COURT FILE NO.: CR-12-01546

DATE: 20150921

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ALI AMIRI

Applicant

B. Guertin, for the Crown

S. Wilson, for the Applicant

HEARD: August 28, 2015

HEALEY, J.

Overview and Order Sought

[1] The applicant applies for an order appointing counsel pursuant to s. 684 of the Criminal Code, R.S.C. 1985, c. C-46, to represent him in an appeal of his conviction for one count of criminal harassment, for which he received a suspended sentence.

[2] Legal Aid Ontario has refused to provide coverage for the applicant’s conviction appeal. The Crown has appealed against the sentence imposed, and Legal Aid has provided coverage for the sentence appeal.

Legal Test

[3] Section 684 of the Code provides:

684. (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.

(2) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal.

(3) Where subsection (2) applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court of appeal and the registrar may tax the disputed fees and disbursements.

[4] Section 684(1) provides two tests to be met for the appointment of counsel, which are: i) that it appears desirable in the interests of justice that an appellant should have such assistance; and ii) that the appellant does not have sufficient means to obtain legal assistance. The onus is on the applicant to satisfy the court of both parts of this test: R. v. Kanagarajah, 2014 ONCA 513, at para. 3.

[5] Crown counsel, Mr. Guertin, concedes that the applicant lacks sufficient means to retain counsel, and the evidence satisfies me that that is the case. Accordingly, that part of the test has been met.

[6] The Ontario Court of Appeal in R. v. Bernardo (1997), 1997 2240 (ON CA), 105 O.A.C. 244, 121 C.C.C. (3d) 123, at para. 16, noted that the question of whether or not it is in the interests of justice to have counsel appointed for an appeal is to be determined on a case-by-case basis. A number of considerations must be taken into account in determining whether it is in the interests of justice.

[7] A number of cases have considered this section of the Code and the factors that a court may take into account in determining whether it is in the interests of justice to appoint counsel: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 32; R. v. Bath, 2013 BCCA 126, 573 W.A.C. 144, at para. 12 (quoting R. v. Silcoff, 2012 BCCA 463, 104 W.C.B. (2d) 555, at para. 23); R. v. Bernardo at para. 22; and R. v. M.(A.) (1996), 1996 1112 (ON CA), 30 O.R. (3d) 313, 32 W.C.B. (2d) 47 (C.A.), at para. 7. These factors include:

1. The merits of the appeal, the onus being on the applicant to establish that there is an arguable appeal;

2. The applicant’s age;

3. The applicant’s education;

4. The applicant’s ability to understand and express his/herself;

5. The applicant’s experience with the criminal process;

6. The seriousness of the matter;

7. The complexity of the appeal;

8. Any points of general importance in the appeal;

9. The need for counsel to find facts, research law and make argument; and

10. The nature and extent of the penalty imposed.

[8] In the most recent case on this point, R. v. Abbey, at paras. 31-33, Watt, J.A. summarized the principles relevant to a s. 684(1) application as follows:

[31] Under s. 684(1), the onus is on the appellant to satisfy the judge or panel of judges that “it appears desirable in the interests of justice that the accused should have legal assistance”: R. v. Kampe, 2012 ONCA 858 (Ch’rs), at para. 2.

[32] To determine whether counsel should be appointed, the judge or panel of judges should inquire into the merits of the appeal on the basis of the record. In most instances, the available record will be incomplete. Accordingly, the merits inquiry simply requires the judge or panel of judges to determine whether the grounds of appeal to be advanced are arguable: Bernardo, at para. 22. This standard or threshold of an arguable case is a modest one: R. v. Ariaratnam, January 25, 2013. (Ont. C.A. #M42097), at para. 13.

[33] Where an appellant advances arguable grounds, a second inquiry to determine whether the appellant can effectively advance the grounds of appeal without the assistance of counsel is necessary. This inquiry examines the complexities of the arguments to be advanced and the appellant’s ability to make legal argument in support of the grounds of appeal to be advanced: Bernardo, at para. 24.

The Merits of the Appeal

[9] I have determined that this appeal has merit, as the applicant presents an arguable case on an issue of importance to the administration of justice, particularly, due process and the right to a fair trial. Counsel for the applicant at trial was appointed by the trial judge after the hearing of a s. 486.3 application, which was opposed by the applicant. The facts leading up to this appointment were as follows: the Crown brought a s. 486.3 application which came before Armstrong, J. on August 3, 2012. The proposed counsel, Mr. Starer, was present and advised that he was in attendance at the request of the Crown. The hearing was adjourned because the applicant has not been provided with a copy of the notice of application in advance.

[10] The matter returned before Armstrong, J. on August 22, 2012. The applicant argued that the order was premature, as Armstrong, J. was not the trial judge, and also argued that he had the right to represent himself and was in a better position to do so than counsel. Armstrong, J. appointed Mr. Starer. There was no discussion on that date regarding whether or not the applicant would prefer to seek his own counsel, nor is there any indication from the transcript that he had any input into selecting counsel. Mr. Starer was not present, and the Crown undertook to advise counsel of the order arising from that attendance.

[11] On October 12, 2012, the trial was scheduled to begin before Minard, J., at which point the applicant made very clear that he objected to having Mr. Starer as his counsel. Again Mr. Starer was appointed as counsel. On that day, the applicant filed a notice with the Superior Court for certiorari based on the trial judge’s ruling on the s. 486.3 application. The matter was adjourned to allow for that application to be heard. On December 17, 2012, the Superior Court granted the prerogative writ.

[12] On March 15, 2013, the trial began before West, J. in the Ontario Court of Justice. The trial began with a s. 486.3 application filed by the Crown. Again, the applicant opposed the appointment of Mr. Starer as his counsel. It is conceded by the applicant that he made no submissions regarding alternative counsel, such as putting forward another lawyer’s name. I find from the transcript that it is clear that his intent was to represent himself. The transcript shows that the applicant was never directly asked whether he would like another counsel of his choice appointed; this option was never presented.

[13] The applicant’s evidence is that his position on the s. 486.3 application at trial was informed by the fact that he was unaware that the Crown would be seeking a period of custody upon conviction. His evidence is that, to the best of his recollection, there were two judicial pretrials, and on both occasions the Crown did not disclose that it was seeking a jail sentence. The Crown did not present any evidence to the contrary.

[14] Crown counsel argues in his factum that it is only in his notice of application in this matter that the applicant first takes issue with the manner in which counsel was selected to cross-examine the complainant at trial. The applicant raises this issue for the very first time on appeal. Mr. Guertin refers the court to the cases of R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, leave to appeal to S.C.C. refused, 303 O.A.C. 388 (note), 437 N.R. 400 (note), at para. 62, and R. v. Roach, 2009 ONCA 156, 185 C.R.R. (2d) 333, para. 6, as support for the proposition that an appeal court should be hesitant to entertain issues on appeal that were not raised and argued at trial. I find, however, that this fact situation differs from the facts raised in those cases on the basis of the uncontradicted evidence that it was only at the conclusion of trial that the applicant became aware that the Crown was seeking a period of incarceration. As a result, the applicant brought an abuse of process application, which was ultimately abandoned.

[15] The evidence presented on this s. 486.3 application includes inquiries made by the Crown to Legal Aid with respect to how Mr. Starer’s name was put forward as counsel. Mr. Starer was approached by the Crown directly rather than through Legal Aid, although the evidence presented indicates that Legal Aid would likely have put his name forward in any event. In the usual course, the application would be forwarded to the Crown Attorney’s office at 720 Bay Street, Toronto, and to Legal Aid. Legal Aid would then make inquiries and attempt to secure local counsel who would be able to assist with the appointment. According to Legal Aid, the actual counsel to be named is in the discretion of the trial judge.

[16] Section 486.3 does not outline a procedure for how counsel is to be chosen on an appointment. The argument put forward by Ms. Wilson on behalf of the applicant is that a denial to an accused of any input over the particular counsel chosen for an appointment under s. 486.3, with the Crown unilaterally presenting a single option for the court’s consideration, creates an appearance of unfairness.

[17] There does not appear to be a specific procedure determined by case law, although case law does indicate that local practices may be established, ranging from asking the Law Society or Legal Aid to provide a list of counsel, to providing an opportunity to the accused to locate counsel to represent him pursuant to the appointment, to appointing an amicus to be present throughout the trial: R. c. B.S. (2005), 2005 47406 (QC CQ), [2006] R.J.Q. 1203, 38 C.R. (6th) 203 (CQ (Crim & Pen Div)); R. v. C.M., 2012 ABPC 128, 285 C.C.C. (3d) 62; R. v. P.S., 2010 ONCJ 244, 89 W.C.B. (2d) 210; R. v. Wapass, 2014 SKCA 76, 616 W.A.C. 21.

[18] The appeal raises the issue of the extent to which an applicant should have input into the selection process, and to what extent the Canadian Charter of Rights and Freedoms impacts his ability to have his counsel of choice. Counsel appointed under s. 486.3 is not amicus; instead, the section creates a relationship attracting all of the protections of a solicitor and client relationship. As such, the selection of such counsel is an important issue for an accused. Trial fairness requires that the process should not be done on an ad hoc basis. Accordingly, I agree with the applicant’s counsel that the extent to which s. 486.3 confers a right to counsel of choice is an area that is appropriate for appellate consideration. The obligations on a trial judge to ensure that the procedure to select counsel is clear to all involved is one that would benefit from clarification.

[19] For the foregoing reasons, I conclude that the merits of the appeal require that counsel be appointed in the interests of justice.

Applicant’s Ability to Advance the Appeal

[20] It is conceded that the applicant is of sufficient age, education and experience to conduct an appeal generally. His counsel submits however, that a lawyer is better suited to express the arguments and address the relative complexity of the issues on the appeal.

[21] The applicant is not an unsophisticated litigant. He is a paralegal by training, having completed a two-year diploma course and having operated his own paralegal practice for approximately one year. During that time he represented clients in the Ontario Court of Justice on criminal and regulatory matters. He has also appeared in the Superior Court of Justice, successfully arguing a summary conviction appeal. He concedes that he did his own research for these cases, appeared in court and made argument.

[22] In relation to his own charge of criminal harassment, the applicant attended appearances leading up to the trial date throughout 2012 on his own, and believes that he attended two judicial pretrials. In relation to this matter, he also argued against the s. 486.3 application, he successfully argued other applications, including one for certiorari and another for publically funded transcripts, and he appealed to the Ontario Court of Appeal regarding the funding of transcripts, all while self-represented. He brought two Charter applications and an abuse of process application. He concedes that he researched the law for all of these steps.

[23] Accordingly, I have no difficulty concluding that the applicant can take the necessary steps to present his appeal. He is obviously comfortable within a courtroom setting, familiar with the justice system and is able to express himself. Nonetheless, this ground of appeal is a unique one and engages significant legal principles. The complexity of the argument will be such that it is highly unlikely that the applicant has the education, training and experience to put the appellate court in the best position to determine this issue on appeal. Even for a lawyer with some appellate experience, the development of an argument in favour of a successful appeal would be complicated. The issue is important enough that it merits the appointment of counsel. Accordingly, I conclude that the interests of justice would be best served by the appointment of counsel in this case.

[24] For the foregoing reasons, the application is granted.

HEALEY J.

Released: September 21, 2015