R. v. L.E.B., 2016 NSCA 71

Nova Scotia Court of Appeal Citation: R. v. L.E.B. , 2016 NSCA 71 Date: 20160929 Docket: CAC 427183 Registry: Halifax Between: L.E.B. Appellant v. Her Majesty the Queen Respondent Restriction on Publication:

Section 486.4 of Criminal Code Judge: The Honourable Justice Cindy A. Bourgeois Motion Heard: September 1, 2016, in Halifax, Nova Scotia in Chambers Held: Motion dismissed Counsel: Appellant L.E.B., on his own behalf Edward A. Gores, Q.C., for the Attorney General of Nova Scotia Mark Scott for the respondent, watching brief only Order restricting publication – sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with stepdaughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(

i) to (iii). Reasons for judgment: [ 1 ] L.E.B. applies for the appointment of state funded counsel under s. 684 of the Criminal Code . His application is opposed by the Attorney General of Nova Scotia (“AGNS”). Background [ 2 ] On June 25, 2010, a jury found L.E.B. guilty of eight counts, all relating to the confinement and sexual assault of a young woman in December, 2008.

A ninth charge, relating to his breach of a Long-Term Offender Supervision order, was severed from the others, and a guilty plea was entered by L.E.B. on June 29, 2010. [ 3 ] Following the convictions, the Crown made known its intent to seek to have L.E.B. declared a dangerous offender pursuant to s. 753 of the Code . Various scheduling difficulties ensued.

The application did not commence until December 2012, and continued into the new year on various dates, ultimately concluding on December 20, 2013. [ 4 ] Justice Glen McDougall rendered his decision on June 20, 2014, in which L.E.B. was found to be a dangerous offender pursuant to s. 753(1) of the Code and, as such, subject to an indeterminate sentence. L.E.B. has brought an appeal challenging both the convictions and the dangerous offender designation.

Analysis [ 5 ] Section 684(1) of the Code provides: 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. [ 6 ] In considering a request under s. 684(1), the Court must turn its mind to two inquiries: (1) whether L.E.B. has sufficient means to obtain legal assistance; and (2) whether it is desirable in the interests of justice that L.E.B. have legal assistance ( R. v.

J.W. , 2011 NSCA 76 ). The AGNS concedes L.E.B. lacks the means to retain counsel. It is the “interest of justice” inquiry which demands this Court’s attention. In R. v. Martin , 2015 NSCA 82 , Farrar, J.A. succinctly described the factors to be considered as follows: [18] This inquiry involves a number of considerations including: (

i) the merits of the appeal; (ii) its complexity; (iii) the appellant’s capability; (iv) the court’s role to assist; and (

v) the responsibility of Crown counsel to ensure that the applicant is treated fairly. (See R. v. Assoun , 2002 NSCA 50 ; R. v. Morton , 2010 NSCA 103 ; R. v. Sykes , 2014 NSCA 4 ). [ 7 ] With respect to the merits of the appeal, L.E.B. raised numerous alleged errors in both his written and oral submissions. Many are of questionable merit. However, having reviewed the record, including the trial judge’s charge to the jury, and sentencing decision, I am satisfied that at least one “arguable issue” has been raised.

At the hearing, the AGNS conceded that the introduction of similar fact evidence at trial from L.E.B.’s previous assault victims could constitute an arguable issue. As such, I will leave further consideration of the grounds of appeal to the panel. [ 8 ] L.E.B. argues that the appeal is too complex and the documentation before the Court too unwieldy for him to effectively navigate as a self-represented appellant. At first blush, there appears to be some merit to this assertion, especially given the voluminous materials making up the record on appeal.

It is daunting. [ 9 ] A closer examination, however, discloses that the jury trial itself, as jury trials go, was relatively straightforward. Similarly, the court’s finding that L.E.B. was a dangerous offender was governed by the requirements outlined in s.753 of the Code . It was the introduction of evidence relating to L.E.B.’s past behaviours which led, in great part, to the voluminous material now before this Court on appeal. [ 10 ] What is abundantly clear, however, is that L.E.B. is not lost in the stacks of paper. He has a firm grasp on the material contained in the appeal record.

Despite the volume of material, he is impressively capable of not only identifying where in the record he believes certain problematic evidence can be found, but how it is relevant to the issues he raises on appeal. [ 11 ] Further, in the appearance before me, L.E.B. demonstrates that he is familiar with the legal process and does not shy away from questioning and challenging information presented, or positions advanced by other participants.

He explains clearly his position and is capable of responding effectively to issues raised in the process. [ 12 ] I am satisfied that L.E.B. has the ability to effectively present his arguments on appeal. The panel that hears this matter will

have the benefit of the record and will fully consider the merits of the appeal. If an error was made in the court below, it will be noted. [ 13 ] I am also mindful of the Crown’s obligation to ensure that L.E.B. is treated fairly and the Court makes an informed decision. It will be Crown counsel’s duty to assist the Court in ensuring L.E.B. receives a fair hearing, including identifying material in the record which may be supportive of his appeal, should he fail to do so himself. Conclusion [ 14 ] I am satisfied that L.E.B. has raised at least one arguable issue for appeal.

I am further satisfied that he is familiar with the material before the Court and is capable of articulating his concerns with the trial and sentencing in a clear fashion. [ 15 ] Keeping in mind the role of this Court and the duty of the Crown, I am satisfied that L.E.B. can effectively present his appeal without the assistance of legal counsel and, as such, it is not in the interest of justice to appoint legal counsel. L.E.B.’s motion is dismissed. Bourgeois, J.A.