



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Budlakoti, 2021 ONCA 163

DATE:  20210315

DOCKET: M52091 (C68739)

MacPherson
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent
(Respondent/Responding Party)

and

Deepan Budlakoti

Applicant
(Appellant/Moving Party)

Deepan Budlakoti, appearing in person

Ian Kasper, appearing as duty counsel

Samuel Greene, for the responding party

Heard: February 11, 2021 by video conference

REASONS
    FOR DECISION

A.

introduction

[1]

The applicant Deepan Budlakoti seeks an order
    pursuant to s. 684 of the
Criminal Code
for the appointment of counsel
    to represent him on his appeal of two orders made by Labrosse J. of the
    Superior Court of Justice during the applicants criminal trial in Ottawa.

B.

facts

[2]

The applicant was charged and convicted of a
    number of firearm offences. He has made post-trial applications that are
    currently proceeding in the Superior Court. He has not been sentenced. He is an
    inmate at the Ottawa-Carleton Detention Centre (OCDC).

[3]

Prior to the commencement of his trial in the
    Superior Court, the applicant brought two applications for
habeas corpus
before the trial judge.

[4]

The first
habeas corpus
application
    sought an order declaring that the applicants current meal program at the OCDC
    was unlawful and that he be provided meals suitable to his dietary and
    religious restrictions.

[5]

The second
habeas corpus
application
    sought orders directing improvements in internet and phone access, access to
    professional visits, additional yard time, access to medications, and various
    documents to support his applications.

[6]

The first
habeas
application was filed
    under the
Criminal Proceedings Rules for the Superior Court of Justice (Ontario)
, S.I./2012-7
, Form 1. The second application
    did not refer to any criminal or civil rules.

[7]

The Crown sought to have the
habeas
applications dismissed under r. 6.11(2) of the
Criminal Proceedings Rules
.
    The Crown argued that none of the applicants grievances amounted to
    deprivation of liberty, as required for
habeas corpus
relief.

[8]

The application judge summarily dismissed the
    claims pursuant to the
Criminal Proceedings Rules
. He said:

In considering the
habeas corpus
applications
    before the Court we must determine if the Respondents claims amount to an
    unlawful deprivation of liberty.



In the present circumstances the Respondent is
    seeking accommodation on several issues: nutrition, for health and religious
    reasons and the inability to conduct his legal proceedings outside of the
    normal schedule for inmates. Clearly these matters do not go to the nature of
    the detention and they certainly do not amount to a more restrictive form of
    confinement.



I cannot find any suitable ground for the
    order sought. It is simply a misuse of the prerogative writ of
habeas
    corpus
as the present circumstances do not involve a change to the level
    of confinement, nor do they engage a further deprivation of liberty.

[9]

The applicant has filed a Notice of Appeal with
    respect to Labrosse J.s decision to summarily dismiss his
habeas corpus
applications.
    He has been denied legal aid funding for counsel for the appeal. Accordingly,
    he makes this application, pursuant to s. 684 of the
Criminal Code
,
    for the appointment of counsel to represent him on the appeal.

C.

issues

[10]

The issues on the application are:

1.

Does this court have jurisdiction to make a s.
    684 order in this appeal?

2.

If the answer to question (1) is Yes, should a
    s. 684 order be made?

D.

Analysis

(1)

The jurisdiction issue

[11]

The applicant maintains that because the
    Superior Court exercised its criminal law powers through the
Criminal Proceedings
    Rules
in making its decision on the two
habeas corpus
applications, he has a right of appeal to this court pursuant to s. 784 of the
Criminal
    Code
.

[12]

The respondents says that this court does not
    have jurisdiction to grant a s. 684 funding order because the appeal is civil,
    not criminal, in nature.

[13]

I agree with the applicant on this issue, but
    only on a narrow technical basis. I note that the applicant's first
habeas
    corpus
application was commenced under the
Criminal Proceedings Rules
and the two applications were dismissed pursuant to those rules. In the
    Superior Court, the Crown appeared to concede that the applications were
    criminal in nature when it moved to have them dismissed in the criminal
    proceedings. In my view, it should not be open now to the respondent to resile
    from that position on appeal, to the detriment of the applicant.

(2)

The merits issue

[14]

Pursuant to s. 684 of the
Criminal Code
,
    this court may appoint counsel in a criminal appeal, funded by the Attorney General,
    where it is desirable in the interests of justice that the applicant should
    have legal assistance and he lacks the means to hire counsel. In assessing the
    interests of justice, the court must consider the merits of the case. The
    applicant must meet the modest standard of having an arguable ground of
    appeal. Appeals that have no merit cannot be helped by the appointment of
    counsel. The applicant must also show that appointed counsel is necessary
    having regard to whether he is capable of effectively advancing his grounds
    without a lawyer and whether the court can decide the appeal without counsels
    assistance:
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at
    paras. 14 and 22;
R. v. Sauve
, 2018 ONCA 755, at para. 18.

[15]

The respondent, fairly, does not dispute that
    the appellant does not have the means to retain counsel and would struggle to
    effectively advance an appeal himself if there were an arguable ground of
    appeal. The respondents position is that there is no arguable ground of
    appeal.

[16]

Habeas corpus
is
    an ancient writ that protects a person from unlawful confinement:
May v.
    Ferndale Institution
, 2005 SCC 82, at para. 19. To be granted relief, an
    applicant must 1) establish that they have been deprived of liberty and 2) raise
    a legitimate ground upon which to question its legality. Once both are
    established, the onus shifts to the respondent to show that the deprivation of liberty
    is lawful:
Mission Institution v. Khela
, 2014 SCC 24, at para. 30;
May
,
    at para. 74.

[17]

In the context of prisoner claims, there are
    three different deprivations of liberty that may be challenged: an initial
    deprivation; a substantial change in conditions amounting to a further
    deprivation of liberty; and a continuation of the deprivation of liberty, which
    was lawful but has become unlawful:
R. v. Gamble
, [1988] 2 S.C.R. 595,
    at pp. 637-38.

[18]

In
Gamble
, the court expanded the
    availability of
habeas corpus
and held that it can be used to obtain
    declaratory relief under s. 24(1) of the
Charter
.

[19]

On this application, the applicant makes a
    single argument, namely, that his application has merit because he is entitled
    to
Charter
s. 24(1) relief as established by
Gamble
. The
    applicant asserts that, on the basis of the evidentiary record, his appeal has merit
    in two respects: (1) a failure to provide appropriate meals to him (generally,
    a
Charter
s. 7 concern) and (2) a failure to provide appropriate
    resources to ensure that he could prepare for his trial (generally, a s. 7 or
    s. 11(d) concern).

[20]

I am not persuaded by this submission. I say
    this for two reasons.

[21]

First, in the Superior Court the applicant did
    not seek
Charter
s. 24(1) declaratory relief. In his first
    application, he did not invoke the
Charter
at all, despite his claim
    that the food he was served was inadequate because of his religious beliefs.
    The only relief sought in the first application was an order that he be served
    with food that met his health and religious needs. In his second application,
    he explicitly invoked his right to a full answer and defence. However, the only
    relief sought was several orders requiring that he be provided with various
    items and access to various resources. Given that a
Charter
remedy was
    never sought, it cannot be said that the applicant is entitled to s. 24(1) declaratory
    relief.

[22]

Second, I see no error in the application judges
    conclusion that the circumstances alleged by the applicant relating to food,
    medication, internet, phone, documents, yard time, and professional visits do
    not go to the nature of the detention and do not amount to a more restrictive
    form of confinement. There is nothing in the record to suggest that the
    applicant is being treated worse than the general inmate population at OCDC
    or that his form of confinement or detention is one in which the actual
    physical constraint or deprivation of liberty  is more restrictive or severe
    than the normal one in an institution:
R. v. Miller
, [1985] 2 S.C.R. 613,
    at p. 641.

[23]

For these reasons, the applicant has not
    persuaded me that a s. 684 order is appropriate in his appeal.

E.

disposition

[24]

The application is dismissed.

J.C. MacPherson J.A.


