SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 72/14AP

DATE: 20150611

RE: HER MAJESTY THE QUEEN, Respondent

AND:

OMAR MATTHEWS, Applicant

BEFORE: MacDonnell, J.

COUNSEL:
Candice Suter, counsel for the Applicant

Robert Wright, counsel for the Respondent

HEARD: June 2, 2015

ENDORSEMENT

[1] The applicant applies under s. 684(1) of the Criminal Code for an order assigning counsel to act on his behalf on his appeal from conviction for sexual assault and threatening.

A. The Background

[2] The convictions were entered at the conclusion of a short trial in the Ontario Court of Justice. Two witnesses testified for the Crown – the complainant and a TTC bus driver. The applicant did not testify and did not call witnesses. The entire evidentiary record consumed a mere 30 pages of transcript. The complete transcript of the trial, including arraignment, final submissions, reasons for judgment, and a discussion about a sentencing date, is 72 pages long.

[3] The complainant testified that the applicant, who was known to her, approached her as she was waiting for a bus. She said that he “came very close to my face” and that she asked him to move. When he refused, she tried to move away but he followed her, insisting that he wanted to talk. When she declined to turn to face him, he grabbed her arm. She told him not to touch her and she again walked away. She testified that he then “came up behind me and he put both of his arms around my waist and grabbed my vagina”. She testified that the applicant followed her onto a bus. While she was on the bus, she testified, the applicant told the bus driver that if he did not let him off the bus he would punch her (the complainant) in the face.

[4] The position of the defence in relation to the allegation of sexual assault was that the complainant may have misunderstood or misapprehended the applicant’s intentions and that any contact with her vagina may have been accidental. With respect to the allegation of threatening, the defence submitted that there should be a doubt as to whether the threatening words were spoken and, alternatively, whether there was an intention to threaten.

[5] The trial judge rejected the defence submissions and entered convictions.

[6] The applicant’s Notice of Appeal sets forth four proposed grounds of appeal. With respect to the sexual assault conviction, the applicant submits that the trial judge applied an incorrect standard to the determination of whether the contact was sexual in nature, that a finding that it was sexual in nature is unreasonable, and that the trial judge failed to consider and assess the position of the defence with respect to why the complainant may have misperceived what was occurring. With respect to the conviction for threatening, the applicant submits that the trial judge misapprehended the evidence and failed to properly consider it.

B. The Applicable Principles

[7] Section 684(1) authorizes the court to appoint counsel where it appears desirable in the interests of justice that an accused should have legal assistance and the appellant has not sufficient means to obtain that assistance. It is not disputed that the applicant does not have the means to retain counsel privately. The issue, rather, is whether it is desirable in the interests of justice that counsel be assigned to assist him.

[8] In R. v. Bernardo, [1997] O.J. No. 509, the Court of Appeal set forth the approach to be taken in assessing whether the assignment of counsel for the purposes of an appeal is “in the interests of justice”. The court should first determine whether the proposed grounds of appeal are arguable. If not, the inquiry ends and the application will be dismissed. A showing of arguable grounds, however, is a modest hurdle. If an applicant clears that hurdle, the court should consider (a) whether the applicant can effectively present the appeal without the help of a lawyer, and (b) whether the court will be able to properly decide the appeal without the assistance of counsel. A negative answer to either question may be sufficient to persuade the court to assign counsel.

[9] With respect to whether an applicant can effectively present the appeal without the help of a lawyer, the Court in Bernardo stated, at paragraph 24:

This inquiry looks to the complexities of the arguments to be advanced and the appellant's ability to make an oral argument in support of the grounds of appeal. The complexity of the argument is a product of the grounds of appeal, the length and content of the record on appeal, the legal principles engaged, and the application of those principles to the facts of the case. An appellant's ability to make arguments in support of his or her grounds of appeal turns on a number of factors, including the appellant's ability to understand the written word, comprehend the applicable legal principles, relate those principles to the facts of the case, and articulate the end product of that process before the court.

C. Application to this Case

[10] While I am not persuaded that the ground of appeal concerning the reasonableness of the sexual assault conviction is arguable, I am satisfied that the applicant has met the modest onus on him in relation to the other three grounds. I am not satisfied, however, that the applicant cannot effectively present his argument on the appeal without the assistance of counsel. Nor am I satisfied that the assistance of counsel will be necessary in order for the court to properly decide the appeal.

[11] With respect to the first of those considerations, I would note the following:

(i) this was a relatively brief trial at which there were only two witnesses. The entirety of the evidence is contained in 30 pages of transcript;

(ii) the grounds of appeal are not complex and are set forth with clarity in the Notice of Appeal;

(iii) none of the grounds of appeal raises difficult or complicated matters of law;

(iv) the applicant has the benefit of a 3-page letter to Legal Aid from Tina Yuen, an experienced appellate counsel, setting forth the arguments to be made in support of the grounds of appeal;

(v) the applicant is 31 years of age. He has had considerable experience in the criminal justice process. Prior to the findings of guilt in this case, he had accumulated 17 convictions for criminal offences. Those convictions were registered in six separate proceedings between 2008 and 2010.

(vi) the applicant attended university for two years, and subsequently started an unsuccessful car business.

[12] I acknowledge that there is an additional consideration that is relevant to a determination of whether the applicant can effectively argue the appeal on his own, namely that he suffers from schizophrenia. Ms. Suter submitted that the illness manifested itself in disruptive behaviour at the sentencing hearing, which made it very difficult for the hearing to continue. She submitted that it appears that the applicant was unable to engage in the process at that time and that it is reasonable to expect a similar problem to arise at the hearing of the appeal.

[13] I accept that the applicant’s behaviour at the sentencing hearing was related to his schizophrenia. As the presentence report indicated, however, the impact of the applicant’s illness on his behaviour depends to some extent on whether he is on or off his medication. While he was in custody pending sentence, for example, he was taking his medication and at that time he was described as “stable”. He was in custody at the hearing of this application and while he was not required to make submissions his behaviour was completely appropriate. In the circumstances, I am not prepared to assume that the way he behaved at sentencing is the way he will behave at the appeal.

[14] In light of the factors I have listed above, I am also not satisfied that the court will be unable to properly decide the appeal without an order under s. 684(1).

[15] Accordingly, the application for the assignment of counsel is dismissed.

MacDonnell, J.

Date: June 11, 2015