HIS MAJESTY THE KING APPELLANT AND: L.H. APPLICANT/RESPONDENT, 2023 NLCA 4

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : R. v. L.H. , 2023 NLCA 4 Date : February 7, 2023 Docket Number : 202101H0065 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted or transmitted in any way. BETWEEN: HIS MAJESTY THE KING APPELLANT AND: L.H. APPLICANT/RESPONDENT Coram: O’Brien J.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 202001G0712 Application Heard: January 24, 2023 Memorandum of Disposition Filed: February 7, 2023 Counsel for the Applicant/Respondent: Self-Represented Counsel for the Appellant: Kathleen O’Reilly Counsel for the Attorney General: Suzanne Orsborn Authorities Cited: CASES CITED: R. v. Le , 2016 ONCA 798 ; R. v. Normore , 2019 NLCA 12 , 4 C.A.N.L.R. 169; R. v. Murphy , 2010 NLCA 38 , 298 Nfld. & P.E.I.R. 70; R. v. Crockwell , 2014 NLCA 49 , 358 Nfld. & P.E.I.R. 172; R. v. D.R. , 2021 NLCA 54 ; R. v.

Ryan , 2008 NLCA 42 , 277 Nfld. & P.E.I.R. 167; 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 ; R. v. Campbell , 2020 ONCA 573 ; R. v. Staples , 2016 ONCA 362 ; R. v. Lawson , 2017 BCCA 288 ; R. v. MacLean , 2017 NSCA 86 ; R. v. Choli , 2015 SKCA 90 ; R. v. Michael Kevin Wood , 2009 PECA 26 .

STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46, sections 271 , 684 . MEMORANDUM OF DISPOSITION O’Brien J.A. : [ 1 ] Following a trial by judge and jury in the Supreme Court of Newfoundland and Labrador, L.H. was acquitted of sexual assault (

section 271 of the Criminal Code, R.S.C. 1985, c. C-46 ). [ 2 ] The Crown has appealed the acquittal. [ 3 ] Mr. H was represented by counsel at trial but is presently self-represented. He has made an application, pursuant to section 684(1) of the Code , for this Court to assign legal counsel to represent him on the appeal, and have counsel’s fees be paid by the Attorney General.

Section 684 [ 4 ] 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. [ 5 ] This

section engages two distinct considerations: first, that it “appears desirable in the interests of justice” that the applicant should have legal assistance on appeal, and second, that it “appears that the applicant has not sufficient means to obtain that assistance”. Both must be satisfied to qualify for government-funded counsel under

section 684 (see, for example, R. v. Le , 2016 ONCA 798 , at para. 2 ). [ 6 ] While

section 684 “does not provide an automatic right to publicly funded counsel under any circumstance” ( R. v. Normore , 2019 NLCA 12 , 4 C.A.N.L.R. 169, at para. 15 ), it provides discretion, allowing this Court to assign counsel where it appears these considerations are satisfied. See for example R. v. Murphy , 2010 NLCA 38 , 298 Nfld. & P.E.I.R. 70, at paragraph 4 ; R. v. Crockwell , 2014 NLCA 49 , 358 Nfld. & P.E.I.R. 172, at paragraph 17 ; R. v. D.R . , 2021 NLCA 54 , at paragraph 14 . R. v. Ryan [ 7 ] I n interpreting

section 684 in R. v. Ryan , 2008 NLCA 42 , 277 Nfld. & P.E.I.R. 167, and in subsequent cases, t his Court has identified the following factors to be considered in the Court’s exercise of its discretion: (

i) Whether the applicant has the financial means to engage legal counsel for the appeal; (ii) If not, whether Legal Aid will provide counsel for the appeal; (iii) Whether there are serious (i.e. not frivolous) issues to be dealt with in the appeal; and (iv) Whether the applicant will adequately be able to present the case on appeal and whether the Court will be able properly to decide the case without the assistance of counsel. [ 8 ] The first two factors outlined above in Ryan relate to the applicant’s financial means, and the last two factors relate to whether it is in the interests of justice that legal counsel should be assigned.

Interests of justice [ 9 ] In the present application the Attorney General concedes that, in respect of

section 684, it would be desirable in the interests of justice that the applicant have legal assistance on the appeal. In so doing, the Attorney General acknowledges that, with respect to the

factors outlined in Ryan , there are serious issues on appeal, the applicant will not adequately be able to present the case on appeal without legal assistance, and the Court may not be able to properly decide the case without the applicant having legal assistance. [ 10 ] A review of the appeal book, transcript, and the Crown’s factum indicates that the Crown’s present appeal engages legal and evidentiary issues arising from the judge’s rulings at trial.

For example, the Crown alleges that the judge erred in making certain evidentiary rulings, in admitting certain evidence, and in restricting the examination of a witness. [ 11 ] The potential issues on appeal would appear to involve “complicated legal principles, issues of statutory

interpretation or technical legal arguments” ( R. v. Marshall , 2011 NLCA 26 , at para. 11 ). This is a relevant consideration (see, for example, R. v. Starkes , 2019 NLCA 4 , at para. 5 ; and Normore , at para. 18 ). [ 12 ] In considering the factors in Ryan , it appears that the nature of the potential issues on appeal would make it very difficult for Mr. H to “adequately be able to present his case”, and for the Court to be “able properly to decide the case without the assistance of counsel”. See for example R. v. Barry , 2018 NLCA 48 , at paragraph 6 ; and R. v.

R.J.H. , 2012 NLCA 28 , at paragraph 3 . [ 13 ] Accordingly, I would conclude that, in this circumstance, it appears desirable in the interests of justice that Mr. H should have the assistance of counsel on the appeal. He has therefore satisfied one of the two considerations in

section 684. Sufficient means to obtain legal assistance [ 14 ] Regarding the other consideration in

section 684, relating to the financial means of the applicant, the Attorney General argues that Mr. H has the means to obtain legal assistance, and therefore the Attorney General should not be required to pay for counsel on his behalf. [ 15 ] This engages the first two factors in Ryan , regarding whether the applicant has the financial means to hire legal counsel and, if not, whether Legal Aid will provide counsel for the appeal. The record indicates that Mr. H applied to Legal Aid for counsel, but his application was unsuccessful, as were his subsequent appeals to the Provincial Director and the Appeal Board.

The latter indicated that Mr. H did “not meet the financial criteria for assistance from Legal Aid NL”. [ 16 ] As noted above, Mr. H was represented by counsel at the trial in the Supreme Court. He indicated that, while he managed to pay for legal counsel at trial, this has had a serious impact on his financial situation.

He maintained that it would be, in his view, unfair, to have him exhaust his remaining financial resources and incur further debt in order to hire legal counsel to assist him on the present appeal. [ 17 ] The scope of what is to be included in an applicant’s “means”, when determining whether an applicant has sufficient financial means to obtain legal assistance, has been considered in various contexts, and has received an expansive

interpretation. [ 18 ] For example, in R. v. Campbell , 2020 ONCA 573 , it was indicated that an applicant must have “exhausted all other means of paying for counsel” before government-funded counsel is assigned under

section 684 (para. 8). See also R. v. Staples , 2016 ONCA 362 , at paragraph 40 . In R. v. Lawson , 2017 BCCA 288 , it was observed that an applicant “must establish that he or she does not have the means to fund the appeal” (para. 17). Relevant factors identified in Lawson included the applicant’s “personal financial circumstances and ability to raise funds from other sources” (para. 18). In R. v. MacLean , 2017 NSCA 86 , the applicant was questioned on whether he had “inquired into mortgaging his home” to obtain funds to pay the cost of legal counsel on appeal.

The Court determined that the applicant had “not established that retaining a lawyer for the proceedings in this Court is beyond his means” (paras. 30-33). [ 19 ] In support of his application to this Court, Mr. H appeared and made submissions. He also filed an affidavit containing particulars of his financial circumstances, on which he was cross-examined by counsel for the Attorney General. [ 20 ] Mr. H’s evidence indicated that his income is derived from full-time permanent employment and from the rental of an apartment in the home that he owns. Mr.

H provided information and was questioned about his monthly expenses, and indicated that these expenses consume almost the entirety of his monthly income. Mr. H advised that he carefully monitors all expenses and lives a modest lifestyle. [ 21 ] On cross-examination, Mr. H also provided information about potential sources of funding that he could avail of to pay the costs of private legal counsel, in the event that he did not receive government-funded counsel. These included funds he had saved and held in his personal chequing account, and credit available to him through his line of credit and credit card.

Financial documentation was provided regarding the amounts available to Mr. H from each of these respective sources. [ 22 ] Additionally, in advance of the application, Mr. H contacted a number of lawyers and obtained quotes respecting the potential cost of hiring a private lawyer for the appeal, in the event he was unsuccessful in his application. He provided these quotes, which were considered at the hearing. [ 23 ] In considering the quotes Mr. H obtained, it appears that the cumulative amount of funds available to Mr.

H (through his savings and credit), which could be used to pay for legal counsel on the appeal, would meet or exceed the cost of hiring counsel in this instance. [ 24 ] Based on the information provided, it appears that it would be possible for Mr. H, through accessing existing funds in his chequing account and borrowing from his existing line of credit/credit card, to finance the costs of hiring legal counsel for the appeal. This would require Mr. H to use his savings, acquire additional debt, or both, which, understandably, is exactly what Mr. H would prefer to avoid. However, in light of the language of

section 684, and in considering the authorities, it has not been demonstrated that the applicant, Mr. H, does not have sufficient means to obtain legal assistance. [ 25 ] Finally, Mr. H argued that the fact this is the Crown’s appeal of his acquittal at trial, is a relevant consideration. In his view, this renders unfair any requirement that he expend further funds (given the expenditures at trial, where he was acquitted) or acquire

further debt to finance the appeal. In appropriate circumstances the fact that an appeal has been taken by the Crown may be a factor when considering whether it is desirable in the interests of justice that the applicant have legal assistance on appeal, which is the first consideration in

section 684. (See, for example, R. v. Choli , 2015 SKCA 90 , at para. 17 ; R. v. Michael Kevin Wood , 2009 PECA 26 , at para. 22 ). However, this would not be determinative of the other consideration in

section 684, namely whether the applicant has sufficient means to obtain that legal assistance. [ 26 ] Accordingly, as the financial consideration component in

section 684, and in Ryan , is not satisfied in the present circumstances, government-funded legal counsel would not be available to Mr. H for the appeal under

section 684.

Summary and Disposition [ 27 ] In

summary, based on the information and evidence provided on the application, Mr. H has not established that he does not have sufficient means to obtain legal counsel on the appeal. Accordingly, one of the two considerations outlined in

section 684 of the Code (and one of the factors in Ryan ) has not been satisfied. [ 28 ] As such, having considered the factors in Ryan and the considerations in

section 684 in the context of this application, and having concluded that the requirements for this Court to assign counsel have not been satisfied, Mr. H’s application for government- funded legal counsel under

section 684 is dismissed. [ 29 ] The Crown has filed the appeal book, transcript and a factum in this matter. At the hearing of the application, the Court set a filing date for Mr. H’s factum (i.e. his written submissions). It was noted that, should further time be required to prepare and file a factum on behalf of Mr. H, the parties could agree to extend the date for filing, or a request could be made to the Court in this regard. Once all materials have been filed, and the appeal has been perfected, either party may request a hearing date for the appeal. _____________________________ F.P. O’Brien J.A.