WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15

Court of Appeal for Ontario

DATE: 20211018 DOCKET: M52652 (C68627) Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.M. Applicant

Counsel: Jessica Zita, for the applicant David Friesen, for the respondent

Heard: September 23, 2021 by videoconference

Watt J.A.:

[1] A jury found the applicant guilty of sexual assault. The trial judge imposed a sentence of imprisonment for eighteen months. A judge of this court ordered the applicant released pending the determination of his appeal against conviction.

[2] The applicant sought funding for his appeal from Legal Aid Ontario (LAO). He relied on an opinion letter from counsel that set out several proposed grounds of appeal. Each ground alleged an error or omission in the trial judge’s charge to the jury.

[3] On November 20, 2020, LAO declined the applicant’s funding request. The applicant appealed. On February 25, 2021 the appeal was dismissed. LAO would not be funding the applicant’s appeal.

[4] On April 8, 2021, the applicant applied to the chambers judge for an order under s. 684(1) of the Criminal Code that counsel be assigned to act on his behalf on his appeal from conviction. The chambers judge dismissed the application.

[5] The applicant now seeks an order quashing the order of the chambers judge and directing that counsel be appointed under s. 684(1) to act on the applicant’s behalf with her fees and disbursements being paid by the Attorney General who is the respondent on appeal in accordance with s. 684(2) of the Criminal Code.

[6] At the conclusion of argument, we dismissed the application. We said that we would explain why we came to that conclusion. We do so now.

The Essential Background

[7] A brief reference to the proceedings before the chambers judge will provide the essential background.

The Chambers Motion

[8] Before the chambers judge, the applicant contended that an order under s. 684 of the Criminal Code was desirable in the interests of justice. The applicant lacked sufficient means to retain counsel. His appeal was meritorious. And, left to his own devices, he lacked the ability to argue the case on his own.

[9] The respondent opposed the motion, principally on the basis that the appeal was bankrupt of merit. The respondent acknowledged that the applicant lacked the means necessary to retain counsel and appears to have accepted that the applicant lacked the ability to advance argument on his own behalf.

The Decision of the Chambers Judge

[10] The chambers judge accepted that the statutory standard in s. 684(1) required her to determine whether it appeared desirable in the interests of justice that the applicant should have legal assistance to argue his appeal and that he lacked sufficient means to do so.

[11] It was uncontroversial, the chambers judge explained, that the applicant lacked the financial means to retain counsel. She was also not prepared to say, as counsel for the respondent had argued, that the appeal lacked merit. However, funding orders are exceptional. The circumstances did not satisfy the “interests of justice” standard. The issues raised were straightforward. They could be advanced by duty counsel in an inmate appeal with the assistance of the opinion letter counsel wrote to LAO seeking funding. The issues could also be determined by a panel of the court assigned to inmate appeals.

This Application

[12] In this court the applicant seeks an order quashing the order of the chambers judge. In its place, he asks that we appoint Ms. Zita as his counsel and direct that her fees and disbursements be paid by the Attorney General who is the respondent in the appeal.

The Arguments of Counsel

[13] The applicant invokes several sources as a basis upon which we can review the order of the chambers judge. Those sources include:

i. the Practice Direction concerning Criminal Appeals; ii. section 683(3) of the Criminal Code; iii. the Practice Direction concerning Civil Appeals; and iv. section 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (CJA).

[14] To obtain an order under s. 684, the applicant accepts, he must show that it is in “the interests of justice” that counsel be appointed to act on his behalf. The order is discretionary. Whether it should issue depends upon and requires consideration of all the circumstances. These include the merits of the appeal, the appellant’s ability to present his case without the assistance of counsel, and the ability of the court to determine the issues raised without the assistance of counsel.

[15] In this case, the applicant continues, the appeal has substantial merit. It alleges specific errors and omissions in the charge to the jury, thus surpasses the standard that it be arguable. The proceedings under review were a 10-day jury trial with pre-trial and in-trial motions including a s 276. application. There was a pre-charge conference about what should be included in the charge. The jury asked questions. These issues are well beyond the ability of the appellant to present to the Court. Further, the Duty Counsel Program available in inmate appeals is not an adequate substitute for fully-funded counsel. The availability of assistance from that program should not undermine meritorious s. 684 applications.

[16] The respondent challenges the review mechanisms asserted by the applicant. Rights of appeal are entirely statutory. The Criminal Code provides no right of appeal from refusal of an order under s. 684. And the Criminal Code is where any appellate rights must be found. Section 7(5) of the CJA, alone or together with s. 683(3) of the Criminal Code, is of no avail. The CJA does not apply to criminal proceedings. And it is well settled that it, in tandem with s. 683(3) of the Criminal Code, affords no basis of appeal or review. Likewise, Practice Directions which implement but cannot create rights of appeal or review.

[17] Turning to the merits, the respondent points out that the remedy afforded by s. 684 is discretionary. Decisions granting or refusing the appointment of funded counsel are accorded significant deference on appeal. In this case, the applicant has not demonstrated any basis upon which we should interfere. The circumstances have not changed. The chambers judge did not err in law or depart from governing principles. She did not dismiss the application on the basis that the Duty Counsel Program would be an adequate or sufficient substitute for funded counsel. The chambers judge simply observed that the straightforward issues advanced by the applicant could be properly advanced by Duty Counsel aided by the opinion letter prepared by counsel. And this court, assisted by Duty Counsel, and counsel for the respondent, is well-positioned to decide the appeal without funded counsel.

Discussion

[18] Like counsel, we approach our task in two steps. The first examines the existence and scope of our authority, if any, to review the decision of the chambers judge refusing to make an order for funded counsel. Second, we consider the merits of the claim.

Issue #1: The Availability of Review

[19] The applicant invokes several different sources as a basis upon which we are entitled to review the decision of the chambers judge.

Rights of Appeal under the Criminal Code

[20] The right of appeal is an exceptional right. Appellate rights, procedure on appeal, and the jurisdiction of appellate courts are wholly creatures of statute. An appellate court such as this has no inherent jurisdiction to entertain an appeal in criminal cases: Welch v. The King, [1950] S.C.R. 412, at page 428; R. v. Morgentaler, Smoling and Scott (1984), 16 CCC (3d) 1 (Ont. CA), at pages 5-6; R. v. Smithen-Davis, 2020 ONCA 759, at paras. 27-28. Where no right of appeal is given, none exists.

[21] Section 684 contains no provision that authorizes an appeal by any party to the proceedings under the section. Nor is an appeal authorized by any other provision in Part XXI or elsewhere in the Criminal Code. See by comparison, s. 490(17) of the Criminal Code.

Sections 683(3) of the Criminal Code and 7(5) of the CJA

[22] Section 683(3) of the Criminal Code permits a court of appeal to exercise, in relation to proceedings in the court, any powers beyond those in s. 683(1) that the court can exercise in civil matters. Section 7(5) of the CJA permits a panel of the court, on motion, to set aside or vary a decision made by a single judge of the court on a motion.

[23] Section 683(3) cannot reasonably be read as extending the appellate jurisdiction of a court of appeal beyond the jurisdiction the Criminal Code expressly grants it.

[24] Section 683(1) defines the authority of a court of appeal to make procedural orders to facilitate the hearing and adjudication of an appeal, provided the court concludes that it is in “the interests of justice” to make these orders. Section 683(3) expands the express authority granted by s. 683(1) to include any power the court may exercise in civil matters: R. v. Perkins, 2017 ONCA 152, 347 CCC (3d) 58, at paras. 21-22; R. v. Codina, 2009 ONCA 907, 266 CCC (3d) 1, at para. 8.

[25] On its own, s. 7(5) CJA cannot ground a right of appeal in criminal proceedings. The province lacks the constitutional competence to create rights of appeal in criminal cases: Perkins, at para. 63.

[26] Nor does the combination of sections 683(3) of the Criminal Code and 7(5) of the CJA fare any better as a source of appellate jurisdiction. To decide otherwise would be to encroach on Parliament’s exclusive jurisdiction to determine rights of appeal in criminal proceedings: Perkins, at para. 23.

The Criminal Appeal Rules and Practice Directions

[27] Section 482(1) of the Criminal Code permits a court of appeal to make rules of court not inconsistent with the Criminal Code or any other Act of Parliament. These rules apply to appeals within the jurisdiction of the court instituted in relation to criminal proceedings. Rules may be made under s. 482(3)(d) to carry out the Code’s provisions relating to appeals. However, this rule-making authority cannot be invoked to extend the substantive jurisdiction of the court. The authority to make rules, equally to issue practice directions, is limited to matters already within the jurisdiction of the court. Rules implement jurisdiction otherwise granted. They do not create substantive rights that do not otherwise exist: Smithen-Davis, at paras. 27-28; McEwen (Re), 2020 ONCA 511, at paras. 53-55. See also, R. v. O’Malley (1997), 119 CCC (3d) 360 (BCCA), at para. 18.

[28] In the result, neither the Criminal Appeal Rules nor the Practice Directions of the court can ground a right of appeal or of review for which the Criminal Code does not provide.

Section 684 and Concurrent Jurisdiction

[29] A judge and a panel of judges of this court have equivalent jurisdiction to determine whether an order for state-funded counsel is desirable in the interests of justice under s. 684(1) of the Criminal Code. In other words, the jurisdiction of a single judge and a panel of judges is concurrent. This is not unique to s. 684. See, for example, ss. 675(1)(a)(ii); (b)(1.1); 678(2); and 839(1).

[30] The mere fact of concurrent jurisdiction in a single judge and a panel of the court does not mean that a panel of judges has authority to “review” the order of a single judge or sit on appeal of that order. To decide otherwise would be at odds with the very essence of concurrent jurisdiction. Separate, but equal. Indeed, the Criminal Code confirms as much when it provides, for example, in s. 675(4), for a right to a panel hearing when leave to appeal is refused by a single judge.

[31] Yet the absence of a review authority does not mean that a judge and a panel of the court cannot both exercise jurisdiction to consider a request for the appointment of state-funded counsel in the same case. As this court has previously decided, in an appropriate case, a panel of the court may exercise its s. 684 jurisdiction even though a judge of the court has refused to do so: R. v. Bernardo (1997), 121 CCC (3d) 123 (Ont. CA), at para. 12.

[32] The Bernardo court did not define the scope of what it considered “appropriate” to warrant panel consideration of an application for state-funded counsel under s. 684 after rejection of an application for the same relief by a single judge. It was not necessary for the court to formulate a test or standard or otherwise to define the outer reaches of what might engage the concurrent jurisdiction of a panel after consideration by a single judge. Suffice it to say, that what prompted the Bernardo court to exercise its concurrent jurisdiction was a change of circumstances. What changed, as the single judge contemplated in his refusal of the application, was that substantial parts of the trial record not available to the single judge became available to the panel. This enabled the panel to make a more mature assessment of the complexity of the appeal and the appellant’s ability to effectively argue the appeal without the assistance of counsel: Bernardo, at para. 12.

[33] Absent from the decision in Bernardo is any suggestion that the panel was exercising an appellate jurisdiction in relation to the decision of the single judge. The authorities invoked by the Bernardo court, as well as its analysis reveal a de novo assessment based on changed circumstances: Bernardo, at para 12; R. v. Foster (1954), 110 CCC 214 (Ont. CA), at page 215; R. v. Walker (1978), 46 CCC (2d) 124 (Que. CA), at page 25.

[34] From this review of the authorities, we are satisfied that there is no right of appeal or other review from the chambers judge refusing to direct the appointment of state-funded counsel. Our concurrent jurisdiction permits us to consider the application afresh, provided we are satisfied that circumstances have changed sufficiently from those before the single judge to warrant a reassessment.

Issue #2: The Merits of the Claim

[35] In large measure, the scope of our jurisdiction on this application predestines its demise. We exercise no appellate or cognate review function. Rather, we canvass whether there has been a change in circumstances since the decision of the application judge. Further, if there has been such a change, we evaluate its nature and extent to determine whether the interests of justice warrant a different conclusion than reached by the chambers judge.

[36] In this case, the applicant asserts no change in circumstances between those prevalent on the determination of the chambers judge and those current on this application. This is not a case in which additional relevant material has become available after the initial decision. It follows, that the application cannot succeed on the basis of changed circumstances.

[37] Even if we were prepared to conclude that we could exercise our concurrent jurisdiction on the basis of a legal error in the reasoning or conclusion of the chambers judge, we would not do so here.

[38] The remedy afforded by s. 684(1) - the appointment of state-funded counsel - is discretionary. The applicable standard - “the interests of justice” - involves the exercise of a case-specific discretion which is subject to substantial deference on appeal absent any error of law or principle, misapprehension of material evidence, or a decision that is plainly unreasonable.

[39] In this case, the error alleged is that the chambers judge essentially concluded that the Duty Counsel Program for inmate appeals was an adequate proxy or surrogate for state-funded counsel. We are not persuaded that the chambers judge declined the application on this basis. As we understand her reasons, the chambers judge concluded that the grounds of appeal to be advanced, all of which related to the charge to the jury, were straight forward and could be properly advanced on an inmate appeal. This was so despite the applicant’s evidence about his learning disability and his challenges with reading comprehension and communication.

Disposition

[40] It is for these reasons that we dismissed the application for an order for state-funded counsel under s. 684.

Released: October 18, 2021 “D.W.” “David Watt J.A.” “I agree. M.L. Benotto J.A.” “I agree. Gary Trotter J.A.”