Court File and Parties

COURT FILE NO.: 16-40000-107 DATE: 20190118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Darren John

BEFORE: Molloy J.

COUNSEL: Cara Sweeny, for the Crown (Respondent) Darren John, in person (Applicant)

HEARD: January 7 and 17, 2019

ENDORSEMENT

The Application

[1] Darren John applies under s. 684 of the Criminal Code for the appointment of a lawyer to represent him on a summary conviction appeal.

Background

[2] On June 30, 2015, Darren John was convicted in the Ontario Court of Justice on one count of uttering a threat to cause bodily harm. The trial judge, Favret J., dismissed two other charges against him. Mr. John brought a number of motions, including an abuse of process motion, which were subsequently ruled on and dismissed by the trial judge. Favret J. sentenced Mr. John to two days’ time served and a suspended sentence, with one year probation. Mr. John appealed to this Court.

[3] Mr. John was initially represented by counsel in his criminal trial. However, just prior to trial, there was a breakdown in communications between him and his lawyer, and Mr. John proceeded to trial representing himself. The reasons of the trial judge for convicting Mr. John were delivered orally in court on June 30, 2015. Various motions were brought by Mr. John, including a motion for a stay of proceedings based on abuse of process. The trial judge appointed amicus to assist the Court for those motions and ordered transcripts of some of the trial proceedings for that purpose. The motions were heard on various dates in the spring and summer of 2016 and were dismissed for oral reasons given at those times. Subsequently, the trial judge agreed to provide written reasons for those rulings in view of Mr. John’s financial inability to obtain transcripts of them. Those written reasons were provided on November 9, 2018.

[4] According to Mr. John’s affidavit, on October 31, 2016, Favret J. sentenced Mr. John to two days of pre-trial custody and a suspended sentence with one year of probation. I accept that as accurate, although I was unable to locate a transcript of that decision.

[5] Mr. John filed a notice of appeal to this Court dated August 11, 2016, seeking to appeal his conviction, sentence, and the dismissal of his motions and application. Seventeen grounds of appeal are set out in an attached typed schedule. One of the grounds relied upon was delay.

[6] On February 22, 2018, Mr. John brought his first application for the appointment of a lawyer, which motion was argued before Quigley J. on March 27, 2018.

[7] For written reasons dated June 19, 2018, Quigley J. dismissed Mr. John’s motion. Essentially, Quigley J. found Mr. John was not indigent (based in part on the conclusion that he had already paid $7,740 for transcripts and the fact that he had a website that looked to be professionally run, and that he therefore must have had access to funds), and also that there was no merit to Mr. John’s appeal.

[8] Mr. John attempted to appeal that decision to the Ontario Court of Appeal. He said that his appeal was dismissed on the grounds that there was no jurisdiction to appeal an interlocutory order of this nature. He also said that he has received legal advice that his only recourse is to bring another application in this Court based on a change in circumstances.

[9] The application for appointment of counsel now before me was filed on November 23, 2018. An amended notice of appeal was also delivered, with the grounds of appeal reduced to only 11 (although some of those are simply an amalgamation of the previous list of 17).

Jurisdiction to Make the Order Sought

[10] Section 684 (1) of the Criminal Code provides:

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.

[11] In R. v. Bernardo[^1], a three-person panel of the Ontario Court of Appeal granted an application to appoint counsel, even though Moldaver J.A. had rejected a previous application for the same relief. On the second application, Doherty J.A. noted that the decision of Moldaver J.A. had left the door open for further consideration “as the appeal ripened” and the material before the panel on the second application permitted a fuller assessment of the complexity of the appeal and the ability of the appellant to argue it without counsel.[^2] The Court of Appeal held that the authority to appoint counsel arises where: (1) it is in the interests of justice that an accused should have legal assistance; and (2) the appellant does not have sufficient means to obtain that assistance.[^3] Further, the Court held that it is relevant to consider whether there is any merit to the appeal, based on the low threshold of whether the appeal is an arguable one. In making that finding, Doherty J.A. observed:

I would so limit the merits inquiry for two reasons. First, the assessment is often made on less than the entire record. Second, any assessment beyond the arguable case standard would be unfair to the appellant. An appellant who has only an arguable case is presumably more in need of counsel than an appellant who has a clearly strong appeal.[^4]

[12] Since Bernardo, courts have typically required an applicant to show a material change in circumstances before a second application under s. 684(1) will be considered. For example, in R. v. Staples,[^5] Laskin J.A. found that a material change in circumstances warranted a reconsideration of a refusal to appoint counsel under s. 684(1). He defined a material change in circumstances as being, “additional information that could lead the judge hearing the application to alter the assessment of one or more of the statutory factors set out in [s. 684 (1)].” Justice Laskin emphasized that the second application is not a review of the previous decision, but rather “requires the applicant to provide information or evidence that was not before [the initial judge] which may call into question the assessment of at least one criteria of the appointment of counsel under s. 684(1) of the Code.” The onus on the new application then remains on the appellant to satisfy all of the requirements under s. 684(1). In Staples, Laskin J.A. found a material change based mainly on the provision of previously missing financial disclosure and a new affidavit giving more details about a foreclosure proceeding, so it appears that the standard is not that the accused’s circumstances have materially changed so much as that better evidence about the accused’s circumstances (or, as in Bernardo, the complexity of the appeal) has been made available to the judge.

Material Change in Circumstances

[13] Mr. John filed affidavit material on the application before me. Justice Quigley assumed that the cost of transcripts already obtained and had been borne by Mr. John and that he must therefore have financial means beyond his disability pension. What Justice Quigley did not know was that those transcripts had been ordered by the trial judge to assist amicus on the abuse of process motions, and not by Mr. John. That fact is confirmed by the affidavit of Mr. Allan Lobel who served in the role of amicus.

[14] Second, Mr. John filed an affidavit on the application before me in which he states that his website is “entirely created and maintained for free using the features of the free blogging website that I use.” The Crown does not challenge that evidence and concedes that Mr. John is indigent and could not afford to hire his own counsel.

[15] The finding that Mr. John was not indigent was not the only basis upon which Quigley J. dismissed his application. However, it would appear from the case law that the demonstration of a material change with respect to only one of the criteria is sufficient to permit a second application. Further, given other concessions by the Crown on the first application as to the merits of the appeal, there was not a full argument of that issue on the first occasion. Accordingly, I consider it to be in the interests of justice to allow Mr. John to proceed de novo on the application before me.

The Grounds for Appointment of Counsel Are Met

1. Merits of the Appeal

[16] The Crown argues that Mr. John does not meet the low threshold of establishing an arguable basis for an appeal. I do not agree. There is at least an arguable case that the conduct of the Crown at trial (not the same counsel as before me on this application) was inappropriate, particularly given that Mr. John was unrepresented by counsel. The trial Crown advised Mr. John that if he chose to testify he would be cross-examined on a criminal record that included a fairly recent conviction for fraud. Mr. John told the Crown that the record was inaccurate because that conviction had been reversed by the Court of Appeal. The Crown made no inquiry into the truth of that, but rather advised Mr. John that he could make that explanation to the trial judge. This was conceded by the Crown in the evidence portion of the abuse of process motion, his explanation being that he “wasn’t prepared to take anything [Mr. John] said to him at face value given what he knew about [him] at the time.”[^6] The Crown also admitted that if a lawyer had told him that a CPIC record had been incorrect, he would deal with the matter differently and rely on the lawyer’s representation.

[17] Mr. John’s point was that raising it with the trial judge was not a solution because by then the damage would have been done, as the judge would have seen the conviction. I recognize that trial judges often see evidence that turns out to be inadmissible or inaccurate and are able to disabuse their minds of that. However, to a lay person, that might not be quite as obvious. Mr. John told the Crown at the time, and continues to maintain, that he felt he could not testify if the inaccurate record was placed before the trial judge. As a result, he did not testify, and none of his side of the case was before the court, including his intention in making the rap video he did, the use he planned to make of it, and the actual words on the video itself.

[18] It is now conceded that in fact the CPIC record that the trial Crown planned to put before the court was inaccurate and that the fraud conviction had been overturned by the Court of Appeal. This would have been easily discovered if the Crown had made even minimal efforts to find out.

[19] The trial judge, in dismissing Mr. John’s motion, held that even if Mr. John had testified, based on the evidence before her on the motion, all he would have provided would have been a denial with respect to his intention and that she could not “conclude that he would have offered any credible evidence.”[^7] She also noted that the decision not to testify was, in her view, a tactical one and there was no trial unfairness.[^8]

[20] In my view, it is, at the very least, open to debate that the Crown acted improperly and that the trial judge erred in failing to either stay the proceedings, or reopen the case to permit Mr. John to testify, as he sought to do. Whether this amounted to trial unfairness is, in my view, an arguable ground of appeal.

[21] Mr. John also intends to rely upon the delay in completing his trial (more than three years) and to argue an infringement of s. 11(b) of the Charter. Without a full set of transcripts it is difficult to determine the merits of such an application. However, on its face it would certainly seem to meet the threshold test of being arguable. Although this was in the original notice of appeal, I am not sure that it still appears in the amended one. This does not particularly trouble me as, in my view, once counsel is appointed and the transcripts obtained, a fresh notice of appeal might well be advisable.

[22] It is not necessary for me to go through each and every one of the grounds raised by Mr. John and opine on which of them I consider to be arguable. If there is one arguable ground of appeal, that aspect of the test is met. I therefore do not propose to deal with any of the other grounds of appeal.

2. The Need for Legal Counsel

[23] The Crown before me concedes that Mr. John lacks the financial resources to hire counsel to represent him on the appeal. She also acknowledges that he would not have the financial ability to obtain the remaining transcripts, which are estimated to cost approximately $9000. Legal Aid has refused to fund the appeal because Mr. John does not face imprisonment. The Crown argues that Mr. John is intelligent and articulate, has done a good job of representing himself to date, and does not need a lawyer to represent him on the appeal as he is fully capable of arguing it himself. At the same time, she submits that I have no jurisdiction to simply order that transcripts be prepared and provided, as my jurisdiction is limited, by the language of s. 684, to appointing counsel.

[24] Clearly, if transcripts are not provided, there can be no appeal. If Mr. John cannot afford to order them, and the Crown does not order them, it does not matter whether he is capable of arguing the appeal, the appeal will not exist. His right to appeal, as provided by statute, will have been taken away from him because of his limited financial means.

[25] I agree that Mr. John is intelligent and articulate. He made the point in argument before me that the test imposed puts him in a Catch 22 situation: (1) if he does not convince the court that there is an arguable ground of appeal, his application will be dismissed; (2) if he does convince the court that he has an arguable ground of appeal, then it will be said he is able to argue the appeal himself and does not need a lawyer. Either way he loses.

[26] I have some sympathy for that argument. However, showing an arguable ground of appeal is a far cry from establishing that a ground of appeal raised is sufficiently meritorious that the conviction is unsafe and must be set aside. I do not agree that showing an arguable ground of appeal establishes an ability to advance that same ground effectively on the argument of the appeal itself.

[27] It is clear from Mr. John’s materials and from his oral submissions that he has done considerable work, has obtained some advice on how to go about things, and is able to advance logical and coherent arguments. However, he is not a lawyer and there are many aspects of his submissions that show he simply does not understand things that would be apparent to a lawyer (e.g. the freedom of expression argument and the errors in the transcript argument). I do not see him as having sufficient skill and knowledge to advance the argument on the ethical responsibility of the trial Crown and what amounts to trial unfairness, nor do I expect he would be able to mount an effective presentation of the Charter issues involving the Step 3 search and what remedies might arise from it, or the s. 11(b) point. A lawyer would be of considerable assistance to the court in weeding out possibly meritorious claims from those based on a lay person’s lack of understanding of the law. I note that although Mr. John represented himself at trial, the trial judge appointed amicus to assist the court on the more complex arguments raised on the post-trial motions.

[28] In my view, this aspect of the test under s. 684(1) is also met.

The Interests of Justice

[29] It would be an unusual case in which a court would find a person to have a statutory right of appeal, arguable grounds of appeal, and the inability to advance that appeal without funding for counsel, and at the same time find that it was not in the interests of justice to permit the appeal to proceed.

[30] The Crown argues that Mr. John received a very light sentence, more like a “slap on the wrist,” and it is not in the interests of justice to have the state fund his appeal. She notes as well that he already has a criminal record for harassment from 2005. Those are both accurate observations. Nevertheless, the previous record is dated. A new criminal record for a similar type of offence is not a matter of no consequence and could have a substantial impact on Mr. John, both personally and professionally, particularly with respect to his ability to travel outside Canada.

[31] In my view, it is in the interests of justice that Mr. John be permitted to proceed with his appeal. He cannot do that effectively without legal representation; and he cannot do it at all without transcripts, which according to the Crown can only be obtained if I make an order under s. 684(1).

[32] Although not necessary for the determination of this application, I do not want to be taken as agreeing that I would not have inherent jurisdiction in an appropriate case to order that the state pay for transcripts. If that was all that was required for Mr. John to exercise his right of appeal, I believe I would have jurisdiction to so order.

Implementation of this Decision

[33] Mr. John has indicated he has spoken to a lawyer who he believes will represent him on the appeal. Given the way the s. 684(1) is worded, the normal order would be for me to appoint a particular lawyer as counsel. I am not prepared to do that without hearing directly from counsel that he or she is prepared to have that order made. I will therefore leave it to the parties to work out the terms of the order itself. If they are unable to agree, the matter can be brought back before me by either party. Meanwhile, the matter is adjourned to February 8, 2019 at 9:00 a.m., to be spoken to before the judge managing the list for that day.

MOLLOY J.

Date: January 18, 2019

[^1]: R. v. Bernardo (1997), 121 C.C.C. (3d), 12 C.R. (5th) 310 (Ont.C.A.). [^2]: Ibid, para. 12 [^3]: Ibid, para. 14-16 [^4]: Ibid, para. 22 [^5]: R. v. Staples, 2017 ONCA 138 at paras. 13-16 [^6]: Transcript of Proceedings, May 5, 2016, p.1. [^7]: Reasons of Favret J, dated November 9, 2018 at para.78 [^8]: Ibid, para. 86-87