COURT FILE NO.: 4813-998-16-35001066-00
DATE: 20201221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHAUNE BROWN
Appellant
COUNSEL:
Laurie Gonet, for the Respondent Crown
Shaune Brown, in person
HEARD: December 8, 2020
REASONS FOR DECISION
Stewart J.
[1] Shaune Brown has brought this Application pursuant to s. 684 of the Criminal Code of Canada (R.S.C., 1985, c. C-46) and seeks the appointment of counsel to assist him on an appeal he has brought from his convictions and sentences for assault causing bodily harm and assault of a peace officer imposed by His Honour Judge Cleary of the Ontario Court of Justice on August 24, 2017. Brown received a 15-month custodial sentence on the assault causing bodily harm charge and a 9-month sentence on the assault charge.
[2] Brown represented himself at the trial, although his former lawyer who had been discharged prior to the trial provided assistance in the capacity of amicus curiae.
[3] On this appeal, Brown was turned down for assistance by Legal Aid Ontario. Although he was initially assisted by Downtown Legal Services, that is no longer the case.
[4] Section 684 affords discretion to the Court to assign counsel to act on behalf of an accused on an appeal where 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.
[5] Brown is currently incarcerated on other offences and it does not appear to be in issue that he has no means to hire private counsel out of his own resources.
[6] Therefore, the only question to be considered is whether it appears desirable in the interests of justice that the accused should have legal assistance. The onus rests on Brown to demonstrate that this is so on the balance of probabilities (see: R. v. Rowbotham, 1988 CanLII 147 (ON CA), [1988] O.J. No. 271 (C.A.)).
[7] The basic principles that inform the exercise of judicial discretion under s. 684(1) have been set out by the Court of Appeal for Ontario in R. v. Bernardo (1997), 122 C.C.C. (3d) 123.
[8] The “interests of justice” must take cognizance of the broad access to appellate review under s. 675 of the Criminal Code, as well as the expansive remedial authority of an intermediate appellate court under s. 686 of the Criminal Code.
[9] Second, the factors to be considered reflect the operation of two closely related principles. Counsel should be appointed where an accused cannot effectively present an appeal without a lawyer’s help. Counsel should also be appointed where the Court cannot properly decide the appeal without the assistance of counsel. Most of the time neither principle or both together will operate to require the appointment of counsel. But sometimes, one or the other on its own, will justify the appointment.
[10] Third, a determination of whether counsel should be appointed begins with an inquiry into the merits of the appeal. Typically, the merits assessment is hampered by the incompleteness of the record. In the result, the merits inquiry extends no further than a determination of whether the appeal raises arguable issues. However, as was noted by the Court of Appeal in R. v. Bernardo (supra) and in R. v. Mahmood, 2015 ONCA 442, “appeals uninhabited by merit cannot be repopulated by the appointment of counsel”.
[11] The events giving rise to these convictions occurred when Brown was an inmate at the Metro East Correction Centre. The trial judge found that when Brown was informed that he was to be moved from segregation back to the general population he refused to move until he was given the opportunity to speak to another officer, Officer Gardiner. Sergeant Perkins who was handling the move said he was going to be moved and entered Brown’s cell whereupon he pushed her. The other officers present then entered the cell and subdued Brown forcibly and with the use of pepper spray, as a result of which Brown suffered significant injuries.
[12] Counsel for the Crown identifies the principal issue as being whether the actions taken by the officers to subdue Brown in this custodial setting were justified or excessive causing a breach of his rights under the Charter of Rights or provide a foundation for Brown’s defence of self-defence.
[13] I caution the parties to remember that I am not determining this appeal, but am only considering where there is merit to it by raising an arguable issue. In my view, there is some merit to the appeal advanced by Brown and, in particular, what appears to be the trial judge’s assessment of the evidence of how the altercation started and his conclusion that the facts had been agreed upon by Brown, whereas Brown has indicated that he was provoked by the disruption of his personal papers and had been first shouted at by Sergeant Perkins as well as poked and threatened when she entered his cell and before he pushed her.
[14] There also appears to be some merit to an appeal of the finding by the trial judge that the restraining of Brown by several officers using physical force and pepper spray, causing significant injuries to him, was a reasonable and proportionate use of force in all of the circumstances.
[15] There is also possible merit to Brown’s argument that his rights under the Charter of Rights were infringed such that the proceedings against him ought to have been stayed by the trial judge or, alternatively, that such findings ought to have been reflected in a less harsh sentence imposed or by some other available and appropriate remedy.
[16] I do not overlook the fact that when these events occurred Brown was in custody awaiting trial on a charge of homicide, or that he has since been convicted of second-degree murder and has received a life sentence with parole ineligibility for 13 years. Nevertheless, given the fact that these events occurred in a custodial setting and do have the potential to invite a more incisive consideration of both what is reasonable force and what Charter of Rights considerations may arise from them, considerations that are likely to be complex and will require some detailed knowledge of applicable jurisprudence in the Charter of Rights area, I am of the opinion that it is in the interests of justice that Brown should have legal assistance on this appeal. I also am of the opinion that the Court hearing Brown’s appeal will be better able to determine it if he has the assistance of counsel. Accordingly, I am of the view that Brown has discharged the onus upon him to demonstrate on a balance of probabilities that this is an exceptional case that meets the test under s. 684 and the case law.
[17] For these reasons, Brown’s Application is granted. He has indicated that Alexander Ostroff of Lockyer Campbell Posner has agreed to handle this appeal if he is assigned, and I accordingly do so. In the absence of availability of payment for Mr. Ostroff’s professional services through the Ontario Legal Aid Program, I order that his reasonable fees and disbursements for taking on this assignment be paid by the Attorney General for Ontario.
[18] Ms. Gonet has kindly undertaken to prepare the necessary form of order required to implement this decision. She has also assured me that she will also provide a copy of the signed Order to Brown and to Mr. Ostroff, along with copies of these reasons, for all of which I thank her.
Released: December 21, 2020
COURT FILE NO.: 4813-998-16-35001066-00
DATE: 20201226
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SHAUNE BROWN
Appellant
REASONS FOR DECISION
Stewart J.
Released: December 21, 2020