COURT FILE NO.: CR-17-532
DATE: 20190926
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
A. Campbell, for the Crown
Respondent
- and -
Buhendwa Mushamuka
Self Represented
Applicant
HEARD: August 13, 2019
RULING[^1]
BALTMAN J.
[1] Mr. Mushamuka was convicted of impaired driving on September 1, 2017, following a six-day trial in which he represented himself. He has appealed that conviction, and seeks an order under s. 684 of the Criminal Code for the appointment of counsel for his appeal. The Crown opposes the Application.
[2] It is apparent that a significant (if not the sole) motive for this motion is to require the Crown to pay for the cost of the trial transcript, pursuant to s. 684(2). The Applicant’s appeal was originally scheduled for July 4, 2018, but did not proceed because he failed to procure a transcript of the trial. He then brought a motion for an order compelling the Crown to pay for the transcript. On March 28, 2019 Peterson J. dismissed the motion, concluding that although she had “inherent jurisdiction” to grant the relief sought, there was no merit to his appeal.
[3] Under s. 684 of the Code the Court may appoint counsel to represent an accused on appeal where two criteria are met: 1) it appears desirable in the interests of justice that the accused should have legal assistance; and 2) it appears that the accused does not have sufficient means to obtain that assistance.
[4] Under the first ground, namely the interests of justice, I am to consider the potential merit of the appeal, the ability of the Applicant to present his case without counsel, and the ability of the court to properly decide the matter without the assistance of counsel: R. v. Lubin, 2016 ONCA 780, at para. 11. See also R. v. Fiorilli, 2016 ONCA 814, paras. 12-14.
[5] Dealing first with the merit of the appeal, although the test is no higher than whether it is an “arguable” appeal, in this case I am not satisfied that standard is met. The Applicant’s primary defence at trial was that he was “involuntarily” impaired because a friend spiked his drink. He claimed not to have noticed he was consuming alcohol.
[6] The Applicant’s vehicle was stopped by the police at 9:20 p.m., after two separate complaints by concerned citizens about his erratic driving. He had his two-year-old daughter in the car with him. The arresting officer also observed the Applicant’s vehicle swerving back and forth and changing speeds for no apparent reason. The two breath tests, administered at 10:15 p.m. and 10:37 p.m., indicated respectively 188 and 186 milligrams of alcohol per 100 millilitres of blood.
[7] In my view the presiding judge had ample grounds upon which to reject the Applicant’s testimony and conclude that he was knowingly impaired.
[8] As for the second ground – the ability of the accused to present his case and for the court to decide it without counsel - I note the accused is a trained educator and was, until recently, employed as a teacher. The issues on appeal are not unusually complex. It was apparent from his presentation before me that he is energetic and composed. He has also filed extensive materials.
[9] For all those reasons I conclude it is not in the interests of justice to provide the Applicant with legal assistance. Although that on its own disentitles him to relief, for completeness sake I will add that he has also failed to demonstrate that he lacks the financial ability to retain counsel. In 2016, he earned $57,000 as a full-time teacher. While he is not currently employed – and blames this incident for the alleged deterioration in his physical and mental health that led to his unemployment - his materials do not adequately explain how he is unable to perform any gainful employment or what efforts he has made to borrow the funds for this appeal.
[10] The application is denied.
Baltman J.
Released: September 26, 2019
COURT FILE NO.: CR-17-532
DATE: 20190926
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
Buhendwa Mushamuka
Applicant
RULING
Baltman J.
Released: September 26, 2019
[^1]: This Ruling has been released simultaneously in French.