R. v. Marshall, 2011 NLCA 26

Date: 20110421 Docket: 10/85 Citation: R. v. Marshall , 2011 NLCA 26 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : RALPH MARSHALL APPLICANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Green, C.J.N.L. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 200901T3150 Appeal Heard: February 8, 2011 Decision Rendered: February 8, 2011 Memorandum of Disposition Filed: April 21, 2011 The Applicant appearing on his own behalf Counsel for the Respondent: Stephen R.

Dawson MEMORANDUM OF DISPOSITION Green, C.J.N.L.: [ 1 ] The appellant, Ralph Marshall, applied for appointment of legal counsel pursuant to s. 684 of the Criminal Code . The application was dismissed. What follows are the reasons for that conclusion. [ 2 ] The appeal is from a decision of a judge of the Trial Division, who dismissed, on grounds of delay, a

summary conviction appeal from the Provincial Court, where the appellant had been convicted of uttering threats and breach of probation. [ 3 ] I note in passing that the appeal in this court requires leave and must be in respect of “a question of law alone”. See s. 839 of the Criminal Code . [ 4 ] The essence of the appellant’s appellate argument in this Court is that the

summary conviction appeal judge erred in principle in his application of s. 825 of the Criminal Code . That

section provides that the court may dismiss an appeal where “the appeal has not been proceeded with or has been abandoned”. The argument, as explained to me, is that notwithstanding two previous appearances between January and May 2010, where the appellant’s medical conditions, difficulties with obtaining the transcript of the original trial and delays in determining whether he qualified for legal aid were mentioned, the

summary conviction appeal judge should not have dismissed the appeal on grounds of delay; instead, he should have granted a further postponement and ordered the production of the transcript before the appeal was dealt with on its merits.

[5] The determination of whether the Court will exercise its discretion to assign counsel to act for an appellant under s. 684 of theCode 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 theappeal; and (iv) whether the appellant will be able to present his case adequately or whether the Court will be able to decide the caseproperly 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, perGreen C.J.N.L. at para. 4. [6] In this case, it was accepted by all that the appellant does not have the means to pay for counsel and he has been turned downfor legal aid by the Newfoundland and Labrador Legal Aid Commission. The first two considerations listed above were thereforesatisfied. [7] With respect to the third consideration, relating to the merits of the appeal, I preferred not to express a view on the merits asthat issue will also have to be dealt with later in respect of the issue of leave to appeal under s. 839.

For the purposes of this application, Iassumed, without deciding, that the appeal has some arguable merit. The matter was able to be effectively determined by application ofthe fourth factor. [8] As to the fourth consideration, I concluded that in the circumstances of this case the appellant will be able to present his caseadequately on the appeal and that the court could properly dispose of the appeal without the assistance of counsel. [9] The appellant is forty-eight years old. He has a grade 10 education.

He attended the Marine Institute on a marine dieselcourse which he did not pass because of difficulty with drafting and mathematics. He served with the Royal Newfoundland Regiment fora time, and has worked with the Coast Guard and in heavy construction. He has had a number of medical problems in the past, includingcongestive heart failure and kidney failure but those issues seem to have settled for the moment.

He says he sometimes has difficultyconcentrating which may be the result of a mini-stroke brought on by his other medical problems. [10] The appellant speaks well and can express his views intelligently and coherently. His concerns about memory loss do not seemto be reflected in the way he was able to express himself and deal with the material before the court on this application. [11] The issues on the appeal are not complex. They involve simply whether the

summary conviction appeal judge properlyexercised his discretion to dismiss the appeal for reasons of delay in bringing the appeal on for hearing. The appellant was able toarticulate quite clearly the arguments why he felt the judge should have postponed the hearing instead. No complicated legal principles,issues of statutory

interpretation or technical legal arguments are involved. The transcript and other material filed in respect of the appealare not voluminous. [12] To the extent that the merits of the appeal against the original conviction may have been a relevant consideration in theexercise of the

summary conviction appeal court judge’s discretion under s. 825 ( see R. v. Jackson(N.) (2004), 2004 NLSCTD 150, 239 Nfld. & P.E.I.R. 326 (NLSCTD) at paras. 19, 26-29), the transcript of the original trial is short and the issues which theappellant intended to raise on the

summary conviction appeal relate to arguments concerning whether there was other evidence availablewhich should have been presented to the trial court relating to the appellant’s motive for being in the area when the threats wereapparently uttered. The issues raised are fact-based and relate broadly to matters of credibility. They do not appear to be complex legalones. The appellant is, in my view, capable of articulating his concerns about the how the original trial unfolded, just as he is capable ofexplaining his points concerning his disagreement with the decision of the

summary conviction appeal judge. [13] Considering the lack of complexity of the issues on appeal and the fact that the record is not voluminous, and considering theappellant’s level of education and demonstrated ability to articulate his point of view, I was satisfied that he would be able to present hisarguments on the application for leave and on the appeal, if leave were to be granted, sufficiently well without the necessity of havinglegal representation. [14] Furthermore, I was satisfied that, considering the nature of the issues that were engaged, the Court did not need the assistanceof counsel representing the appellant to be able to understand the points that need to be decided and to deal with them effectively. [15] I accordingly denied the application for assignment of legal counsel to the appellant with respect to the presentation of hisappeal to the Court.

J. D. Green, C.J.N.L.