COURT OF APPEAL FOR ONTARIO DATE: 20210315 DOCKET: M52091 (C68739)

MacPherson J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen Respondent (Respondent/Responding Party)

and

Deepan Budlakoti Applicant (Appellant/Moving Party)

Deepan Budlakoti, appearing in person Ian Kasper, appearing as duty counsel Samuel Greene, for the responding party

Heard: February 11, 2021 by video conference

REASONS FOR DECISION

A. Introduction

[1] The applicant Deepan Budlakoti seeks an order pursuant to s. 684 of the Criminal Code for the appointment of counsel to represent him on his appeal of two orders made by Labrosse J. of the Superior Court of Justice during the applicant’s criminal trial in Ottawa.

B. Facts

[2] The applicant was charged and convicted of a number of firearm offences. He has made post-trial applications that are currently proceeding in the Superior Court. He has not been sentenced. He is an inmate at the Ottawa-Carleton Detention Centre (“OCDC”).

[3] Prior to the commencement of his trial in the Superior Court, the applicant brought two applications for habeas corpus before the trial judge.

[4] The first habeas corpus application sought an order declaring that the applicant’s current meal program at the OCDC was unlawful and that he be provided meals suitable to his dietary and religious restrictions.

[5] The second habeas corpus application sought orders directing improvements in internet and phone access, access to professional visits, additional yard time, access to medications, and various documents to support his applications.

[6] The first habeas application was filed under the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7, Form 1. The second application did not refer to any criminal or civil rules.

[7] The Crown sought to have the habeas applications dismissed under r. 6.11(2) of the Criminal Proceedings Rules. The Crown argued that none of the applicant’s grievances amounted to ‘deprivation of liberty’, as required for habeas corpus relief.

[8] The application judge summarily dismissed the claims pursuant to the Criminal Proceedings Rules. He said:

In considering the habeas corpus applications before the Court we must determine if the Respondent’s claims amount to an unlawful deprivation of liberty.

In the present circumstances the Respondent is seeking accommodation on several issues: nutrition, for health and religious reasons and the inability to conduct his legal proceedings outside of the normal schedule for inmates. Clearly these matters do not go to the nature of the detention and they certainly do not amount to a more restrictive form of confinement.

I cannot find any suitable ground for the order sought. It is simply a misuse of the prerogative writ of habeas corpus as the present circumstances do not involve a change to the level of confinement, nor do they engage a further deprivation of liberty.

[9] The applicant has filed a Notice of Appeal with respect to Labrosse J.’s decision to summarily dismiss his habeas corpus applications. He has been denied legal aid funding for counsel for the appeal. Accordingly, he makes this application, pursuant to s. 684 of the Criminal Code, for the appointment of counsel to represent him on the appeal.

C. Issues

[10] The issues on the application are:

1. Does this court have jurisdiction to make a s. 684 order in this appeal?
2. If the answer to question (1) is ‘Yes’, should a s. 684 order be made?

D. Analysis

(1) The jurisdiction issue

[11] The applicant maintains that because the Superior Court exercised its criminal law powers through the Criminal Proceedings Rules in making its decision on the two habeas corpus applications, he has a right of appeal to this court pursuant to s. 784 of the Criminal Code.

[12] The respondents says that this court does not have jurisdiction to grant a s. 684 funding order because the appeal is civil, not criminal, in nature.

[13] I agree with the applicant on this issue, but only on a narrow technical basis. I note that the applicant's first habeas corpus application was commenced under the Criminal Proceedings Rules and the two applications were dismissed pursuant to those rules. In the Superior Court, the Crown appeared to concede that the applications were criminal in nature when it moved to have them dismissed in the criminal proceedings. In my view, it should not be open now to the respondent to resile from that position on appeal, to the detriment of the applicant.

(2) The merits issue

[14] Pursuant to s. 684 of the Criminal Code, this court may appoint counsel in a criminal appeal, funded by the Attorney General, where it is “desirable in the interests of justice” that the applicant should have legal assistance and he lacks the means to hire counsel. In assessing the interests of justice, the court must consider the merits of the case. The applicant must meet the modest standard of having an “arguable” ground of appeal. Appeals that have no merit cannot be helped by the appointment of counsel. The applicant must also show that appointed counsel is “necessary” having regard to whether he is capable of effectively advancing his grounds without a lawyer and whether the court can decide the appeal without counsel’s assistance: R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at paras. 14 and 22; R. v. Sauve, 2018 ONCA 755, at para. 18.

[15] The respondent, fairly, does not dispute that the appellant does not have the means to retain counsel and would struggle to effectively advance an appeal himself if there were an arguable ground of appeal. The respondent’s position is that there is no arguable ground of appeal.

[16] Habeas corpus is an ancient writ that protects a person from unlawful confinement: May v. Ferndale Institution, 2005 SCC 82, at para. 19. To be granted relief, an applicant must 1) establish that they have been deprived of liberty and 2) raise a legitimate ground upon which to question its legality. Once both are established, the onus shifts to the respondent to show that the deprivation of liberty is lawful: Mission Institution v. Khela, 2014 SCC 24, at para. 30; May, at para. 74.

[17] In the context of prisoner claims, there are three different deprivations of liberty that may be challenged: an initial deprivation; a substantial change in conditions amounting to a further deprivation of liberty; and a continuation of the deprivation of liberty, which was lawful but has become unlawful: R. v. Gamble, [1988] 2 S.C.R. 595, at pp. 637-38.

[18] In Gamble, the court expanded the availability of habeas corpus and held that it can be used to obtain declaratory relief under s. 24(1) of the Charter.

[19] On this application, the applicant makes a single argument, namely, that his application has merit because he is entitled to Charter s. 24(1) relief as established by Gamble. The applicant asserts that, on the basis of the evidentiary record, his appeal has merit in two respects: (1) a failure to provide appropriate meals to him (generally, a Charter s. 7 concern) and (2) a failure to provide appropriate resources to ensure that he could prepare for his trial (generally, a s. 7 or s. 11(d) concern).

[20] I am not persuaded by this submission. I say this for two reasons.

[21] First, in the Superior Court the applicant did not seek Charter s. 24(1) declaratory relief. In his first application, he did not invoke the Charter at all, despite his claim that the food he was served was inadequate because of his religious beliefs. The only relief sought in the first application was an order that he be served with food that met his health and religious needs. In his second application, he explicitly invoked his right to a full answer and defence. However, the only relief sought was several orders requiring that he be provided with various items and access to various resources. Given that a Charter remedy was never sought, it cannot be said that the applicant is entitled to s. 24(1) declaratory relief.

[22] Second, I see no error in the application judge’s conclusion that the circumstances alleged by the applicant relating to food, medication, internet, phone, documents, yard time, and professional visits “do not go to the nature of the detention and do not amount to a more restrictive form of confinement.” There is nothing in the record to suggest that the applicant is being treated worse than “the general inmate population” at OCDC or that his “form of confinement or detention” is one in which “the actual physical constraint or deprivation of liberty … is more restrictive or severe than the normal one in an institution”: R. v. Miller, [1985] 2 S.C.R. 613, at p. 641.

[23] For these reasons, the applicant has not persuaded me that a s. 684 order is appropriate in his appeal.

E. Disposition

[24] The application is dismissed.

“J.C. MacPherson J.A.”