R. v. A.B.C., 2023 NSCA 39

Nova Scotia Court of Appeal Citation: R. v. A.B.C. , 2023 NSCA 39 Date: 20230526 Docket: CAC 503172 Registry: Halifax Between: A.B.C. Appellant v. His Majesty the King Respondent Restriction on Publication:

Section 486.4 and 486.5 of the Criminal Code of Canada Judge: Van den Eynden, Elizabeth, J.A. Motion Heard: May 3, 2023, in Halifax, Nova Scotia in Chambers and further written submissions on May 9 and 10, 2023 Written Decision: May 26, 2023 Held:

Section 684 motion for appointment of counsel under the Criminal Code is granted Counsel: The appellant (self-represented) Caitlin E. Menczel, for the AGNS Jennifer MacLellan, K.C. for the Respondent (watching brief) Criminal Code of Canada 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. Victim under 18 — other offences

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Decision: [ 1 ] The appellant brings a motion requesting counsel be appointed to assist him on appeal pursuant to s.684 (1) of the Criminal Code . [ 2 ] The appellant has filed a Notice of Appeal seeking to overturn his convictions for luring, invitation to sexual touching, and making sexually explicit material available to a child contrary to sections 171.l(l)(B) (2 counts) and 152 (1 count) of the Criminal Code . He was sentenced to 18 months in custody (deemed served) and 2 years' probation which he has also served, thus his liberty is not in continued jeopardy as to this appeal.

However, the appellant finds himself incarcerated again. At the time this motion was heard, he was on remand for other charges which apparently are set down for trial in January 2024. [ 3 ] The appellant applied to Nova Scotia Legal Aid (NSLA) for counsel to represent him on appeal. After conducting a merit assessment of his grounds of appeal, NSLA declined to provide counsel. The appellant appealed that decision to the NSLA Appeal Committee. His appeal was denied. [ 4 ] The appellant then brought this s.684 motion. The Criminal 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. [ 5 ] The appellant filed an affidavit in support of his motion and made oral submissions during the hearing.

The Attorney General of Nova Scotia (AGNS), who responds to these motions, filed pre-hearing written submissions respecting whether counsel ought to be appointed. Counsel for the AGNS also cross-examined the appellant and made oral submissions during the hearing. [ 6 ] In the course of the hearing the appellant provided further details of the difficulties he encountered when trying to access necessary resources to prepare for this motion and his appeal should he continue to be self-represented.

Following the hearing, I received supplemental submissions from both the AGNS and the appellant respecting the issue of the appellant’s ability to access sufficient resources while incarcerated such that he could adequately prepare for his pending appeal. [ 7 ] As well, the appellant advised that he anticipates seeking bail respecting the outstanding charges he faces. However, if granted bail he believes the bail conditions will restrict his movements, restrict his access to electronic devices and prohibit him from accessing the internet.

His point being, whether incarcerated or on bail, he will encounter serious challenges in accessing sufficient resources to properly prepare for and advance his appeal on his own behalf. [ 8 ] As required under s. 684(1) of the Criminal Code , I must consider: (1) whether it is desirable in the interests of justice that the appellant have legal assistance; and (2) whether he has sufficient means to obtain counsel.

The overall burden to establish these prerequisites is on the appellant. [ 9 ] I will summarize the parties’ respective positions when considering the requirements the appellant must meet, beginning with whether he has established insufficient means to retain private counsel. Does the appellant have sufficient means to retain his own counsel? [ 10 ] The appellant says the cost of defending himself in the court below left him destitute. [ 11 ] The Crown’s prosecution of the appellant for the above offences persisted through three jury trials. The same judge (Justice Gregory M. Warner) presided over each trial.

In the first trial the judge declared a mistrial due to significant evidentiary issues with the Crown’s expert witness which caused prejudice to the appellant. In the second trial a mistrial was also declared because the judge determined the jury was irretrievably deadlocked and unable to reach a unanimous verdict. [ 12 ] Between the second and third trial the appellant brought a motion requesting the charges against him be stayed. He was unsuccessful and his third jury trial got under way in July 2020.

In his last trial, which resulted in the convictions under appeal, ten days were devoted to a voir dire respecting the admissibility of evidence from the RCMP’s analysis of electronic devices and other information gathered during its investigation and another unsuccessful stay motion. The trial itself spanned over another 9 days. The

appellant was represented by counsel throughout and explained the financial impact in his affidavit: c. The cost of 3 trials over 100 court dates, etc. has destituted myself and my family financially. I owe over $450,000 in loan agreement value to my mother, … for the legal and life expenses during the court proceedings. We have eliminated all of our investments and savings. I have no access to funds for any lawyer or even for basic life expenses, especially since I am currently incarcerated and unemployed. … e. I have an older car a friend is using and no additional income or assets.

Car is severely damaged and near the point of just being used for parts. Also still owe for a car loan and all personal loans for living and legal expenses to my mother. [ 13 ] As noted, the appellant has served both the custodial and noncustodial phases of his sentence for the charges under appeal and now finds himself incarcerated again under remand. The trial date for his outstanding charges is apparently set for January 2024.

Being incarcerated negatively affects the appellant’s financial circumstances on an ongoing basis. [ 14 ] Counsel for the AGNS cross-examined the appellant on his financial circumstances and his efforts to secure private counsel for this appeal and concedes the appellant does not have the means to obtain legal assistance. [ 15 ] That concession is not surprising on this record.

I also note the appellant is represented by counsel under a legal aid certificate for his pending charges as he could not afford to retain private counsel. [ 16 ] I am satisfied the appellant does not have sufficient means to obtain private counsel to assist him with his appeal. I move on to consider whether it is in the interests of justice to provide him with state funded counsel. Is it in the interests of justice to appoint counsel for the appellant? [ 17 ] I am satisfied the interests of justice are served by the appointment of counsel to assist the appellant with his pending appeal.

In reaching this conclusion I considered whether: • The grounds of appeal have merit. • The complexity of the appeal. • The appellant’s ability to effectively present his appeal without the assistance of counsel. • The appeal panel’s ability to address the issues raised on appeal without the assistance of appellate counsel; and • The Crown’s duty to ensure the appellant is treated fairly by bringing important arguments to the attention of the panel notwithstanding this might benefit the appellant.

Merits/arguable issue [ 18 ] The Notice of Appeal sets out nine grounds of appeal which assert the judge: 1. [E]rred at law in finding that s. 276 of the Criminal Code prevented the Defence from questioning the Complainant about the Complainant's use of electronic messaging to request nude photographs from classmates. 2. [E]rred at law in determining that excluding the Crown's electronic evidence was an appropriate remedy to address concerns raised by the Defence over the fabrication of evidence by a Crown expert. 3. [E]rred at law in ruling that the Defence could not argue that the Crown had failed to introduce any electronic evidence relating to the identity of the Accused. 4. [E]rred at law and prejudiced the Defence in providing instructions to the jury wherein he referred to the test to be considered for charges of voyeurism and sexual assault, which charges were not before the jury. 5. [E]rred at law in his decision and determination that a stay was not an appropriate remedy having regard to the factors enumerated in R. v Keyowski, 1988 Carswell 273. 6. [E]rred at law when he encouraged the Crown to continue with the prosecution of its case, following his decision to exclude electronic evidence, and identified for the Crown, the circumstantial evidence it should present to the jury. 7. [E]rred at law in not granting a mistrial upon learning that the Supreme Court of Canada had released a decision wherein it confirmed that, the earlier removal of peremptory challenge was constitutional with regards to jury selection subsequent to the use of peremptory challenges in empanelling the jury. 8. [E]rred at law in refusing to grant a mistrial, in appropriate circumstances, until and unless the Defence agreed to waive its rights to file an application for a stay of proceedings should the mistrial be granted. 9. [E]erred at law in his decision and determination that a stay was not an appropriate remedy having regard to the factors enunciated in R v.

Keyowski, 1988 Carswell 273. [ 19 ] During the hearing of this motion the appellant abandoned his first ground of appeal. The remaining grounds 2 - 8 allege errors made by Justice Warner and ground 9 pertains to the unsuccessful stay motion between trial two and three which was determined by

Justice John Keith. [ 20 ] A panel of this Court will ultimately determine if the appellant’s grounds of appeal have merit. At this preliminary stage, it is not for me to conduct a searching examination. Rather, I consider whether the grounds are realistic or, put another way, at least have an opportunity to succeed ( R. v. MacLean , 2017 NSCA 86 , at para. 16 ). [ 21 ] The AGNS fairly observed that the written materials filed by the appellant in support of his motion do not expand on his grounds in any detail nor does he tie them to any specific references in the record.

That stated, the appellant explained he struggles to construct his legal arguments because he finds them complex, lacks any legal training and is having difficulty accessing legal resources while incarcerated to enhance his knowledge and prepare for his appeal. [ 22 ] During the hearing I asked the appellant to further explain the basis for his grounds of appeal. He was able to do so to some extent and also made references to the record that related to his grounds of appeal. [ 23 ] I am also mindful of the seriousness of the offences challenged on appeal. As the AGNS acknowledged: 96.

With respect to the seriousness of the charge, [the appellant’s] charges were indeed serious. Conviction for child luring and other offences akin to the sexual assault of a minor carry significant social stigma and will likely have an impact on [the appellant’s] life in the future. [ 24 ] As this Court observed in R. v. A.L. , 2022 NSCA 82 at para.15, “[w]here the charge is serious, there may be less emphasis on the merits. [ 25 ] I am satisfied that the appellant has met the threshold required in the “interests of justice” analysis – meaning he has raised at least one, if not several, arguable issues on appeal.

Is the appeal complex and can the appellant effectively present his appeal without the assistance of counsel? What about the role of this Court and the Crown’s duty? [ 26 ] The AGNS questions the complexity of the stated grounds. And even if they have any element of complexity, which was not conceded, the AGNS contends this could be compensated by the panel’s ability to analyze the record and determine if the grounds have any merit, coupled with the Crown’s duty to bring important arguments to the attention of the panel.

Further, the AGNS contends the appellant demonstrated a grasp of the record and his grounds of appeal and thus should be able to articulate his arguments to the panel without counsel. [ 27 ] The appellant was able to express himself clearly during this motion. That said, I accept some of the grounds advanced have a degree of complexity that would present challenges for a self-represented litigant, such as the appellant, to effectively grapple with on appeal.

Further and importantly, I also accept the appellant faces challenges within the institution to meaningfully and in a timely manner, access sufficient resources necessary to advance his appeal. This lessens his ability to effectively represent himself on appeal. [ 28 ] Further, in the event the appellant was released on bail for the outstanding charges, given their nature, the reality of the restrictive conditions noted above being imposed on the appellant seems realistic.

And if imposed, they would similarly hamper his ability to effectively represent himself on the pending appeal. [ 29 ] I return to the role of this Court and the Crown’s duty to ensure the appellant is treated fairly on appeal. Although important considerations, I find that after considering all the factors, the balance weighs in favour of the appellant. Accordingly, in the interests of justice, counsel should be appointed to assist the appellant with his appeal and I grant the s. 684 motion.

I trust the Attorney General of Nova Scotia will make arrangements for counsel in a timely manner. [ 30 ] The parties will be contacted by the Court in the near future to arrange a time for a follow up case management conference during which the appeal hearing and filing dates will be set and any further amendments to the Notice of Appeal and supplements to the Appeal Book will be canvassed. Van den Eynden, J.A.