R. v. D.R., 2021 NLCA 54

D.R. (applicant/appellant) v. Her Majesty the Queen(respondent) (20/19) Indexed As: R. v. D.R. 2021 NLCA 54 7 C.A.N.L.R. 117 Court of Appeal of Newfoundland and Labrador O’Brien J.A. November 24, 2021 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code, information that may identify theperson described in this judgment as the complainant or a witness shall not be published in any document or broadcast or transmitted inany way.

Summary: D.R. was convicted of sexual assault under

section 271 of the Criminal Code, and sentenced to eight months in prison to be followed bya period of probation for two years. D.R. filed a notice of appeal against the conviction. The Crown filed a notice of cross-appeal againstthe sentence. The Newfoundland and Labrador Legal Aid Commission will be representing D.R. on the Crown’s cross-appeal of thesentence, but not on the appeal of the conviction. D.R. applied to this Court requesting that counsel be assigned to represent him on theappeal of his conviction. Held: Application dismissed.

O’Brien J.A.: Based on the information before the Court, D.R. did not have the financial means to engage legal counsel. Therefore, thefirst criterion of the test to assign counsel was met (paragraphs 18-21). D.R. applied to Legal Aid in relation to the conviction appeal. Legal Aid denied the application. D.R. then appealed Legal Aid’sdecision. Legal Aid denied the appeal and confirmed the original decision, that counsel would not be provided. Therefore, as Legal Aidwill not provide a lawyer for the conviction appeal, the second requirement was met (paragraphs 22-24).

It was not readily apparent that a serious issue had been identified either in terms of the judge having erred in law or having made apalpable and overriding error regarding factual determinations or inferences (paragraphs 25-42). In any event, based on the potential issues on appeal, the level of complexity of the issues and D.R.’s ability to argue the appeal, D.R.would be able adequately to present his own case and the Court would be able to properly decide the case without the assistance ofcounsel.

Therefore, the fourth criterion of the test to assign counsel was not met (paragraphs 43-51).Cases cited: Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729 R. v. Normore, 2019 NLCA 12 R. v. Higdon, 2021 NLCA 33 R. v. Crockwell, 2014 NLCA 49, 358 Nfld. & P.E.I.R. 172 R. v. Murphy, 2010 NLCA 38, 298 Nfld. & P.E.I.R. 70

R. v. Ryan, 2008 NLCA 42, 277 Nfld. & P.E.I.R. 167 R. v. Ikkusek, 2009 NLCA 39, 287 Nfld. & P.E.I.R. 73 R. v. Marshall, 2011 NLCA 26 R. v. Starkes, 2019 NLCA 4 R. v. Barry, 2018 NLCA 48 R. v. R.J.H., 2012 NLCA 28 Statutes considered: Criminal Code, sections 151, 271, 684 Counsel: Appearing on his own behalf, the applicant/appellant; Shawn Patten, for the respondent; David Rodgers, for the Attorney General. The application was heard on November 9, 2021 before O’Brien J.A.

The following memorandum of disposition was filed on November 24, 2021 by O’Brien J.A. ______________________________________________________________ MEMORANDUM OF DISPOSITION O’Brien J.A.: Introduction [1] This is an application by D.R., pursuant to

section 684 of the Criminal Code, requesting that counsel be assigned to representhim on the appeal of his conviction, and that the fees and disbursements of counsel be paid for by the Attorney General. [2] Mr. R was charged with one count of sexual interference under s. 151 of the Criminal Code and one count of sexual assaultunder s. 271 of the Code. [3] On December 2, 2019, following a trial in the Supreme Court of Newfoundland and Labrador, General Division, he wasconvicted of sexual interference under s. 151 of the Code.

The sexual assault charge under s. 271 was stayed pursuant to the decision ofthe Supreme Court of Canada in Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729. [4] Before sentencing occurred this was reversed; that is, the judge vacated the stay of conviction on the sexual assault charge (s.271) and entered a conviction on that charge. The sexual interference charge (s. 151) was then stayed, again in accordance with theprinciples outlined in Kienapple. [5] In the result, Mr. R was ultimately convicted of one count of sexual assault.

He was sentenced to eight months in prison to befollowed by a period of probation for two years. [6] Mr. R filed a notice of appeal (and a supplementary notice of appeal) regarding the conviction. He did not appeal the sentence. The Crown subsequently filed a notice of cross-appeal with respect to the sentence. [7] The Court has been advised that the Newfoundland and Labrador Legal Aid Commission will represent Mr. R on the Crown’scross-appeal of sentence. However, Legal Aid will not be representing him on the conviction appeal. Therefore, Mr.

R has brought thisapplication for legal counsel. [8] At the hearing of this application, Mr. R advised the Court that he has served the custodial portion of his sentence and ispresently on probation. [9] The Attorney General contests Mr. R’s application and argues that counsel need not be appointed because the test set out by this

Court for the appointment of counsel has not been met. [ 10 ] The Crown has filed a transcript of the trial proceedings and an appeal book. Mr. R has not yet filed a factum, and the Crown is awaiting receipt of the factum so that it can prepare and file a factum in response. The circumstances of the offence and Mr. R’s conviction [ 11 ] Mr. R was convicted of sexually assaulting the complainant, who is Mr. R’s grandson.

The judge described the circumstances of the offence as follows during sentencing ( 2020 NLSC 28 ): [23] D.R. was convicted for conduct involving fondling the complainant's penis on two occasions while the two shared a bed during an overnight visit to the home of a relative. [24] D.R. is the complainant’s maternal grandfather. The evidence at the trial demonstrated that the two had enjoyed a close relationship prior to this conduct. [25] The complainant was 11 years old at the time of the offence.

At that time, he was living with his grandmother and D.R. … [26] D.R. and the complainant slept in the same bed on the night of the offence. The complainant awoke during the night to find D.R. had his hand down the complainant’s pajama pants. D.R. grabbed the complainant’s penis and started pulling on it. He never stopped for almost five minutes. The complainant moved away as far as he could and rolled onto his stomach. D.R. then removed his hand and they both went to sleep.

However, the complainant woke again in the middle of the night to find D.R. had again put his hand down his pants, grabbing his penis and pulling on it. This time the incident lasted less than a minute until the complainant got up and left the bedroom. [ 12 ] At trial the complainant testified, as did Mr. R, who “denied that he touched the complainant in the manner alleged” ( 2019 NLSC 217 , at para. 20 ). The judge found that the Crown had proved the elements of sexual assault beyond a reasonable doubt and convicted Mr. R (Transcript, Vol. VI, at 11-12). Mr. R’s application for counsel [ 13 ] As indicated, Mr.

R has appealed the conviction and has applied for counsel pursuant to s. 684 of the Code . The relevant provisions of

section 684 state: 684

(1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal 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.

(2) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal. [ 14 ] This Court has previously noted that s. 684 “does not provide an automatic right to publicly funded counsel under any circumstance” ( R. v. Normore , 2019 NLCA 12 , at para. 15 ; R. v. Higdon , 2021 NLCA 33 , at para. 12 ).

However, s. 684 does enable the Court, in the exercise of its discretion, to assign counsel when (to paraphrase the language in s.684) it appears desirable in the interests of justice to provide legal assistance to an applicant who otherwise would not have the financial means to hire counsel ( R. v. Crockwell , 2014 NLCA 49 , 358 Nfld. & P.E.I.R. 172 , at para. 17 ; R. v. Murphy , 2010 NLCA 38 , 298 Nfld. & P.E.I.R. 70 , at para. 4 ).

Issues to be considered [ 15 ] Four main issues are considered when determining, in the exercise of discretion, whether to assign counsel under s. 684(1). [ 16 ] These issues were outlined in R. v. Ryan , 2008 NLCA 42 , 277 Nfld. & P.E.I.R. 167 , and have been consistently followed in subsequent cases. They are: 1. Does the applicant have the financial means to engage legal counsel for the appeal? 2. If not, will Legal Aid provide counsel for the appeal? 3. Are there serious (not frivolous) issues to be dealt with in the appeal? and 4.

Will the appellant adequately be able to present the case and will the Court be able properly to decide the case without the assistance of counsel? [ 17 ] These issues will be considered in the context of Mr. R’s application. Issue 1: Does the applicant have the financial means to hire a lawyer? [ 18 ] In his application, filed October 12, 2021, Mr. R indicated that he did not have the means to pay for private counsel.

He noted that he is living on a fixed income, that the cost of hiring a lawyer for the trial in this matter had “drained his savings”, and that he is currently paying off a loan taken out to pay for his legal expenses at trial. [ 19 ] At the hearing, Mr. R provided further particulars about his financial situation, and elaborated on why he was unable to pay for private legal counsel for this appeal.

[ 20 ] Further, and as noted above, Legal Aid will represent Mr. R on the sentencing appeal in relation to this matter, which indicates he would have met the financial requirements for Legal Aid in this respect. [ 21 ] Based on the information provided in the application and at the hearing, the Court can conclude that Mr. R does not have the financial means to engage legal counsel for the appeal. This satisfies the first requirement in Ryan . Issue 2: Will Legal Aid provide a lawyer for the appeal? [ 22 ] Documentation filed with the Court confirms that Mr.

R applied to the Newfoundland and Labrador Legal Aid Commission, requesting counsel be assigned to act on his behalf for the conviction appeal. The application was denied and counsel was not provided. [ 23 ] Mr. R appealed this determination and the appeal was considered by Legal Aid. The appeal was denied and the original decision, that counsel would not be provided, was confirmed. There was no indication that the denial was due to financial ineligibility. [ 24 ] Accordingly, Mr. R meets the second requirement.

Issue 3: Are there serious (not frivolous) issues to be dealt with in the appeal? [ 25 ] The issues to be dealt with in the appeal are generally set out in the notice of appeal and the application for appointment of counsel. Issues may also arise from the record. [ 26 ] In the application for appointment of counsel, Mr. R stated only that he would be arguing the following points on appeal: “misapprehended evidence” and “I am not guilty”. [ 27 ] In the supplementary notice of appeal, he expanded on this and put forward a number of potential issues. These include the following assertions: 1.

That the complainant “did not tell the truth” and changed his evidence, and thus was not credible and should not have been believed; 2. That the judge erred in finding that the touching was for a sexual purpose. Mr. R stated that there “was no sexual intent” and that his only intent on the night in question “was to sleep”; and 3. That the judge “misapprehended my main point of evidence, which is that I did not do anything”. [ 28 ] The first potential issue on appeal relates to the credibility of the complainant and the judge’s acceptance of the complainant’s evidence. This was argued at trial, with Mr.

R citing examples where it was alleged that the complainant’s testimony was inconsistent or not credible. The judgment indicates that the judge considered these examples, and ultimately determined that any inconsistencies did not relate to matters of importance and did not impact the complainant’s credibility ( 2019 NLSC 217 , at para. 35 ). [ 29 ] The judge stated: “The complainant gave a plausible version of these events. His evidence in respect of the surrounding circumstances was consistent with that of other Crown witnesses and even with that of the accused in most essential respects.

I found him to be a credible witness” ( 2019 NLSC 217 , at para. 42 ). [ 30 ] Mr. R claims that the judge erred in this regard. [ 31 ] The second potential issue on appeal relates to the judge’s finding that the touching was for a sexual purpose. The judge determined that the touching by Mr. R was sexual in nature, stating: “ I find that the touching proven by the Crown was for a sexual purpose. The nature of the touching described by the complainant was such that no reasonable person could see it directed to any other purpose than the sexual gratification of [Mr.

R] and the violation of the sexual integrity of the complainant” ( 2019 NLSC 217 , at para. 43 ). [ 32 ] Mr. R alleges that the judge erred in reaching this conclusion. [ 33 ] The third potential issue on appeal is whether the judge misapprehended Mr. R’s evidence regarding his denial of having sexually assaulted the complainant. [ 34 ] In the supplementary notice of appeal, Mr. R describes this issue as follows: … I believe that I have grounds for appeal because the judge misapprehended my main point of evidence, which is that I did not do anything.

Throughout my testimony I said that I did not do what I was accused of. I came in and went to sleep and woke up the next morning. However the judge presented that as a “lack of memory” and said that I “did not remember the incident happening” which is not what I stated. To me the difference of not remembering and saying that I did not do what I am accused of doing puts in reasonable doubt. [ 35 ] This potential issue on appeal appears to arise from the judge stating that, while Mr. R denied any inappropriate touching, Mr.

R’s evidence was that he had fallen asleep and had no memory of what had occurred in the time period in question. The judge stated: [29] DR denied the allegation against him. … However, he also said that he did not have any memory of any event from the time he went to sleep until he woke up nine hours later. The denial by the Accused really states the position that he does not remember the incident happening. … [ 36 ] Mr. R alleges that the judge erred by misapprehending his evidence in this respect. [ 37 ] Having reviewed Mr.

R’s potential issues on appeal, the question for the purposes of this application is whether there is a serious

(not frivolous) issue identified that is to be dealt with in the appeal. [ 38 ] The issues set out by Mr. R involve the judge’s findings relating to the complainant’s credibility, the judge’s conclusion that the touching was for a sexual purpose, and the judge’s alleged misapprehension of Mr. R’s evidence regarding his denial. [ 39 ] Having considered the notice of appeal, the application, Mr.

R’s oral submissions at the application hearing, the evidence at trial and the overall record, it is not readily apparent that a serious issue in the appeal has been identified either in terms of the judge having erred in law or having made a palpable and overriding error regarding factual determinations or inferences. [ 40 ] It is, however, understood that the notice of appeal, application for counsel, and oral submissions on the application were presented without the benefit of counsel who might have more clearly focused on identifying alleged errors.

As well, and as stated by this Court on prior occasions, to conclude on an application for counsel that there is no serious issue in the appeal may result in prematurely assessing the merits of an appeal, without having had the benefit of written or oral submissions on the merits ( see R. v.

Ikkusek , 2009 NLCA 39 , 287 Nfld. & P.E.I.R. 73 , at paras. 6 and 7 ; Normore , at para. 12 ; Higdon , at para. 29 ). [ 41 ] This Court has observed that, in appropriate circumstances, it may be possible to decide an application for counsel without determining whether there is a serious issue to be dealt with in the appeal (see for example Ikkusek , at para. 8 ; R. v. Marshall , 2011 NLCA 26 , at para. 7 ; Normore , at para. 12 ; Higdon , at para. 40 ). [ 42 ] In this case, the application can be decided without determining this issue, by considering the final factor in Ryan , discussed next.

Issue 4: Will the appellant adequately be able to present the case and will the Court be able properly to decide the case without the assistance of counsel? [ 43 ] The final issue is whether Mr. R will “adequately be able to present his case”, and whether the Court will be “able properly to decide the case without the assistance of counsel”. This requires an assessment of the potential issues to be considered on appeal in the context of Mr.

R’s ability to argue these issues, and the Court’s ability to decide them if counsel is not assigned. [ 44 ] As outlined above, the issues on appeal relate mainly to the following: (i.) the credibility findings of the judge regarding the complainant, and Mr. R’s assertion that the judge should have rejected the complainant’s evidence; (ii.) the judge’s determination that the touching was for a sexual purpose; and (iii.) Mr. R’s allegation that the judge misapprehended the evidence relating to his denial. [ 45 ] These issues would not appear to involve “complicated legal principles, issues of statutory

interpretation or technical legal arguments” ( Marshall , at para. 11 ), which is a relevant consideration (see for example R. v. Starkes , 2019 NLCA 4 , at para. 5 ; Normore , at para. 18 ; Higdon , at para. 33 ). This Court is familiar with the authorities regarding the proper tests to be applied in assessing whether a judge erred in making factual findings, assessing credibility or misapprehending evidence. [ 46 ] Given the nature of the proposed issues on appeal, the Court would not require the assistance of counsel to make submissions ( R. v. Barry , 2018 NLCA 48 , at para. 6 ; R. v.

R.J.H. , 2012 NLCA 28 , at para. 3 ) in order to properly decide the issues ( Marshall , at para. 12 ) . [ 47 ] Regarding Mr. R’s ability to argue the appeal, at the hearing of this application Mr. R made detailed oral submissions about why he believed the judge had erred, why the complainant’s testimony was suspect, and why he felt he should not have been convicted. Mr. R was articulate and his oral submissions were informed by his review of the judge’s written decisions and the evidence at trial. [ 48 ] In this case the transcript of the evidence is not lengthy and includes the testimony of Mr.

R, the complainant, the complainant’s mother, the complainant’s grandmother, and another family member in whose home the incident was found to have occurred. The record also includes counsel’s submissions at trial and the judge’s detailed reasons for decision. This documentation has been provided to Mr. R and may assist him in preparing his written and oral argument, as some of the arguments raised on appeal were argued at trial and considered in the judge’s reasons ( Starkes , at para. 5 ; Marshall , at para. 13 ). [ 49 ] The potential issues on appeal mainly relate to the judge’s factual determinations.

The nature of these issues would not preclude Mr. R from presenting an argument on these issues without counsel’s assistance. [ 50 ] Finally, while Mr. R indicated that he has health challenges which impact his daily life, and which were accommodated at trial, this did not appear to impede his ability to make oral submissions and argue his position at the application hearing, and would likely not preclude him from presenting his case on appeal. As at trial, Mr.

R’s health concerns can be accommodated at an appeal hearing if necessary. [ 51 ] Having considered the potential issues on appeal, the level of complexity of these issues and Mr. R’s ability to argue the appeal, I would conclude that Mr. R will, in the language in Ryan , “ adequately be able to present his case” and that the Court will “be able properly to decide the case without the assistance of counsel”.

Summary and Conclusion [ 52 ] In

summary, because Mr. R does not have the means to pay for counsel and has been refused representation by Legal Aid, he satisfies the first two factors in Ryan . However, and without determining whether there is a serious issue to be dealt with on appeal, I would conclude that, even if a serious issue on appeal was apparent, the appeal can be properly argued and decided without counsel being assigned to assist Mr.

R and the Court. [ 53 ] As such, having considered the factors in Ryan in the context of this application, and having concluded that the requirements for this Court to assign counsel have not been met, I would dismiss the application. [ 54 ] Although counsel has not been assigned, Mr. R is entitled to proceed with the appeal on his own behalf and have it heard and

decided by this Court. At the hearing of this application the Court set filing deadlines for Mr. R’s written submissions (i.e. his factum) and the Crown’s factum in response. As there is a cross-appeal on sentence, an additional factum will need to be filed on behalf of the Crown and Mr. R regarding the sentence appeal. Once the materials have been filed with the Court, either party may request a hearing date. [ 55 ] Accordingly, the application is dismissed. Application dismissed.