Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20210504 DOCKET: M52430 & M5244 (C68739)
Hoy, Hourigan and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen Respondent (Moving Party/Responding Party)
and
Deepan Budlakoti Appellant (Responding Party/Moving Party)
Counsel: Samuel Greene, Brian G. Whitehead and Adrien Iafrate, for the moving party (M52430) and responding party (M52444) Deepan Budlakoti, acting in person, responding party (M52430) and moving party (M52444)
Heard and released orally: May 3, 2021 by video conference
Reasons for Decision
[1] On December 15, 2020, Mr. Budlakoti was convicted of several firearms offences. He has outstanding post-trial Charter litigation ongoing in the Superior Court, seeking relief that includes a stay of his convictions. He has not yet been sentenced.
[2] Two motions are before the court, one by the Crown and one by Mr. Budlakoti. They arise out of the two Notices of Appeal Mr. Budlakoti has submitted to this court.
[3] The two Notices of Appeal challenge separate decisions:
The Notice of Appeal filed October 26, 2020 challenges the September 21, 2020 decision of Justice Philips summarily dismissing a pre-trial application by Mr. Budlakoti and other inmates seeking a stay of criminal proceedings and Charter damages as a result of alleged breaches of s. 7 of the Charter as a result of Ottawa Carleton Detention Centre’s response to the pandemic during his pre-trial detention (the “Charter Appeal”); and
The Notice of Appeal, a revised version of which was filed December 29, 2020, challenges the October 16, 2020 decision of Justice Labrosse summarily dismissing two habeas corpus proceedings brought by Mr. Budlakoti challenging the conditions at the Ottawa Carleton Detention Centre at which he continues to be detained (the “Habeas Appeal”). In particular, he asserts (1) a failure to provide appropriate meals to him and and (2) a failure to provide appropriate resources to ensure that he could prepare for his trial.
[4] At present, only one Court of Appeal file number, C68739, has been assigned to both Notices of Appeal.
[5] Turning first to the Crown’s motion, the Crown seeks an order directing that the Charter Appeal be quashed on the basis that it is an appeal of an interlocutory order in a criminal matter for which there is no statutory or other right of appeal: R. v. Meltzer, [1989] 1 S.C.R. 1764.
[6] We agree that Mr. Budlakoti has no right to launch an interlocutory appeal. Mr. Budlakoti has not yet appealed his conviction. Should Mr. Budlakoti wish to challenge the October 26, 2020 decision which is the subject of his Charter Appeal, his recourse is to seek to do so in the context of an appeal against conviction, pursuant to s. 675 of the Criminal Code. Accordingly, the Crown’s application is granted and an order shall issue quashing the Charter Appeal.
[7] In his motion, Mr. Budlakoti asks the court to reconsider the March 15, 2021 decision of MacPherson J.A. refusing his application for the appointment of counsel under s. 684 of the Criminal Code to act on his behalf on the Habeas Appeal. MacPherson J.A. accepted that Mr. Budlakoti 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. However, he concluded that it was not in the interests of justice that Mr. Budlakoti have legal assistance because he did not have an “arguable” ground of appeal in the Habeas Appeal.
[8] Mr. Budlakoti argues that MacPherson J.A. erred in concluding that he did not have an “arguable” ground of appeal.
[9] Justice MacPherson considered and applied the correct legal test in concluding that counsel should not be appointed under s. 684. Mr. Budlakoti does not point to any material change in circumstances in the form of information or evidence that was not before MacPherson J.A. Moreover, we agree with his assessment of the merits.
[10] Accordingly, Mr. Budlakoti’s motion for the appointment of counsel is dismissed.
[11] The Habeas Appeal shall be scheduled for argument on September 7, 2021.
“Alexandra Hoy J.A.”
“C.W. Hourigan J.A.”
“B. Zarnett J.A.”