R. v. Jacque, 2012 NLCA 19

Date: 20120316 Docket: 11/76 Citation: R. v. Jacque , 2012 NLCA 19

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HERBERT JACQUE APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Harrington J.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Happy Valley – Goose Bay, NL Application Heard: March 5, 2012 Decision Rendered: March 16, 2012 Reasons for Judgment by Rowe J.A. Concurred in by Welsh and Harrington JJ.A. Counsel for the Appellant: Self Represented by Video Conference

Counsel for the Respondent: Sheldon Steeves Rowe J.: [ 1 ] The appellant, Herbert Jacque, was convicted of sexual assault in June 2011. He has appealed conviction and sentence. Legal Aid is representing Mr. Jacque in his appeal regarding sentence, but not regarding conviction. Mr. Jacque has applied to this Court pursuant to s. 684 of the Criminal Code for assignment of counsel regarding conviction. [ 2 ] The test for whether this Court should exercise its discretion to assign counsel pursuant to s. 684 was set out by Chief Justice Green in R. v.

Marshall , 2011 NLCA 26 , as follows: [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. See also R. v.

O’Keefe , 2012 NLCA 6 , per White J.A. [ 3 ] In this case, the Crown acknowledges that Mr. Jacque does not have the means to engage counsel and that Legal Aid is not available for his appeal against conviction. Thus, two issues remain; “are [there] serious (not frivolous) issues to be dealt with”, and “whether the appellant will be able to present his case adequately”. [ 4 ] In his submissions, Mr. Jacque took issue with the trial judge’s assessment of his credibility and that of the complainant. However, the trial judge’s reasons were thorough, well-framed and carefully assessed the credibility of witnesses.

Nothing said by Mr. Jacque set out a basis upon which the trial judge’s assessment of credibility might be set aside on appeal. Accordingly, I am satisfied that Mr. Jacque’s appeal against conviction does not raise “serious (not frivolous)” issues. That being so, I need not address the fourth part of the test. [ 5 ] The application for assignment of counsel pursuant to s. 684 of the Criminal Code is denied. _____________________________ M. H. Rowe J.A. I Concur: _________________________ B. G. Welsh, J.A. I Concur: _________________________ M. F. Harrington, J.A.