R v Stehr, 2022 SKCA 112

Court of Appeal for Saskatchewan Docket: CACR3601 Citation: R v Stehr , 2022 SKCA 112 Date: 2022-10-04 Between: Layne Warren Stehr Applicant/Appellant And His Majesty the King Respondent/Respondent Before: Barrington-Foote J.A. (in Chambers) Disposition: Application adjourned Written reasons by: The Honourable Mr.

Justice Barrington-Foote On application from: Provincial Court, Yorkton Application heard: September 29, 2022 Counsel: Layne Stehr appearing on his own behalf Erin Bartsch for the Respondent Randene Zielke for Court Services Barrington-Foote J.A. [ 1 ] On May 27, 2022, Larry Stehr was found guilty of six offences pursuant to the Criminal Code and pled guilty to two other Criminal Code offences and one count pursuant to the Controlled Drugs and Substances Act , SC 1996, c 19 . Mr. Stehr has appealed those convictions to this Court and has identified five grounds of appeal: (

a) the convictions were unreasonable and cannot be supported by the evidence; (

b) the trial judge erred in assessing the credibility and reliability of the complainant; (

c) the trial judge misapprehended evidence; (

d) the trial judge was biased as a result of racism; and (

e) there was a miscarriage of justice as a result of ineffective representation by the defence counsel who acted for him at trial. [ 2 ]

Section 684 of the Criminal Code provides that counsel may be appointed 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. Stehr lacks sufficient means to obtain legal assistance. He does not and has been denied legal aid.

The issue is whether it is desirable in the interests of justice that he have counsel. [ 3 ] The test to be applied in deciding this question 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 without the assistance of counsel? The relative importance of these three factors turns on the facts: R v Ermine , 2010 SKCA 73 at para 8 , [2010] 7 WWR 605; R v Choli , 2015 SKCA 90 at para 11 , 465 Sask R 156; R v Schuler , 2021 SKCA 68 at para 6 .

There have been decisions where a lack of merit in the appeal alone have resulted in a denial of the application: R v Rennie , 2002 BCCA 4 ; R v Clark , 2006 BCCA 312 , 227 BCAC 237. However, the merits assessment must be approached with caution. As Beveridge J.A. noted in R v Forrest , 2019 NSCA 47 at para 5 , that assessment may be hampered by the lack of a complete record and the fact that the applicant may be self-represented: R v McDormand , 2020 SKCA 83 at paras 6–8 . In R v Abbey , 2013 ONCA 206 at para 32 , 115 OR (3d) 13, Watt J.A. emphasized that the merits threshold is “a modest one”.

The careful analysis in R v Cliffe , 2022 BCCA 305 , nicely demonstrates that point. [ 4 ] If the arguable ground standard has been met, other relevant factors may include, but are not limited to, the appellant’s education both generally and in relation to the law; the appellant’s experience with the criminal justice system; the length and content of the record on appeal; the complexity of the issues; the need for counsel to marshal facts; the appellant’s access to legal resources; conditions of incarceration that may limit the ability of the appellant to prepare their appeal; and the seriousness of the offence and penalty. [ 5 ] Dealing first with the grounds of appeal other than ineffective representation, I see no merit to any of them based on my review of the transcript and the conviction and sentencing decisions.

Further, the notice of appeal nor Mr. Stehr’s submissions at the hearing of this application identified complex issues of fact or law. The conviction turned on credibility and reliability in relation to several alleged incidents of domestic violence. The trial was short. I see nothing that suggests bias on the part of the trial judge. Further, as Mr. Stehr noted, he has previous experience with the criminal justice system. That experience was apparent in his oral submissions.

His notice of appeal is clear and well written, and he demonstrated the ability on this application to effectively express himself. [ 6 ] If the appeal was based only on the first four grounds identified by Mr. Stehr, I would have dismissed his application. I am not satisfied that they meet the merits threshold. I am persuaded that Mr. Stehr would have had the capacity to represent himself and that the Court would not need the assistance of counsel. [ 7 ] However, the claim of ineffective assistance of counsel is a complicating factor. Mr.

Stehr’s notice of appeal described that ground of appeal as follows: I believe my lawyer misrepresented my defence. My lawyer was not ready for trial, nor whole-heartedly represented me in my defence

against such severe matters. [ 8 ] Again, Mr. Stehr had nothing to add to these very general allegations at the hearing of this application. He appears to be concerned primarily with what he perceives to be a relative lack of aggression by defence counsel – in essence, with an aspect of courtroom tactics. There is nothing on the record that suggests that he would be able to make out this ground of appeal, given the stringent legal test that is applied by a court considering such an allegation. [ 9 ] Nonetheless, Mr. Stehr is entitled to pursue this argument and confirmed that he wishes to do so.

He advised that he had very little time to review the transcript of the trial and sentencing, as it was received very shortly before the hearing. He said he wishes to do a far more thorough review in order to better identify the basis for this ground of appeal. He should have the opportunity to do so. [ 10 ] In R v Taylor (14 March 2022) Regina, CACR3338 (Sask CA), Caldwell J.A. ordered the appointment of counsel for the limited purpose of investigating whether some factual foundation existed for an allegation of ineffective assistance of counsel.

He took guidance from this Court’s Criminal Practice Directive No. 9 – Ineffective Assistance of Trial Counsel , which contemplates such an investigation when an appellant represented by appeal counsel makes such a claim. In Taylor , however, the appellant had identified sufficient particulars of the potential basis for the allegation to convince Caldwell J.A. that it “should be investigated, at least to determine whether there is sufficient basis to bring it before the Court for adjudication” (at para 9). Justice Caldwell also concluded that Mr. Taylor needed the assistance of counsel to undertake that inquiry.

Accordingly, the order to appoint counsel was grounded in the particular circumstances of the case. [ 11 ] Mr. Stehr, on the other hand, has not provided details of the basis for his assertion of ineffective assistance. Nor am I satisfied, based on the nature of the concerns he has identified, that he requires the assistance of counsel at this stage.

In these circumstances, I am not prepared to appoint counsel at public expense, even for the limited purpose of undertaking the kind of investigation contemplated by Taylor . [ 12 ] In light of all of this and given the potential connection between the ineffective counsel ground and at least some of the other grounds of appeal, Mr. Stehr’s entire application is adjourned to a date to be set by the Registrar before me the week of October 24, 2022. If, having reviewed the transcript, Mr.

Stehr still wishes to claim ineffective representation, he should come prepared to make further representations in support of his application for court-appointed counsel. “Barrington-Foote J.A.” Barrington-Foote J.A.