COURT FILE NO.: CR-19-10000102-00AP
DATE: 20211028
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
RONALD HEATH
Applicant
Helen Song, for the Crown
Self-Represented
HEARD: October 12, 2021
RULING ON AN APPLICATION TO APPOINT COUNSEL ON A SUMMARY CONVICTION APPEAL- s. 684 OF THE CRIMINAL CODE
B.P.O’MARRA J.
[1] On August 19, 2019, the applicant was convicted after a trial in the Ontario Court of Justice (OCJ) of Indecent Act and Assault Police Officer. He had represented himself at trial. He was sentenced to six months in jail for the Indecent Act and three months consecutive on the Assault Police Officer. He filled an inmate appeal with the Superior Court of Justice on December 19, 2019. He was assisted by Downtown Legal Services in filing an application pursuant to s. 684(1) of the Criminal Code for the appointment of counsel to represent him on the appeal.
[2] The proposed grounds of appeal can be summarized as follows:
The applicant claims that he had physical and mental health issues that prevented him from meaningful participation at his trial. He specifically referred to hearing issues that were not accommodated by or addressed by the court.
He was denied the assistance of a lawyer.
The trial judge made numerous factual errors in her judgement.
He was denied access to transcripts of the trial as it proceeded.
[3] The applicant requests that a lawyer be appointed by the court to represent him on his appeal for the following reasons:
He is 80 years old and has numerous physical and mental health issues, including hearing, dementia, Alzheimer’s, depression, attention deficit disorder and hallucinations.
His application for legal aid was denied on March 18, 2020. He claims he cannot afford to pay a lawyer.
[4] Section 684(1) of the Criminal Code authorizes the court to appoint counsel where it appears to be in the interests of justice that the appellant should have legal assistance and that the appellant does not have sufficient means to pay for such assistance. These requirements are cumulative.
[5] The right to be provided with counsel at the expense of the state only arises in exceptional cases. The onus is on the applicant to demonstrate the required factors on the balance of probabilities. Simply because a person is indigent does not mean they automatically qualify for representation. Both inability to pay and the need to ensure a fair hearing must be shown: R. v. Rowbotham, 1988 CanLII 147 (ON CA), [1988] O.J. No. 271 (C.A) at para. 156.
[6] The relevant considerations on such an application include the following:
Is the appeal arguable or is it devoid of merit?
Can the appellant effectively advance his grounds of appeal without the assistance of counsel?
R. v. Bernardo, 1997 CanLII 2240 (ON CA), [1997] O.J. No. 5091 (C.A.) at paras. 22 and 24.
[7] An assessment of the financial resources of the applicant is not to become a judicial review of decisions made by the legal aid authorities. R. v. Peterman, 2004 CanLII 39041 (ON CA), [2004] O.J. No. 1758 (C.A.) at para. 22.
[8] The seriousness of the matter is a factor to be considered: Bernardo at para. 27.
[9] The Crown submits that the trial record shows that the judge was sensitive to the hearing issues raised by the applicant. The trial judge also gave periodic directions to the applicant on various issues as the trial proceeded.
[10] The application proceeded before me with all participants by zoom on consent. I found the applicant to be articulate and responsive to questions and comments from me. There were some audio issues related to technology but the applicant seemed quite able to hear everything said by myself and Crown counsel.
[11] I am not deciding the merits of the appeal but I must consider whether it is arguable. The issues raised by the applicant are not complex and were articulated by the applicant again on this hearing. I do not believe he requires the assistance of counsel to present his appeal. His disputes with the factual findings at trial are not likely to succeed on appeal but he will be able to set them out without legal assistance. His criminal record is extensive starting in 1959 and is replete with the very same type of offences he now seeks to appeal. He has gained a great deal of criminal law experience (albeit the hard way) by virtue of his numerous court appearances over the years.
[12] My role is not to second guess the refusal of legal aid. I am advised by Crown counsel in some detail that the applicant is not in fact indigent. He has access to funds but has chosen to expend them on other matters.
[13] I am not persuaded that it is in the interests of justice that an order should be made appointing legal counsel to assist on the appeal.
[14] The application is dismissed.
O’Marra J.
B.P.O’MARRA J.
Released: October 28, 2021
COURT FILE NO.: CR-19-10000102-00AP
DATE: 20211028
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
RONALD HEATH
Applicant
Ruling on an application to appoint counsel on a summary conviction appeal- s. 684 of the criminal code
B.P.O’MARRA J.
Released: October 28, 2021