R. v. Higdon, 2021 NLCA 33

Paul Higdon (applicant/appellant) v. Her Majesty the Queen (respondent) (19/77) Indexed As: R. v. Higdon 2021 NLCA 33 6 C.A.N.L.R. 658 Court of Appeal of Newfoundland and Labrador O’Brien J.A. June 3, 2021

Summary: Mr. Higdon filed a notice of appeal of his conviction for three counts of sexual assault. He subsequently filed an application for an appointment of counsel, pursuant to

section 684 of the Criminal Code . The Attorney General opposed the application. Held: Application dismissed. O’Brien J.A.: The Court applied the test for appointment of counsel as articulated in R. v. Ryan , 2008 NLCA 42 . The Court was satisfied that Mr. Higdon did not have the financial means to engage counsel. The first step of the test was therefore met (paragraphs 16-18). Mr. Higdon further satisfied the Court that he had been denied representation from Legal Aid, thereby satisfying the second step of the test (paragraphs 19-21). The Court did not need to make a determination at the third step of the test.

It was appropriate to dispose of the application at the fourth and final stage of the test without deciding whether there was a serious issue to be dealt with on the appeal (paragraphs 22-31). The fourth step of the test was not established. Mr. Higdon would be able to present his case adequately and the Court would be able to decide the case without the assistance of counsel.

The Court reached this finding having regard to: the availability of the transcript, which contained the detailed reasons of the trial judge; the relative lack of complexity of the potential issues on the appeal; the availability of the record, which was not voluminous; and an assessment of Mr. Higdon’s ability to present his case based on his background and education (paragraphs 32-39). The appeal could be properly argued and decided without counsel being assigned to assist Mr. Higdon. The application for appointment of counsel was dismissed (paragraphs 40-44). Cases cited: R. v. Normore, 2019 NLCA 12 R. v.

Crockwell, 2014 NLCA 49 R. v. Murphy, 2010 NLCA 38 R. v. Ryan , 2008 NLCA 42 R. v. Ikkusek, 2009 NLCA 39

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 , section 684(1) Counsel: Appearing on his own behalf, the applicant/appellant; Sheldon Steeves, for the respondent; Donald Anthony Q.C., for the Attorney General. The application was heard on May 25, 2021 by O’Brien J.A. The following memorandum of disposition was filed on June 3, 2021 by O’Brien J.A. ______________________________________________________________ MEMORANDUM OF DISPOSITION O’Brien J.A.: Introduction [ 1 ] This is an application by Mr.

Paul Higdon, pursuant to section 684(1) of the Criminal Code , requesting that counsel be assigned to represent him on this appeal. [ 2 ] Following a trial in the Supreme Court of Newfoundland and Labrador, General Division, Mr. Higdon was convicted on June 7, 2019 on three counts of sexual assault, contrary to

section 271 of the Criminal Code . [ 3 ] On August 8, 2019 he was sentenced to four years in prison on each count, to be served concurrently, and he received credit for time spent in custody before the sentence was imposed. The custodial portion of Mr. Higdon’s sentence has been served and he is presently on parole. [ 4 ] Mr. Higdon filed a notice of appeal on August 29, 2019 by which he appealed the convictions. He has not appealed the sentence. The Crown filed a transcript of the trial proceedings and an appeal book. Mr.

Higdon has not yet filed a factum, and the Crown is awaiting receipt of his factum so that it can prepare and file a factum in response. The circumstances of the offence and Mr. Higdon’s convictions [ 5 ] The convictions for sexual assault resulted from the judge’s determination that Mr. Higdon had been in a sexual relationship with the complainant when the complainant was under 16 years of age, and Mr. Higdon was over 40 years of age. [ 6 ] Following a police investigation that was prompted by the discovery of a nude photo of the complainant sent to Mr.

Higdon, and electronic messages discussing sexual relations between the two, the judge noted that the “complainant informed the police that she had been in a sexual relationship with Mr. Higdon since she was 14 years old. [Mr. Higdon] denies any sexual activity with the complainant”. [ 7 ] The judge considered

section 271 of the Criminal Code , with respect to the offence of sexual assault, stating: Under s. 271 of the Criminal Code , the offence of sexual assault is proven when an assault, being the intentional application of force, directly or indirectly to another person, without their consent is committed in circumstances of a sexual nature. [ 8 ] The judge further noted that there could be no consent to a sexual relationship in this circumstance, because of the complainant’s age.

The judge stated: “Under the law, the complainant, under 16 at all relevant times, could not consent to sexual activity with an adult.” [ 9 ] After reviewing the evidence, the judge convicted Mr. Higdon, stating: “Based on the evidence referred to above and the

concomitant W.(D.) analysis, I am satisfied, beyond a reasonable doubt, that Mr. Higdon committed a sexual assault on the complainant as set out in … the indictment”. Mr. Higdon’s

section 684 application to assign counsel [ 10 ] Mr. Higdon was represented by counsel at trial but is presently self-represented. His application, pursuant to

section 684 , requests that this Court assign counsel to represent him on the appeal, and that counsel’s fees be paid by the Attorney General. [ 11 ] 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. [ 12 ] While

section 684 “does not provide an automatic right to publicly funded counsel under any circumstance” ( R. v. Normore , 2019 NLCA 12 , at para. 15 ), it provides discretion to assign counsel where it appears desirable in the interests of justice to provide legal assistance to an applicant who otherwise would not have the means to obtain that assistance. ( R. v. Crockwell , 2014 NLCA 49 , at para. 17 ; R. v.

Murphy , 2010 NLCA 38 , at para. 4 .) [ 13 ] The Attorney General opposes the application, arguing that the present circumstances do not require the appointment of counsel because the test articulated by this Court for the appointment of counsel has not been met. R. v. Ryan – Issues to be considered [ 14 ] This test was discussed in R. v. Ryan , 2008 NLCA 42 , wherein Rowe J.A. outlined four issues or factors to be considered when this Court assesses an application to assign counsel: [9] From the foregoing decisions, there are four key issues to be considered in the exercise of the discretion conferred under

section 684 : (

a) does the applicant have the means to engage legal counsel for his appeal; (

b) if not, will Legal Aid provide counsel for the appeal; (

c) are there serious (i.e. not frivolous) issues to be dealt with in the appeal; (

d) will the appellant adequately be able to present his case and will the court be able properly to decide the case without the assistance of counsel. [ 15 ] These four factors, which have been consistently applied by this Court, will be considered in the context of Mr. Higdon’s application for counsel. Financial means to engage counsel [ 16 ] The first factor deals with whether Mr. Higdon is financially able to pay the costs of counsel. Mr. Higdon indicated that the basis for the application is “financial hardship”.

He stated in his application: “I cannot work, have lost my job and have no assets”, and later added “I have no finances.” [ 17 ] Mr. Higdon appeared on the application and made submissions. He stated that he did not have any employment or income other than income support from government. His present situation is contrasted with his circumstances at trial, at which time he could have been able to pay for legal assistance with his employment income. [ 18 ] Based on the information provided, the Court accepts that Mr. Higdon “does not have the means to engage legal counsel” on this appeal.

He therefore satisfies the first consideration set out in Ryan . Legal Aid representation [ 19 ] The next consideration is whether Legal Aid will provide representation on the appeal. The Court noted that written correspondence has been received from the Newfoundland and Labrador Legal Aid Commission confirming that Mr. Higdon had applied to Legal Aid and sought representation on this appeal. The correspondence also confirms that his application to Legal Aid was denied. There was no indication that the denial was due to financial ineligibility. [ 20 ] Mr.

Higdon appealed this decision, and further correspondence received from Legal Aid, dated April 6, 2021, indicates that his appeal was unsuccessful, and that the original decision that counsel would not be provided for this appeal was confirmed. [ 21 ] Accordingly, Mr. Higdon meets the second criteria in Ryan . Serious (not frivolous) issue to be dealt with on appeal [ 22 ] The third factor considers whether there are “serious (not frivolous) issues to be dealt with in the appeal”. The application for

appointment of counsel does not mention the issues to be argued on appeal or the reasons for appealing. [ 23 ] However, the notice of appeal does include a description of the grounds of appeal. One of Mr. Higdon’s grounds of appeal, as set out in the notice of appeal, appears to be that the trial judge should not have believed the complainant, because, in Mr. Higdon’s view, “the complainant’s story has been inconsistent from the start”, and “no encounter she claims happened had any real detail”. In his submissions on this application, Mr.

Higdon indicated that he has been reviewing the trial transcript, noting the inconsistencies in the complainant’s testimony. [ 24 ] This issue was argued at trial, and the judge determined that any inconsistencies were insignificant and did not render the complainant’s evidence unreliable. The judge stated: “Upon review of the evidence, as a whole, I do not consider any of the inconsistencies to be significant and I found the complainant’s evidence to be reliable.” The judge further observed: “This evidence which is summarized above, describes the on-going sexual relationship with Mr.

Higdon …I found [the complainant’s] evidence not to be exaggerated and she was forthright …”. [ 25 ] Other issues discussed in the notice of appeal were either not raised at trial or were addressed in the judge’s decision. [ 26 ] For example, Mr.

Higdon indicated in the notice of appeal that: the police “investigation into this matter was not thorough” (this was not addressed with the investigating officer who testified at trial); someone had sent electronic messages to the complainant from his account “pretending to be me” (the judge considered and rejected this argument at trial); the arresting officer had a grudge against him “and it was well known [the officer] had issue with me prior to this complaint” (this was not put to the arresting officer on cross- examination); the parents of the complainant “had a grudge against me for some reason as they filed a complaint against me” with police (this was not raised at trial); the “complainant tried to stop the charges before it went to court but no one would listen to her” (the transcript indicates that, while the complainant was reluctant to testify, when she did testify her evidence was that she had been in a sexual relationship with Mr.

Higdon). [ 27 ] In the notice of appeal, Mr. Higdon also discussed the circumstances whereby it was discovered that nude pictures of the complainant had been sent to him, leading to the police investigation and charges. He described this as an “unfortunate mistake”. Mr. Higdon stated that he had lost his cellphone and bought a new one. When the old phone was found, he gave it to his daughter.

He stated: “The pictures that were sent to me came into [the old] phone, this was an unfortunate mistake as I had given her an old phone but didn’t turn off my messenger account on it”. [ 28 ] Returning to the factors in Ryan , the question is whether there is a serious issue to be dealt with in the appeal. In reviewing the issues, to the degree that they can reasonably be assessed at this stage by considering the notice of appeal and Mr.

Higdon’s oral submissions at the application, it is not readily apparent that any serious issue has been articulated or identified. [ 29 ] However concluding there is no serious issue on an application for counsel may result in prematurely judging the matter without having had the benefit of further written or oral submissions on the merits ( see R. v. Ikkusek , 2009 NLCA 39 , at paras 6 and 7 ; Normore , at para. 12 ).

Further, the notice of appeal in this case was prepared without the benefit of counsel who might have more clearly articulated any alleged errors and issues on appeal. [ 30 ] In appropriate circumstances, this Court may be able to deal with 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 .) [ 31 ] In this case, in my view it is possible to decide the application, without determining this issue, by considering the final factor in Ryan , discussed next. Ability to present and decide the appeal without the assistance of counsel [ 32 ] The final consideration in Ryan is whether Mr. Higdon 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 on appeal and Mr.

Higdon’s ability to argue the issues. [ 33 ] The potential issues on appeal are not technical or legally complex, and would not involve “complicated legal principles, issues of statutory

interpretation or technical legal arguments” ( Marshall , at para 11 ). This is a relevant consideration (see for example R. v. Starkes , 2019 NLCA 4 , at para 5 ; Normore , at para. 18 ). One of the main arguments appears to be that the judge erred in finding the complainant to be credible (when she testified that she had sexual relations with Mr. Higdon) because, Mr. Higdon alleges, her testimony lacked consistency and detail. [ 34 ] As Mr.

Higdon stated at the application hearing, he is in the process of identifying and compiling examples in the transcript where, in his view, the complainant’s testimony was inconsistent. Such information can be presented to the Court on the appeal, as part of his written or oral submissions.

This Court is familiar with the authorities and the law respecting a trial judge’s findings of credibility, and would not require the assistance of counsel to properly decide this issue ( Marshall , at para. 12 ) . [ 35 ] Similarly, other possible issues identified in the notice of appeal (for example, the alleged grudges or biases of witnesses who testified at trial, or the alleged inadequate police investigation) are mainly factual arguments that can be presented by Mr. Higdon without the need for legal counsel ( Marshall , at para. 12 ) .

Overall the issues are not such that the Court would require counsel to make these submissions ( R. v. Barry , 2018 NLCA 48 , at para 6 ; R. v. R.J.H. , 2012 NLCA 28 , at para. 3 ). [ 36 ] There is nothing apparent in the nature of the proposed issues on appeal that would prevent Mr. Higdon from presenting an argument on these issues without counsel’s assistance. Further, given the nature of these issues, the Court may determine the appeal without the assistance of counsel. [ 37 ] Regarding Mr. Higdon’s ability to argue the appeal, he indicated at the application hearing that his education after completion of

high school has involved training and accreditation in two distinct areas, namely truck driving (a 10-12 week course) and oil burner mechanics (a one year course). Both of these areas, he confirmed, required a program of study and evaluation, including written examinations. As well, the transcript reveals evidence of Mr. Higdon having responsibility for maintaining log records as part of his previous employment as a truck driver. Mr.

Higdon’s education and training are positive factors when assessing his ability to prepare for and argue the issues on appeal himself, without legal assistance. [ 38 ] A transcript of the trial proceedings has been prepared, including the submissions of counsel at trial and the judge’s detailed reasons for decision. The transcript is not voluminous and may assist Mr.

Higdon in preparing his written and oral argument, as some of the issues identified on appeal were argued by counsel at trial and considered in the judge’s reasons ( Starkes , at para. 5 ; Marshall , at para. 13 ). [ 39 ] Having reviewed the transcript, and considered the relative lack of complexity of the potential issues on appeal and the availability of the record, which is not voluminous, and having assessed Mr. Higdon’s background and education in terms of his suitability to argue the appeal, I would conclude that Mr.

Higdon will, to use 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 [ 40 ] In

summary, as Mr. Higdon does not have the means to pay for counsel and has been refused Legal Aid, he satisfies the first two factors in Ryan . However, 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.

Higdon and the Court. [ 41 ] 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. [ 42 ] While Mr.

Higdon’s preference would certainly be to have counsel assigned, the comments of Green C.J.N.L. in Ikkusek , at para. 9 , are applicable here: …While in a perfect world it would usually be better to have competent and properly prepared counsel make an argument on behalf of a party, the provisions of the Code make it clear that the Court ought not to exercise its jurisdiction to appoint counsel as a matter of course; hence the overriding consideration should be whether, without counsel, a fair and just result is still likely to be obtainable. … [ 43 ] Although counsel has not been assigned, Mr.

Higdon clearly has the right to proceed with the appeal on his own behalf and have it heard and decided by this Court. At the hearing of the application the Court set filing deadlines for Mr. Higdon’s factum (i.e. his written submissions) and the Crown’s factum in response. Once these materials have been filed, and the appeal has been perfected, either party may request a hearing date for the appeal. [ 44 ] Accordingly, the application is dismissed. Application dismissed.