COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2020 ONCA 573

DATE: 20200918

DOCKET: M51716 (C67054)

Hourigan J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Campbell

Appellant (Applicant)

Christen Cole and Anthony Moustacalis, for the appellant

Lorna Bolton, for the respondent

Heard: September 14, 2020 by videoconference

REASONS FOR DECISION

(a) Introduction

[1] On November 2, 2018, the appellant was convicted of kidnapping, pointing a firearm, and assault causing bodily harm. He was sentenced to 7 years’ imprisonment, less credit for pre-trial custody and time spent on restrictive bail conditions.

[2] The appellant brings an application for an order for the appointment of counsel under s. 684 of the Criminal Code. For the reasons that follow, the application is granted.

(b) Analysis

(i) Governing Principles

[3] Pursuant to s. 684 (1), this court has the authority to assign counsel to act on an appellant’s behalf if, in its opinion, it appears both:

(i) desirable in the interests of justice that the appellant should have legal assistance; and

(ii) the appellant does not have sufficient means to obtain that assistance: R v. Staples, 2016 ONCA 362, at paras. 31-32, reconsideration allowed, R. v. Staples, 2017 ONCA 138.

[4] Two general principles applicable to s. 684 applications are worth noting. First, an order for government-funded counsel is exceptional relief: Staples, (2016), at para. 40. Second, the appellant bears the burden of proof on a s. 684 application: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 31.

[5] As part of the analysis of the interests of justice component of the test, the court should consider the merits of the appeal on the basis of the record. Put simply, appeals that are devoid of merit will not be helped by appointing counsel. Given that the record is often incomplete at the time of the application, this is not a probing examination of the merits: R. v. Adams, 2016 ONCA 413. Rather, the applicant need only satisfy that the court that the proposed grounds of appeal are arguable: see R. v. Bernardo, (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.).

[6] Where an appellant advances arguable grounds, the next component of the interests of justice analysis is whether the appellant can effectively advance the grounds of appeal without the assistance of counsel or the court can properly decide the appeal without the assistance of counsel. As part of this inquiry, the court examines the complexities of the arguments to be advanced and the appellant’s ability to make legal argument in support of the grounds of appeal: Bernardo, at para. 24.

[7] The financial eligibility requirement in s. 684(1) of the Criminal Code 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: R. v. Le, 2016 ONCA 798, 134 O.R. (3d) 623, at para. 17.

[8] An appellant seeking appointment of counsel under s. 684(1) must be clear and transparent in disclosing his or her financial affairs. The court must be satisfied that he or she has exhausted all other means of paying for counsel: Staples (2016), at para. 40.

(ii) Application of the Principles

[9] The appellant argues that is in the interests of justice that he should have legal assistance in pursuing his meritorious appeal and that he does not have the means to obtain that assistance. In contrast, the Crown takes the position that the applicant has failed to demonstrate that he lacks financial means to retain counsel privately and has failed to establish that the appointment of counsel is in the interests of justice.

[10] I turn first to a consideration of the merits of the appeal. The appellant raises various grounds of appeal, including ineffective assistance of counsel, the voluntariness of his police statement, the sufficiency of the jury charge regarding the use of prior inconsistent statements and post offence conduct, and unreasonable verdict. I would not categorize any of the grounds of appeal as strong, however I am not prepared to conclude that none of the grounds are arguable.

[11] The next part of the analysis is whether the appellant can effectively advance the grounds of appeal without the assistance of counsel or the court can properly decide the appeal without the assistance of counsel. The appellant has not completed high school and has limited experience with the court system. The issues are not novel, but they are, in my view, beyond his capabilities to effectively argue. I also believe that the court will be greatly assisted by having s. 684 counsel, as opposed to duty counsel, make submissions on these issues.

[12] The final consideration is the financial means of the appellant. The appellant has filed sworn affidavit evidence that since 2013 he has earned less than $11,000 per annum and that he has exhausted his ability to obtain financial assistance from his mother and aunt. While the Crown submits that the appellant is not credible and that there is a possibility that one of his cousins can assist him, I found those submissions speculative and I am satisfied that the appellant does not have the means to retain counsel.

(c) Disposition

[13] The appellant has met his onus on the test for a s. 684 order and the application is granted. On the state of the record, I am not prepared to limit the order to specific grounds of appeal. Counsel may provide me with a draft order. If no agreement can be reached on its terms, they may make written submissions and I will settle the order.

“C.W. Hourigan J.A.”