2023 QCCA 208, 2023 QCCA 208

J.M. c. R. 2023 QCCA 208 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003864-217 (614-01-001865-175) DATE: February 14, 2023 BEFORE THE HONOURABLE GENEVIÈVE COTNAM, J.A. J. M. APPELLANT – accused v.

HIS MAJESTY THE KING RESPONDENT – prosecutor ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY JUDGMENT WARNING: Order restricting publication: The Court of Québec made an order under s. 486.4 Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The appellant was convicted of various charges of gross indecency, touching for a sexual purpose, sexual assault and assault causing bodily harm against his children. [ 2 ] He represented himself at trial after being denied access to legal aid.

During the trial, he presented an oral Rowbotham motion, which was denied by the trial judge as such motion had to be made in writing. [ 3 ] Following his conviction, the appellant filed a notice of appeal. [ 4 ] He applied for legal aid representation for his appeal, but his application for legal aid was denied as was his application for review of that decision, because the family income exceeded the eligibility threshold. It must be noted, however, that the refusal of legal aid was based on the appellant’s situation as at April 29, 2021.

The fact that his wife was unemployed as of May 2021 was not considered. [ 5 ] On November 1, 2001, he received a global sentence of three years and has since been incarcerated. [ 6 ] He is now asking that the Court assign Mtre Benjamin Wilner to represent him for purposes of the appeal, in accordance with s. 684 of the Criminal Code (“ Cr.C . ”). [ 7 ] In order for the Court to do so, the appellant must establish that:

(1) He does not have the means to retain the services of a lawyer and he has been refused legal aid.

(2) An order assigning counsel is in the interests of justice. [1] [ 8 ] Both of these criteria are contested by the respondent and the impleaded party. Financial eligibility [ 9 ] According to the evidence, the appellant has been denied legal aid. [ 10 ] In his affidavit, he explains that he was dismissed from his job in March 2018 following the charges filed against him. [ 11 ] Since then, he has been living off his CARRA and RRQ pension benefits, which represents an income of approximately $36,500. According to the legal aid review decision, his wife earned a similar income.

While it seems that she was unemployed after the couple moved to Ottawa in May 2021, her current financial situation is unknown.

[ 12 ] The Appellant submits that, prior to his incarceration, his monthly expenses were $2,700 for his rent, food, car and Internet access. No evidence was filed in support of these amounts, and it is unclear if he is still paying for any of these expenses following his incarceration. [ 13 ] The appellant’s only assets are a 2014 Ford Focus and a personal computer.

These assets offer little leverage to pay for legal fees. [ 14 ] He also claims that he owes close to $30,000 to the federal and provincial governments for unpaid taxes and to his credit card company. [ 15 ] In addition to the professional fees of his attorney and the cost of obtaining transcripts, factum preparation will require an outlay of between $8,000 and $13,000. [ 16 ] The Appellant claims that he does not have the means to pay for an attorney for his appeal. [ 17 ] The burden of establishing financial eligibility rests on the Appellant.

In Fraser , [2] the Court of Appeal for British Columbia mentioned: [12] This Court considered, for the first time, the appropriate scope of a Rowbotham application in R v. Crichton , 2015 BCCA 138 . While the test for an order pursuant to Rowbotham differs from an application under s. 684 , as one is a constitutional remedy, and the other a statutory remedy, this Court addressed the type of evidence necessary to establish financial criterion. The Court approved the reasons at para. 45: [45] In R. v.

Black Pines, 2001 BCSC 1849 , Ross J. set out the basis for financial eligibility at para. 4: The applicant must show that he or she has made efforts to obtain counsel at reasonable rates. The applicant must show planning and foresight at least from the stage of arrest so that it is not enough to come to court and say that today my expenses exceed my income. There must be evidence of efforts to organize the financial affairs to accommodate the retaining of counsel.

The cases have said that the applicant’s financial circumstances must be truly extraordinary in order to justify the extraordinary remedy of a conditional stay. The applicant must show that he or she has made efforts to save and to earn additional income, and finally the applicant must show either that he or she has no assets which can be utilized or that every effort has been made to utilize what assets are available to raise funds. [13] And at para. 43: [43] In R. v.

Jantzen, 2002 BCSC 196 , Lander J. set out a useful list for consideration of the financial eligibility of the applicant at para. 11: The authorities have established certain principals [ sic ] relative to these applications. The first financial eligibility the applicant must provide information as follows:

a) Financial Eligibility: * Applicant’s financial circumstances must be “extraordinary”; * Applicant must provide detailed financial evidence of his/her financial circumstances which includes supporting evidence; * Applicant must make own efforts such as: - saving money; - borrowing money; - obtaining employment or additional employment if already employed; - looking for counsel who may be willing to work at LSS rates; - exhausting all efforts to utilize assets that the applicant owns to raise funds; * Applicant who is in a position to pay some of the costs of counsel will be expected to do so; * Applicant must be prudent with his/her expenses and show foresight & planning of financial affairs in order to enable the financing of counsel; * In assessing an applicant’s financial circumstances, the income and assets of his/her spouses is a relevant consideration; [this issue was not decided in Crichton ] * The inquiry into the applicant’s financial circumstances must go back to the time the charges were laid or time of arrest. … [ 18 ] In this case, the appellant is receiving both of his pension benefits while incarcerated.

Although he apparently has very few assets, the evidence does not clearly show how he has been spending his money since the charges were brought against him or, at least, since his incarceration in November 2021. The budget filed, which describes the appellant’s situation before his incarceration, is not supported by any evidence and is of little help in assessing his current situation. There is no sworn statement from his wife and no indication as to her contribution to the household expenses.

The fact that his debts have not decreased over the past year is not sufficient in and of itself to demonstrate that he does not have the means to retain counsel. [ 19 ] A motion under s. 684 Cr.C . must not be seen as a means to circumvent the possible flaws of the legal aid system. Before asking

for the taxpayers to fund his appeal, the appellant needed to provide a complete, accurate and up-to-date portrait of his situation. This required him to file some supporting evidence, such as a copy of his lease, copies of his income tax returns, and details of his spending over the past 15 months. He should also have explained the efforts made to retain counsel. [ 20 ] Under these circumstances, at this stage I cannot conclude that the appellant has met the requirements of the first criterion of s. 684 Cr.C .

Interests of justice [ 21 ] Although it is not necessary to elaborate on this second criterion considering my conclusion regarding the appellant financial eligibility, I do consider that the additional grounds of appeal set out in the motion under s. 684 Cr.C . are arguable.

The complexity of some of these issues, the nature of the case and the fact that the charges spanned a considerable length of time all lead me to believe that the interests of justice would be better served if the appellant were represented by counsel for purposes of the appeal. [ 22 ] However, since s. 684 Cr.C . provides for a cumulative two-pronged test, the motion must be dismissed. FOR THESE REASONS, THE UNDERSIGNED: [ 23 ] DISMISSES the motion for designation of counsel. GENEVIÈVE COTNAM, J.A. J. M.

Unrepresented Mtre Benjamin Wilner SHADLEY, BIEN-AIMÉ For the appellant Mtre Geneviève Lamontagne DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Mtre Marc-Antoine Patenaude Mtre Geneviève Pelletier LAVOIE, ROUSSEAU For the impleaded party Date of hearing: February 6, 2023