HIS MAJESTY THE KING - v. -, 2023 SKKB 8

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 8 Date: 2023 01 10 File No.: CRM-SA-00390-2021 Judicial Centre: Saskatoon BETWEEN: HIS MAJESTY THE KING - and - TODD WEBER Counsel: Todd Weber on his own behalf Joshua J. Davis for the Ministry of Justice Elizabeth A. Addabor for the Crown Prosecutors ___________________________________________________________________________ FIAT POPESCUL C.J.K.B. January 10, 2023 ___________________________________________________________________________ [ 1 ] Todd Weber, the applicant, has applied for court appointed counsel respecting his

summary conviction appeal. Counsel for the Ministry of Justice opposes his request. Counsel for the Crown Prosecutors takes no position. [ 2 ] On November 3, 2021, Todd Weber was convicted by a Provincial Court judge of committing a common assault on Kai Chen. He received a suspended sentence and was placed on probation for 18 months with a variety of conditions. [ 3 ] On November 15, 2021, he filed a notice of appeal. The grounds of appeal were listed as: The defendant was wrongfully convicted contrary to evidence.

The defendant may have been manipulated illegally by a member of the crown and or his appt defense counsel for the purpose of cross examination. Charter rights were breached. [ 4 ] On November 23, 2021, Mr. Weber applied to have the sentence stayed pending his appeal. Justice Currie

granted his application and stayed the sentence, albeit in his November 26 fiat, Justice Currie did go on to impose some conditionspending the hearing of the appeal. Mr. Weber then brought an application to have the court appoint counsel for him. On September 20,2022, I was about to hear that application. However, prior to it being heard, the application was withdrawn because Legal Aid stated thatit was prepared to represent Mr. Weber. On that same date, the

summary conviction appeal hearing was set for January 11, 2023, at10:00 a.m. Mr. Weber was ordered to be personally present. The

summary conviction appeal was set peremptorily, which I interpret tomean that the matter will proceed, and no further adjournments will be allowed, subject of course to extraordinary circumstances. Thereason for designating this as peremptory was because of the numerous delays that have occurred over the past number of months. [5] In the meantime, on November 18, 2022, Mr. Weber filed another application for court appointed counsel.The basis stated by Mr.

Weber for his request is that he has no money to hire a lawyer, believes that the matter is complex, and Legalaide [sic] has personal issue with the applicant and or this is in some way related to a concern a Madam Judge had at provincialcourt regarding police interference and or other.

Legalaide [sic] counsel is opposing to any other counsel and Court Judge approach as tolikelihood of success. [6] I set the court appointed counsel application for 2:00 p.m. on Friday, December 16, 2022. [7] I conclude that I do have jurisdiction to hear the application for court appointed counsel by virtue of theoperation of ss. 813, 822(1) and 684 of the Criminal Code, RSC 1985, c C-46. I will elaborate.

Section 813 is the provision permittingsummary conviction appeals to be heard by the Court of King’s Bench. Section 822(1) states that ss. 683 to 689 apply, with necessarymodification, to

summary conviction appeals.

Section 684, which is in the range of sections incorporated into the

summary convictionappeal procedures, provides statutory authority for the appointment of legal counsel in appropriate circumstances. [8] Section 684(1) reads as follows: 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 anappeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in theinterests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtainthat assistance. [9] The applicant’s impecuniosity and the fact that Legal Aid has declined to represent him are two preconditionsfor court appointed counsel that the applicant has satisfied.

The issue here is whether it is in the interests of justice to provide theapplicant with court appointed counsel. [10] Section 684(1) has been interpreted on many occasions. [11] In R v M.(A.) (1996), (ON CA), 30 OR (3d) 313 (Ont CA), the phrase the “interests ofjustice” was described as involving the consideration of the applicant’s age, education, ability to understand and to express oneself,experience with the criminal process, seriousness of the matter, and the complexity of the appeal. [12] In R v Yukon, 2011 SKCA 77, 375 Sask R 85, Ottenbreit J.A., speaking for the court, stated that there is ageneral consensus that the success or failure of a s. 684 application depends on: (1) whether the appeal is arguable, (2) whether the appeal can be presented effectively without legal assistance [taking into account the applicant’s level of education andthe complexity of the issues], (3) whether the court will be able to decide the appeal properly without the assistance of counsel, (4) the seriousness of the offence, and (5) the penalty imposed. [13] In this case, we have a charge of common assault that was tried in Provincial Court.

The facts are relativelystraightforward and there are no complex points of law. Part of the circumstances giving rise to the conviction were captured on video.The complainant was a 15-year-old boy who is Asian-Canadian. Without pre-judging the appeal, the conviction was fact-based and wasnot dependent on any complex legal rulings. There is nothing in the transcript, which I have reviewed, that points to or gives rise to apatent arguable point of law. The grounds of appeal refer to a wrongful conviction that was contrary to the evidence.

There is nothingevident, subject of course to the arguments to be made at the appeal hearing, that points to any factual mistakes that would constitute anerror of law or any other arguable ground of appeal. [14] Accordingly, I find that there does not appear to be an arguable ground of appeal, the offence for which theapplicant was convicted is minor and the issues raised on the appeal are not complex.

Further, in the same vein, the penalty imposed wasa suspended sentence and 18 months probation, which is a less serious penalty, and does not involve incarceration. [15] Further, I find that the applicant has been able to find his way through the legal system by filing a notice ofappeal and by bringing two applications for court appointed counsel. He has filed affidavits and a lengthy and comprehensive 20-page“Appellant’s Memorandum of Argument” in which he cites a number of cases and refers to a variety of statues and other legislativeprovisions.

The applicant has been quite able to articulate the reasons why he believes he should have a court appointed counsel. On thisbasis, it would appear that he will be able to adequately argue his case at the appeal on January 11, 2023, without legal assistance. [16] I have no doubt that I will be able to decide the appeal properly without the assistance of counsel for theapplicant.

[ 17 ] Accordingly, the applicant’s application for court appointed counsel is dismissed. The appeal, which is set peremptorily for 10:00 a.m. January 11, 2023, will proceed. Mr. Weber is ordered to attend the hearing in person. C.J.K.B. M.D. POPESCUL