Docket: CACR2345 Abdikarim Hilowle Applicant - v. -, 2013 SKCA 124

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 124 Date: 2013-11-20 Between: Docket: CACR2345 Abdikarim Hilowle Applicant - and - Her Majesty the Queen Respondent Before: Ottenbreit J.A. (in Chambers) Counsel: Abdikarim Hilowle by telephone conference Lorna Hargreaves for Court Services Anthony Gerein for the respondent Application for Court Appointed Counsel: Heard: November 13, 2013

Disposition: Application dismissed Written Reasons: November 20, 2013 By: The Honourable Mr. Justice Ottenbreit Ottenbreit J.A. [ 1 ] Abdikarim Hilowle applies pursuant to s. 684 of the Criminal Code to have court appointed counsel assigned to represent him on his appeal on his conviction of aggravated assault for which he was sentenced to incarceration of two years and six months. [ 2 ] The governing principles for determining if an order should be made pursuant to s. 684 are set forth in R. v. Yukon , 2011 SKCA 77 , 375 Sask.

R. 85, at para. 6 : 6 There is a general consensus in the appellate courts that success or failure on a s. 684 application depends on (1) whether the appeal is arguable, (2) whether the appeal can be presented effectively without legal assistance, and (3) whether the court will be able to decide the appeal properly without the assistance of counsel. As well, an appellant’s level of education and the complexity of the issues are factors that a court considers when determining the appellant’s ability to present the issues. The seriousness of the offence and the penalty are also considered.

It is also clear that counsel is not appointed under s. 684 as a matter of course for murder offenses (see R. v. Ermine , 2010 SKCA 73 ). [ 3 ] At trial Mr. Hilowle was represented by very experienced Legal Aid counsel. The evidence at trial indicated that the victim was in Mr. Hilowle’s apartment but when asked to leave, refused to do so. When the victim laid down on a bed Mr. Hilowle hit the victim on the head with a bat. Mr.

Hilowle gave a warned statement to the police which was found to be voluntary and admissible wherein he acknowledged that he had hit the victim after he had lain down on the bed primarily because he was frustrated with the victim’s behaviour. Mr. Hilowle chose not to call evidence at trial but filed a written admission that he had struck the victim and that the striking had caused injuries which constituted a wounding pursuant to s. 268 of the Criminal Code . Mr. Hilowle’s counsel acknowledged that the evidence did not support a defence of self-defence. The trial judge came to the same conclusion.

Defence of property was raised by Mr. Hilowle but the trial judge found that Mr. Hilowle did not use reasonable force to defend his property and this defence failed. [ 4 ] Mr. Hilowle has filed three notices of appeal. The first two appeal sentence and the last appeals conviction. He sets forth in his notices of appeal that he was not properly represented and that there is now a witness available that was not available at trial. Mr. Hilowle has filed letters from Legal Aid denying him service on the basis that Legal Aid does not believe he will be successful in his appeal. [ 5 ] On this application Mr.

Hilowle argues that his command of English is poor and he needs representation, and as well reiterates that there is now a witness available to support his case, and that he feels he did not receive adequate representation. [ 6 ] While it is true that English is not Mr. Hilowle’s first language, he has lived in Canada for 20 years and has a Grade 12 education. I do not find that he had any difficulty presenting his application to me in English. [ 7 ] Mr. Hilowle’s case and the grounds of appeal are not complex. The case at trial was fairly straightforward.

All the essential physical elements of the offence were admitted. On the basis of the grounds of appeal filed by Mr. Hilowle, the complexity of the case and the evidence at trial, I am satisfied based on the grounds of appeal and issues in play that Mr. Hilowle can effectively present his grounds without legal assistance and that the Court would properly be able to decide the appeal without the assistance of counsel. [ 8 ] I have considered the seriousness of the offence and the penalty imposed but in light of Yukon these factors have not convinced me that this is a case where counsel should be assigned to Mr.

Hilowle pursuant to s. 684 of the Criminal Code . The application is therefore dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 20 th day of November, A.D. 2013. “Ottenbreit J.A.” Ottenbreit J.A.