R. v. O’Keefe, 2012 NLCA 6

Date: 20120209 Docket: 11/27 Citation: R. v. O’Keefe, 2012 NLCA 6 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: JOHN J. O’KEEFE APPLICANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: White J.A. Application Heard: February 7, 2012 Decision Rendered: February 9, 2012 Reasons for Decision by White J.A. Counsel for the Applicant: Self-Represented Counsel for the Respondent: Stephen Dawson White J.A.: [ 1 ] This is an application pursuant to

section 684 of the Criminal Code for the assignment of legal counsel to be paid by the Attorney General. [ 2 ] In February, 2011 John J. O’Keefe was convicted by a judge of the Trial Division of break and enter and committing mischief, assault, and two breaches of probation. He was represented throughout by experienced legal aid counsel. [ 3 ]

Section 684 of the Criminal Code reads (in part): 684.

(1) Legal assistance for appellant – A court of appeal or 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) Counsel fees and disbursements – 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.

….. [ 4 ] In his notice of appeal Mr. O’Keefe puts forward the following grounds of appeal: I firmly believe that I was not given proper opportunity to examine evidence and question witnesses that will support my intentions for entering my son’s home in which he was living with his mother and who was my significant other. I had been concerned for their safety for some time. [ 5 ] Green C.J.N.L. set out the matters to be considered in the exercise of discretion under

section 684 in R. v. Marshall¸ 2011 NLCA 26 : [5] The determination of whether the Court will exercise its discretion to assign counsel to act for an appellant under s. 684 of the Code usually involves consideration of four factors: (

i) whether the applicant has the means to engage counsel for his appeal; (ii) if not, whether or not legal aid will be made available to assist him; (iii) whether there are serious (not frivolous) issues to be dealt with in the appeal; and (iv) whether the appellant will be able to present his case adequately or whether the Court will be able to decide the case properly without the assistance of counsel. See R . v . Ryan , 2008 NLCA 42 , per Rowe, J.A. at para, 9; R. v. White , 2011 NLCA 14 , per Green C.J.N.L. at para. 4. [ 6 ] It is accepted by Crown counsel that Mr.

O’Keefe does not have the means to pay for counsel and that he has, in respect of his appeal, been turned down for legal aid by the Newfoundland and Labrador Legal Aid Commission. Accordingly, the first two considerations are satisfied. [ 7 ] As to the third consideration relating, broadly, to the merits of the appeal, Mr. O’Keefe states that he consulted a private lawyer and says that he has been advised that there are issues with respect to findings of fact and errors of law.

He says that he has been told that he has a good case. [ 8 ] When asked to indicate what serious issues would form the basis upon which the appeal would be argued, Mr. O’Keefe did not refer to any specific evidentiary finding or error of law. He provided nothing of a concrete nature. He did, however, state that he does not want to have a criminal conviction as he suspects this has interfered with his ability to obtain employment. [ 9 ] He further noted that he filed the notice of appeal himself because his legal aid lawyer at trial became ill.

He indicated that this is why the notice of appeal is presented in the way that it is. [ 10 ] Counsel for the Crown submitted that Mr. O’Keefe had the benefit of a preliminary inquiry, a full opportunity to put forward witnesses at trial, examination and cross-examination of witnesses including the complainant and that Mr. O’Keefe took the stand and presented his side of the matter. [ 11 ] Counsel also submitted that the trial judge fully considered all the evidence, and the law relating to the principal issue at trial – the intention of the accused when he entered the complainant’s home through the window.

This, in the submission of Crown counsel, is the same issue he is putting forward on appeal. In his view, Mr. O’Keefe simply wants to reargue the trial judge’s findings of fact. [ 12 ] In

summary, the Crown submits that there is no merit in the appeal, no likelihood of success, no complex area of law and that Mr. O’Keefe has failed to put forward on this application any indication of how the factual findings of the trial judge were wrong. [ 13 ] As to Mr. O’Keefe’s submission, there is nothing which provides any basis for me to conclude that there is a serious (non- frivolous) issue to be dealt with in the appeal. [ 14 ] As to whether he can present his case adequately without the assistance of counsel, Mr.

O’Keefe is fifty years old, has completed high school and a two year course at the College of Fisheries. He is qualified as an electronics technician and has worked extensively as an instrumentation technician. [ 15 ] While maintaining his argument that he is not a lawyer and is therefore not able to put forward legal issues, he presented himself on this application as an intelligent and extremely well spoken individual. [ 16 ] In my view he is capable of making argument on any areas of concern to him in the transcript or the findings in the trial judge’s thorough and clear reasons. [ 17 ] In R. v.

Ikkusek , 2009 NLCA 39 , Chief Justice Green noted: [9] … 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… [ 18 ] The nature of the issues that were engaged at trial, and that led to the trial judge’s clear factual findings and decisions on points of law, can be fully reviewed on appeal.

The Court will not need the assistance of counsel to effectively deal with them. “(

A) fair and just result is still likely to be obtainable” when Mr. O’Keefe pursues his appeal without the assistance of counsel. [ 19 ] Accordingly, Mr. O’Keefe’s application for the assignment of legal counsel is denied. _________________________ C.W. White, J.A.