Court File and Parties
Court of Appeal for Ontario Date: 2021-05-28 Docket: M52463 (C68251)
Before: Jamal J.A. (Motions Judge)
Between: Her Majesty the Queen Respondent/Responding Party
And: Dexter Griffith Appellant/Applicant
Counsel: Andrew Menchynski, for the applicant Diana Lumba, for the respondent
Heard: May 21, 2021 by video conference
Reasons for Decision
Introduction
[1] The applicant Dexter Griffith applies for an order under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46, appointing counsel to assist him with his appeal. The applicant was convicted of possession of cocaine for the purpose of trafficking and sentenced to 3½ years in prison. Although the applicant’s inmate notice of appeal appeals the conviction and seeks leave to appeal the sentence, he seeks the s. 684 order only for the conviction appeal. The federal Crown opposes the application.
[2] The applicant, who has no prior criminal record, qualified for legal aid based on his income but was denied funding because Legal Aid Ontario concluded that the appeal lacks sufficient merit.
[3] For the reasons that follow, I grant the application for a s. 684 order.
The Appeal
[4] A principal issue on the appeal will be whether the trial judge erred in rejecting the appellant’s pretrial motion challenging the issuance of a search warrant for a specified apartment on Rowntree Road in Etobicoke where drugs were found. The applicant submitted that the warrant breached s. 8 of the Canadian Charter of Rights and Freedoms and the evidence obtained should have been excluded under s. 24(2). The trial judge rejected that submission: R. v. Griffith, 2018 ONSC 6950. A jury then convicted the applicant.
The Test for a s. 684 Order
[5] Section 684 of the Criminal Code authorizes a judge of this court to assign counsel to represent an accused in a criminal appeal, funded by the Attorney General if legal aid has been denied, where it is “desirable in the interests of justice” that the accused should have legal assistance and the accused lacks sufficient means to hire counsel.
[6] To obtain an order under s. 684, an applicant must show:
The appeal is arguable or not frivolous: R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 23; R. v. Smith, 2001 NFCA 38, 203 Nfld. & P.E.I.R. 90, at para. 8. This is a “modest standard”: R. v. Budlakoti, 2021 ONCA 163, at para. 14.
It is necessary that counsel be appointed having regard to whether the applicant is capable of effectively advancing his grounds of appeal without a lawyer and whether the court can decide the appeal without counsel’s assistance: Budlakoti, at para. 14; R. v. Sauve, 2018 ONCA 755, at para. 18; and Bernardo, at paras. 14 and 24. In addressing whether counsel is necessary, the court examines matters such as the complexity of the legal arguments to be advanced on appeal and the applicant’s ability to make those arguments: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 33; Bernardo, at para. 24.
Application to this Case
[7] The Crown does not dispute that the applicant lacks sufficient means to hire counsel. The applicant qualifies for legal aid based on his income and he has limited employment prospects because in November 2017 he had a serious car accident in which he suffered a traumatic brain injury. It has also been harder for him to find work during the pandemic.
[8] Instead, the Crown submits I should exercise my discretion to refuse the s. 684 order because: (1) the conviction appeal has no merit; and (2) the applicant has not established that he cannot effectively present the appeal without a lawyer.
[9] As I will explain, I do not accept the Crown’s submissions. I will address each point and then address an ancillary issue the Crown asked me to consider if I were inclined to grant the s. 684 order.
(1) The conviction appeal is arguable
[10] In my view, the applicant has met the modest standard of showing an arguable ground of appeal, one that is not frivolous.
[11] The applicant claims he has at least two arguable grounds of appeal.
[12] First, the applicant says that based on the Information to Obtain (“ITO”) available to the issuing justice, the search warrant could not have issued: see R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54. He claims that in the ITO the police made only a bare assertion that he lived at the target residence on Rowntree Road in Etobicoke with his girlfriend and that evidence of criminality would be found there. He says that the police knew his registered address was elsewhere but obscured this, even though the ITO disclosed the registered address of at least one other individual targeted by the warrant. He contends that had the police disclosed that he did not live at the target residence, an important basis for the warrant would have been undercut.
[13] The Crown responds that there was much other evidence in the ITO establishing a nexus between the applicant, drugs, and the target residence.
[14] I agree that the Crown’s argument may well succeed on appeal, but at this stage I cannot say that the applicant’s argument is frivolous. I note that paragraph 6(f) of Appendix A of the ITO identified the Rowntree Road location as the applicant’s “residence”, even though the police knew then that his registered address was at a different location in Ajax, to which address the applicant’s cellphone was also registered. Although the trial judge rejected this submission because “[h]aving one residence does not exclude having a second residence”, the ITO did not seek the warrant on the basis that the applicant had multiple residences. The ITO stated, instead, that the applicant’s “residence” was the target residence, arguably leaving the impression that this was his only residence. In the section on suspects of the investigation, the ITO also listed the applicant’s date of birth, alias, and “[a]ddress” as the target residence on Rowntree Road, even though the police knew the applicant’s registered address was in Ajax. This provides an arguable basis for the claim that the warrant could not have issued for the Rowntree Road location on the purported basis that this was the applicant’s residence.
[15] Second, the applicant claims that the application judge erred in principle by improperly “amplifying” the ITO with substantial new information unavailable to the issuing justice. He notes that in Morelli, Fish J. for the majority of the Supreme Court held that “[a]mplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds” and may be used only to “correct ‘some minor, technical error in the drafting of their affidavit material’”: at paras. 42-43; see also R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, at paras. 59-62. The applicant asserts that, absent this error in principle, the trial judge would have concluded that the warrant could not have issued and that the evidence should have been excluded under s. 24(2) of the Charter.
[16] The Crown responds that the trial judge was entitled to refer to information not included in the ITO and this did not affect the ultimate conclusion that the warrant could have issued.
[17] Once again, although the Crown may well succeed on this ground of appeal, the applicant’s argument is not frivolous. The trial judge referred to five categories of information “as set out in the ITO” that provided “credible and reliable evidence uncovered by the police”. At the hearing of this application, however, the Crown conceded that at least two of these five categories of information were not set out in the ITO. Crown counsel suggested that the trial judge may have misspoken and the trial judge’s comments must be read in the context of the rest of his reasons. However, what may have been a factual error in the trial judge’s reasons as to what was in the ITO certainly opens the door for the claim that the trial judge went beyond the bounds of permissible amplification of the ITO. I conclude that the applicant’s submission presents an arguable ground of appeal.
[18] To succeed on either argument, the applicant would also need to show that the evidence obtained in breach of s. 8 of the Charter should be excluded under s. 24(2). As Doherty J.A. recently noted, “[t]he nature of the s. 24(2) inquiry means, in some cases, different judges will reasonably arrive at different conclusions with respect to admissibility”: R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 89. Having found two arguable s. 8 arguments, I am not prepared to speculate on how the s. 24(2) issue might be resolved.
[19] I conclude that the conviction appeal is arguable and not frivolous.
(2) Counsel is “necessary”
[20] I also find that the applicant has shown that the appointment of counsel is “necessary” because the applicant would not be capable of effectively advancing these grounds without a lawyer and the court could not decide the appeal without counsel’s assistance.
[21] The Crown submits that, with the benefit of counsel’s work for the s. 684 application, the applicant could argue the appeal himself or with help from pro bono duty counsel. I reject that submission.
[22] The legal issues are relatively complex. I find that the applicant would be incapable of effectively arguing them himself. Although the applicant finished high school in Guyana, he has no higher education and has been hampered in his ability to function cognitively since his traumatic brain injury in 2017.
[23] Nor does the potential assistance of pro bono duty counsel detract from the need for funded counsel to prepare and argue this appeal. Pro bono duty counsel are “not a substitute for fully-funded counsel, whether through Legal Aid or a s. 684 order, where circumstances warrant such assistance”: R. v. Lubin, 2016 ONCA 780, at para. 18; see also R. v. Brown, 2018 ONCA 9, at para. 23; and R. v. Fiorilli, 2016 ONCA 814, 133 O.R. (3d) 161, at para. 19.
[24] Given the extensive ITO here and the nature and relative complexity of the legal issues to be raised on the appeal, experienced criminal counsel such as Mr. Menchynski would assist the court: see Fiorilli, at para. 25.
[25] I therefore find that funded counsel is “necessary”.
(3) Should the s. 684 order be limited to the issues argued on this application?
[26] Finally, the Crown submitted that, if I were inclined to grant the s. 684 order, the order should be limited to the two arguments above, even though the applicant’s inmate notice of appeal listed other grounds on the conviction appeal.
[27] I do not accept this submission. The legal arguments on this application were necessarily preliminary. Without funding, Mr. Menchynski cannot order the trial transcripts and thus understandably does not wish the applicant to be limited to the arguable grounds presented on this application. That strikes me as a reasonable position. I have found that, even without the benefit of the trial transcripts, the applicant has presented two arguable grounds on the conviction appeal, only one of which need succeed for the applicant to succeed on appeal. I am therefore granting a s. 684 order sought for the conviction appeal, without limiting the applicant to the two points argued on this application.
Conclusion
[28] The application to appoint s. 684 counsel is granted. Mr. Andrew Menchynski is appointed to represent the applicant on this appeal.
“M. Jamal J.A.”