R v. Nicholson, 2020 NSSC 179

SUPREME COURT OF Nova Scotia Citation: R v. Nicholson , 2020 NSSC 179 Date: 20200605 Docket: Digby , No. 486686 Registry: Digby Between: Her Majesty the Queen Appellant v. Michael Wayne Nicholson Respondent Judge: The Honourable Justice Pierre L. Muise Heard: February 27, 2020, in Digby, Nova Scotia Counsel: Leonard J. MacKay, for the Appellant Michael Wayne Nicholson, Self Represented INTRODUCTION [ 1 ] Mr. Nicholson was charged with fisheries offences alleged to have been committed at or near Victoria Beach Wharf, Annapolis County, Nova Scotia.

He indicated he planned to raise, as a defence, his constitutional rights as an indigenous person, more specifically, treaty or aboriginal rights under

Section 35 of the Constitution Act, 1982 . The actus reus was proven. He then made a Rowbotham application, seeking state-funded counsel to represent him at the continuation of the trial. His request was granted. [ 2 ] The Crown appealed the decision. Mr. Nicholson then made this application, under

Section 684 of the Criminal Code of Canada , seeking an order assigning him counsel to represent him on the appeal. The Crown opposes his application. ISSUE [ 3 ] Should counsel be assigned to represent Mr. Nicholson on the appeal? LAW AND ANALYSIS [ 4 ] Pursuant to

Section 684, Counsel may be assigned to represent an accused on appeal where “it appears”: 1. “desirable in the interests of justice that the accused should have legal assistance”; and, 2. “that the accused has not sufficient means to obtain that assistance”. [ 5 ] “To satisfy the ‘interests of justice’ requirement”, Mr. Nicholson must establish that: he has an “arguable issue” on appeal; “he cannot effectively present his [position on] appeal without a lawyer; or, the Court may not be able to properly decide the appeal without appellate counsel”: R. v.

Forrest , 2019 NSCA 47 , paras. 3 to 5 . [ 6 ] “If satisfied that the merits assessment demonstrates an arguable issue, then the analysis turns to consider the complexity of the issues, the ability of the appellant to understand the principles and marshal the arguments to the Court”: R. v. Forrest , para. 6 . [ 7 ] Other points “to consider in determining whether it is in the interests of justice to appoint counsel” include: “[t]he court’s role to assist; and [t]he responsibility of Crown counsel to ensure that the applicant is treated fairly”: R. v. Kelsie , 2016 NSCA 72 , para. 13 ; R. v.

Marr , 2020 NSCA 30 (“ Marr (Court of Appeal), paras. 23 and 24.

Interests of Justice Analysis Merits [8] The Court in R. v. Forrest, at paragraph 5, provided the following guidance for the merits assessment: An arguable issue is one that appears to be of sufficient substance to be capable of convincing a panel of the Court to allow the appeal.

Iapproach the analysis cautiously because a merits assessment may be hampered by: a lack of the complete record; the fact that theapplicant may be self-represented in the s. 684 proceedings and hence at a disadvantage to knowledgeably examine the trial proceedingsto identify potential error. [9] In the case at hand, the Crown is appealing based on alleged error by the application judge. Therefore, Mr.

Nicholson’sposition must “be of sufficient substance to be capable of convincing” the court to dismiss the appeal, bearing in mind that he is at adisadvantage in terms of identifying and articulating flaws in the Crown’s position. [10] The Crown submits that, given the outcome in R. v. Marr, 2019 NSSC 327, (“Marr (Rowbotham

summary appeal)”), it isclear that the application judge in the case at hand erred. The

summary conviction appeal judge, in Marr, concluded that the applicationjudge erred in granting the Rowbotham application and quashed the associated stay. The Crown argues that the situation in the case athand is “almost identical” such that the same result will necessarily obtain. [11] There are similarities. Both involve fisheries charges against members of a First Nation who are raising their constitutionalrights as indigenous persons as a defence. [12] However, there are also distinguishing features. [13] Mr. Nicholson himself, during oral submissions on the

Section 684 application, highlighted his evidence that: he is a member ofGlooscap First Nation, which was previously part of Annapolis Valley First Nation; and, prior to becoming members of the GlooscapFirst Nation, his grandparents were part of the “Middleton Band”. He noted that Lobster Fishing Area (“LFA”) 35, which encompassesthe area where he was fishing halibut, extends almost to Middleton. [14] The proximity of the applicant’s community to the fishing area in question has been considered an important factor. Marr(Rowbotham

summary appeal), at paragraphs 36 to 41, discusses R. v. Francis, 2007 NSPC 28. In Francis, the judge, in the absence ofexpert evidence regarding traditional use of fishing grounds, granted the Rowbotham application of the applicants who were part of theAcadia First Nation, located in Western Nova Scotia, because of its proximity to St.

Mary’s Bay, where the fishing activity occurred, butdenied that of the applicants from the “Indian Brook Band … near Truro”. [15] The Accused persons in Marr were members of the Sipekn’katik First Nation (which encompasses the former Indian BrookFirst Nation), and fishing in LFA 34, which is west of LFA 35. Mr. Nicholson’s community is much closer to the fishing grounds inquestion, than were the accused persons in Marr, even if one only considers the evidence presented in his initial application, which didnot include his grandparents’ connection to Middleton. [16] Mr.

Nicholson also submitted that at least one of the accused persons in Marr had a greater ability to comprehend the issues,and represent themselves in court, than he does. That is supported by the evidence. One of the applicants in Marr had two universitydegrees, and had worked as a social worker in three provinces. The other had a high school diploma and had partially completed abusiness administration program through the Nova Scotia Community College (“NSCC”). [R. v. Marr, 2019 NSSC 198 (“Marr(Section 684)”); and, Marr (Court of Appeal).] While attending school, Mr.

Nicholson only completed grade 9, then 3 years later,completed his GED to comply with a probation order. More recently, in 2019, he completed grade 12 through the Adult LearningProgram at the Kingstec campus of the NSCC. He is now taking the Electronic Engineering Technician Program there. [17] The court in Marr (Rowbotham

summary appeal), found there had “been no indication of the substance of the defence, only abare assertion of an Aboriginal or treaty right”: para. 55. Mr. Nicholson attached, as an exhibit to his affidavit filed in support of hisSection 684 application, an email to him, from the Chief of the Glooscap First Nation, dated August 9, 2018. He indicated it had beenpresented to the Rowbotham application judge. The Crown did not know whether that was correct or not. The email indicates theGlooscap First Nation has a fishing licence and their boats fish in LFA 34, out of Meteghan.

In addition, his lawyer at the Rowbothamapplication, advanced the decisions in R. v. Marshall, (SCC), 1999 CarswellNS 262 (S.C.C.) and 1999 CarswellNS349 (S.C.C.), as demonstrating a right to fish which the Crown had to justify restricting. That is similar to the situation in R. v. Paul,2002 NSPC 25, referred to at paragraphs 30 to 35 of Marr (Rowbotham

summary appeal). In R. v. Paul, The applicants advanced that“their fishing licenses were issued by the Chief of their Band pursuant to a treaty … which gave the Mi’kmaq the right to fish” andreferred to the decisions in R. v. Marshall regarding the existence of treaty rights. The court granted the Rowbotham application, notingthat other evidence, including expert evidence, could be expected at trial. [18] Therefore, even if the decision in Marr (Rowbotham

summary appeal) is ultimately upheld, on appeal to the Nova Scotia Courtof Appeal, it is still arguable that a different result should obtain in the case at hand. Consequently, Mr. Nicholson’s position would “beof sufficient substance to be capable of convincing” the

summary conviction appeal court to dismiss the Crown’s appeal. Complexity [19] As noted in Marr (Court of Appeal), at paragraph 20, the complexity in question is that of the issue or issues on appeal. [20] The Notice of Appeal includes, as a ground of appeal, the general assertion that the application judge erred by “finding that theassistance of legal counsel was essential to the conduct of a fair trial”. During the Rowbotham hearing, the Crown conceded that theaboriginal or treaty rights defence was “a very complex defence”. It’s main argument in that hearing was that Mr.

Nicholson had notshown such a defence “on a prima facie basis”, or that there was “an air of reality” in relation to it. On this

Section 684 application, itsubmitted that “the appeal really boils down to one simple issue: Is a Rowbotham applicant required to raise ‘an air of reality’ for a treaty

or aboriginal rights defence that is the entire basis for the Rowbotham application?” [21] The Rowbotham application judge herein concluded that test was “too onerous on an applicant”. [22] The court, in Marr (Rowbotham

summary appeal), did not decide whether the “air of reality” test applied. It merely stated, atparagraph 54, that “the Court of Appeal’s reference to the proposed defence ‘being factually and legally relevant to the charge before thecourt’ is perhaps more helpful”. The court was referring to the Court of Appeal decision in R. v. MacDonald, 2001 NSCA 137. [23] In R. v. MacDonald, the accused did not appear for the appeal hearing.

The court noted, at paragraph 8, that the judge grantedthe Rowbotham application “without knowing what the defence would be”, making it such that he was unable to assess the complexity ofthe defence. At paragraph 10, it stated that “trial judges are encouraged to make adequate inquiry into the nature of the defence andwhether it is factually and legally relevant to the charge before the court”.

At paragraph 12, it added: “It seems to us that this is the typeof case which calls for counsel to be engaged on a limited basis of advising and appearing for the accused at a Rowbotham hearing.”Therefore, the Court of Appeal appeared to be giving direction as to inquiries the trial judge should make (particularly where theapplicant is self-represented), rather than setting out a test to determine whether the applicant has shown a sufficiently complex defence. [24] Formulating argument regarding the proper test to apply would be complex, particularly for a self-represented person. [25] I also highlight that, if counsel should be engaged for the Rowbotham application, it seems to follow that counsel should also beengaged for a Crown appeal from a successful Rowbotham application. [26] The court in Marr (Court of Appeal) concluded that counsel was not required for it to deal with the appeal from the

summaryconviction appeal court vacating the Rowbotham order made by the Provincial Court. In that case, the Court of Appeal, at paragraph 20,noted that the applicants “never say” what the rights they assert are, and “maintain they have no obligation to explain” those rights. Itthen added that the question on appeal would simply be whether the Rowbotham judge “erred by rejecting this argument”. That differssomewhat from the central issue in the Crown’s appeal relating to Mr. Nicholson. [27] Further, in Marr, the applicants had the benefit of counsel at the Rowbotham application in Provincial Court, in the Crownappeal to the Supreme Court, and in the

Section 684 application to the Court of Appeal. At paragraphs 25 and 26, the Court of Appealstated: “The arguments have been exhaustively made and are in the record. … [T]he Court of Appeal will have a full record, including the transcript of what transpired in Provincial Court. The Court also has thebenefit of a substantial decision from the

Summary Conviction Appeal Court which summarizes the submissions of the parties, includingthe issues raised by the appellants in their Notice of Appeal. The arguments made to Justice Smith will also be made to the Court ofAppeal. Presumably a transcript will be available of the hearing before Justice Smith as well as copies of written submissions made toher.” [28] In the case at hand, Mr. Nicholson only had counsel at the Rowbotham application. That counsel did not argue whether the “airof reality” test, or any other test, was the appropriate test to show a complex defence.

Instead, he submitted that the Crown’s argumentthat Mr. Nicholson had to provide evidence of elements of aboriginal and treaty rights defences set out in R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507, was misplaced. He argued it was misplaced because it ran contrary to: the Federal Departmentof Justice’s pronouncement that its approach would be to recognize aboriginal rights under

Section 35 of the Constitution Act, 1982; and,the decisions of the Supreme Court of Canada in R. v. Marshall, supra, both of which indicate it is the Crown which bears the burden ofjustifying an infringement of those rights. He stated Mr. Nicholson would be advancing an aboriginal or treaty rights defence based onMarshall, and noted that the manner in which the fishery officers who charged him dealt with the situation showed they recognized hewas a member of Glooscap First Nation. They even delivered the seized fish there. [29] The same points, regarding Mr.

Nicholson’s lawyer not addressing the test, refute the Crown’s suggestion that any problemscreated by complexity can be overcome by Mr. Nicholson using the brief filed by his lawyer on the Rowbotham application. That briefdid not address the central issue on appeal. The oral arguments made by Mr. Nicholson’s lawyer did not either. [30] As a secondary point, the Crown also argued that, even if he need only show a “factually and legally relevant” defence, theRowbotham application judge still erred in finding it had been demonstrated.

However, it cannot be known at this point whether theappeal will be determined on that point. Therefore, the complexity arising from the issue of the proper test remains. [31] In addition, as agreed by the Crown, the

Section 684 application test is layered on top of the Rowbotham test, and both importelements of the aboriginal or treaty rights defence. That adds an extra level of complexity, which the applicant’s Rowbotham brief, andoral argument, do not address either. After this stage, the

Section 684 test will no longer be relevant. However, given its similarity withthe Rowbotham test, the Crown brief and argument addressing it pose a risk of confusion for a self-represented applicant. [32] Further, there is always the possibility of a motion for fresh evidence on appeal. Though such a motion, in itself, is notparticularly complex, determining appropriate reasons to advance would likely be beyond the knowledge of most self-representedpersons. As such, it also adds some complexity to the appeal process. Capability [33] Mr. Nicholson has limited education.

He only obtained his grade 12 through adult education. He has only recently started atechnician program. His work experience is limited to labour-type work. He has had some exposure to the courts, as he was on probationin 2003, and subsequently was subject to a suspended sentence, then served a sentence of four years, both for trafficking a controlleddrug or substance. However, there is no indication he has any prior experience with Rowbotham applications, appeals or indigenousconstitutional rights defences.

[ 34 ] On this

Section 684 application, he expressed uncertainty regarding what he should say, and said little. He did not file any brief. He incorrectly filed the Notice as a request for Rowbotham Counsel. [ 35 ] I am satisfied he does not have the ability to effectively respond to the Crown’s appeal without the assistance of counsel. Impact of Court and Crown’s Obligation to Assist, and Ensure Fair Treatment of, Mr. Nicholson [ 36 ] The Crown has been consistently advancing, throughout the proceedings involving Mr.

Nicholson, and those in Marr , that a Rowbotham applicant must demonstrate that the complex defence advanced has an air of reality. It is unlikely that it would fully explore arguments to the contrary, and unlikely that Mr. Nicholson would be effective in doing so. As stated by the court in Marr (Section 684), at paragraph 19, “there may be novel arguments with respect to the level of defence that must be filed in support of a Rowbotham application”.

The court would be deprived of such arguments as they were not advanced in the Rowbotham application and could not be gleaned from the record. [ 37 ] The court could inform Mr. Nicholson about the process for a fresh evidence motion, including by referring him to authorities dealing with such motions, and perhaps outline the test. However, it would be beyond the role of the court to suggest reasons which could support such a motion. That would be acting as advocate for Mr. Nicholson. In addition, the court would be unlikely to have all the information required to properly identify potential reasons. Mr.

Nicholson himself would not likely be able to assess whether such a motion has a realistic chance of success, and if so, to formulate appropriate reasons. As such, he would effectively be denied a potential avenue on appeal. Interests of Justice Conclusion [ 38 ] Considering these points, I am satisfied that Mr. Nicholson: has an “arguable issue” on appeal; cannot effectively respond to the appeal without a lawyer; and, “the court may not be able to properly decide the appeal without appellate counsel”. Therefore, it is “desirable in the interests of justice that the accused should have legal assistance”.

Means to Obtain Assistance of Counsel [ 39 ] Mr. Nicholson has requested legal assistance in this appeal. His application to Nova Scotia Legal Aid was denied, and his appeal of that denial was dismissed. He was advised, by the Mi’kmaq Legal Support Network, that the matter does not fall within the scope of their legal assistance program [ 40 ] He has no friends or family, from whom he might be able to request financial assistance, that have the means to provide it. His debts greatly exceed his resources. He has about $2500 in a chequing account, which he is living on while attending Kingstec.

His debts approach $50,000. His yearly income is less than $20,000 as he has only been able to secure in low paying jobs. His personal effects are only worth $1500 to $2000, including his car. He was even denied a request for a Student Visa Credit Card with a $500 limit. [ 41 ] Given these circumstances, he clearly does not have the means to hire, or otherwise obtain, a lawyer to assist him in responding to the Crown’s appeal. CONCLUSION [ 42 ] I have found that Mr. Nicholson has established both requirements under

Section 684. Therefore, I may assign counsel to act on his behalf. He was successful in obtaining a Rowbotham order while assisted by counsel. The Crown conceded that an aboriginal or treaty rights defence is sufficiently complex that, without state-funded counsel, an accused will be unable to advance that defence fairly at trial. Thus, the outcome of the Crown’s appeal is very important to his ultimate defence. The Crown is the one who has advanced the prosecution and the appeal against Mr. Nicholson. Compared to him, it has great legal resources and expertise.

Consequently, it is fair and just to attempt to level the playing field by assigning counsel to represent him on appeal, and I grant his application for counsel pursuant to

Section 684 of the Criminal Code . _________________________ Pierre L. Muise, J.