Sheldon Schuler Applicant/Appellant v. Her Majesty the Queen, 2021 SKCA 68

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3379 Citation: R v Schuler , 2021 SKCA 68 Date: 2021-04- 20 Between: Sheldon Schuler Applicant/Appellant And Her Majesty the Queen Respondent/Respondent Before: Barrington-Foote J.A. (in Chambers) Disposition: Application granted Written reasons by: The Honourable Mr.

Justice Barrington-Foote On application from: Provincial Court, Regina Application heard: April 14, 2021 Counsel: Sheldon Schuler appearing on his own behalf (CACR3379) Jill Drennan for Sheldon Schuler (CACR3372) Kelly Kaip for the Respondent Randene Zielke for Court Services Barrington-Foote J.A. I. Introduction [ 1 ] The appellant, Sheldon Schuler, was found guilty by a judge of the Provincial Court [trial judge] of sexual interference, contrary to s. 151 of the Criminal Code , and unlawful confinement, contrary to s. 279(2) of the Criminal Code .

He was sentenced to 794 days in custody for the s. 151 offence – calculated on the basis of a five-year sentence less remand credit of 1,031 days – and to a custodial sentence of 180 days concurrent for the s. 279(2) offence. In CACR3372, the Crown has appealed Mr. Schuler’s sentence, alleging various errors of principle and that the sentence is demonstrably unfit. In CACR3379, Mr. Schuler has appealed both conviction and sentence. [ 2 ] Legal Aid Saskatchewan has appointed Jill Drennan, a Legal Aid lawyer, to represent Mr. Schuler on the Crown sentence appeal.

However, it has refused to appoint counsel to represent Mr. Schuler on his appeal of conviction and sentence. He has accordingly applied to this Court for the appointment of counsel on those matters. This fiat disposes of that application. II. analysis [ 3 ] I would first note that, at the hearing of this application, counsel were asked to comment about the curious fact that Ms. Drennan had been appointed solely on the Crown sentence appeal, despite that the issues in the two sentence appeals appeared to be inseparable. Ms.

Drennan advised that the Chief Executive Officer of Legal Aid had considered this specific issue but was not prepared to appoint counsel for both sentence appeals. But with what effect? Was Ms. Drennan expected to argue that Mr. Schuler’s sentence should not be increased as asserted by the Crown but to take no position as to whether it should be reduced as asserted by Mr. Schuler? [ 4 ] However, after this decision was reserved, Ms. Drennan asked the Registrar to advise me that she was prepared to represent Mr. Schuler on his sentence appeal pro bono, and that he was agreeable to that.

Accordingly, I need not deal further with this anomalous situation. I thank Ms. Drennan for offering a common-sense solution to this aspect of the application. I will proceed on the basis that Mr. Schuler has representation on both sentence appeals. [ 5 ] That leaves the matter of Mr. Schuler’s application for the appointment of counsel to represent him in his conviction appeal.

Section 684 of the Criminal Code provides for such appointments by a judge of this Court “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”. There is no dispute as to whether Mr. Schuler lacks sufficient means to obtain legal assistance.

The issue is whether it is desirable in the interests of justice that he have counsel. [ 6 ] The test that applies on such an application is based on three factors; that is, is the appeal arguable; can the appeal be presented effectively without the assistance of counsel; and can the court decide the appeal properly without the assistance of counsel: see, for example, R v Ermine , 2010 SKCA 73 at para 8 , [2010] 7 WWR 605 [ Ermine ]; R v Choli , 2015 SKCA 90 at para 11 , 465 Sask R 156.

Relevant evidence may include, but is not limited to, evidence as to the appellant’s education both generally and in relation to the law; the

appellant’s experience with the criminal justice system; the complexity of the issues; the appellant’s access to legal resources; and the seriousness of the offence and penalty. As Jackson J.A. noted in Ermine , the relative importance of the three factors turns on the facts: [9] While there is a general consensus regarding the questions and factors to be considered on a s. 684 application, some of the reported decisions place greater emphasis on whether the appeal is arguable.

Section 684 applications have been denied solely on the basis that the appeal lacks merit, or in other words, it is this question that was considered to be determinative, with little weight being placed on the other factors. See: R. v. Clark , 2006 BCCA 312 . In other cases, less emphasis is placed on the merits of the appeal, particularly in the context of a serious charge like murder or manslaughter. A good example of this latter type of decision is, of course, Bernardo .

Doherty J.A., speaking for the Court in Bernardo , described the appellant’s position on the appeal as “a difficult one” (at para. 23), but nonetheless the Court went on to appoint counsel. In doing so, the Court looked at a “combination of considerations” (at para. 25), including the length of the trial record, the complexity of the issues raised, the appellant’s lack of training in the law, and his limited access to the institution’s facilities due to the special security arrangements in place for this particular offender. [ 7 ] Mr.

Schuler’s notice of appeal identified only one ground; that is, that he was denied a fair trial because he was denied counsel and had to represent himself. In his written and oral submissions, he noted that he had advised the trial judge that he had only a grade 2 education and could not read well. He identified specific concerns as to DNA evidence, and as to inconsistencies in the complainant’s evidence at the preliminary hearing and at trial, which in his view were not adequately addressed at trial. [ 8 ] Mr. Schuler was represented by several different counsel in the course of this prosecution.

His trial counsel resigned during the trial, citing an ethical conflict. The resignation occurred when the complainant was on the stand, and before defence counsel had completed his cross-examination. As a result of that resignation, the trial was adjourned to enable Mr. Schuler to obtain new court- appointed counsel. That new counsel was retained but was permitted to withdraw shortly before the trial was scheduled to resume. He too cited an ethical conflict that arose as a result of his dealings with Mr.

Schuler. [ 9 ] At that juncture, the trial judge refused to order that a third trial counsel be appointed for Mr. Schuler. He did so only after Mr. Schuler – who had made a delay application – refused to waive the additional delay that would result from the potentially lengthy adjournment that would occur. The trial judge found that Mr. Schuler had exaggerated his illiteracy, that the issues were not complex, and that he would receive a fair trial with his assistance. He also found that Mr.

Schuler had not diligently and honestly exercised his right to counsel. [ 10 ] Further, the trial judge released the complainant from the witness stand. He held that, if Mr. Schuler wished to continue the cross-examination, he would have to apply to do so. He ordered that counsel be appointed for that purpose. Counsel was appointed, but when the trial resumed, advised the Court that he had been instructed not to pursue the application. [ 11 ] Counsel for Court Services argued vigorously that I should conclude that, in these circumstances, Mr.

Schuler’s claim that he was denied a fair trial is without merit, and that his application for the appointment of counsel should be denied for that reason. They noted the effort made by the trial judge to ensure that Mr. Schuler, once he was self-represented, received a fair trial. Although the position taken by Court Services is understandable, the merit aspect of the three-part test does not present a high bar. It is open to an appellant to take issue with a trial judge’s refusal to grant an application for court-appointed counsel following conviction: R v Pastuch , 2020 SKCA 105 at para 3 .

As courts have repeatedly stressed, the ground of appeal need only be arguable . I find that the issues identified by Mr. Schuler meet that standard. [ 12 ] Ms. Drennan – who was asked to comment with the consent of Crown and Court Services counsel – advised that it is her view, based on her dealings with Mr. Schuler, that he is simple and unsophisticated, despite his prior exposure to the criminal justice system.

She also stated, based on her understanding of his concerns with trial fairness and his representation, that the issues are complicated and that he would have limited ability to marshal his case. [ 13 ] I agree. The issues are sufficiently complex that Mr. Schuler could not effectively present the appeal without the assistance of counsel. That is so despite the fact that Mr. Schuler exaggerated his illiteracy.

Further, he has been convicted of a serious offence and has been sentenced to a lengthy custodial sentence. [ 14 ] As to the third factor, I am satisfied that it would be of real assistance to this Court for Mr. Schuler to be represented. III. conclusion [ 15 ] In the result, Mr. Schuler’s application is granted. If Court Services and Mr. Schuler cannot agree on the selection of counsel, either party may contact the Registrar to set the matter down before me to address that issue further. [ 16 ] I would finally note that, at the hearing of this application, Mr.

Schuler asserted that his last counsel took steps without proper instructions and failed to give him proper advice. This raises the possibility that Mr. Schuler may allege ineffective assistance of trial counsel. However, I have not taken the additional complexity raised by that issue into account. Mr. Schuler’s notice of appeal does not raise this issue, and he did not provide affidavit evidence relevant to ineffective assistance of counsel. His allegations were vague and lacked specificity. If Mr.

Schuler chooses to pursue this issue, the Court’s protocol relating to ineffective assistance will apply. “Barrington-Foote J.A.” Barrington-Foote J.A.