R. v. Barrett, 2018 NSCA 75

Nova Scotia Court of Appeal Citation: R. v. Barrett , 2018 NSCA 75 Date: 20180910 Docket: CAC 451442 Registry: Halifax Between: Thomas Barrett Appellant v. Her Majesty the Queen Respondent Judge: Bryson, J.A. Motion Heard: September 5, 2018, in Halifax, Nova Scotia in Chambers Held: Motion granted Counsel: Thomas Barrett, appellant in person Mark Scott, Q.C., for the respondent Duane Eddy, for the Attorney General of Nova Scotia Decision: [ 1 ] On March 21, 2016, Thomas Barrett was convicted of second degree murder for the death of Brett MacKinnon. He has appealed his conviction. He has been denied legal aid.

He asks the Court to appoint counsel in accordance with s. 684 of the Criminal Code , which says: Legal assistance for appellant 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. Counsel fees and disbursements

(2) 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. Taxation of fees and disbursements

(3) 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. [ 2 ] Mr. Barrett previously had advised the Court during a telephone conference call with counsel for the Crown that he was unable to prepare a written motion. Accordingly, the motion proceeded in court by video-conference from the institution where Mr. Barrett is currently incarcerated.

He was affirmed and he gave evidence and made submissions, and was questioned by counsel for the Attorney General. [ 3 ] Justice Farrar summarized the jurisprudence regarding the

interpretation of s. 684(1) in R. v. Kelsie , 2016 NSCA 72 : [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 ).

[ . . . ] [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 ). [ 4 ] The Attorney General has conceded that Mr. Barrett lacks the means to retain counsel himself and has been denied legal aid, but says the motion should fail because the appeal lacks merit and Mr. Barrett is capable of arguing the points he has raised on appeal.

Quoting, verbatim, they are: 1. The Trial Judge admitted hearsay evadence of [S.F.], plus this ruling was made after hearing a editted vershen of the K.G.B. statement. The uneditted vershen of the K.G.B. statement clearly discredits the statement. 2. The crown sed, I must have went back to move the body again, there was no evadence of this, and then the Judge sed the same thing at sentencing. 3. The trial Judge had prior knowledge of my long criminal history. I feel she was prejudice, and biased. 4.

The Judge sed these witness only connection was me, this is not true they were all connected to Ashly MacDonald, there is proof [of] this in the statements. 5. I repeatedly asked my lawyer Questions to get answered, but still I have no answer. Eg. Was there D.N.A. taken from my house or car. The cop on the stand sed he could only answer from when he was working on the case. I want to know hew was on the case before him. I was the prime suspect for aprox ten years in this time I can prove my house was seatched at least two times by major crime and I was told my car was towed and seatched. 6.

The judge sed if the witnesses were trying to lie, they could have been more specific. I say if they were lying they wouldn’t know two mutch, if they were wrong on details, they would be discredited. 7. There are maney inconsistencies I can point out.

I feel I didn’t get a fair trial, and I feel the police are also biased with tunnel vishen. [ 5 ] A court of appeal may allow an appeal where a verdict is unreasonable or cannot be supported by the evidence, where an error of law has been made or if there has been a miscarriage of justice ( Criminal Code , s. 686(1)(a)). [ 6 ] Without delving into the jurisprudence, it is plain that Mr. Barrett asserts errors of fact and law, and implicates his trial lawyer by alleging what amounts to ineffective assistance of his counsel. [ 7 ] While Mr.

Barrett expressed himself plainly and forcefully in court, he claimed that it was unfair for him to have to make legal arguments which depended on cases and principles with which he was unfamiliar. He particularly relied upon his first ground of appeal—that a K.G.B. statement of a deceased witness should not have been admitted—as exemplifying this inability. [ 8 ] Mr. Barrett alluded to a recent Supreme Court decision, “ Bradshaw ”, which he had been told might be relevant to the admissibility of the K.G.B. statement. Presumably he was referring to R. v.

Bradshaw , 2017 SCC 35 , in which the Court, in a split decision, reviewed the principles of admissibility of hearsay evidence with respect to a crime re-enactment from a subsequently uncooperative witness. [ 9 ] Mr. Barrett submits that he also faced a second trial which relied upon the K.G.B. statement admitted by the trial judge in this case. He says that the K.G.B. statement used in the second trial was refused admission by that trial judge. Not much can be made of this except that there are subtleties regarding the admissibility of such evidence which Mr.

Barrett is plainly not equipped to argue. [ 10 ] From Mr. Barrett’s evidence, confirmed by a review of the court file, it would appear that Nova Scotia Legal Aid was contemplating representing him and had received an affidavit from Mr. Barrett describing his criticism of his trial counsel. Then suddenly, earlier this year, Legal Aid advised that they refused to represent Mr. Barrett because they “had a conflict”. No details were provided. Nor was explanation given why a legal aid certificate could not be issued to an outside lawyer. [ 11 ] During his submissions today, Mr.

Barrett said that he intended to amend his notice of appeal, particularly with respect to his allegations of ineffective counsel. He asks for assistance in making those amendments. [ 12 ] Mr. Barrett also complains that there were inconsistencies in the evidence that were not fully explored by his trial counsel and which he believes unfavourably affected the trial result for him. [ 13 ] Many of Mr. Barrett’s grounds simply disagree with the trial judge’s analysis of the evidence and her credibility findings. On their face, these grounds do not appear compelling.

Similarly, the allegations against counsel do not readily persuade. No telling lines of inquiry were obviously excluded. A bare complaint that the judge was biased because of Mr. Barrett’s notoriety and criminal record is not a meritorious ground of appeal. Judges confront such accused every day and are presumed to decide the matter before them on the evidence.

[ 14 ] The Crown may be right that some of the grounds of appeal are unlikely to succeed or, if successful, would not materially have affected the outcome. But at least with respect to the K.G.B. evidence, one cannot say what would have transpired if it had been excluded. [ 15 ] While the Court and the Crown both have obligations to ensure that an appellant is treated fairly, that objectivity does not always overcome the absence of informed and forceful representation of an accused by counsel. [ 16 ] Mr. Barrett has been convicted of a very serious crime. He wants to appeal his conviction.

The grounds of appeal include technical arguments on the admissibility of evidence. Mr. Barrett has neither a strong lay education nor the specialized legal education required to advance these arguments. [ 17 ] I’m satisfied that under the circumstances he should be afforded the benefit of counsel and an order will issue accordingly. Bryson, J.A.