Court File and Parties
COURT FILE NO.: CR-13-0085-AP DATE: 2015-03-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen,
Respondent
- and -
Dane Schell,
Applicant
Counsel: Célia Jutras, for the Crown David Kiesman, for the Applicant
HEARD: March 25, 2015, at Thunder Bay, Ontario
Before: Mr. Justice F. Bruce Fitzpatrick
Reasons For Decision on Application
[1] Mr. Schell brings two applications. The first dated December 19, 2014 (the "Rowbotham Application") and a second dated March 25, 2014 (the "s. 684(1) Application"). Both applications seek an order that an agency, the Attorney General of Ontario on the Rowbotham Application and Legal Aid Ontario on the s. 684(1) Application, provide funding for counsel for Mr. Schell in respect of his appeals from his convictions for assault and mischief registered on August 26, 2013.
[2] I will deal first with the s. 684(1) Application. Section 684(1) of the Criminal Code provides as follows:
- (1) 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.
[3] Interestingly, counsel for Mr. Schell takes the position that in fact there is no jurisdiction for this Court to entertain this application. This is because this section gives jurisdiction only to justices of the Ontario Court of Appeal to consider applications for funding under this section. Apparently in responding to the Rowbotham application, Crown counsel suggested s. 684(1) is the only manner by which this Court can order a third party to pay for Mr. Schell's counsel on appeal.
[4] In my view, the Crown was wrong to make this suggestion to counsel for Mr. Schell. Despite the fact that I am an ex-officio Justice of the Ontario Court of Appeal (as are all Superior Court Justices in Ontario), this is not a sufficient basis for me to rely on s. 684(1) to consider a funding application for Mr. Schell. Section 684(1) is contained in Part XXI of the Criminal Code under the heading "indictable appeals". The provisions of the Criminal Code relating to summary conviction appeals are contained in another part of the Code, Part XXVII. Mr. Schell's appeal is a summary conviction appeal.
[5] Also, the definition section of the Code clearly delineates between the Ontario Court of Appeal on the one hand, and a Superior Court of criminal jurisdiction, as including both the Ontario Court of Appeal and the Ontario Superior Court of Justice, on the other. In my view, a plain reading of s. 684(1) indicates that it only creates jurisdiction for judges sitting as Ontario Court of Appeal justices to have such authority to entertain s. 684(1) type applications. I am not sitting in that capacity. The s. 684(1) Application is dismissed.
The Rowbotham Application
[6] The appeal that gives rise to this application comes from a decision of Justice Baig of the Ontario Court of Justice dated August 26, 2013. After a one day trial with five witnesses, including Mr. Schell, he was convicted of assault contrary to s. 266 of the Criminal Code, and mischief contrary to ss. 430(1)(a) and 430(4) of the Criminal Code. Mr. Schell was sentenced to a period of probation and to make restitution.
[7] Mr. Schell now alleges his s. 7 and 11(d) rights have been violated, as Legal Aid Ontario has refused to grant a certificate for counsel for his appeal. This application engages principles enunciated by the Ontario Court of Appeal in R. v. Rowbotham, [1988] O.J. No. 271 (C.A.).
[8] In that decision, the Ontario Court of Appeal set out a three-fold test for circumstances where it is appropriate for the Court to order the Ontario Attorney General to fund counsel for an accused at trial and by extension, on an appeal. In order for an accused to obtain a so-called Rowbotham order they must show:
- Legal Aid has been denied;
- the accused is otherwise unable to retain counsel; and
- the charge facing the accused is so serious and complex that the accused cannot receive a fair trial without the assistance of counsel.
[9] The Court in Rowbotham also stated at paragraph 156 that the constitutional right to retain counsel guaranteed by s. 10(b) of the Charter is not the same thing as the right to have counsel provided at the expense of the state.
[10] On this application, the Crown concedes that the first and second portions of the test have been satisfied by Mr. Schell. Argument on this application therefore focused on part three of the test: whether or not this appeal involves serious charges that present in a factually and legally complex manner such that Mr. Schell could not have a fair appeal without the assistance of counsel.
[11] Mr. Schell was able to obtain counsel to argue this application. Counsel argued three grounds as to why I should find that Mr. Schell's appeal is of a sufficiently complex and serious nature that he cannot fairly proceed with his appeal without the assistance of state funded counsel.
[12] First, Mr. Schell argues that he was not given proper disclosure at his trial. Mr. Schell had court-appointed counsel solely for the purposes of the cross-examination of the complainant at trial, as she had been Mr. Schell's former partner. The Crown provided certain audio tape disclosure only to this counsel and not specifically to Mr. Schell.
[13] Mr. Schell now argues this lack of disclosure represents a meritorious ground of appeal, as well as a serious and complex legal matter.
[14] Second, Mr. Schell argues that legal aid was improperly denied to Mr. Schell for his trial. While he could not provide any authorities on point, counsel argues this "might" represent a Charter breach and therefore constitutes a complex legal issue facing Mr. Schell on his appeal.
[15] Third, Mr. Schell argues he has a meritorious appeal as the trial judge failed to properly apply the principles set out in W.(D.) v. R,., [1991] 1, S.C.R. 742, 63 C.C.C. (3d) 397 with respect to the evidence given at trial.
[16] In addition to these three specific points, counsel also argues that the various delays that have been experienced for the appeal to date, are evidence of the complexity of the appeal and that Mr. Schell is not capable of handling his appeal without state funded counsel.
[17] The Crown resists this application on the basis that the appeal is neither complex nor involves serious charges. Crown counsel points to the comments in Rowbotham that state funding is certainly never automatic and an accused must satisfy all three portions of the test before funding will be ordered.
[18] There is no doubt that this appeal has developed slowly to date. However, a review of the endorsements on the notice of appeal filed by Mr. Schell leads me to the conclusion that he is the author of these delays. These delays were not caused by the complexity of the appeal but rather by Mr. Schell's unwillingness to come to grips with the notion that he was obliged to order and pay for a transcript of the trial proceedings if he wished to proceed with an appeal or this application. In my view, this unwillingness did not arise from a lack of comprehension or inability to put forward his position, but rather from Mr. Schell's view that he was absolutely entitled to Legal Aid funding without the necessity of bringing the within application.
[19] On at least one occasion, Mr. Schell was able to resist a Crown motion to dismiss his appeal for failure to comply with deadlines for perfecting his appeal. Mr. Schell was able to further deflect dismissal at two subsequent attendances at "non-compliance court".
[20] Mr. Schell has been more than personally capable of conducting his appeal to date. He is currently a second year student at a local community college pursuing a computer programming diploma. He clearly understands and writes fluently and competently in English. He has made successful representations to the Court in the past insofar as he was able to resist Crown attempts to have his appeal dismissed.
[21] I agree with the Crown position that Mr. Schell's appeal is neither complex and does not involve serious charges within the context of a Rowbotham application.
[22] The fact that disclosure may have only been provided to counsel, who was arguably acting only as a kind of amicus curiae pursuant to section 486.3, and not as counsel directly to Mr. Schell, is certainly a meritorious grounds of appeal. However, the facts and the legal issue raised by this alleged failure by the Crown are not complex. The extent of Crown disclosure is always a "serious" matter in a criminal case. However, in the context of a Rowbotham application, the concept of "serious", in my view, relates to the nature of the charges and the penalty faced by an appellant rather than the particular defect that an appellant says should result in a reversal of the result received at trial.
[23] Counsel who was cross-examining the complainant at trial, as Mr. Schell could not fairly do, did obtain disclosure. Whether or not this was sufficient disclosure to satisfy the obligations on the Crown as articulated in the R v. Stinchcombe, [1995] 1 S.C.R. 754 case goes to the merits of the appeal rather than an assessment of the seriousness of the result that is facing Mr. Schell. The nature of this particular allegation is not sufficient to convince me that Mr. Schell cannot fairly proceed to prosecute his appeal without the assistance of state-funded counsel.
[24] Secondly, Mr. Schell's arguments concerning the denial of Legal Aid at first instance do not relate at all to the merits of his appeal, the complexity of the matters raised in appeal, nor the seriousness of the charges faced by Mr. Schell.
[25] Thirdly, the suggestion that the trial judge did not properly analyze the evidence in a fashion consistent with the direction of the Supreme Court of Canada in W.(/D) v. R is a matter that goes to the merits of the appeal but not in my view to its complexity or the seriousness of the charges. The trial judgment was delivered orally. It went on for 8 pages of transcript, for a trial that has 91 pages of transcript.
[26] In my view, in all, Mr. Schell's appeal involves a straightforward matter and he is not facing sufficiently serious consequences to require a Charter remedy of requiring the state to provide funding for counsel. He can proceed to have a fair appeal without the assistance of counsel paid for by the state.
[27] His application is dismissed.
[28] The Court appreciates the thorough and well-presented materials and argument presented by both counsel in this matter.
___________"original signed by"
The Hon. Mr. Justice F. Bruce Fitzpatrick
Released: March 26, 2015
COURT FILE NO.: CR-13-0085-AP DATE: 2015-03-26
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen,
Respondent
- and -
Dane Schell,
Applicant
REASONS ON APPLICATIONS
Fitzpatrick J.
Released: March 26, 2015
/mls