



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stevenson, 2013 ONCA 645

DATE: 20131025

DOCKET: M42975-C51209

Doherty J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Stevenson

Appellant (Applicant)

Michael Lacy, for the appellant (applicant)

Alex Alvaro, for the respondent

Heard:  October 22, 2013

Doherty J.A.:

[1]

This is a motion for an order under s. 684(1) of the
Criminal Code
assigning Greenspan Partners LLP to act on behalf of the appellant on his first
    degree murder appeal.  The Crown fairly acknowledges that but for the legal aid
    history of this matter this would be an appropriate case for a s. 684
    appointment.  In light of that concession, properly made in my view, I need not
    set out the details of the trial or the issues raised on appeal.

[2]

The appellant was convicted of first degree murder in October 2009 after
    an eight-week trial.  He obtained a Legal Aid certificate for his appeal.  The
    appellants trial counsel filed a Notice of Appeal, but the appellant
    subsequently retained appellate counsel.  This is quite common.  No one
    suggests that this change in counsel was unnecessary or added any cost to the
    preparation of the appeal.

[3]

Appellate counsel ordered the transcripts and obtained a production
    order referable to some potential fresh evidence.  In due course, the
    transcripts were delivered and appellate counsel prepared a draft factum.  The
    production order has not been executed and the possibility of fresh evidence
    remains outstanding.

[4]

Sometime after the draft factum was prepared, the appellant and counsel
    had a falling out over communication issues, the involvement of junior counsel,
    and the arguments to be advanced on the appeal.  Appellate counsel successfully
    moved to be removed from the record.  By that point, he had spent 520 hours on
    the appeal.  The Legal Aid certificate authorized 600 hours.

[5]

The appellant applied to Legal Aid for a change of counsel.  In February
    2013, the Area Committee refused that request.  The appellant appealed that
    refusal to Senior Legal Counsel at Legal Aid.  She also refused the request,
    stating:

I cannot conclude that counsel has acted inappropriately in his
    representation of the applicant.
There are no exceptional circumstances
    shown at this time to warrant a change of counsel.
Although the applicant
    is presently unrepresented, I am unable to conclude that further Legal Aid
    authorization should be granted in this matter.  [Emphasis added.]

[6]

Counsel does not suggest that I can or should go behind the decision of
    Legal Aid.  For the purposes of this motion, I proceed on the basis that the
    applicant, through choices he has made, finds himself in a position where Legal
    Aid has properly determined that it is not prepared to fund the added costs
    associated with allowing the appellant to change representation at this stage
    of the appeal.

[7]

If a person is appointed to act for an appellant under s. 684, Legal Aid
    Ontario, pursuant to a Memorandum of Agreement entered into with the Attorney
    Generals office, treats the matter as if the appeal was funded by Legal Aid
    and the lawyer appointed under s. 684 deals with Legal Aid as if the appeal was
    being funded by Legal Aid.  However, any funds eventually paid to the lawyer
    come from the Ministry of the Attorney General and not from Legal Aid.

[8]

Mr. Lacy advised that if the s. 684 order is granted, he anticipated
    that the perfection and argument of the appeal would involve another 200 to 250
    hours of work or about 150 hours more than the 600 hours authorized by Legal
    Aid.

[9]

The interests of justice considered in the context of s. 684 usually
    refers to the appellants ability to present his appeal without counsel and the
    courts ability to determine the appeal without the assistance of counsel:  see
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.).  The phrase
    is, however, flexible enough to encompass other societal interests that may
    arise in any particular s. 684 application.

[10]

Clearly,
    it would not be in the interests of justice to allow an appellant to abuse the
    process by which criminal appeals are publically funded, either through the
    Legal Aid process or through a s. 684 order.  In my view, conduct intended to
    precipitate a breakdown in the client-solicitor relationship to be followed by
    an application for the appointment of new counsel, would be an abuse of the
    public funding process.  If the circumstances before the court supported the
    conclusion that the appellants conduct toward his former counsel that led to
    the breakdown in their relationship was intended by the appellant to have that
    effect so that the appellant could seek out a new counsel at public expense, a
    s. 684 order would not be in the interests of justice.

[11]

In
    rejecting the appellants appeal from the decision of the Area Committee
    refusing his request to change counsel, Senior Legal Counsel did not find that
    the appellant acted in bad faith or for some improper motive in the course of
    his dealings that led to the breakdown of the client-solicitor relationship
    with appellate counsel.  Senior Legal Counsel, as was her mandate, determined
    only that there were no exceptional circumstances justifying a change in
    counsel at that point in the Legal Aid retainer.

[12]

On
    a s. 684 motion the court is concerned with the interests of justice as they
    relate to the determination of the appeal.  If it is agreed that the appellant
    otherwise meets the s. 684 criteria, I do not think the absence of exceptional
    circumstances justifying a change of counsel is enough to refuse a s. 684 motion. 
    A finding of some kind of improper motive or misconduct by the appellant would,
    however, warrant a dismissal of the motion.

[13]

Nothing
    in the material before me suggests that the appellant set out to effect the
    breakdown of the client-solicitor relationship with his prior counsel.  Nor is
    there a pattern of conduct on the appellants part that would justify the
    conclusion that the appellant is not really interested in prosecuting his appeal
    with the assistance of counsel, but instead has some other agenda or improper
    purpose such as the delay of the proceedings or the maximization of the costs
    to the public purse of his representation.

[14]

It
    would appear that the breakdown in the client-solicitor relationship was a
    result of the appellants genuine, albeit misguided belief, that he was
    entitled to both require that senior counsel do the preparation and dictate the
    arguments that would be advanced on the appeal.  The appellant acted unreasonably
    in taking those positions.  Hopefully, he now understands that he must let
    senior counsel decide what work can be done by junior counsel and he must accept
    the reasonable advice of counsel as to the issues that can properly be raised
    on appeal.  The appellant must let counsel do his or her job and must accept
    reasonable legal advice or face the prospect of proceeding without further public
    funding.

[15]

As
    I am not prepared to find that the appellant precipitated the breakdown in the prior
    client-solicitor relationship for some improper purpose, and as the appellant otherwise
    qualifies for a s. 684 order, I will make that order.  In doing so, I stress
    the absence of any pattern of conduct by the appellant that would permit the
    inference that he intentionally precipitated the breakdown in the
    client-solicitor relationship for some oblique motive.  Obviously, if a second
    breakdown occurred with counsel appointed under s. 684, a very different
    inference as to the appellants motive could well be drawn.

[16]

In
    making the s. 684 order, I rely on counsel to take all steps, consistent with
    the proper representation of the appellant, to minimize any costs beyond the
    600 hours initially allocated by Legal Aid.  Counsel advises that apart from
    the potential fresh evidence application, this appeal can be perfected by the
    end of the year.  Counsel should proceed to perfect the appeal without regard
    to any fresh evidence application.  The appeal is to be perfected by December
    31, 2013.

[17]

Counsel
    briefly addressed the potential fresh evidence.  The production order relates
    to certain business records.  I am told that a review of those records could
    well be determinative of whether a fresh evidence application will be brought. 
    It was suggested that the quickest way to get the documents would be through
    the execution of the production order by the police.  I am sure counsel will
    cooperate in gathering the necessary documents.  Counsel for the appellant will
    advise the Crown and the court by the end of the year whether he intends to
    proceed with a fresh evidence application.

[18]

I
    assume counsel can agree on the terms of the s. 684 order appointing Greenspan
    Partners LLP as counsel to the appellant on the appeal.  If not, a conference
    call can be arranged with me.  I can also make myself available to deal with
    any other case management issues that may arise.

RELEASED: DD  OCT 25 2013

Doherty J.A.


