R v Pastuch, 2020 SKCA 105

Court of Appeal for Saskatchewan Docket: CACR3286 Citation: R v Pastuch, 2020 SKCA 105Date: 2020-08-26 Between:Alena PastuchApplicant/AppellantAndHer Majesty the QueenRespondent/RespondentBefore: Barrington-Foote J.A. (in Chambers)Disposition: Application granted (orally)Written reasons by: The Honourable Mr. Justice Barrington-FooteOn application from: 2019 SKQB 156 and 2019 SKQB 196, ReginaApplication heard: August 26, 2020Counsel: Lisa Jorgensen for Alena Pastuch W.

Dean Sinclair, Q.C., for Her Majesty the Queen Audrey Olson for Court Services Barrington-Foote J.A. [1] The application of the accused, Alena Pastuch, for the appointment of counsel pursuant to s. 684(1) of the Criminal Code washeard August 26, 2020. At the conclusion of the hearing I advised the parties that I would grant the application, with brief reasonsexplaining that decision to follow.

These are those reasons. [2] The test applied on an application for court-appointed counsel was described by Jackson J.A. in R v Ermine, 2010 SKCA 73,[2010] 7 WWR 605: [8] There appears to be a general consensus in the appellate courts that success or failure on a s. 684 application depends on: (i)whether the appeal is arguable; (ii) whether the appeal can be presented effectively without legal assistance; and (iii) whether the courtwill be able to decide the appeal properly, without the assistance of counsel. See: E.G.

Ewaschuk, Criminal Pleadings & Practice inCanada, looseleaf, 2nd ed., vol. 3 (Aurora: Canada Law Book, 2009) at §23:3035; R. v. Bernardo (1997), (ON CA),121 C.C.C. (3d) 123 (Ont. C.A.); and R. v. Chan, 2001 BCCA 138 at para. 7. The appellant's level of education and the complexity of theissues are factors that the court considers when determining the appellant's ability to present the issues (see: R. v. Butler, 2006 BCCA476; R. v. Madrusan, 2004 BCCA 194; R. v. Pendergast, 2003 NLCA 66 ; R. v. Moghaddam, 2003 BCCA 552; R. v. Assoun,2002 NSCA 119; and R. v. Mattice, 2001 BCCA 616).

The seriousness of the offence and the penalty are also considered (see: Butler) … [3] As to the first element of the test, I am satisfied that Ms. Pastuch’s appeal is arguable. I reached that conclusion based on thespecific grounds referred to in Ms. Pastuch’s brief and the oral submissions of her counsel. I note, among other things, that I agree withcounsel for Ms.

Pastuch that R v Hales, 2009 SKCA 91, 331 Sask R 102, does not stand for the proposition that an appellant cannot takeissue with the trial judge’s refusal to grant her application for court-appointed counsel on an appeal following conviction: see, forexample, R v Rushlow, 2009 ONCA 461, 245 CCC (3d) 505. I note as well that in R v Pastuch, 2020 SKCA 72, Ottenbreit J.A. grantedMs. Pastuch’s application for release pursuant to s. 679 of the Criminal Code pending the hearing of her appeal and, in so doing, foundthat her appeal was not frivolous.

The following comment by Tallis J.A. in R v Drouin, [1994] SJ No 350 (QL) (CA), illustrates therelationship between the meaning of “arguable” and the meaning of “not frivolous”: [7] In dealing with the substance of an appeal in the context of a judicial interim release application, I appreciate that one cannotequate “frivolous” with “unlikely to succeed”.

A frivolous appeal is an appeal that one can say with confidence cannot possibly succeed.If there is a good arguable ground of appeal, one cannot say that the appeal must inevitably fail. [4] Similarly, as Watt J.A. commented in R v Manasseri, 2013 ONCA 647 at para 38, 312 CCC (3d) 132, “[a]n appeal is notfrivolous if the proposed grounds of appeal raise arguable issues”. [5] As to the second element of the test, Court Services emphasized that Ms. Pastuch is educated and has experience in dealingwith criminal matters.

It argued that she has the research skills and, as a result of her release, the time to represent herself. With respect, Ido not agree.

Her education, capacity and experience are not sufficient or of the right sort to enable her to analyze the record of this longand complex trial, understand the law relevant to her grounds of appeal, and marshal the evidence and arguments so as to effectivelypresent her appeal without legal assistance. [6] Finally, as to the third element of the test, this Court would, taking account of the grounds of appeal and voluminous material,be hard-pressed to deal effectively with the appeal without the assistance of counsel. [7] For these reasons, I concluded that it is desirable in the interests of justice that counsel be appointed.

Court Services submittedthat if I reached that conclusion, I should order that the choice of counsel is within the discretion of the Minister. It took the position that itis inappropriate for a court to appoint counsel, as that usurps the jurisdiction of the Minister to manage the financial implications of theappointment and, in doing so, to refuse to appoint a lawyer who is not on the Minister’s roster. It relied in this respect on Ontario vCriminal Lawyers’ Association of Ontario (sub nom R v Imona-Russel), 2013 SCC 43 at paras 70–74, [2013] 3 SCR 3. [8] Ms.

Pastuch has a different view of the law as to whether a court can appoint counsel who has not been selected by theMinister. She submits that this issue should be addressed only if Court Services and she are unable to find common ground on theselection of counsel. As I indicated at the hearing, I agree with Ms. Pastuch that is the correct approach and, for that reason, need not dealfurther with the legal issue at this stage.

[ 9 ] In the result, Ms. Pastuch’s application is granted. If Court Services and Ms. Pastuch cannot agree on the selection of counsel, either party may contact the Registrar to set the matter down in Chambers before me to address that issue further. [ 10 ] I would finally note that Ms. Jorgensen acted for Ms. Pastuch on this application pro bono, despite the fact that she could not accept a court appointment due to the time required to do justice to the file and the fees paid to court-appointed counsel. I commend her for doing so and thank her for her thorough and insightful submissions. “Barrington-Foote J.A.” Barrington-Foote J.A.