Docket: CACR2220 G.N.B. Applicant - v. -, 2014 SKCA 75

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 75 Date: 2014-07-04 Between: Docket: CACR2220 G.N.B. Applicant - and - Her Majesty the Queen Respondent Before: Jackson J.A. (in Chambers) Counsel: Mr. G.N.B. for himself Mr. Andrew Davis for the crown Ms. Sharon Pratchler Q.C., for Court Services Application: From: Q.B.J. No. 23 of 2006, J.C. of Saskatoon Heard: June 25, 2014 Disposition: Application dismissed Written Reasons: July 4, 2014

By: The Honourable Madam Justice Jackson Jackson J.A. [ 1 ] G.N.B. was convicted on June 23, 2010 after a trial by jury of one count of sexual assault in relation to an incident that is said to have occurred on April 11, 2006. On September 27, 2012, Acton J. of the Court of Queen’s Bench declared Mr. G.N.B. to be a dangerous offender and ordered him to serve an indeterminate sentence (see R. v. G.N.B. , 2012 SKQB 397 , 406 Sask. R. 241 ). [ 2 ] Mr. G.N.B. was represented by counsel at trial and during the dangerous offender hearing, but he has been unrepresented since then.

He filed his notice of appeal on October 15, 2012, but he has taken few steps to perfect his appeal. On June 19, 2013, the Registrar of the Court of Appeal, using the authority of Rule 32 of the The Court of Appeal Criminal Appeal Rules (Saskatchewan) , SI/2011-9, referred the matter to a judge in Chambers. After several attempts to move this appeal along, a Chambers judge of this Court set the matter down to be heard this fall in the September sittings. [ 3 ] Mr. G.N.B. has now indicated that he would like to have counsel appointed for him under s. 684(1) of the Criminal Code , R.S.C., 1985, c. C-46.

He has received the necessary letters from the local legal aid office and the Legal Aid Commission denying him representation. [ 4 ] According to his Notice of Appeal, Mr. G.N.B. appeals his conviction and his designation as a dangerous offender. His only ground of appeal, shown on his Notice of Appeal, is that the “sentencing judge didn’t consider … six year’s in remand or … health” when he sentenced him to an indeterminate sentence as a dangerous offender. Before me, Mr.

G.N.B. indicated that he wishes to raise what would be new arguments, challenging his conviction for the first time on the basis that he was convicted by an “all-white” jury.

He also submitted to me that his “star” witness was not available at trial, and the Crown witnesses “made up stories.” [ 5 ] Subsection 684(1) of the Criminal Code permits a judge of a court of appeal to assign counsel to act on behalf of an accused where, in the opinion of the 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.” In answering the question of whether counsel should be appointed, I am entitled to consider: (

i) whether the appeal is arguable; (ii) whether the appeal can be presented effectively without legal assistance; and (iii) whether the court will be able to decide the appeal properly, without the assistance of counsel. [ 6 ] The court file, which includes numerous reports, shows that Mr. G.N.B. may have difficulty presenting this appeal on his own given his level of education.

I am not, however, satisfied that the Court of Appeal will not be able to decide his appeal, without the assistance of counsel, on the basis of the grounds of appeal presently identified. [ 7 ] The determination of whether an appeal is arguable for the purposes of s. 684(1) is a relatively low threshold, but Mr. G.N.B. has not persuaded me that he has met that low threshold with respect to his grounds of appeal as presently articulated.

All of this may of course change once the panel is fixed that will hear his appeal, and the panel has an opportunity to review the transcripts. [ 8 ] In light of all of the circumstances, including the extensive delay and what appears to be Mr. G.N.B.’s changing position, I have therefore decided to dismiss Mr. G.N.B.’s application for counsel in relation to the grounds presently formulated. [ 9 ] The application is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 4th day of September , 2014 . “Jackson J.A.” Jackson J.A.