Court of Appeal for Ontario

Date: 2025-07-09
Docket: M56048 (COA-24-CR-1017)
Judge: L. Madsen (Motions Judge)

Between:
His Majesty the King, Applicant
and
Courtney Dennis, Respondent

Appearances:
Rameez Sewani, for the applicant
Jacqueline Porter, for the respondent

Heard: 2025-06-27

Endorsement

Introduction

[1] The applicant, Courtney Dennis, brings an application for state-funded counsel under s. 684 of the Criminal Code, RSC 1985, c C-46. For the reasons set out below, and notwithstanding the capable efforts of counsel assisting the applicant, the application is dismissed.

A. Background

[2] The applicant was convicted of importing cocaine and resisting arrest. He hired two women to import four kilograms of cocaine into Canada from St. Maarten. At trial, the applicant testified that his cousin was responsible for putting the cocaine in the women’s suitcases. He refused to answer questions put to him about the identity of his cousin, stating that he feared for his life and that he and his family had been threatened by his cousin’s associates.

[3] In convicting the applicant, the trial judge found that the refusal to identify the cousin damaged the applicant’s credibility, stating:

The refusal to identify the cousin damages Mr. Dennis’ credibility. It is true that an accused has a right to silence at the investigatory stage and at the trial stage. However, although he never has a legal obligation to do so, if the accused elects to testify, he sacrifices his right to silence. Having chosen to give evidence on his own behalf he must bear the full responsibility that comes with that decision. An accused, like an ordinary witness, must answer all the questions put by the lawyers, subject only to the rules of relevance, admissibility, and privilege.

There is no right to pick and choose what questions to answer and what not to answer. [citations omitted.]

[4] The applicant was sentenced to 11 years in the penitentiary (10.5 years for importing and six months consecutive for resisting arrest).

[5] The applicant has filed an Inmate Notice of Appeal. He states that he has no income, assets, or savings. He has been denied legal aid and has exhausted all avenues of review with Legal Aid Ontario.

[6] On appeal, the applicant intends to argue that the trial judge erred in failing to engage with the applicant’s explanation for why he would refuse to name his cousin, and automatically discounting the applicant’s credibility on the basis of that refusal. He says that his evidence should have been assessed in the same manner as that applied to an “unresponsive witness”, as set out in the framework in R. v. Hart, 1999 NSCA 45, 74 N.S.R. (2d) 165; namely, that the judge ought to have considered the reason for the unresponsiveness, the impact of the unresponsiveness, and the possibilities of ameliorative action. While he acknowledges that the trial judge was entitled to make the credibility findings that he did, he argues that the judge was required to “at least grapple with” the explanation given by the applicant. The applicant also intends to advance an error in principle in sentencing.

[7] The respondent argues that Hart does not apply. By opting to testify, the applicant was obliged to tell the truth, the whole truth, and nothing but the truth, and failed to do so. The respondent asserts that the governing case is R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280, which sets out the consequences when an accused person refuses to answer questions. Hart, by contrast, applies when an accused person alleges infringements of his or her ss. 11(d) and 7 Charter rights because of a witness’s inability or refusal to answer questions in cross-examination.

B. Analysis

[8] Section 684(1) of the Criminal Code provides for the appointment of appellate counsel as follows:

A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, 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.

[9] The onus is on the applicant to show that such assistance is in the interests of justice. This is a discretionary decision made on a case-by-case basis: R. v. Bernardo, 121 C.C.C. (3d) 123 (Ont. C.A.), para 16.

[10] In R. v. Staples, 2016 ONCA 362, Gillese J.A. set out the test to meet as follows:

1. whether the applicant has the means to hire counsel privately;
2. whether the applicant has advanced arguable grounds of appeal; and
3. whether the applicant is able to effectively advance his or her appeal without the assistance of counsel.

[11] The threshold for whether an appeal is arguable is modest: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, para 32. Where an applicant advances arguable grounds, a second inquiry considers whether the appellant can advance that ground without the assistance of counsel: Abbey, at para. 33.

[12] The respondent concedes that the applicant lacks the means to obtain legal assistance. The crux of the application is whether the grounds of appeal are arguable.

[13] In my view, while the argument sought to be advanced on the conviction appeal is creative, it is not, in the face of Arradi, arguable.

[14] In Arradi, the Supreme Court of Canada held unequivocally that “[t]he refusal by a witness – even if he or she is the accused – to answer the questions put to him or her is an affront to the authority of the court” that can be punished by a finding of contempt: at paras. 34-35. When an accused person elects to testify but refuses to comply with their oath or affirmation, their reliability and credibility are implicated: Arradi, at para. 44; see also R. v. Omar, 2018 ONCA 599, leave to appeal refused, [2018] S.C.C.A. No. 398, in which Benotto J.A. stated at para. 23:

Broadly speaking, contempt of court consists of any conduct that obstructs or interferes with the administration of justice or that shows disrespect for the court and its process: R. v. Glasner, 19 O.R. (3d) 739 (C.A.), at p. 748. It includes a witness’s refusal to answer a question properly put to him or her at trial, including the identity of a person involved in criminal activity.

[15] Thus, the obligation on an accused who chooses to testify to answer questions put to him or her is clear. Nothing in Arradi suggests that it is arguable that an accused who chooses to testify can be selective about the questions they wish to answer, nor, correspondingly, that there is an obligation on trial judges to consider any excuses for such refusal.

[16] I agree with the respondent that the applicant’s reliance on Hart in the context of an accused who has chosen to testify and refused to answer questions put to him, is misplaced. In Hart, the accused claimed that his right to make full answer and defence was infringed because a child witness for the Crown was unresponsive in cross-examination. This court’s decisions in R. v. Cameron, 208 C.C.C. (3d) 481 (Ont. C.A.), and R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515, which both apply Hart and are cited by the applicant, each arise in the context of the right to make full answer and defence where a Crown witness is unavailable for cross-examination (Cameron), or unresponsive (Duong).

[17] Here, the only witness who refused to answer questions was the applicant himself. He was fully available, and he was unresponsive. In my view, notwithstanding the modest threshold under section 684, it is not arguable that the Hart framework applies where the accused himself is the unresponsive witness.

[18] I am also unable to find that the applicant has an arguable sentence appeal. The applicant suggests that the sentencing judge appears to have “twisted” a positive father/son relationship into an aggravating factor. I agree with the respondent that this is not borne out by the reasons.

[19] The sentencing judge acknowledged that the applicant cares for his son and missed time away from him when incarcerated, and that “he might be an ordinary family man in one part of his life”. However, he also noted that the applicant continued his criminal behaviour despite its impacts on his son. I am not satisfied that the sentencing appeal is arguable such that counsel should be appointed on this application.

C. Disposition

[20] The application to appoint counsel under s. 684 is dismissed.

“L. Madsen”