Court File and Parties
COURT FILE NO.: CR-13-12959 DATE: 2017/03/28 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen AND Nabil Benhsaien, Accused
BEFORE: C.T. Hackland J.
COUNSEL: Moiz Karimjee, for the Crown Accused, self-represented
HEARD: March 22, 2017 (Ottawa)
Endorsement
[1] The appellant seeks a funding order under s. 684 of the Criminal Code, R.S.C., 1985, c. C-46. He argues that he requires counsel to pursue an appeal from a conviction on two counts of mischief and one count of committing an indecent act, entered by Justice Kehoe of the Ontario Court of Justice. On April 21, 2015, he was given a suspended sentence on these charges and 12 months probation. A Notice of Appeal was filed on May 20, 2015. The Crown moves to have the appeal struck as the accused has not obtained the trial transcripts and has not perfected his appeal.
[2] The accused is presently incarcerated awaiting a dangerous or long term offender hearing following his conviction on charges unconnected with the present appeal. The Crown has provided to the court a transcript of the accused’s evidence in chief and cross-examination from his present trial as well as counsel’s submissions and Justice Kehoe’s reasons for judgment including her reasons for sentence. This evidence was transcribed for use in the long term offender proceedings but was made available to the court for the present application.
[3] The appellant has been denied legal aid as he was not incarcerated for these relatively minor offences. It is not contested that his present circumstances make it impossible for him to retain appeal counsel privately. He has legal aid counsel in the long term offender hearings.
[4] The mischief charges arise from the appellant puncturing tires on two cars. A Crown witness was following the accused at the time of these offences and as he approached the appellant, the appellant opened his pants in order to, (as the appellant explained to the court in his trial evidence), make the witness go away.
[5] At the argument of this application, the appellant demonstrated an excellent proficiency in English, a good understanding of the legal requirements relevant to the current issues as well as those pertaining to his trial in the Ontario Court of Justice. He is also very well organized and detail oriented. He discussed the merits of his case and of the proposed grounds of appeal for over three hours and the court had ample opportunity to assess his apparent ability to represent himself.
[6] I would observe firstly that this is a simple case involving minor charges and the appellant is an intelligent and fairly articulate person. He has studied the available transcripts and organized a detailed presentation. He advised the court that he studied engineering at Carleton University but had dropped out of the program at some point. In my opinion, he would be more than capable of arguing an appeal himself and does not require legal representation. Accordingly, I refuse his application to have counsel appointed for him under s. 684 of the Criminal Code.
[7] I would also refuse the appellant’s application on the basis that, as I explain below, there is no merit in his appeal and on that basis, I would grant the Crown’s application to strike this appeal for failure to perfect.
[8] The basis of the appellant’s current appeal is “ineffective representation by counsel”. I listened to his entire argument on the point and, as noted, the court had available the full transcript of the appellant’s evidence at trial as well as counsel’s submissions and the trial judge’s reasons for convicting and for sentence.
[9] The trial judge utterly disbelieved the appellant’s trial evidence. She found that the appellant appeared to be making up and changing his evidence as he went along. She focused on cogent circumstantial evidence that he punctured the tires. On the indecent exposure charge, the appellant admitted in his own testimony that he undid his pants for the purpose of exposing himself and thereby encouraging a witness who had been following him, to go away.
[10] The appellant blames his lawyer, a highly reputable and experienced counsel, for not adequately defending his credibility. The appellant explained to this court, at considerable length, how, in his view, the circumstantial evidence on which the trial judge relied could have been interpreted differently. It also appears from the appellant’s Notice of Appeal that he is critical of his lawyer for not attempting to re-argue the credibility issues at the sentencing hearing.
[11] On my assessment of the record, the appellant’s trial counsel made relevant, concise, focused and careful submissions to the court, following what was a disastrous performance by the appellant in the witness box. The appellant’s present arguments about the circumstantial evidence concerning him puncturing the tires, which he believes his lawyer should have put forward, are simply not sensible. For example, a Crown witness heard the sound of tires being punctured as the appellant walked by the cars, whereas the appellant’s theory is that it is entirely possible that persons in the vicinity were using a compressor and also possibly there were other cars nearby with punctured tires. These points, had they been made to the trial judge, would inevitably have been viewed as speculative and entirely unsupported by the evidence.
[12] In all the circumstances, I am persuaded that the appellant’s appeal is without any merit, is impossible of success, and will therefore be struck for lack of perfection.
Mr. Justice Charles T. Hackland Date: March 28, 2017