R. v. VanEindhoven, 2015 NUCA 01

???? ?????????? ???????? Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R. v. VanEindhoven, 2015 NUCA 01 Date: 2015-02-10 Docket: 18-001-CAP Registry: Iqaluit Between: Adrian VanEindhoven Applicant -and- Her Majesty The Queen Respondent _______________________________________________________ The Court: The Honourable Mr. Justice Ronald Berger The Honourable Madam Justice Patricia Rowbotham The Honourable Mr. Justice Russell Brown Memorandum of Judgment Application for court-appointed counsel

MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] Mr. VanEindhoven seeks Court-appointed counsel in order to prosecute his appeal from a conviction for second-degree murder recorded on October 15, 2013. The thrust of his appeal is that the trial judge did not adequately caution the jury to ignore certain personal opinions expressed by prosecuting counsel during the course of his address to the jury. Defence counsel took issue with that which she described as hyperbole.

She also contended that Crown counsel improperly speculated as to what may have occurred at material times without the benefit of factual underpinnings to support that theory. By way of illustration only, the jury address by Crown counsel included the following: But they do kill each other, and they do things that they know are going to kill each other. You know, if you take a knife, and you stab someone in the hand and they bleed to death, that’s manslaughter. You can’t have foreseen that.

But if you take a gun and you shoot them in the head or you take a knife and you stab them in the heart because you’re angry, because you’re feeling mad, that’s murder. You’ll have to consider whether intoxication and the other circumstances might have reduced his ability to form that [intent], and I think that’s also fairly easy to answer in this case. By his own actions the moments after this happened, he knew how bad it was. The instant he saw the wound, he knew how bad it was. He said so. He ran for help.

So, if he understood how bad this was the moment after it happened, he knew how bad it was the moment before it happened. (Appeal Book, Vol. 3, pages 376/31-377/3) [ 2 ] Another example is at page 378: It’s probably true that Leanne grabbed the knife maybe to defend herself. That makes sense in this case. It’s the rest that becomes the lie, and that – where he says, ‘Well, she tried to stab me,’ okay, right? The knife was in her hand at some point in a morning, but was it to kill, or was it to defend herself? What does the evidence in this case tell you?

Because the rest of the story about how she then tried to stab him, that’s where it all falls apart. (Appeal Book, Vol. 3, pages 378/41-379/3) [ 3 ] A third example is found at page 379 of the Transcript: It’s not simple in that we don’t know all of what went on between them, and we never will, because Leanne’s not here to tell us what happened, and Adrian’s version, frankly, we cannot trust, because it changes. It has not stayed the same, and it’s tainted by, I think, his desire to make the story better. (Appeal Book, Vol. 3, page 379/18-24) II.

DEFENCE POSITION [ 4 ] The position of defence counsel in the court, below, was clear and unequivocal: [I]t is improper for either counsel, ever, to express a personal opinion as to the truth of evidence. One may argue that the jury should conclude that from the evidence, but you cannot express your personal opinion, and you cannot express your personal opinion about the guilt or innocence of the accused.

I quote, and I hope I’m correct. I believe I tried very hard. This was following a statement about what the evidence proves, that the knife was in his hand, that he killed her, that this was murder: ‘I think the facts bear that out overwhelmingly.’ That is a personal statement of belief. It’s not allowed. ‘I’d venture to say that that is true for almost every man who has killed a woman in their lives,’ or some such thing. I don’t accept that as true.

It is an expression of an opinion, it’s evidence that could never be in this trial, and it’s given from counsel. (Appeal Book, Vol. 3, page 384/7-34) [ 5 ] The arguable position is that the charge to the jury was insufficiently benign and did not adequately caution the jury regarding the danger of relying upon the personal opinions expressed by Crown counsel; which, in the opinion of Defence counsel, misled the jury: I also want to reiterate the fact that there were opinions given by Crown counsel. Sometimes, he used the word ‘I’.

Other times, it was clearly a personal opinion, and I just want to reemphasize with you in strong terms that the opinions of counsel are their opinions, and they really have nothing to do with your deliberations. (Appeal Book, Vol. 3, page 461/21-28) [ 6 ] We would add the following. It will be remembered that one theory of the Defence submitted to the jury was that the deceased accidentally stabbed herself when running into a wall. Were that accepted by the jury, the verdict would have been not guilty.

It is arguable that Crown counsel’s explanation of the difference between murder and manslaughter might have confused the jury and should have been expressly referred to by the trial judge and rejected by the trial judge as an incorrect statement of the law. The impugned statement (which also includes a personal observation) speaks of manslaughter as an accidental death.

It reads as follows: His Honour will explain to you that the Crown, in addition to having to prove that the knife was in Adrian’s hand in this case, which I think the facts bear out overwhelmingly, has to satisfy you that he had the intention in his mind that makes this murder and just not just manslaughter, and inelegant name we have in law for what it’s called when you kill someone but you really didn’t mean it, it’s an accident. It was illegal, but it was an accident. (Appeal Book, Vol. 3, page 375/22-31) III. THE APPLICATION [ 7 ]

Section 684 of the Canadian Criminal Code, RSC 1985, c C-46 [ Criminal Code ], provides that a court of appeal may assign counsel for an unrepresented appellant where two conditions are met: a. It appears desirable in the interests of justice that the accused should have legal assistance. b. It appears that the accused has not sufficient means to obtain that assistance. [ 8 ] By letter dated November 24, 2014, the Legal Services Board of Nunavut, having advised Mr.

VanEindhoven orally, confirmed that legal aid funding was denied: Further to your email correspondence concerning the captioned matter this will confirm that the applicant’s request for funding was denied by the Legal Services Board of Nunavut. Mr. VanEindhoven has been advised verbally of this decision and is awaiting the

Board’s written decision for same; accordingly the Legal Services Board will not be funding this matter nor will counsel from the Legal Services Board be appointed to assist with this proceeding. [ 9 ] The Crown concedes that the applicant does not have the necessary financial means to retain counsel to prosecute his appeal. [ 10 ] The “interests of justice” condition requires consideration of the following factors: i. the arguable merits of the appeal (the appeal must not be frivolous (R v Smith, 2001 NFCA 38 , 156 CCC (3d) 461 (Nfld CA) ); ii. its complexity; iii. the appellant’s capability; and iv. the Court’s role to assist. ( See R v Sykes, 2014 NSCA 4 , 339 NSR (2d) 191 , at para 12 , citing R v Assoun, 2002 NSCA 50 , 53 WCB (2d) 267 ) IV.

CONCLUSION [ 11 ] The record before us leads us to conclude that the application for court-appointed counsel should be granted. In our view, the appeal is not frivolous. Moreover, there are nuances raised by the ground of appeal which challenges the Crown’s closing remarks. These would be difficult for the appellant to thoroughly pursue without the benefit of counsel. That order will go. Fees and disbursements of counsel shall be determined and paid in accordance with subsections 684(2) and (3) of the Criminal Code . Written submissions only.

Memorandum filed at Iqaluit, Nunavut This 10th day of February, 2015 ________________________________________ Berger J.A. ________________________________________ As authorized by: Rowbotham J.A. ________________________________________

Brown J.A. Appearances: B. Flight for the Respondent Applicant Adrian VanEindhoven Self-Represented