R. v. Nassr, 2024 ONCA 24

Court of Appeal for Ontario Date: 2024-01-10 Docket: M54747 (COA-23-CR-1261)

Before: Gomery J.A. (Motion Judge)

Between: His Majesty the King Respondent (Responding Party)

And: Jason Nassr Appellant (Moving Party)

Counsel: Jason Nassr, acting in person Alexander Hrybinsky, for the respondent

Heard: January 10, 2024

Endorsement

[1] On February 9, 2023, after a four-week jury trial, Jason Nassr was convicted of extortion, criminal harassment, and making and distributing written child pornography. On October 30, 2023, he was given a global conditional sentence of two years less a day followed by 24 months of probation. Mr. Nassr is appealing his conviction and sentence. He now seeks an order appointing publicly funded counsel under s. 684(1) of the Criminal Code, R.S.C. 1985, c. C-46 to assist with and argue his appeal.

[2] For the reasons that follow, the application is granted.

[3] Section 684(1) provides for the appointment of counsel where “it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance”. The test for the appointment of counsel is set out in R. v. Staples, 2016 ONCA 362, 352 O.A.C. 392, at para. 34. Mr. Nassr must show that:

1. He does not have the means to hire counsel privately;
2. He is advancing arguable grounds for appeal; and
3. He does not have the ability to effectively advance his appeal without the assistance of counsel.

[4] The Crown conceded that Mr. Nassr met the second and third parts of the test, but questioned whether he had proved that he would not get Legal Aid assistance for an appeal. Whatever the Crown’s position on each of the three parts of the test, I must be satisfied that the appointment Mr. Nassr seeks is in the interests of justice.

Does Mr. Nassr have the means to hire a lawyer without public funding?

[5] I find that Mr. Nassr does not have the means to hire a lawyer privately. According to Mr. Nassr’s affidavit, he is disabled and relies on Ontario Disability Support Program benefits. His trial lawyer was paid through Legal Aid Ontario. Mr. Nassr applied for further funding from Legal Aid Ontario for this appeal. This application was denied because Legal Aid Ontario apparently does not get involved in appeals where a conditional sentence was imposed. Mr. Nassr has appealed the denial.

[6] Crown counsel contends that it is impossible to tell if Mr. Nassr meets the first leg of the s. 684(1) test because his funding appeal to Legal Aid Ontario may succeed. He suggests that a decision on this application should be delayed pending the outcome of the appeal or that I should grant it subject to confirmation from Legal Aid Ontario that it will not grant funding.

[7] I disagree. Mr. Nassr has no idea when he will get a decision on his funding appeal. Crown counsel concedes that the odds of a successful appeal are slim. On the evidence currently on the record, Mr. Nassr clearly does not have the money to retain a lawyer. In my view, neither the interests of justice nor the interests of the parties would be served by delaying a decision on the remote possibility that Legal Aid Ontario will change its mind.

Is Mr. Nassr advancing arguable grounds for appeal?

[8] On the second leg of the test, the applicant must establish that their appeal is at least arguable. The threshold is a modest one: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 32.

[9] In his notice of appeal, Mr. Nassr contends that the trial judge made numerous errors of law and that his Charter rights were violated. I do not need to review each of the grounds advanced as I am satisfied that he has established an arguable case on at least one of them.

[10] Mid-trial, Mr. Nassr’s lawyer asked to be removed from the record due to a breakdown of the counsel/client relationship. Mr. Nassr did not oppose this request and it was granted. Mr. Nassr then requested a mistrial and leave to bring an abuse of process application. He alleged that the Crown and police had known about and encouraged him to engage in the activities that gave rise to the criminal charges. The trial judge dismissed the mistrial application but granted Mr. Nassr leave to pursue an abuse of process application following the trial, if the jury returned a guilty verdict on any of the four charges.

[11] After the jury returned a guilty verdict, Mr. Nassr brought his abuse of process application seeking a stay of the charges under s. 24(1) of the Charter. The trial judge heard the application on May 8 and 9, 2023, and took her decision under reserve. She heard sentencing submissions in July 2023.

[12] On September 5, 2023, the trial judge issued a decision on the abuse of process application, reported as R. v. Nassr, 2023 ONSC 4947 (the “Application Decision”). Although the Crown had not raised any jurisdictional issue in its submissions, the trial judge concluded, based on R. v. Gostick (1991), 62 C.C.C. (3d) 276 (Ont. C.A.) and Head v. The Queen (1986), 20 C.C.C. (3d) 481 (S.C.C.), that she did not have jurisdiction to hear Mr. Nassr’s application following the jury’s verdict and discharge. She accordingly dismissed the application and undertook to consider the evidence regarding the alleged abuse of process in her sentencing decision.

[13] On October 30, the trial judge issued a further decision, entitled “Reasons for Decision on Abuse of Process Application Sentence”, reported as R. v. Nassr, 2023 ONSC 6040 (the “Second Application Decision”). At para. 6 of the Second Application Decision, she indicated that, even though she had already dismissed the abuse of process application, she was providing her assessment of its merits “in the event that, contrary to my jurisdictional ruling, I do retain jurisdiction post-verdict to stay these proceedings for abuse of process”. At para. 21, the judge clarified that she continued to hold the view that she was functus with respect to the abuse of process application, but she felt it prudent to address the merits of the application for this Court’s benefit. The judge went on to explain why, in her view, Mr. Nassr had not established that police and Crown misconduct would have entitled him to a stay of proceedings. She held some of the police conduct complained of was nonetheless a mitigating factor in sentencing him.

[14] In his affidavit, Mr. Nassr contends that he should have been given leave to present his abuse of process application during the trial and should have had the opportunity to argue the jurisdictional issue before the judge issued the Application Decision. He asserts that the trial judge failed to uphold the Statement of Principles on Self-Represented Litigants and Accused Persons, which was endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4. Although Mr. Nassr acknowledges that he had some assistance from an amicus curiae appointed after his lawyer got off the record, he expresses the view that the judge should have “stood the trial down” so he could get his own counsel.

[15] Based on the limited record on this motion, I do not know whether the trial judge explained why she was not willing to give Mr. Nassr a chance to retain new counsel during the trial. I also do not know what opportunity Mr. Nassr was given to make submissions on this issue. At para. 24 of her Application Decision, however, the trial judge acknowledged that she “may have been in error” in granting leave to Mr. Nassr to bring his application only after the jury rendered its verdict. In the Second Application Decision, she further recognized that her decision on the jurisdictional question could be challenged on appeal.

[16] In these circumstances, I conclude that Mr. Nassr has an arguable appeal.

Does Mr. Nassr have the ability to advance his appeal effectively without the assistance of counsel?

[17] On the third leg of the s. 684(1) test, the applicant must establish that he does not have the ability to effectively advance his appeal without counsel’s assistance. The Crown concedes the point. Given the complexity of some of the issues raised on the appeal and Mr. Nassr’s circumstances, I agree that he and the court would benefit if he were represented by a lawyer.

Disposition

[18] I accordingly order the appointment of publicly funded counsel to Mr. Nassr for the purpose of his appeal.

“S. Gomery J.A.”