COURT FILE NO.: 16-40000-107
DATE: 20180619
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
DARREN JOHN Defendant/Applicant
Danielle Carbonneau, for the Crown
Darren John, Self-Represented
HEARD: March 27, 2018
Michael G. Quigley J.
REASONS FOR RULING: SECTION 684 APPLICATION
Introduction
[1] On February 27, 2018, the appellant, Darren John, brought this application under section 684 of the Criminal Code to be provided with financial aid, to permit him to have legal assistance on an appeal that he has brought to this court against a decision of Justice Favret of the Ontario Court of Justice in Toronto.
[2] Mr. John was originally charged with three offences against the complainant, Sonia Harry: (i) criminal harassment causing Ms. Harry to fear for her safety, (ii) causing Sonia Harry to receive a death threat by video, and (iii) knowingly causing Sonia Harry to receive a threat by video to cause her serious bodily harm.
[3] The Crown proceeded summarily against Mr. John. Because of a breakdown in communications between Mr. John and his counsel prior to trial, his former solicitor was removed from the record on April 24, 2014, and consequently he represented himself at his trial before Justice Favret in the Ontario Court of Justice.
[4] On June 30, 2015, after a 30-day trial, Justice Favret found Mr. John guilty of the charge of uttering a threat to cause bodily harm. The other two charges were dismissed. Justice Favret sentenced Mr. John to two days of pretrial custody and a suspended sentence, with one year of probation.
[5] During the course of that trial, and in representing himself, Mr. John made several Charter applications, an application claiming abuse of process, and a mistrial application. He challenged a number of aspects of the proceedings at that trial, including alleging that Justice Favret was biased.
[6] Mr. John has appealed Justice Favret’s decision. In particular, he alleges, and the principal grounds of his appeal, as best as I can discern them, are, (i) that the Crown improperly led evidence of his criminal record in examining one of its witnesses, (ii) that the Crown “prevented him” from testifying in his own defence by threatening to enter an incorrect criminal record, (iii) that there was a reasonable apprehension of bias in Justice Favret’s judgment, (iv) that the complainant’s credibility was improperly assessed, (v) that the trial transcripts were incorrectly transcribed, and (vi) that key evidence was entered after Crown witnesses had testified so that Mr. John was unable to cross-examine them on that evidence. In fact there are 17 seemingly distinct grounds alleged for the appeal, attached to his Notice of Appeal dated August 11, 2016, appealing against both conviction and sentence.
[7] On this application, Mr. John presents himself as a person of insufficient means to obtain legal assistance. Legal Aid Ontario has refused to provide him with legal representation on this appeal, on the basis that it will not fund appeals where there has been no custodial sentence imposed. For reasons contained within his own affidavit evidence, however, I reject that he has satisfied his burden of persuasion to demonstrate that he does not have the financial wherewithal to pay for legal representation for this appeal. But beyond that fatal disqualifier, in my view, he cannot succeed on the first requirement that it appears in the interests of justice that he should have legal assistance.
[8] The reason is simple. Not only is the appeal frivolous and utterly devoid of merit, but there is no public interest served in having this appeal proceed when the plain goal is largely to permit Mr. John to pursue a costly and time consuming game, and to then seek a Pyrrhic victory on questions that are inconsequential. As noted, if that were not enough, Mr. John’s application for state funding also fails because I find that he has likely misrepresented his financial means. At a minimum he has failed to satisfy the court that he is actually indigent as he claims, particularly in the face of seemingly contradictory evidence. The application will be dismissed.
Applicable legal principles
[9] Section 684(1) of the Criminal Code authorizes the Court to a court appointed counsel where it appears in the interests of justice that the appellant should have legal assistance and the appellant does not have sufficient means to obtain that exit assistance. These requirements are cumulative. Both tests must be met. Also, Legal Aid Ontario must first have refused the applicant legal representation.[^1]
[10] R. v. Bernardo[^2], shows that the phrase “the interests of justice” must take cognizance of the broad access to appellate review that is provided in section 675 of the Code, as well as the expansive remedial authority of an intermediate appellate court under section 686.
[11] The leading case on the constitutional right to counsel is R. v. Robotham.[^3] There, the court found that the accused’s right to be provided with counsel at the expense of the state only arose in exceptional cases and further, the onus is always on the applicant to demonstrate that the required factors are present on a balance of probabilities. Simply because a person is indigent, does not mean that that person automatically qualifies for state-funded representation. Both inability to pay and the need to ensure a fair trial must be established.[^4]
[12] Moreover, the Charter does not guarantee an indigent accused an absolute right to be provided with legal counsel to argue an appeal. Section 684 clearly gives this court discretion whether or not to assign counsel and the court may and should consider the merit of the proposed appeal when considering whether the order should be made.[^5]
[13] R. v. Bernardo establishes the test for granting an order under section 684 of the Criminal Code.[^6] The Court of Appeal stated that counsel must be appointed where an accused cannot effectively present his or her appeal without the help of a lawyer. Secondly, counsel must be appointed where the court cannot properly decide the appeal without the assistance of counsel. To determine those questions, the court in Bernardo identified two important considerations to be taken into account for determining whether counsel should be appointed: (i) is the appeal arguable or is it devoid of merit?, and (ii) can the appellant effectively advance grounds of appeal without the assistance of counsel?
[14] Relevant considerations on the second question include: (i) the complexity of the arguments to be advanced (a product of the grounds of appeal, the length and content of the record, the legal principles engaged, and the application of those principles to the facts of the case), and (ii) the appellant's ability to make an oral argument in support of the grounds of appeal which takes into account 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).[^7]
[15] Finally, an important factor to be considered in determining whether or not counsel must be appointed, which is of particular importance in these circumstances, is the "seriousness of the matter" including the seriousness of the offences themselves and any sentences imposed.[^8]
The Circumstances of the Appeal and this Application
[16] Mr. John is 40 years old. He lives in Mississauga Ontario. He has a high school education. From 1996 to 1997, he attended Sheridan College in Brampton and studied office administration, but he was required to stop attending that program because he needed to do full-time work in order to support himself and a daughter who was born in 2006. He worked as a martial arts instructor from 2001 to 2011 at a fitness club in addition to teaching clients in their homes.
[17] However, Mr. John says he had to stop teaching martial arts in August 2011 after he was shot while attempting to protect his mother during a home invasion. Since September 2011 he claims that he has had no income other than the Ontario Disability Services Program (ODSP) payments he receives as a result of the injuries that he sustained from the gunshot wound. Since that time, he states in his affidavit and told the court that he receives only $680 a month from ODSP. In his affidavit he states that is his only income.
[18] Mr. John also claims to have no assets. He pays $300 a month in rent including utilities for a shared apartment. He estimates that his basic personal expenses approximate $300 a month, consisting of about $250 for food and $50 a month for clothing and personal items. As such, after basic living expenses, he says he has about $80 a month left to cover any expenses beyond those bare necessities. He says he can no longer financially support his daughter, but that he does assist in her care by providing his time for babysitting and childcare.
[19] Initially, a law firm assisted Mr. John in putting together a section 684 application and to review the merits of his claim. That assistance is no longer being provided. As for the status of this appeal, it is far from perfected or in a position to proceed, if for no other reason than that less than half of the transcripts from trial have been ordered and filed.
[20] Mr. John has received a portion of the transcripts from the trial, specifically relating to the facts that he wants to emphasize on the appeal, but he has not yet obtained the balance of the transcripts. In light of the fact that the trial took 30 days, there were 30 transcripts. Mr. John has paid for and produced eleven of those transcripts, consisting of 1800 pages. Those are the transcripts that he claims are relevant to his appeal. However, an appeal cannot proceed with just the transcripts that the appellant wishes to produce – all thirty of the transcripts must be available. Nineteen transcripts remain to be ordered and produced. If those remaining transcripts were ordered and produced, the record from the trial proceedings would total more than 4,000 pages. Mr. John wants the state to pay for the production of those remaining 19 transcripts.
[21] Returning to Mr. John’s situation, in fact there is quite a bit more information that I find should inform this application and whether Mr. John should receive state funding for this appeal. The matter is not as simple as it appears on the face of the application as Mr. John presented it.
[22] Mr. John is a “Rap musician”. He states in his materials filed on this application that his music is all of the same nature and has no history of violence. He acknowledges that in his music, he takes on a persona of a character called “Avalanche The Architect” when he raps. The charges in this case arise out of threats of violence that were articulated in one of his rap songs. Mr. John states in his affidavit that it is a song “that he regularly performs” and “gets paid for.” He also emphasizes that "is his art" and that "nothing in his rap music is intended to be taken literally." Nevertheless, it was plainly one of his rap songs, as recorded in a video, that became the evidential foundation for the allegations that he threatened death and bodily harm against Sonia Harry, and criminally harassed her.
Findings and conclusion
[23] It is not surprising to me that the trial judge could have found Mr. John’s rap music to have threatened harm to Ms. Harry, in the circumstances of this case. She is a person with whom Mr. John had a personal relationship. The threatening language of some of his songs is littered with strong and overtly violent references to guns and killing people, with a “black macho” kind of flavour. It is offensive and particularly degrading in its demeanour toward women. Those lyrics are publicly accessible at his sophisticated website, “avalanchethearchitect.com”. The site has a number of subsections. It records and attests to Mr. John’s associations and friendships with black celebrities from sports and music. It plays some of the lyrics of his songs. It is a portal through which he can be retained to perform “his music.”
[24] Relative to this application, however, I find that this additional information and the very fact that Mr. John has a sophisticated website that he operates to promote his career and personality as a Rap singer raises the strong likelihood that he was not fully forthcoming about his financial circumstances. He acknowledged himself that he is paid for his performances. I find it to be improbable that Mr. John is actually indigent as he claims. He may be claiming his $680 per month in ODSP payments, but I do not believe that is his only income source, because he himself acknowledges that he has another. Moreover, there is an impossible financial contradiction in the likelihood of a person whose only income source is $680 of ODSP payments per month having the financial wherewithal to support the cost of maintaining a website as a rap performer, and as he acknowledges on that website, he gets paid for performing, but he has not revealed any information about how much income he earns, either from performing, or from royalties or similar remuneration when his songs are played. In and of itself, this ground is enough to dismiss his application.
[25] However, even if Mr. John were indigent, and unable to afford to provide for his own legal representation, this appeal is devoid of merit and it is not in the public interest that he be encouraged through state funding to pursue it. The cost of producing transcripts for members of the public is $4.30 per page. The remaining 19 transcripts comprising 2200 pages is understood to amount to almost $9,500.00. I note that despite his claimed indigence, Mr. John was nevertheless able to pay the approximately $7,740 that would have been the cost of the transcripts that he chose to produce. This is further evidence that he must have financial resources that remain undisclosed. Moreover, given the 17 alleged grounds of appeal that he advances, the appeal would certainly take several days to argue. If he was represented, that would involve significant additional cost, not only for counsel to try to prepare, but even more importantly, to try to make some sense out of the alleged grounds Mr. John claims to advance and to determine whether there is any foundation to support all or any of them. Further, Mr. John is not unfamiliar with court proceedings, having been involved in several before this, and despite the confusion of his grounds of appeal and whether they are actual grounds, he is an articulate man and well able to address his issues on his own.
[26] On the face of it, however, in my view there is no foundation of support for this appeal. The record shows that Detective Liska did not consider whether Mr. John had a criminal record before deciding whether or not charges were appropriate in this case (See: Excerpt of Court Proceedings, Cross-Examination of Detective I. Liska, p. 55, lines 5-25), so that ground of appeal is baseless. Neither is there any evidence of a reasonable basis upon which Justice Favret could have been apprehended to be biased. Mr. John complains that the Justice erred in her credibility assessment of the complainant, but having heard the evidence, and Mr. John’s rap song, it was open to her to make the credibility decision she did.
[27] There are numerous other problems with the claimed grounds of appeal, but at the end of the day, apart from my finding that Mr. John is not indigent, which itself is sufficient to dismiss this application, the further reason is that in my view hearing this appeal would be an unmitigated waste of time and court resources. Mr. John was found guilty of threatening bodily harm, the least of the charges he initially faced, and he was given a suspended sentence, plus two days previously served and one year of probation. He walked out of court after that case concluded and had no limitations imposed upon his liberty other than to report regularly to a probation officer for one year. It is evident to me that the sentence effectively reflects a judicial slap on the back of the hand and an admonition to not do it again – nothing more. As such, in my view, this is a case where the maxim de minimis non curat lex must apply. The law is not concerned with trifling matters, and that, in my judgment, is exactly what this appeal is, verging on vexatious.
[28] Of course, Mr. John is entitled under our law to pursue this appeal if he chooses to do so, but in my view, it would amount to a squandering of the limited financial resources of the state available for justice matters to provide funding to Mr. John to permit him to carry on with this frivolous appeal. He should not be encouraged. The application under s. 684 of the Code is dismissed.
Michael G. Quigley J.
Released: June 19, 2018
[^1]: Section 684(1) and (2) CC, R. v. Mahmood, 2015 ONCA 442 (C.A.) at para. 30. [^2]: 1997 CanLII 2240 (ON CA), [1997] O.J.No.5091 (C.A.) at para. 30. [^3]: 1988 CanLII 147 (ON CA), [1988] O.J. No. 271 (C.A.). [^4]: Rowbotham, above at para. 40; R. v. Swiech-Lemon, [2013] O.J. No. 4068 (S.C.J.) at paras. 10, 14-15, 21. [^5]: R. v. Robinson (1989), 1989 ABCA 267, 51 C.C.C. (3d) 452 (Alta. C.A.); R. v. P.C., 2014 ONCA 577 (C.A.). [^6]: Bernardo, above, at para. 21, R. v. Wills, 2010 ONCA 128, [2010] O.J. No. 608 (C.A.) at para. 6. [^7]: See Bernardo at paras. 22-24, R. v. X.Y., [2007] O.J. No. 996 (C.A.) at para 29. [^8]: Ibid., at para. 27, R. v. Butler, 2006 BCCA 476, R. v. Leroux, 2014 SKCA 60.