R v R.D., 2023 SKCA 111

Restriction onPublication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that anyinformation identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3652 Citation: R v R.D.,2023 SKCA 111Date: 2023-09-29Between:R.D.Applicant/AppellantAndHis Majesty the KingRespondent/RespondentBefore: Kalmakoff J.A. (in Chambers)Disposition: Application granted in partWritten reasons by: The Honourable Mr.

Justice KalmakoffOn application from: Provincial Court (Sask), ReginaApplication heard: September 27, 2023Counsel: R.D. on his own behalf Kelly Kaip for the RespondentJoshua Davis for Court Services Kalmakoff J.A. I. Introduction [1] After a trial in Provincial Court, R.D. was convicted of sexual assault, contrary to s. 271 of the Criminal Code. The trial judgesentenced R.D. to a term of imprisonment of 30 months, in addition to 162 days’ credit for pre-sentence custody, and made the usualancillary orders. [2] R.D. has appealed against both conviction and sentence.

He seeks the appointment of publicly funded counsel to represent himon the appeal. [3] For the reasons that follow, I have determined that it is desirable in the interests of justice to appoint counsel for R.D., on alimited basis, as set out herein. II. Background [4] At the trial, only two witnesses testified as to the relevant events: the complainant and R.D. [5] The complainant was R.D.’s stepdaughter. She was 18 years old at the time of the incident that formed the subject matter ofthe charge.

She testified that, in the spring of 2020, she had been living with her mother in Winnipeg, but came to Regina to get away froma number of negative influences. While in Regina, she stayed at R.D.’s house with him and his other children, who were her half-siblings.She said that, in the early morning hours of April 1, 2020, after she had been out late with friends, she arranged for R.D. to come and pickher up.

The complainant testified that, after they had returned to R.D.’s house, she went to sleep in her bedroom and, some time later, R.D.entered her bedroom and sexually assaulted her. [6] R.D. gave a different version of events. He agreed that, on the night in question, he had picked the complainant up from herfriend’s house at around 2:30 a.m., and then returned home with her. He said he went to bed shortly after arriving home and fell asleep. Hetestified that he awoke to someone fondling his genitals, kissing him, and then climbing on top of him to engage in sexual intercourse.

Hesaid he assumed that person was his girlfriend, and only realized it was the complainant when he heard her voice. He testified that, as soonas he realized that the complainant was the person in his bed, he threw her off him and chased her out of the room. [7] In her oral reasons, the trial judge began by thoroughly reviewing the evidence. Given that R.D. had testified and providedexculpatory evidence, she cited the test set out in R v W.(D.), (SCC), [1991] 1 SCR 742, as a self-instruction for how sheshould approach the assessment of the evidence.

She also stated that she was “mindful that this is not a credibility contest” and that theCrown bore the burden to prove the case beyond a reasonable doubt. After doing that, the trial judge critically analysed the evidence. Inthe end, she accepted the complainant’s testimony as being both credible and reliable, rejected R.D.’s evidence, and found him guilty ofsexual assault.

She summed up her conclusions by stating: … I do not believe [R.D.’s] version of events on April 1st of 2020, and of the sexual encounter, and I am not left in reasonable doubt by it.I reject his evidence of the events of April 1st of 2020, and of the sexual encounter, where it conflicts which that -- with that of thecomplainant, whose evidence I accept. I accept the evidence of the complainant, of the sexual encounter, and that the accused entered herroom late at night and sexually assaulted her against her will by touching her private areas, as described, and placing his penis in her

vagina twice, as she described. On considering all of the evidence, I am satisfied that the Crown has proven the charge against the accused beyond a reasonable doubt,and the accused will be found guilty as charged of sexual assault. … [8] At the sentencing hearing, notwithstanding that the matter had proceeded to trial, Crown counsel and R.D.’s lawyer jointlyrecommended a sentence of imprisonment of 30 months.

Crown counsel pointed out that, when credit for pre-sentence custody wasfactored in, that would effectively be close to a 3-year sentence, which both counsel agreed was an appropriate starting point for theoffence of which R.D. had been convicted. Crown counsel also stated that the agreed sentence recommendation was part of “an attempt bycounsel to incorporate the rather significant Gladue factors that [R.D.] presents in the pre-sentence report and the like” (see R v Gladue, (SCC), [1999] 1 SCR 688).

R.D.’s counsel agreed with that submission and advised the trial judge that the sentencebeing proposed had taken into consideration Gladue factors and their impact on R.D.’s culpability. The trial judge imposed the sentencethat counsel had proposed. III. Analysis [9] As set out above, R.D. has appealed against both conviction and sentence.

He was represented by Legal Aid at trial, but LegalAid has refused service to him for the purposes of this appeal. [10] Section 684(1) of the Criminal Code permits a judge of this Court to appoint publicly funded counsel to act for a person inR.D.’s position where the judge is of the opinion that “it appears desirable in the interests of justice that the accused should have legalassistance and where it appears that the accused has not sufficient means to obtain that assistance”. [11] There is no dispute in this case about whether R.D. lacks sufficient means to obtain legal assistance.

He does not have thefinancial resources to hire a lawyer and he has been denied assistance through Legal Aid. The issue is whether it is desirable in theinterests of justice that he have counsel. [12] Answering the “desirable in the interest of justice” question requires consideration of a number of factors, including:(

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: R v Ermine, 2010 SKCA 73 at para 8, [2010] 7 WWR 605;and R v Pastuch, 2020 SKCA 105 at para 2 [Pastuch]. The relative importance of each of these factors depends on the specific facts of thecase: R v Ballantyne, 2020 SKCA 84 at para 9.

Applications of this sort call for an inquiry into such matters as the age, education andunderstanding of the applicant, the applicant’s ability to access legal resources, the nature and complexity of the issues involved in theappeal, the seriousness of the offence and the nature of the sentence: see Ermine at paras 8–9; R v Choli, 2015 SKCA 90 at para 11, 465Sask R 156; R v Leroux, 2014 SKCA 60 at paras 29–30, 438 Sask R 162; and R v Schuler, 2021 SKCA 68 at para 6. [13] I begin with consideration of whether the appeal is arguable.

R.D. does not have to clear a high bar here; it is enough that hedemonstrate that his appeal raises arguable issues: Pastuch at para 3; and R v Manasseri, 2013 ONCA 647 at para 38, 312 CCC (3d) 132.The assessment at this stage must also be approached with caution because the record may not be complete, and a self-represented personlike R.D. may not have the legal knowledge necessary to precisely articulate viable grounds of appeal.

All of that said, the jurisprudencealso supports the notion that it will not be in the interests of justice to appoint publicly funded counsel where an appeal has no merit, evenwhere other factors may favour the appointment of counsel. See, for example, R v Stehr, 2022 SKCA 112 at para 3; R v Cliffe, 2022BCCA 305 at para 12 [Cliffe]; and R v Hoskins, 2012 BCCA 51 at paras 30–32. [14] As is relates to his conviction appeal, R.D. raises four grounds, the first three of which are as follows: (

i) the verdict wasunreasonable; (ii) the trial judge erred in her assessment of the credibility of the witnesses; and (iii) the trial judge failed to correctly applythe criminal standard of proof.

R.D. also raises a fourth ground of appeal, namely, that he did not receive adequate representation from histrial counsel. [15] I will begin by addressing the first three grounds of appeal mentioned in the preceding paragraph because, as I see it, there islittle merit in any of them. [16] As a starting point, the governing standard of review presents a significant obstacle to R.D.’s prospects of success in relation tothese three grounds.

Where it is alleged that a verdict is unreasonable, appellate intervention will not be warranted unless the verdict is onethat no properly instructed trier of fact could reasonably have rendered: R v R.P., 2012 SCC 22 at para 9, [2012] 1 SCR 746. A trialjudge’s determinations with respect to witness credibility and reliability are also subject to a deferential standard of review.

In that respect,absent a legal error, such as assessing the evidence on the basis of a wrong legal principle, an appellate court cannot interfere with a trialjudge’s assessment of credibility unless it is established that such assessment cannot be supported on any reasonable view of the evidence:R v Burke, (SCC), [1996] 1 SCR 474 at para 7; R.P. at para 10; and R v Englot, 2022 SKCA 129 at para 5.

Having readthe trial judge’s reasons, in conjunction with the evidence tendered at trial, I see little, if any, prospect that the grounds of R.D.’s appealthat allege unreasonable verdict or errors in assessment of witness credibility will be able to overcome the obstacle presented by theapplicable standard of review. [17] The same may be said of R.D.’s contention that the trial judge failed to correctly apply the criminal standard of proof.

Whenher reasons are read as a whole, the likelihood of R.D. establishing that the trial judge lost sight of, or misapplied, the requirement for theCrown to prove the case beyond a reasonable doubt appears remote. [18] Moreover, entirely apart from any consideration of merit, I am of the view that the first three grounds of R.D.’s convictionappeal can be effectively presented and properly decided without counsel. While R.D. has no legal training, he is a mature person whopresents as intelligent and articulate.

The trial was not lengthy or complicated and the grounds of appeal alleging unreasonable verdict,failure to properly assess witness credibility and misapplication of the standard of proof all involve legal principles with which appellatecourts are well familiar. I am confident that R.D. will be able to explain how and why he views the trial judge as having erred, and that apanel of judges from this Court will be able to process his arguments and decide the issues they raise without the assistance of counsel.

[ 19 ] I reach the same conclusion with respect to the grounds raised in R.D.’s sentence appeal.

In that regard, the notice of appeal alleges that the sentencing judge failed to properly consider sentencing objectives, failed to properly apply the principle of parity, failed to consider the sentencing objective of rehabilitation, failed to properly consider and apply Gladue , and imposed a sentence that was not proportionate. [ 20 ] Sentence appeals are also subject to a deferential standard of review, with appellate intervention permitted only where the appellant establishes that the sentence imposed by a sentencing judge is demonstrably unfit or that it was affected by an error in principle: R v Lacasse , 2015 SCC 64 at paras 41–44 , [2015] 3 SCR 1089; and R v Friesen , 2020 SCC 9 at para 26 , [2020] 1 SCR 424.

In this case, the record clearly indicates that R.D.’s sentence was one that, through his counsel, he had joined with the Crown in recommending to the trial judge and, as part of the submissions made in support of that joint recommendation, he had agreed that all of the relevant considerations and objectives had been taken into account and that the sentence being proposed was fit.

All of this leaves very little room for R.D. to argue that the trial judge erred in a way that would permit this Court to interfere with the sentence. [ 21 ] In short, I can find no basis in the record to conclude that R.D. has an arguable sentence appeal. Nor am I persuaded that he would need the assistance of counsel to effectively present his arguments against the sentence, or that the Court would require counsel’s assistance in properly deciding the matter. [ 22 ] That leaves for consideration the ground of R.D.’s conviction appeal that alleges ineffective representation by trial counsel.

In that regard, as I understand R.D.’s position, he raises concerns about two specific aspects of counsel’s performance: (

i) the adequacy of the cross-examination of the complainant; and (ii) the failure to call certain witnesses in R.D.’s defence. [ 23 ] As for the first of those allegations, again, I see little merit in R.D.’s position. In cases where incompetence of counsel is raised as a ground of appeal, the assistance provided by trial counsel is assessed against a standard of reasonableness.

There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, and the appellant bears the onus of establishing that the acts or omissions of counsel fell outside of that range: R v Power , 2022 SKCA 24 at para 26 , [2022] 10 WWR 263 . Having reviewed the transcript, I am unable to find any merit in R.D.’s assertion that his trial counsel failed to conduct a competent cross-examination.

Contrary to what R.D. asserts, in my view, his trial counsel asked probing and relevant questions about the events in issue at his trial and attempted to draw to the trial judge’s attention several matters that raised questions about the complainant’s credibility. The presumption of competence is not displaced merely because it is possible to argue after the fact that different – or even better – questions might have been asked in cross-examination, or that another cross-examination strategy may have been more effective. The wisdom of hindsight has no

part in the assessment of the effectiveness of trial counsel’s assistance. [ 24 ] However, the second aspect of R.D.’s allegation of ineffective representation may be seen as raising, at the very least, an arguable issue. He contends that trial counsel refused to call as witnesses other persons in the house who may have seen or heard relevant events.

By both the complainant’s account and R.D.’s account, there were others present in the house at the pertinent time, and aspects of their testimony raised the possibility that those other persons might have been able to provide evidence that confirmed or refuted matters of relevance. [ 25 ] I recognize that it is not possible to fully assess the merit of this allegation, because the record in that respect is incomplete.

For example, there is no evidence from R.D. regarding exactly what he communicated to trial counsel about those witnesses, and no evidence from trial counsel about the instructions he received from R.D. Nor is there any evidence about trial counsel’s assessment of the witnesses’ prospective evidence, or his reasons for not calling them. But, if R.D. were able to lead the necessary evidence in a properly constituted appeal, with a properly constituted fresh evidence application, it is possible that he may have a meritorious ground of appeal.

Given the complexities inherent in all of this, I am satisfied that R.D. would require the assistance of counsel to effectively present a ground of appeal of that nature. [ 26 ] The jurisprudence supports the position that it is possible to appoint counsel for the limited purpose of assessing the merits of a discrete aspect of an appeal and to represent the appellant on a publicly funded basis only if that aspect is determined to have merit.

As Marchand J.A. of the British Columbia Court of Appeal observed in Cliffe , taking that approach “may serve the interests of justice by fostering a more informed resolution of the application in cases where it is difficult to assess the merits of an appeal without the assistance of counsel” (at para 41, see also: R v Fox , 2021 BCCA 308 at para 2 ). In that vein, I am persuaded that R.D.’s allegation of ineffective assistance of trial counsel should be investigated, at least to determine whether there is a sufficient basis to bring it before the Court for adjudication.

While there is no defined process for doing that, in light of s. 684 of the Criminal Code and this Court’s Criminal Practice Directive No. 9 – Ineffective Assistance of Trial Counsel (1 June 2020) [ Practice Direction No. 9 ], the interests of justice may be properly served in this way by implementing a stepped approach to the appointment of counsel.

See, for example, R v Taylor (14 March 2022) Regina, CACR3338 (Sask CA) [ Taylor ]; R v Gibson , 2018 ONCA 79 ; and R v J.N. , 2013 ONCA 251 , 305 OAC 175. [ 27 ] Bringing all of that together, I find that it is desirable in the interests of justice to appoint counsel for R.D., initially, for the purpose of investigating the allegation of ineffective assistance of trial counsel and, if that ground is determined by counsel so appointed to be arguable, to proceed with the appeal.

As Caldwell J.A. stated in Taylor , “In this respect, a determination as to whether a proposed ground of appeal is arguable requires a principled and objective assessment of its likelihood of success based on the law and the evidence without being dispositive of its merits. In the context of s. 684 , this is a low bar” (at para 10, citing Pastuch at paras 3–4 ). [ 28 ] Accordingly, I hereby appoint counsel to represent R.D. in this appeal on the following terms: (

a) the retainer of appeal counsel appointed under this order shall be limited initially to conducting the inquiry or investigation described under s. 3(1) of Practice Directive No. 9 in respect of the allegation that trial counsel failed or refused to call relevant witnesses in R.D.’s defence; (

b) if, in the assessment of the appeal counsel so appointed, after completing the inquiry called for under s. 3(1) of Practice Directive No. 9 and after taking into consideration the appellate powers under s. 686(1)(a)(iii) of the Criminal Code , there is an arguable evidentiary and legal basis for proceeding with the allegation of ineffective assistance of trial counsel as a ground of appeal, then the appeal counsel shall advise the registrar of that conclusion and, thereafter, the appeal counsel’s retainer shall be extended to include:

(

i) the preparation and filing of an amended notice of appeal, accordingly; and (ii) the perfection and prosecution of the whole of the appeal in the normal course; and (

c) if the appeal counsel concludes that there is an insufficient evidentiary or legal basis to advance the allegation of ineffective assistance at trial as a ground of appeal, then the appeal counsel shall advise the registrar of that conclusion and, thereupon, the retainer shall expire and this order shall be deemed to be spent. [ 29 ] Nothing in this fiat precludes R.D. from advancing an allegation of ineffective assistance of counsel as a self-represented appellant if the retainer of appeal counsel expires under the foregoing orders or is terminated, whether by R.D. or the appeal counsel so appointed. [ 30 ] Either party may request that the registrar place the appeal back before a Chambers judge for the purposes of case management or to address the requirements of Practice Directive No. 9 . “Kalmakoff J.A.” Kalmakoff J.A.