TERRY BUDGELL APPLICANT/APPELLANT AND: HIS MAJESTY THE KING RESPONDENT, 2023 NLCA 38

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : R. v. Budgell , 2023 NLCA 38 Date : December 11, 2023 Docket Number : 202201H0066 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Code , information that may identify the person described in this decision as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. BETWEEN: TERRY BUDGELL APPLICANT/APPELLANT AND: HIS MAJESTY THE KING RESPONDENT Coram: Goodridge J.A.

Court Appealed From: Provincial Court of Newfoundland and Labrador, Grand Falls-Windsor 1021A00476 Application Heard: December 6, 2023 Memorandum of Disposition Filed: December 11, 2023 Counsel for the Applicant/Appellant: Self-Represented Counsel for the Respondent: Dana E. Sullivan [1] Counsel for the Attorney General: Chelsey Buggie Authorities Cited: CASES CITED: R. v. Ryan , 2008 NLCA 42 , 277 Nfld. & P.E.I.R. 167. STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46, sections 684 , 267 , 271 , 279 , and 266 .

MEMORANDUM OF DISPOSITION W. H. GOODRIDGE J.A.: [ 1 ] Terry Budgell applies pursuant to s. 684(1) of the Criminal Code, R.S.C. 1985, c. C-46 , for appointment of counsel to assist him in the conduct of his appeal against conviction, with counsel’s fees paid by the Attorney General . He was convicted September 9, 2022, on two counts of assault with a weapon ( s. 267 (a)), and one count each of sexual assault ( s. 271 ), forcible confinement ( s. 279 ), and assault ( s. 266 ).

He was sentenced on October 31, 2022, and has served the prison component of his sentence. [ 2 ] The Notice of Appeal includes several paragraphs alleging that the trial judge erred in assessment of the evidence – the credibility assessments and findings of fact. The Notice also states that the trial judge “erred in law in that he misapplied the presumption of innocence and burden of proof”. There was no factum or written submissions. In oral submissions Mr.

Budgell argued that the complainant’s evidence was not corroborated and should not have been accepted. [ 3 ] In the absence of any written submissions from Mr. Budgell, I have read the trial transcript to gain a better understanding of his allegation that the trial judge erred in his assessment of the evidence. This was a straightforward factual case and credibility was the main issue. The complainant gave details supporting the alleged offences, and various acts of violence, during her five-year domestic relationship with Mr. Budgell. Testifying in reply, Mr.

Budgell denied each allegation, saying “It did not [happen]”. The trial judge gave detailed reasons. In those reasons he reviewed the evidence; he explained why he rejected Mr. Budgell’s evidence and why he was not left in reasonable doubt by it; he explained why he accepted the complainant’s evidence; he explained that he also considered the evidence as a whole and that “[the complainant’s] testimony has displaced any doubt”; and he concluded that the Crown had proven the charges beyond a reasonable doubt. [ 4 ] The relevant provision of s. 684 that guides this application states: 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. [ 5 ] Two things must be noted about s. 684(1) . The first is that the power of the Court to appoint counsel is discretionary.

The second is that there are two prerequisites to the exercise of that discretion: (1) it appears desirable in the interests of justice and (2) the accused has not sufficient means. In addressing these two prerequisites R. v. Ryan , 2008 NLCA 42 , 277 Nfld. & P.E.I.R. 167, identifies four factors to be considered: [ 9] From the foregoing decisions, there are four key issues to be considered in the exercise of the discretion conferred under s. 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. [ 6 ] The Attorney General concedes that Mr. Budgell has established factor (

b) and the first part of (d): Legal Aid will not provide counsel for the appeal; and, having regard to the issues on appeal, it is unlikely that the Mr. Budgell would be able to adequately present the case on his own. Legal Aid’s decision not to provide counsel was not based on Mr. Budgell’s financial means. [ 7 ] Regarding factor (a), I disagree with the Attorney General’s position that Mr. Budgell has not established that he lacks the financial means to engage legal counsel. Mr. Budgell has established that he lacks the financial means.

Although he secured employment in October 2023, it is seasonal work and he will be laid off next month; he is likely to remain off work until late spring. His income net of taxes is currently $3,000 per month but that will drop almost by half (based on Employment Insurance benefits) when he is laid off. Mr. Budgell has no savings or other assets. He has an outstanding debt for unpaid fines at $10,000; he intends to recommence monthly payments on that debt to reinstate his driving privileges.

He has child support obligations for his four-year-old son, and the amount of the monthly payment will be fixed at a court hearing later this month. He resides at his mother’s home and contributes toward her grocery, fuel and other costs at $2,000 per month. Any remainder from his income, after these expenditures, was used to re-establish (he was only recently released from prison) a supply of clothing, toiletries, and sundry items for daily living.

He applied for credit ($1,000) at Bank of Montreal and was rejected. [ 8 ] Regarding factor (c) – seriousness of the issue – I agree with the Attorney General that the issue raised here falls at the lower end of the range of seriousness. The crimes are serious, and of course any criminal record is serious, but the specific issue being pursued here is the trial judge’s assessment of the evidence. That issue attracts a significant level of deference to the trial judge, and for that reason would not be ranked high on the seriousness scale.

In addition, as noted by the Attorney General, the prison term imposed after trial has been served, and the lack of risk to Mr. Budgell’s liberty also supports placement of this matter at the lower end of the range of

seriousness. [ 9 ] Regarding the second part of factor (d), I am satisfied that the Court will be able to properly decide the case without the appointment of counsel to assist Mr. Budgell in the conduct of the appeal. This was a straightforward factual case, and the outcome was based on the trial judge’s assessment of credibility, as distinct from the application of complex legal principles. The issue raised, whether the trial judge erred in assessment of the evidence, is narrow in scope and not complex. The Court will not need the assistance of counsel to effectively deal with the issue.

A fair and just result can be obtained when Mr. Budgell pursues his appeal without the assistance of counsel. [ 10 ] B ased on a review of the factors, I have concluded that the requirements for this Court to assign counsel have not been met. Accordingly, the application for appointment of counsel, with funding from the Attorney General, is denied. ____________________________________ W.H. GOODRIDGE J.A.