R. v. McPherson, 2019 NSCA 70

Nova Scotia Court of Appeal Citation: R. v. McPherson, 2019 NSCA 70 Date: 20190821 Docket: CAC 472589 Registry: Halifax Between: Drew William McPherson Appellant v. Her Majesty the Queen Respondent Judge: Beveridge, J.A.Motion Heard: July 18, 2019, in Halifax, Nova Scotia in ChambersHeld: Motion dismissedCounsel: Drew McPherson, appellant in person Adam Norton, for the Attorney General of Nova Scotia Glenn Hubbard, for the respondent (watching brief) INTRODUCTION [1] Mr. McPherson requests the appointment of state funded counsel pursuant to the discretion to do so found in s. 684 of theCriminal Code.

He filed motion materials and his affidavit which attached letters and reports from three mental health professionals. [2] The respondent Crown takes no position. The Attorney General opposes the requested appointment. Curiously, counseldeclined to cross-examine Mr. McPherson or any of the three mental health professionals. [3] The content of some of the materials from two of the mental health professionals strongly supports the appointment ofcounsel.

They use forceful language—that it is imperative that the appellant have the services and support of a lawyer. [4] I have no doubt that it would be easier for the Crown and the Court if Mr. McPherson had counsel. It may well be in the bestinterests of Mr. McPherson if counsel were appointed to represent him on this appeal—provided he would listen and trust the advice ofcounsel. However, even if that were the case, that is not the test which must be met for the appointment of counsel. Rather, I must besatisfied that it would be in the interests of justice to do so. I am not. The reasons that follow explain.

THE PRINCIPLES [5] There is little controversy about the principles that guide the discretion to appoint counsel. A judge or the court must besatisfied of two requirements: it appears desirable in the interests of justice that the accused should have legal assistance; and it appearsthat the accused does not have sufficient means to obtain that assistance. [6] Absent a statute, there is no ability to appeal. Absent a statute, there is no avenue nor right to obtain state funded counsel onappeal (R. v. Robertson (1989), 1989 ABCA 267 , 51 C.C.C. (3d) 452 (Alta.

C.A.)). [7] Parliament amended the Criminal Code in 1923 (S.C. 1923, c. 41). The amendments clarified the powers of the court and theappeal process. Also, for the first time, a judge or the court could assign a solicitor and counsel provided it appeared “desirable in theinterests of justice that the appellant should have legal aid and he has not sufficient means to enable him to obtain that aid” (s. 1021A). [8] With some minor inconsequential revisions, the power to appoint remains the same today.

Section 684 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 anappeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in theinterests 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) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aidprogram, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the casemay be, in the appeal.

(3) Where subsection (2) applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the AttorneyGeneral or the counsel may apply to the registrar of the court of appeal and the registrar may tax the disputed fees and disbursements. [9] As pointed out by Bruce MacFarlane, Q.C., the focus for the Court is not just whether it is in the interests of the appellant tohave counsel: This 1923 amendment to the Criminal Code confers jurisdiction on the Court of Appeal to assign to an accused a lawyer where: (a) “itappears desirable in the interests of justice that the accused should have legal assistance” and (

b) the accused “has not sufficient means toobtain that assistance”. It is not sufficient for the court to be satisfied that it is in the interests of the accused to have counsel assigned:the presiding judge(

s) must focus upon the broader “interests of justice”.

That, it is submitted, should involve a consideration of a widerange of factors, including: seriousness of the charge; complexity of the case; whether the accused initiated the appeal or is responding toa Crown appeal; complexity of the issues raised; whether the issues could have been raised at trial, but were not; whether counselappeared at the trial; whether the grounds advanced by the accused seem to have any merit. [Emphasis in original] “The Right to Counsel at Trial and on Appeal” (1990), 32 Crim LQ 440 at p. 464. [10] Many of the considerations mentioned by Mr.

MacFarlane have been echoed in the legion of cases that have considered requestsfor state funded counsel on appeal. [11] From these cases, to meet the “interests of justice” requirement, the Court must be satisfied that: the appellant has at least onearguable ground of appeal; he cannot effectively present his appeal without a lawyer; or, the Court may not be able to properly decide theappeal without appellate counsel (see: R. v. Bernardo, (ON CA), 105 OAC 244, 121 C.C.C. (3d) 123 (C.A.); R. v.Assoun, 2002 NSCA 50; R. v. J.W., 2011 NSCA 76; R. v. Keats, 2017 NSCA 7; R. v.

Fudge, 2013 NSCA 149). [12] The court must examine the merits of the appeal (see: R. v. Grenkow, 1994 NSCA 46; R. v. Innocente (1999), (NS CA), 178 N.S.R. (2d) 395; R. v. Smith, 2001 NFCA 38; R. v. Bernardo, supra; R. v. Clark, 2006 BCCA 312). The court needonly be satisfied that the appellant’s complaints raise an arguable issue (R. v. Smith, supra; R. v. Ewanchuk, 2008 ABCA 78; R. v.Ermine, 2010 SKCA 73; R. v. B.L.B., 2004 MBCA 100; R. v. Murray, 2009 NBCA 83; R. v. Bernardo, supra; R. v.

Abbey, 2013 ONCA206 at para. 32). [13] An arguable issue is one that appears to be of enough substance to be capable of convincing a panel of the Court to allow theappeal.

A cautious approach to that assessment may be appropriate because it may be hampered by a lack of the complete record, andthe fact that the applicant may be self-represented in the s. 684 proceedings and hence at a disadvantage to knowledgeably examine thetrial proceedings to identify potential error. [14] If satisfied that the merits assessment discloses one or more arguable issues, then the analysis turns to the complexity of theissues, the ability of the appellant to understand the principles and marshal the arguments to the Court. This approach was aptlydescribed by Doherty J.A. in R. v.

Bernardo, and adopted in numerous cases (R. v. Innocente, supra; R. v. J.W., supra; R. v. J.C.M., 2015NSCA 19): [24] Having decided that the appeal raises arguable issues, the question becomes--can the appellant effectively advance his grounds ofappeal without the assistance of counsel? This inquiry looks to the complexities of the arguments to be advanced and the appellant’sability to make an oral argument in support of the grounds of appeal.

The complexity of the argument is a product of the grounds ofappeal, the length and content of the record on appeal, the legal principles engaged, and the application of those principles to the facts ofthe case.

An appellant’s ability to make arguments in support of his or her grounds of appeal turns on a number of factors, including theappellant’s ability to understand the written word, comprehend the applicable legal principles, relate those principles to the facts of thecase, and articulate the end product of that process before the court. [15] After setting out the necessary background, I will explain how these principles apply here. THE BACKGROUND [16] Mr. McPherson repeatedly asserts that he is a member of MENSA, with an IQ of 135. However, it is apparent that he lives withsome degree of mental illness.

Various diagnoses have been offered by mental health professionals. It is not relevant to recount thedetails of the medical opinions, nor all of the various proceedings Mr. McPherson has been involved in this Court. However, some detailis necessary. [17] Mr. McPherson has been in custody since a car accident of September 30, 2011 that caused the death of an innocent man andbodily harm to another. Charges of criminal negligence causing death and bodily harm did not come to trial until June 2015. [18] Some of the delay was due to Mr. McPherson being found unfit to stand trial. This was based on Dr.

Grainne Neilson’s opinionthat he was unfit to stand trial due to psychosis, but that his condition did not bring him within the requirements of s. 16 of the CriminalCode to make him not criminally responsible due to mental disorder.

[ 19 ] Subsequent medical opinions from Dr. Scott Theriault and others were that Mr. McPherson was likely experiencing an autism spectrum disorder (Asperger’

s) with concurrent features of narcissistic, paranoid and schizotypal personality traits, and he was fit to stand trial. [ 20 ] Mr. McPherson confirmed his election for trial by judge and jury and waived his right to a preliminary inquiry. The trial was heard before the Honourable Justice Allan Boudreau in June 2015. [ 21 ] Prior to trial, Mr. McPherson presented a host of motions, including applications for habeas corpus , bail review, state funded counsel (a Rowbotham application) and various types of Charter relief for alleged violations of ss. 7, 8, 11(

d) and 11(b). All were dismissed. [ 22 ] The trial proceeded with jury selection, including challenges for cause. Mr. McPherson cross-examined the Crown witnesses. He declined to testify but argued strenuously to the jury that the Crown had not proven the case against him beyond a reasonable doubt. The jury returned guilty verdicts. [ 23 ] Justice Boudreau sentenced Mr. McPherson to ten years’ incarceration less remand credit. [ 24 ] Mr. McPherson appealed.

Some of the history of his stated desire to have counsel appointed for him is outlined in my reasons to dismiss his adjournment request, reported as 2018 NSCA 87 . [ 25 ] There were three outstanding appeals from conviction and/or sentence initiated by Mr. McPherson. He has resisted every attempt to have his appeals heard. The mere setting down of the appeals for hearing constituted acts of attempted murder. Nonetheless, two of the appeals have now been heard. [ 26 ] The appeal from the criminal negligence conviction was dismissed.

The Court allowed his sentence appeal because the trial judge erred by only granting him 1:1 presentence custody credit ( 2019 NSCA 20 ). As a result, his warrant expiry date was moved up to July 18, 2019. [ 27 ] In other words, but for an outstanding charge of uttering threats against a justice system participant, he might not be in custody. [ 28 ] In another appeal, Mr. McPherson had pled guilty to two charges of uttering threats contrary to s. 264.1(1) (

a) of the Criminal Code . In return, the Crown did not proceed with charges of intimidating a justice system participant ( s. 423.1(1) (

b) of the Criminal Code ). Sentence was six months consecutive. His appeal from conviction was heard and dismissed ( 2018 NSCA 82 ). [ 29 ] The present appeal was originally from conviction only. It also involves a conviction for uttering threats against a correctional officer. Before trial, Mr. McPherson brought a Rowbotham application. That is, he sought an order conditionally staying the indictment until he was provided with state funded counsel. The Honourable Justice Denise Boudreau dismissed the application. Her oral reasons were released to the parties in writing on October 17, 2017, but are unreported.

I will refer to them later. [ 30 ] Mr. McPherson stood his trial before the Honourable Justice Felix Cacchione with a jury. It was a simple trial. The Crown called four witnesses. All were correctional officers at the Central Nova Scotia Correctional Facility where the appellant was on remand. Circumstantial evidence demonstrated that the appellant wrote dozens of threatening messages on the cell walls to cause death or bodily harm to one of the correctional officers, Rachel Critchley. [ 31 ] Mr. McPherson cross-examined each witness.

At the end of the Crown’s case, he delivered an opening statement to the jury, and then testified. He was given remarkable leeway to present his case. [ 32 ] He reiterated his recurring theme that he is the victim of a conspiracy to cover up a child pornography ring. He says that he saw pictures of naked children on his mother’s computer which led him to discover that her husband was part of a child pornography group. [ 33 ] With respect to the specific allegation, Mr. McPherson admitted that he wrote “things” on the cell walls, but that he did not mean to be offensive or intimidate.

Amongst other things, he testified: … I don’t want to sound like I’m not taking responsibility. So I have done some -- I have-- I have made some statements that definitely objectively sounded threatening,… … MR. MACPHERSON: Right. Okay. Yeah. So -- okay. So things that I did write -- I mean there’s a lot of stuff that I didn’t write and I don’t want to be taking heat for the stuff that I didn’t write, but some things I did write, and the intention was not to intimidate, and I was pretty surprised actually that the -- that a guard actually was reading it. [ 34 ] After giving evidence, he made submissions.

He argued that Ms. Critchley’s evidence was not credible, and the writings on the cell walls were not all his. And in any event, he did not intend to threaten Ms. Critchley: Like, I’ve admitted, I write on cell walls. I don’t write things on a cell wall to be taken seriously by someone and to be intimidating. You know, like, that’s not really an effective way to be intimidating.

Like, “Oh, I’m going to be so intimidating so I’m going to go write something in a cell, in the corner of a cell or on the wall of a cell.” That just doesn’t make any sense, you know, like, and it’s probably why nobody’s ever been charged with that because how can you make the conclusion that someone’s intending to be intimidating by writing something on a wall somewhere that nobody takes seriously, and certainly nobody looks at it, because, if they looked at it, they would have been doing their inspections like they’re supposed to. … And for me specifically, I don’t intend to offend people.

I don’t intend to, you know, to do that. Like, the things that I write are to try

and make sure that I vent in a proper way that isn’t going to be directed at anyone. And so usually that’s on paper and, when I don’t have paper, you know, I write stuff on the wall. Sometimes -- a lot of times I scribble it out. And it’s just not intended to be intimidating.

Actually furthermore, with regards to evidence of my intentions with -- as we saw, I’ve actually changed my behaviour with regards to writing on walls since then, since I have realized that someone might see it, because previously it seemed pretty unlikely that anyone would even read it, but since then I have changed my behaviour and don’t even -- I don’t even write on the walls anymore and I actually scratch stuff out that looks like it, you know, might be offensive. [ 35 ] On January 11, 2018, the jury found Mr. McPherson guilty as charged. He filed a Notice of Appeal on January 25, 2018.

His grounds of appeal were: 1. I was improperly denied counsel and the trial was unfair as a result, particularly because of my neurological disability which makes it physically impossible for me to process information in the trial setting. In particular I failed to process significant portions of the proceedings some of which included crucial misleading testimony that should and would have been corrected in cross-examination if I had actually perceived the information.

I missed many important details because I have untreated ADHD and so I was the only person in the room who didn’t get to hear the whole trial even though I was the only person who should have had a right to hear the whole thing. That is brutally unfair. 2. The judge’s instructions to the jury and

summary of the evidence were misleading and biased and contained important errors which affected the outcome adverse to the interests of justice, also certain important things were not mentioned such as the fact that the benefit of the doubt must go to the defendant. 3.

The Crown witnesses kept saying highly prejudicial things which is not fair to begin with, and because I’m not a lawyer I didn’t know if and/or when I should object especially since I was chastised for interrupting, then I felt like I needed to testify in order to counter all of this prejudicial information that was introduced and that probably seriously harmed the case, and I’m autistic so discrimination plays a significant role when I try to talk to people. [ 36 ] On February 20, 2018, Justice Cacchione sentenced the appellant to six months’ incarceration, consecutive to any sentence being served, followed by two years’ probation with conditions. [ 37 ] Mr.

McPherson applied for counsel with Nova Scotia Legal Aid. A merits assessment triggered a denial. He appealed. It was rejected. [ 38 ] Mr. McPherson wanted to file an amended Notice of Appeal to include an application for leave to appeal sentence. The Crown was not opposed. I issued an order on December 19, 2018 to amend the Notice of Appeal. The Amended Notice of Appeal adds this complaint: 4. The sentence is illegal. Probation cannot be applied to a person serving a federal sentence. THE S. 684 APPLICATION [ 39 ] Originally, the appellant’s s. 684 application was to be heard on December 19, 2018. Mr.

McPherson filed his Motion, but no affidavit. I will refer later to the content of his Motion. The Attorney General filed his brief and authorities. [ 40 ] The application was adjourned at Mr. McPherson’s request to January 23, 2019, for him to file further materials. On January 23, 2019, I adjourned the application without day, again at his request.

He explained that he was being transferred from Dorchester to the Shepody Healing Centre and he needed more time to access the library as he planned to make submissions that the burden on s. 684 applications must be reversed where the applicant has mental health issues. That is, counsel appointment should be automatic subject to the Crown establishing counsel should not be appointed. [ 41 ] The s. 684 application was repeatedly rescheduled, principally to allow Mr. McPherson the opportunity to obtain affidavits from his mental health professionals about his need to have counsel. [ 42 ] Eventually, Mr.

McPherson filed a new Motion on June 11, 2019, along with his affidavit sworn June 5, 2019. Attached to his affidavit are letters from health professionals about his ability to represent himself in court. One letter is from Ms. Fortin, dated May 31, 2019. The other letter is from a psychiatrist Dr. Étienne Marquis, dated May 3, 2019. Last, there is a report authored by Dr. Julie Marchand dated April 1, 2019. [ 43 ] What is clear from these documents is that Mr. McPherson experiences behavioral difficulties.

He lashes out verbally and in writing against people who disagree with him or say things he does not care for. For example, in Dr. Marchand’s report, she traces the various diagnoses by different psychiatrists. She notes: In March 2018, the subject was assessed by Dr. Moses Alatishe, psychiatrist who diagnosed the subject with delusional disorder, poly substance abuse by history, personality disorder of cluster B traits. He treated the subject with Strattera and Abilify (5 mg PO AM) In July 2018: Dr. Étienne Marquis assessed the subject a second [sic ] (the patient threatened to kill Dr.

Alatishe for prescribing an antipsychotic medication, Abilify). According to Dr. Marquis, the subject felt he was in danger because of that prescription and decided to sue Dr. Alatishe and wrote the notes (death threats). … [ 44 ] Dr. Marchand repeats the appellant’s claim that the September 2011 accident was the result of him being the victim of involuntary intoxication. She refers to his story as being compatible with a high level of intellectual functioning and difficulties in relationships and social interactions. She refers to his coping mechanism as intellectualisation.

These persistent beliefs strongly interfere with his daily functioning, motivate him to write a lot of material, some of the writings being clear threats directed to others. …

[ 45 ] I have no information as to what prompted Dr. Marquis’s three paragraph letter of May 3, 2019. It is addressed to “Nova Scotia Court, To whom it may concern”. He informs that Mr. McPherson was transferred to the Shepody Healing Centre from Dorchester in January 2019 for “behavioral difficulties”. Dr. Marquis observes that Mr. McPherson “functions according to his own particular logic (para-logic)”. In his view, the past relationship between Mr. McPherson and the court system has been tense and complicated. The treatment team holds the opinion that Mr.

McPherson imperatively needs the service and support of a lawyer. He writes: The condition of Mr. MacPherson is related to an autism spectrum disorder. His emotional management, his capacity to relate to others and his ability to understand others and to make himself understood are severely deficient. Even if he appears very intelligent, his ability to communicate clearly with others is impaired. He functions according to his own particular logic (para-logic) which can be difficult to entirely grasp and understand. He appears to be rigid with a lacking capacity to adapt to changes.

He is suspicious and obsessional. The past relationship between Mr. MacPherson and the court system has been tense and complicated. It is the opinion of the treatment team at the Shepody Healing Centre that Mr. MacPherson is not in [sic] position (because of his mental disorder) to represent himself alone in court. He imperatively needs the service of and being supported by a lawyer. We hope that this concern will taken into consideration. [ 46 ] Ms. Fortin is a licensed psychologist. Her letter of May 31, 2019 is also addressed to Nova Scotia Court. It almost three pages long.

I will refer to the more salient passages. Some of her information appears general in nature, while at other times, specific to Mr. McPherson. She writes: Mr. MacPherson is a highly intelligent man with a complex and unique presentation. As confirmed by the latest diagnostic assessment (Dr. Marchand, March 2019) he meets the criteria for Autism Spectrum Disorder. In short Autism is a complex neurodevelopmental disability that affects every individual to a differing degree. People with autism generally have difficulties in communication and social understanding.

They may also have unusual reactions to sensory input, and may demonstrate what appears to be inappropriate behaviours. More specifically, Mr. MacPherson is considered to be at the higher end of the Autism Spectrum (also commonly known as Asperger’s Syndrome). Despite demonstrating normal or above average language skills, individuals with Asperger’s will show significant problems in social skills in particular. Deficits in social judgment and social interactions frequently cause serious relationship problems.

They are often blunt, self-centered, unfiltered and rigid; they are frequently perceived as oppositional, rude and stubborn. An easily activated sense of injustice is frequently observed. … [ 47 ] Ms. Fortin echoes the views of Dr. Marquis that the appellant functions according to his own para-logic: As described by Dr. Marquis, he [Mr. McPherson] functions according to his own particular logic (para-logic) which can be difficult to entirely grasp and understand. He sometimes uses exaggeration to make his concerns stand out; threats to coerce an emotional reaction; and persistence to ensure he isn’t forgotten.

Although his form of communication appears random and confused (particularly on paper), his intentions are in fact strategic and purposeful. In short, Mr. MacPherson is motivated by fear (the threat of being harmed), powerless (the feeling of being ignored), and injustice (the belief that his rights are being violated). When he is afraid, ignored or violated, he will have a hard time to respond to logical positions. It is also important to note that Mr. MacPherson has chronic difficulties making accurate assumptions about the intentions of others. [ 48 ] Ms. Fortin sums up her views that is imperative that Mr.

McPherson should not represent himself alone in court: People with ASD [Autism Spectrum Disorder] respond and perform neurologically inconsistently depending on emotional state, familiarity with the people and situation and various sensory experiences. Although he shows a great understanding of the legal jargon and proceedings, judicial processes (and their outcomes) are generally highly stressful for Mr. MacPherson, especially when he is directly involved. As outlined above, Mr. MacPherson is NOT in a fair position to represent himself in legal proceedings due to his mental health condition.

The rationale for this opinion can be summarized by the following three points: 1- He experiences significant difficulties in social communication and executive functions; 2- He experiences heightened anxiety and distress about his involvement in judicial processes; 3- Which results in decreased cognitive ability when experiencing heightened anxiety or frustration (which means that he cannot think clearly throughout the process). The past relationship between Mr. MacPherson and the court system has been tense and complicated. It is the opinion of the treatment team at the Shepody Healing Centre that Mr.

MacPherson is not in a position (because of his mental health condition) to represent himself alone in court. He imperatively needs the service and being supported by a lawyer. It is also recommended that the lawyer appointed to Mr. MacPherson has a basic knowledge about Autism Spectrum Disorder and is sensitive to the issue. We hope that this concern will be taken into consideration. [Emphasis in original] APPLICATION OF THE PRINCIPLES [ 49 ] The Attorney General concedes that the appellant does not have the financial means to hire a lawyer.

Nova Scotia Legal Aid did not turn down the appellant’s request for a lawyer on financial grounds; it concluded his appeal lacked merit. [ 50 ] I am by no means bound by nor influenced by Legal Aid’s determination that Mr. McPherson’s appeal failed their merits

assessment. [51] Mr. McPherson’s December 5, 2018 Motion materials addressed the s. 684 criteria. He wrote: Lawyer Appointment Criteria A. Cannot afford counsel B. Have exhausted all avenues to get Legal Aid C. Merits of the appeal D. Complexities of the appeal E. Education and training / Capacity [52] After correctly noting that criterion A and B had been accepted by the Court, he said this about the merits: Criterion C The merits of the appeal are extremely high. I have a disability which makes it IMPOSSIBLE to participate in the court process in the way that every non-disabled citizen is entitledto.

As a self-represented litigant, it is impossible to get a fair trial. The FACT that certain people can be denied access to a fair trial because of a disability is one which is highly politically charged. It cutsto the core of the fundamental principles of justice, and violates Canada’s Charter of Rights and Freedoms. [53] Mr. McPherson, over several pages, explained what he said was the nature of his disability. I won’t quote all of it.

It relates tohis delusion that he is the victim of a conspiracy, and his legal woes are the product of the Pedophile Internet Group’s State-sponsoredTorture and Rogue Assassination Program—for which the appellant has created the acronym PIGSTRAP. Two excerpts suffice: In September 2011, I was poisoned into unconsciousness by Michael Lamoureux, then driven somewhere by Jonas Bohn, where he putproperty from the Halifax Regional Police property seizure room into my vehicle, after which the vehicle was apparently crashed, and Iwas left for dead.

I regained consciousness to find all of my important bones and organs broken. Police arrested and charged me. I wasdenied access to a lawyer after I caught a few of them conspiring with crown and attorney general counsel to commit false prosecution. Ihave been locked up ever since. In trying to discover the motive for the attacks and subsequent ones which have occurred, I learned thatbecause I witnessed the fact that my father is involved with organized crime in numerous child pornography groups on the internet, Ihave been targeted for murder. Authorities refused to do anything because of my disability.

I now call this the Pedophile InternetGroup’s State-sponsored Torture and Rogue Assassination Program, PIGSTRAP. While incarcerated, I was put in solitary confinement for the first 2 years because of my injuries. I was denied medical treatmentbecause of my disability. I sustained aggravated brain damage during the solitary confinement which has made my PTSD and ADHDmuch worse, making the communication disability far worse than it was.

As a result of that, I have been misinterpreted regularly andcharged all the while I am just trying to prevent PIGSTRAP murder. […] My mother and the organized crime child molester she’s married to (my father) who is trying to kill me have been grooming authoritiesfor years to believe that I am Satan, and to accept that when I am attacked, that I am somehow the perpetrator. Every time I survive amurder, I am thrown in jail and the police o to great lengths to try to find something to charge me with.

Every time I complain aboutbeing tortured or murdered, the police go to great lengths to try to find something to charge me with. Every time I ask to speak to alawyer, the evil PIGSTRAP suspect, Glenn Anderson spends millions of taxpayer’s dollars to stalk me and fight tooth and nail toprohibit me from being able to speak to a lawyer.

Lonny Queripel goes around telling all the lawyers to not represent me, telling all theLegal Aid staff to hang up the phone if they suspect it is me, and conspiring in what is probably both discrimination against my disabilityand PIGSTRAP participation. [54] As to the merits of his appeal, his June 11, 2019 Motion materials reference Dr. Marquis’s opinion, and then says: 2. Since I was denied a lawyer at trial, the trial was therefore unfair, and the appeal therefore has merit. [55] This assertion mirrors his first ground of appeal, which for convenience I reproduce: 1.

I was improperly denied counsel and the trial was unfair as a result. … [56] Simply because an accused does not have a lawyer does not equate to an unfair trial. In Canada, there is no common law orCharter based right to state funded counsel at trial. On the other hand, if counsel is essential to a fair trial, and the accused cannot obtainlegal assistance from Legal Aid or otherwise, a trial judge has the power to stay the proceedings until such time as the state providesfunding for counsel. This principle was set out by the unanimous Ontario Court of Appeal in R. v.

Rowbotham (1988), (ON CA), 41 C.C.C. (3d) 1: To sum up: where the trial judge finds that representation of an accused by counsel is essential to a fair trial, the accused, as previouslyindicated, has a constitutional right to be provided with counsel at the expense of the state if he or she lacks the means to employ one.Where the trial judge is satisfied that an accused lacks the means to employ counsel, and that counsel is necessary to ensure a fair trialfor the accused, a stay of the proceedings until funded counsel is provided is an appropriate remedy under s. 24(1) of the Charter where

the prosecution insists on proceeding with the trial in breach of the accused’s Charter right to a fair trial. It is unnecessary in this case to decide whether the trial judge in those circumstances would also be empowered to direct that Legal Aid or the appropriate Attorney- General pay the fees of counsel. (p. 70) [ 57 ] Mr. McPherson brought a Rowbotham application. A judge must, of course, conduct an adequate inquiry (see R. v. Keating (1997), 159 N.S.R. (2d) 347).

The inquiry concerns two issues: could the accused not receive a fair trial without counsel; and, if so, has he exhausted all possible routes to obtain counsel ( R. v. Keating at para. 12). [ 58 ] Justice Denise Boudreau heard the appellant’s Rowbotham application on September 5, 2017 and delivered oral reasons. Justice Boudreau referenced the correct legal principles: [6] I start with the principle, again well established in the caselaw, that representation by counsel is not necessarily required for a fair trial. There is no unqualified right to publicly funded counsel by all accused.

In order to be successful at a Rowbotham application, an applicant must show essentially two things to the satisfaction of the court. First, that he cannot have a fair trial without counsel being appointed; second, that he has exhausted all routes to get counsel, either through Legal Aid or through private means. [ 59 ] Justice Boudreau looked at the seriousness of the charge and the complexity of the pending trial.

She noted there were no experts—the issues were not legally complex, and mainly fact driven. [ 60 ] With respect to the appellant’s capacity to represent himself, Justice Boudreau made clear findings of fact: [11] Mr. MacPherson clearly understands what he is charged with. He has also, in his evidence, unprompted, generally expressed what his defence is. Mr. MacPherson feels he was the victim, not the perpetrator, of whatever took place on the date and time in question. Those circumstances are not complex, at least from a legal perspective. [12] The caselaw also requires that I consider Mr.

MacPherson’s ability to answer these charges on his own. What is clear to me, having heard from Mr. MacPherson today for a number of hours, is that Mr. MacPherson is a very articulate person. Mr. MacPherson advises that he feels he gets distracted and upset when faced with certain matters, and that may be the case. However, Mr. MacPherson is clearly a very intelligent and a very articulate person. Mr. MacPherson knows the system very well. He is involved in many court matters, both civil and criminal. Mr. MacPherson described researching caselaw. Mr.

MacPherson recently undertook his own defence in a criminal jury trial. He conducted cross-examination of witnesses. He conducted cross-examination of experts. He made submission to the jury in that particular case. Mr. MacPherson had previous employment, I understand, as a consultant. He has described to me extensive computer knowledge. He has described to me that he holds a Bachelor’s Degree from Waterloo in math. [ 61 ] She concluded: [13] Mr. MacPherson clearly communicates very well both orally and in writing. I have no doubt that he will be able to continue to communicate his thoughts very well.

Of course, that will be with the assistance of a judge at trial. [14] I have considered all of the issues in this particular case. In relation to the first branch of the Rowbotham test, I find that Mr. MacPherson has not satisfied me that he cannot receive a fair trial without counsel in this particular matter. On that basis, I dismiss the application. [ 62 ] Importantly, Justice Boudreau also found that the appellant failed to establish that he had exhausted all avenues to obtain counsel: [16] The evidence shows that Mr.

MacPherson has had a number of lawyers come forward to represent him, and all those lawyers have been rejected by Mr. MacPherson. He tells us that he has fired only one. A number of other Legal Aid and private lawyers have come forward to represent him, and they all became unsatisfactory to Mr. MacPherson because none of them were doing what Mr. MacPherson wanted them to do. [17] It also seems clear that counsel have approached Mr. MacPherson to represent him and Mr. MacPherson has chosen to not pursue representation by these people. I have few details with respect to these events.

I note all of the names that were put forward are very experienced criminal lawyers. All of those people were unsatisfactory to Mr. MacPherson, because Mr. MacPherson has developed certain beliefs about their motives. That is most unfortunate. [18] Every lawyer who did represent, or might have represented, Mr. MacPherson has had the same problem rear its head. Having heard the evidence today, I must say that I fear that perhaps no lawyer would please Mr. MacPherson. Mr. MacPherson has certain beliefs about what is happening, which cause him to react to advice in unhelpful ways. … [20] Having said that, it is Mr.

MacPherson’s burden to show me that he has exhausted all avenues to obtain counsel. In my view, he has many deficiencies in meeting that part of the test as well. [ 63 ] I see no arguable issue that the appellant was improperly denied counsel. I have read the entire trial record. There no basis to suggest that Mr. McPherson had an unfair trial.

He: successfully compelled disclosure of records; negotiated An Agreed Statement of Facts to further his theory of the case; effectively cross-examined the Crown witnesses, including the use of prior inconsistent statements; made an appropriate opening statement; testified at length; and, made an appropriate closing argument. [ 64 ] Mr. McPherson has had the Appeal Book for over a year. He has not identified any misleading testimony or important details he says he missed due to his untreated ADHD.

[ 65 ] Courts of appeal are always concerned any conviction should not be tainted by a flawed or unfair trial. No aspect of this trial causes even a hint of apprehension. [ 66 ] Mr. McPherson’s remaining grounds of appeal fail to reveal an arguable issue. Ground 2 is: 2. The judge’s instructions to the jury and

summary of the evidence were misleading and biased and contained important errors which affected the outcome adverse to the interests of justice, also certain important things were not mentioned such as the fact that the benefit of the doubt must go to the defendant. [ 67 ] The appellant was asked to demonstrate an arguable issue from his grounds of appeal. He did not. I have read the trial judge’s instructions to the jury. There is nothing in them that is arguably misleading or erroneous. As to not directing the jury about the benefit of the doubt, the suggestion is without foundation.

Justice Cacchione clearly instructed the jury about the presumption of innocence and the burden on the Crown to prove its case beyond a reasonable doubt. If it did not, the jury had a duty to acquit: Should the evidence which you have heard leave you, as a responsible juror, with some lingering or nagging doubt with respect to the proof of some essential element of the offence charged so that you are unable to say to yourself that the Crown has proven the guilt of the accused in respect of that offence beyond a reasonable doubt, then your duty is to find the accused not guilty in respect of that offence….

And later: As I stated to you previously, it is not for the accused to prove that these events never occurred. If you have a reasonable doubt whether the events alleged ever took place, you must find the accused not guilty. You do not decide whether something happened by simply comparing one version of events with another and choosing one of them. You must consider all of the evidence and decide whether you have been satisfied beyond a reasonable doubt that the events which form the basis of the offence charged, in fact, took place.

When assessing the issue of credibility as it relates to the accused, I direct you as a matter of law that you must use the following instruction: If you believe the evidence of Mr. MacPherson, you must acquit. If you do not believe the evidence of Mr. MacPherson but you are left in a state of reasonable doubt by that evidence, you must acquit. If you do not believe the evidence of Mr.

MacPherson and his evidence does not leave you in a state of reasonable doubt, you must consider whether, on the basis of the evidence you do accept, that you are convinced beyond a reasonable doubt of the guilt of the accused. [ 68 ] The appellant’s third ground of appeal is: 3.

The Crown witnesses kept saying highly prejudicial things which is not fair to begin with, and because I’m not a lawyer I didn’t know if and/or when I should object especially since I was chastised for interrupting, then I felt like I needed to testify in order to counter all of this prejudicial information that was introduced and that probably seriously harmed the case, and I’m autistic so discrimination plays a significant role when I try to talk to people. [ 69 ] Mr.

McPherson points to nothing in the record to substantiate his suggestion that Crown witnesses said prejudicial things, nor that he was ever chastised for interrupting. It was the appellant’s decision to testify. No legal error or trial fairness concerns are apparent. [ 70 ] Lastly, the appellant puts forward: 4. The sentence is illegal. Probation cannot be applied to a person serving a federal sentence. [ 71 ] At one time, there was disagreement among some provincial courts of appeal about the meaning of s. 731(1) of the Criminal Code . This

section gives a court the power to place an offender on probation. It precludes probation if the court sentences the offender to imprisonment exceeding two years. The controversy ended with the decision of the Supreme Court of Canada in R. v. Knott , 2012 SCC 42 . [ 72 ] Section 731(1) of the Criminal Code provides: 731

(1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, (

a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order; or (

b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order. [ 73 ] Fish J. wrote the unanimous reasons for judgment. He concluded that the restriction on probation only applies to the sentence of imprisonment being imposed by the court, not by reference to other sentences imposed by other courts. He explained the controversy in how to interpret s. 731 and clearly disposed of it: 32 The Crown submits that the phrase “imprisonment for a term not exceeding two years” in s. 731(1) (

b) relates only to the actual term of imprisonment imposed by a sentencing court at a single sitting. The appellants argue that “term” of imprisonment referred to in that provision is the aggregate of the custodial term imposed by the sentencing court and all other sentences then being served or later imposed on the offender. In my view, the Crown’s submission is correct and the appellants’ submission fails. 33 The ordinary meaning of s. 731(1)(

b) is perfectly clear: A probation order may not be made where the sentencing court imposes a

term of imprisonment exceeding two years. In determining whether two years has been exceeded, one looks at the term of imprisonment ordered by the sentencing court on that occasion - not at other sentences imposed by other courts on other occasions for other matters. 34 Section 731(1)(

b) admits of no ambiguity in this regard. The opening words of s. 731(1) read: “Where a person is convicted of an offence, a court may”. The provision authorizes that court to make a probation order, “in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years”.

On a plain reading of this provision, the phrase “imprisonment for a term not exceeding two years” refers to the sentence imposed by the court empowered by s. 731(1) to make the probation order. [Emphasis in original] [ 74 ] I am therefore not satisfied that there exists any issue of sufficient substance to be capable of convincing a panel of the Court to allow the appeal. An appeal devoid of merit will not be helped by the appointment of counsel. It is not in the interests of justice to appoint counsel for Mr. McPherson on this appeal. [ 75 ] That is sufficient to dispose of Mr. McPherson’s application.

However, given the forceful language in the letters from Dr. Marquis and Ms. Fortin, I will explain why, apart from the appeal having no merit, it is not in the interests of justice to appoint counsel for Mr. McPherson on this appeal. [ 76 ] Both Dr. Marquis and Ms. Fortin refer to Mr. McPherson’s own para-logic. Something that is paralogical is fallacious or illogical. Counsel would have an ethical duty not to advance arguments to this or any court that are based on “para-logic”. This explains the comments and findings by Justice Boudreau earlier quoted about Mr.

McPherson’s inability to accept counsel. [ 77 ] Not only does Mr. McPherson not accept the advice of counsel, he lashes out by commencing lawsuits against them. At the same time I heard this application, I heard Mr. McPherson’s motion for permission to use a transcript in a civil case (CA 476298). Mr. McPherson sued the Attorney General of Nova Scotia who moved to dismiss his action as an abuse of process and for a permanent injunction from filing any civil process against the Attorney General or any employee thereof.

Part of the record demonstrates his lawsuits against no less than eight lawyers in private practice or from Nova Scotia Legal Aid who represented or provided advice to Mr. McPherson. [ 78 ] Mr. McPherson’s argument about why counsel should be appointed demonstrates his goal to obtain counsel to pursue his paralogical beliefs that he is the victim of a conspiracy. He writes in his Motion materials of June 11, 2019: 7. The proof is all still siting in plain view, realizable by inquiry and will be inevitably perceived one day. The longer it takes, the more damage will be done to public perception of jurisprudence.

I keep imploring all authority to heed the call of justice and solve the GLITCH and the MOGAXL, but keep getting deterred from blowing the whistle, and actually criminally charged for even attempting to report crimes committed by authority figures. Denial of counsel is crucial to prolonging these injustices, and to facilitate the homicide campaign which is still in progress. 8. Assignment of diversiphobic counsel and/or ulterior motivated adverse counsel has occurred previously and has been rightly not tolerated by the applicant. 9.

There exists a widespread Legal Aid conspiracy of assignment of adverse counsel which has been witnessed and endured by the applicant. As retribution for applicant’s discovery of this and to silence the applicant, he has been denied all access to any form of counsel, even duty counsel to advise him upon arrest or detention. Legal Aid employees have been instructed to hang up the phone on the applicant if he tries to phone their offices. This has never occurred in Nova Scotia’s history.

Nor has Legal Aid ever made the mistake of carrying out this particular conspiracy against an actual whistleblowing journalist, until now. [ 79 ] To enlighten the reader, the acronyms GLITCH and MOGAXL stand for: the Gravest Legal Injustice Throughout Canadian History; and the Multiple Organized Group Accidental Xenophobic Lethality. [ 80 ] After referring to conspiratorial conduct by members of Correctional Services Canada to harm him, he closes his submission with these paragraphs: 19.

Tim Morse at the Law Courts prothonotary office, under the direction of Jamie Campbell has been intentionally misdirecting court documents, tearing apart and diverting affidavit evidence, and blocking my rights to a hearing under Criminal Code

section 732.2(3) to vary a probation order to ensure my safety, as well as any and all applications related to my attempts to prevent the murder of myself. This has been going on for years now. Documents have been stolen by Jamie Campbell at the courthouse since at least 2014. 20. Without counsel or a translator to be my voice and communicate these issues , it may be that the fail-safe which activates upon my death might be the only way these issues come to light.

By then, each of these named perpetrators and other authority figures who are documented in other locations will be guilty of a successful 1 st degree homicide, rather than simply the attempted homicide which they are currently guilty of. [Emphasis added] [ 81 ] It is clearly not in the interests of justice to appoint counsel to be, as Mr. McPherson may hope, his voice to communicate “these issues” in relation to this appeal. Furthermore, I am not at liberty to appoint counsel for Mr.

McPherson to act as a filter or conduit to communicate, what he says are his safety concerns, (based on his conspiracy theories) to the authorities so as to avoid disciplinary repercussions or criminal charges. [ 82 ] Lastly, Ms. Fortin relies on three points to substantiate her view that it is imperative that Mr. McPherson have the services and support of a lawyer. I have quoted them earlier. They are: Mr. McPherson’s difficulties in social communication and executive functions; his heightened anxiety with judicial processes; and, decreased cognition under heightened anxiety.

[ 83 ] With respect to executive functioning, Ms. Fortin explains: Particular [ sic ] relevant to the matter of this letter, individuals on the autism spectrum usually demonstrate deficits in executive functioning . Executive functioning is typically considered to be the ability to grasp a problem and come up with appropriate, feasible and realistic solutions.

For an individual on the spectrum, it may include difficulties with planning, organizing time, initiating tasks, inhibiting responses, problem-solving, prioritizing, sustaining focus, completing assignments, obeying social rules and monitoring behaviour, use effective judgment and organizing thoughts. [Emphasis in original] [ 84 ] I certainly accept that Mr. McPherson may experience some heightened anxiety with judicial processes. That is entirely normal.

I do not accept that the impact of ASD on his executive functioning presents an insurmountable impediment to representing himself on this or any appeal. [ 85 ] Apparently unknown to Ms. Fortin, Mr. McPherson has twice undertaken the numerous steps necessary to prepare and use a transcript of court proceedings. He obtained the CDs, painstakingly listened to them, and produced the transcripts. On two separate occasions, he brought Motions under Civil Procedure Rule 92.29(5) to excuse compliance with the requirement for a certified court reporter to prepare a transcript for inclusion in an Appeal Book.

He argued the motions successfully. This demonstrates the appropriate executive functioning to represent himself. [ 86 ] While Mr. McPherson may not always be successful in his motions and arguments, he has demonstrated the ability, when he wants, to file materials and address the relevant legal issues. [ 87 ] While I laud Ms. Fortin and Dr. Marquis for their support of Mr.

McPherson and concern about his interaction with the judicial system, it is clearly not in the interests of justice, as that term is defined, for counsel to be appointed under s. 684 of the Criminal Code on this appeal. [ 88 ] The application is dismissed. Arrangements will be made forthwith to set the appeal down for hearing. Beveridge, J.A.