R. v. Marr, 2021 NSCA 17

Nova Scotia Court of Appeal Citation: R. v. Marr, 2021 NSCA 17 Date: 20210219 Docket: CAC 495037 Registry: Halifax Between: Jolene Holly Marr and Frances Eileen Bignell Appellants v. Her Majesty the Queen Respondent Judges: Beveridge, Bryson and Bourgeois, JJ.A.Appeal Heard: February 2, 2021, in Halifax, Nova ScotiaHeld: Leave to appeal is denied per reasons for judgment of the CourtCounsel: Richard W. Norman, for the appellant Frances Bignell Sarah A. Shiels, for the appellant Jolene Marr Mark J.

Covan, for the respondent Reasons for judgment (by the Court): [1] The appellants are Jolene Holly Marr and Frances Eileen Bignell. They are members of the Sipekne’katik Band. [2] The appellants are charged with various fishing related offences for over-fishing lobster on two occasions, in contravention ofthe Aboriginal Communal Fishing Licenses Regulations. Ms. Marr is also charged with obstruction of a fishery officer on one of thoseoccasions. [3] The appellants could not afford legal counsel. Legal Aid would not provide representation for a trial.

Pursuant to the seminaldecision of the Ontario Court of Appeal in R. v. Rowbotham (1988), (ON CA), 25 O.A.C. 321, the appellants applied toa judge of the Provincial Court for a stay of the charges until counsel were provided to them at state expense. [4] A Provincial Court judge found the Crown’s case the appellants had to meet at trial to be neither complex nor serious in termsof consequences. The appellants argued to the trial judge that they had a constitutional right to fish pursuant to their Treaty andAboriginal rights. These defences would not only be complex, but would require expert evidence.

Hence, they would require theassistance of state-funded counsel to advance their potential defence. [5] Apart from a sincerely held belief, they did not give any indication of the basis for their alleged rights; nor were they able torefer to any supportive caselaw. The Sipekne’katik Band did not support the appellants’ constitutional challenge. [6] Nonetheless, the Provincial Court judge, in an unreported oral decision, found the appellants had met their burden to show thatcounsel was essential for the conduct of a fair trial.

She stayed the charges until such time as the state-funded counsel for them. [7] The Crown appealed the Provincial Court decision to the

Summary Conviction Appeal Court (SCAC). The HonourableJustice Ann E.

Smith allowed the appeal, in essence because the Provincial Court judge erred in her application of the mandatedanalytical framework (2019 NSSC 327). [8] Despite having the benefit of counsel before the Provincial Court and the SCAC, Justice Smith concluded that the appellantshad not identified any viable defences that were factually or legally relevant to the charges, beyond a bare assertion they had anAboriginal or Treaty right to fish unhindered by regulation: [55] In this case, there has been no indication of the substance of the defence, only a bare assertion of an Aboriginal or treaty right.

As inBartibogue, there is no indication of how the Respondents' Aboriginal or treaty rights are allegedly violated by the charges, despite bothRespondents having counsel for the Rowbotham application.

[56] I find that, in these circumstances, it is impossible to say that there is a proposed defence that is factually and legally relevant to the charges. [ 9 ] Contrary to the appellants’ proposed arguments before us, the SCAC judge did not require specific evidence on all of the essential elements of their potential defence. Her reasons make this clear: [69] This Court notes that the Respondents’ counsel stated in oral argument that they were on limited retainers and had no funding for expert consultation.

Contrary to their submissions, however, I do not believe that showing “legal and factual relevance” of a defence necessarily requires an accused to lead evidence to establish all elements of the defence ahead of trial. But it similarly cannot be satisfied by a mere suggestion that there might be some as yet undefined defence, with no specific legal theory offered to support it.

The court on a Rowbotham application cannot simply assume that an Aboriginal person charged with a fisheries offence might have a treaty or Aboriginal rights defence as a basis to order state-funded counsel. [70] Counsel also suggested that the Respondents’ right to silence would be violated if they were required to disclose details of a proposed defence. But this leads to a circular argument.

If an accused need only claim to have a complex defence, without disclosing what it consists of, the Court would have no way to assess the seriousness or complexity of the proposed defence. [ 10 ] The SCAC judge observed that the respondents in that Court had not advanced argument as why the broad principles in the United Nations Declaration on the Rights of Indigenous Peoples and the International Covenant on Economic, Social, and Cultural Rights were relevant on a Rowbotham application.

She was unconvinced of any direct relevance (para. 76). [ 11 ] The SCAC concluded: [84] I therefore conclude that the trial judge erred in finding that this matter was sufficiently serious and complex that state-funded counsel was required. I am not persuaded that there was a basis to find that the proposed defence was factually and legally relevant to the charges. In any event, as the Court held in Caron , I cannot conclude that it is sufficient simply to assert a complex constitutional defence where the charge itself is not serious.

As such I am unable to conclude that the Respondents’ fair trial rights will be contravened by going to trial without counsel. [ 12 ] Pursuant to s. 839 of the Criminal Code , Ms. Marr and Ms. Bignell now seek leave to appeal Justice Smith’s decision and if granted, appeal her decision, alleging: 1. The learned

summary conviction appeal judge erred by determining that a regulatory offence could not be "serious" enough to require the court to order state-funded counsel pursuant to a Rowbotham order; 2. The learned

summary conviction appeal judge erred by determining that the Appellants had not presented evidence that their potential defence was legally or factually relevant to the charges; 3. The learned

summary conviction appeal judge erred by determining that requiring a Rowbotham order applicant to provide detailed evidence of their potential defence in advance of trial did not engage the Appellants' constitutionally protected right to silence; 4. The learned

summary conviction appeal judge erred by determining that the test for Rowbotham order requires a joint consideration of rights protected by s. 7 and 11(

d) of the Charter of Rights and Freedoms , and that a potential breach of both must be made out by an applicant. 5. The learned

summary conviction appeal judge erred by failing to consider the United Nations Declaration of the Rights of Indigenous People ("UNDRIP"). [ 13 ]

Section 839 appeals are limited to questions of law alone, and only with leave of the Court. Leave to appeal is not routinely granted. The parties agreed the principles that guide the exercise of the Court’s discretion to grant leave are set out in R. v. Pottie , 2013 NSCA 68 : [21] The Crown, in its factum, has accurately summarized the principles that have emerged from the case law to guide provincial appellate courts when deciding whether to grant leave to appeal from a SCAC decision. They are: 1. Leave to appeal should be granted sparingly. A second appeal in

summary conviction cases should be the exception and not the rule. [see R.R. at ¶25 and ¶37; R. v. Chatur , 2012 BCCA 163 at ¶18; R. v. Paterson , 2009 ONCA 331 at ¶1] 2. Leave to appeal should be limited to those cases in which the appellant can demonstrate exceptional circumstances that justify a further appeal. [see R.R. , ¶27; R. v. Dickson , 2012 MBCA 2 , ¶14; R. v. M. (R.W.) , 2011 MBCA 74 , ¶32] 3. Appeals involving well-settled areas of law will not raise issues that have significance to the administration of justice beyond a particular case. [see R. v. Zaky , 2010 ABCA 95 at ¶10; R. v. Im , 2009 ONCA 101 at ¶17; R. v. Hengeveld , 2010 ONCA 60 at ¶5; R.

R) at ¶31] 4. If the appeal does not raise an issue significant to the administration of justice, an appeal that is merely “arguable” on its merits should not be granted leave to appeal. Leave to appeal should only be granted where there appears to be a clear error by the SCAC. [see M.(R.W.) at ¶37; R.R. at ¶32] 5. A second level of appeal is an appeal of the SCAC justice. It is to see if he or she made an error of law. The second level of appeal is not meant to be a second appeal of the provincial court decision. [see R.R. at ¶24; Chatur at ¶17] 6.

The fitness or leniency of a sentence is a factor a provincial appellate court can consider when deciding whether to grant leave. [see Chatur at ¶19; Im at ¶22]

[ 14 ] In R. v. Hweld , 2020 NSCA 36 , this Court noted a more nuanced approach may be appropriate where it is the accused who wishes to pursue their first appeal—that is, it is not the appellant’s second appeal. It is a contextual factor, but is not determinative when applying the Pottie principles. [ 15 ] Having reviewed the record and considered the written and oral submissions of counsel, we are unanimously of the view that the putative errors attributed to Justice Smith are without foundation. [ 16 ] Accordingly, leave to appeal is denied. Beveridge, J.A. Bryson, J.A. Bourgeois, J.A.