Court File and Parties

COURT FILE NO.: CR-24-10000005-00AP DATE: 20241015

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – HYUNG SEUNG CHOI

COUNSEL: J. Andres Hanna-Suarez, for the Crown Hyung Seung Choi on his own behalf

HEARD: October 11, 2024

R.F. GOLDSTEIN J.

Reasons for Judgment on Application for State-Funded Counsel

[1] On June 22, 2022 Mr. Choi became involved in an altercation with Jorge Fernandez. Mr. Choi and Mr. Fernandez were neighbours. Mr. Fernandez was taking out the garbage when Mr. Choi started filming him on his cellphone using a “selfie stick”. Mr. Fernandez tried to block the camera. Mr. Choi then attacked Mr. Fernandez. He first hit Mr. Fernandez with the selfie stick. He then punched Mr. Fernandez several times, choked him, and scratched him. Mr. Choi was younger, more agile, and faster, as the trial judge, Madam Justice Faria, observed. Mr. Fernandez’s wife, Carmen Alvarado Polo, saw some of the altercation. She attempted to intervene. A neighbour, Ms. Ferraro, also witnessed some of the altercation.

[2] Mr. Choi testified that he acted in self-defence. The trial judge, Justice Faria, did not believe him. She found that he did not act in self-defence. Justice Faria further found that if he did act in self-defence than his response was disproportionate. She convicted Mr. Choi of assault, assault with a weapon, and choking. Her Honour suspended the passing of sentence and placed Mr. Choi on probation for 12 months.

[3] Mr. Choi appealed. He filed a Notice of Appeal on November 29, 2023, the same day that Justice Faria convicted him. Since the Crown having proceeded by way of summary conviction, the appeal lies to the Superior Court: Criminal Code, s. 812(1)(a). Mr. Choi had been represented at trial by counsel funded by Legal Aid Ontario. Mr. Choi applied for Legal Aid for the appeal. On January 21, 2024, Legal Aid Ontario dismissed his application. He filed a request for a review. The request was denied.

[4] Mr. Choi applied for state-funded counsel for the appeal pursuant to s. 684 of the Criminal Code. Section 684 applies to summary conviction appeals: Criminal Code, s. 822(1). Pursuant to s. 684(1), a judge may appoint state-funded counsel...

… 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.

[5] In R. v. Abbey, 2013 ONCA 206, Watt J.A. considered the basis upon which a court could order that the state fund appellate counsel. The court should consider first the “interests of justice”. The “interests of justice” in this context means that the court should “inquire into the merits of the appeal on the basis of the record”: Abbey at para. 31. The court should simply determine whether the grounds of appeal are arguable. The standard for an arguable case is modest. If there is an arguable case, the court should appoint a lawyer where the appellant cannot properly present his or her case without legal representation, and the court cannot properly decide the case without assistance from counsel.

[6] Where the appeal is arguable, the court should second stage should consider the appellant’s financial situation.

[7] In this case, the Crown concedes that Mr. Choi’s financial situation precludes him from hiring counsel. He is on Ontario Works and receives a very modest monthly stipend.

[8] The real issue on this application, therefore, is whether it is in the interests of justice to order state-funded counsel. I must first consider whether the grounds of appeal are arguable.

[9] In his Notice of Application, Mr. Choi argued that the Crown’s witnesses were lying; and that he was acting in self-defence.

[10] I had a very difficult time getting Mr. Choi to focus on the grounds of appeal in oral argument. Among his other problems, Mr. Choi has some obvious and unfortunate mental health issues. I asked him several times what he thought the mistake were that the judge made. Since he has no legal training (or experience in the courts) I did not expect that he could articulate a ground of appeal the way a trained lawyer would. But even allowing for his inexperience and lack of knowledge, I could not puzzle my way through his submissions to extract an arguable ground of appeal. Mr. Choi essentially wanted to re-litigate the trial. He told me that the witnesses were liars, and the trial judge was biased against him. He could not, however, identify anything that I could interpret as a legal error, even on a very generous basis. I also reviewed his very lengthy review application to Legal Aid Ontario. It is more of a diatribe than a legal document. Again, allowing for the fact that he is not a lawyer, I still could not find anything that could be identified as a legal error.

[11] I also reviewed Justice Faria’s decision in detail to determine if there were anything on the face of it that could give rise to an arguable ground of appeal. I could not find anything. Justice Faria set out the evidence and the law, made findings of fact, applied the law to those facts, and came up with a considered decision. In other words, she did what trial judges are supposed to do. From my review of the decision and my understanding of the background, I see no arguable ground of appeal.

[12] At the end of the day, what Mr. Choi really wants is to re-litigate the findings made by the trial judge. He simply does not agree. Respectfully, that is not a ground of appeal.

[13] The application is dismissed.

R.F. Goldstein J. Released: October 15, 2024