R. v. Kelsie, 2016 NSCA 72

Nova Scotia Court of Appeal Citation: R. v. Kelsie , 2016 NSCA 72 Date: 20161006 Docket: CAC 211631 Registry: Halifax Between: Dean Daniel Kelsie Applicant/Appellant v. Her Majesty the Queen as represented by the Attorney General Respondent Judge: Farrar, J.A. Motion Heard: September 8, 2016, in Halifax, Nova Scotia in Chambers Written Decision: October 6, 2016 Held: Motion granted Counsel: Phillip Campbell and Sean MacDonald, for the applicant/ appellant James A. Gumpert, Q.C., for the respondent Her Majesty the Queen Edward A.

Gores, Q.C., for the respondent the Attorney General of Nova Scotia Decision: Overview [ 1 ] The applicant, Dean Kelsie, was convicted of first degree murder and conspiracy to commit murder on March 2, 2003 following a trial in the Supreme Court of Nova Scotia before Justice Felix A. Cacchione sitting with a jury. He is serving a life imprisonment with no possibility of parole for 25 years. He is now incarcerated at Cowansville Institution in Quebec. [ 2 ] Mr. Kelsie appealed his conviction to this court in a Notice of Appeal dated March 7, 2003 and filed with the court on November 3, 2003.

The appeal has not yet been set down for argument. [ 3 ] Mr. Kelsie now applies pursuant to s. 684(1) of the Criminal Code for counsel to be assigned for the preparation and presentation of his appeal. He is represented on the application by Phillip Campbell and Sean MacDonald. [ 4 ] An earlier, separate application (filed by counsel no longer acting for Mr. Kelsie) sought appointment of counsel. It did not invoke s. 684 but rather couched the request for assignment of counsel in constitutional terms. That application is no longer being pursued. [ 5 ] In preparation for this application, Mr.

Kelsie’s counsel has filed a proposed amended Notice of Appeal with the following grounds: 1. The learned trial judge erred in his instruction to the jury on the mental element required for conviction of an aider to a first degree murder where it is alleged that the murder was planned and deliberate. 2. The learned trial judge erred in failing to instruct the jury on the availability of manslaughter as a verdict when an accused is alleged to have been an aider to a first degree murder. 3. The trial judge erred in instructing the jury that hearsay evidence adduced against the Appellant pursuant to the co-

conspirators exception to the hearsay rule could implicate the Appellant as a member of the alleged conspiracy when the hearsay evidence had no such effect. 4. The learned trial judge erred in instructing the jury that they could consider hearsay acts and declarations from alleged co- conspirators on the count of first degree murder, without adherence to the prerequisites for admissibility of such evidence. 5. The learned trial judge erred in failing to direct the jury on the defence of abandonment in light of the assertions in the Appellant’s statement to the police. [ 6 ] In support of his application, Mr.

Kelsie has filed his own affidavit indicating that he has been in prison since his arrest for murder in 2001. At the time of his arrest he had no job. Presently, his only income is $28 every two weeks which he earns from working as a welder at the penitentiary. He also receives $100 to $200 per month from family members. [ 7 ] The application asks for “an order pursuant to s. 684 of the Criminal Code for the assignment of counsel on behalf of the applicant to represent him on his appeal against his convictions for first degree murder and conspiracy to commit murder”. [ 8 ] At the hearing of the application Mr.

Kelsie’s counsel, in addition to requesting counsel be assigned pursuant to s. 684 , asked for the following: 1. Phillip Campbell and Sean MacDonald be assigned as counsel for Mr. Kelsie on his appeal; 2. The Attorney General of Nova Scotia shall pay counsel fees and expenses; and 3. The appointment of counsel shall be effective from the 19th day of April, 2016. [ 9 ] For the reasons that follow, I would grant the application to appoint counsel pursuant to s. 684(1) of the Criminal Code . However, I decline to specifically appoint Mr. Campbell and Mr. MacDonald as counsel for Mr.

Kelsie or to make that order retroactive to April 2016. I would also award costs to the applicant in the amount of $7,500 plus taxable disbursements, payable by the Attorney General. Analysis [ 10 ]

Section 684 of the Criminal Code provides as follows: 684.

(1) Legal assistance for appellant – 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.

(2) Counsel fees and disbursements – Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal.

(3) Taxation of fees and disbursements – Where subsection (2) applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court of appeal and the registrar may tax the disputed fees and disbursements. [ 11 ] There are two inquiries under s. 684(1) : i. Whether Mr. Kelsie has sufficient means to obtain legal assistance; and ii. Whether it is desirable in the interests of justice that Mr. Kelsie have legal assistance ( R. v. Martin , 2015 NSCA 82 , ¶ 16 ). [ 12 ] I am satisfied that Mr.

Kelsie lacks the means to otherwise retain counsel. The question then becomes whether it is in the “interests of justice” to appoint counsel. [ 13 ] Whether it is in the interests of justice involves a number of considerations including: i. The merits of the appeal; ii. The complexity of the appeal; 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 ( R. v. Martin , ¶ 18 ). [ 14 ] The Attorney General of Nova Scotia has conceded that Mr. Kelsie has met the criteria for the appointment of counsel.

In my view, that is a reasonable and appropriate concession in these circumstances. [ 15 ] The proposed Notice of Appeal indicates that the legal issues arising for the consideration of the court on appeal will be

complex. Mr. Kelsie has a Grade 12 equivalency education which he obtained in prison. He has no experience in representing himself. I have no difficulty in concluding that the legal issues are beyond his ability to effectively comprehend and articulate. [ 16 ] Therefore, I am satisfied that it is in the interests of justice that Mr. Kelsie be granted counsel pursuant to s. 684(1) of the Criminal Code . [ 17 ] The more difficult question arising on this application is the request by Mr. Campbell and Mr. MacDonald to be specifically named as counsel for Mr.

Kelsie and that their fees be paid by the Attorney General. [ 18 ] As noted earlier, I decline to do so. I do this based on reading s. 684 in its entirety. In my view it envisions a step-by-step process. The first step, which is this application, is for the appointment of counsel. That is done pursuant to s. 684(1) . Once that occurs, as it has here, it falls to s. 684(2) to determine whether legal aid will fund or assign counsel to the case. If that occurs then that is the end of the matter.

However, if legal aid refuses to do so then the fees and disbursements of counsel shall be paid by the Attorney General in accordance with the provisions of s. 684(2) and (3). [ 19 ] Counsel in its brief in support of the application refers to s. 684(2) and suggests that the denial of legal aid in s. 684(2) relates to the initial decision to deny legal aid to Mr. Kelsie. They say as follows: 42.

Section 684(2) of the Criminal Code provides that “where legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent” in the appeal. It is uncontested that the Nova Scotia Legal Aid Commission, by letter dated November 22, 2013, reported that an Appeal Committee of the Commission had upheld the decision of staff counsel to deny funding to the Appellant “on the basis that there is a lack of legal merit” in the appeal. I disagree.

The refusal to grant legal aid in s. 684(2) following the assignment of counsel under s. 684(1) must be a new denial not the denial which preceded the granting of the s. 684(1). Any other conclusion, would render the reference to legal aid in s. 684(2) having no meaning. [ 20 ] Section 684(2) means that, despite the earlier refusal by legal aid, once an order is made pursuant to s. 684(1) legal aid has a fresh opportunity to consider the granting of legal aid in light of the court order. It is then, only if legal aid is not granted, that the Attorney General is obligated to provide the necessary funding.

This conclusion is consistent with the plain wording of the section. A similar conclusion was reached by the Manitoba Court of Appeal in R. v.

Roussin , 2011 MBCA 67 , ¶ 35 , 36. [ 21 ] As well, the regulations under the Legal Aid Act , R.S.N.S. 1989, c. 252, contemplates that legal aid may be provided when requested to do so by the court: 8 An appeal against a decision, judgment, verdict or sentence of a court may be taken where, in the opinion of a solicitor employed by the Commission and the Executive Director, the appeal has merit or where the court appealed to requests the appointment of counsel. [ 22 ] To accede to the request of the applicant to appoint specific counsel and to require the Attorney General to pay those fees, in my view, is not contemplated at this stage of the proceedings.

Nor in my view does it contemplate making a retroactive order for the fees incurred in the application. [ 23 ] It would be unrealistic for this Court to assume that the Attorney General has unlimited funds to pay legal fees over which they have had no input nor control. Although I have considerable sympathy for the position of counsel for Mr. Kelsie, it is obvious that there was a lot of work and preparation went into the draft Notice of Appeal which would require a detailed review of the transcript to formulate the grounds of appeal.

The issue remains that this is an application and costs ought to be set accordingly. [ 24 ] In R. v. Assoun , 2002 NSCA 119 the court awarded costs of $1,500 on the application for appointment of counsel. It is now 14 years later, however, the awarding of a lump sum amount for an application such as this, in my view, is the appropriate approach. [ 25 ] Considering the complexity of the proceedings and the issues involved which required a review by counsel of a very lengthy trial transcript, I award costs on the motion to Mr. Kelsie in the amount of $7,500 plus disbursements to be agreed upon or taxed.

An order will issue accordingly. Farrar, J.A.