me to substantiate the claim that he would be compromised in arguing his appeal, with the assistance of the Program.

F. Conclusion

[21] The application is dismissed. This appeal should be listed for hearing at the October 2018 sittings of Kingston inmate appeals.

"G.T. Trotter J.A."