



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fiorilli, 2016 ONCA 814

DATE: 20161101

DOCKET: M47129 (C58518)

MacPherson J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Michele Fiorilli

Applicant

Michele Fiorilli, acting in person

Erica Chozik, duty counsel

Hannah Freeman, for the respondent

Heard: October 4, 2016

MacPherson J.A.:

A.

introduction

[1]

This is an application for
    an order pursuant to s. 684(1) of the
Criminal Code
appointing counsel
    to represent the applicant in his appeal against his convictions for two counts
    of fraud over $5,000 contrary to s. 380(1)(a) of the
Code
.

B.

facts

[2]

The applicant was convicted
    of four counts of fraud over $5,000, following a judge alone trial before
    Trotter J. of the Superior Court of Justice. Two of those counts were
    subsequently stayed pursuant to the
Kienapple
principle. The frauds
    related to mortgages obtained on residential real estate properties. The
    applicant was alleged to have sold two residential properties at inflated
    prices to obtain a profit from mortgage funds advanced by the Royal Bank of
    Canada to two straw purchasers, who did not have the means to obtain the
    mortgages, on the basis of fraudulent mortgage applications.

[3]

The applicant filed a notice
    of appeal against conviction. His principal ground of appeal was ineffective assistance
    of counsel. His allegations were that trial counsel (1) failed to adequately
    read the disclosure and prepare for the case; (2) failed to properly
    cross-examine many of the Crown witnesses; (3) failed to let the applicant
    testify; (4) failed to call various additional defence witnesses; and (5)
    failed to bring an application for a stay because of significant pre-charge
    delay.

[4]

The applicant applied for
    legal aid. His initial application was refused. He appealed. In April 2014,
    Legal Aid Ontario dismissed the appeal, saying with respect to the appeal
    against conviction, the Reasons for Judgment do not indicate any error of law
    on the part of the trial judge.

[5]

The applicant applied for the
    appointment of counsel, pursuant to s. 684(1). In July 2015, Rouleau J.A. ordered
    a limited s. 684 appointment that was accepted by counsel John Kaldas to
    conduct examinations relating to the ineffective assistance of counsel ground
    of appeal. The applicant was examined in chief on December 18, 2015 and
    cross-examined on January 6, 2016. Trial counsel was examined in chief on February
    8, 2016 and cross-examined on February 8, April 25 and May 9, 2016. These
    examinations produced 636 pages of transcript.

[6]

The applicant then applied again
    for the appointment of counsel. On July 13, 2016, MacFarland J.A. dismissed the
    application. She was not persuaded that this was a complicated fraud case and explained
    that the applicant is an intelligent man who is well able to articulate the
    areas where he says the conduct of his trial counsel fell short and how those
    failures affected his ability to defend the charges. At the end of her
    endorsement, MacFarland J.A. said:

The dismissal of this application does not mean that Mr.
    Fiorilli will be without legal assistance. His appeal will be placed on the
    inmate sittings list of this court and he will have the assistance of duty
    counsel, an experienced well-qualified lawyer to assess the record and make
    submissions on his behalf.

[7]

Subsequent to MacFarland
    J.A.s decision, the Ontario Inmate Appeal Duty Counsel Program (the Program)
    determined that it will not provide assistance to the applicant on his appeal.
    Article 3.3 of the Programs Bylaw No. 1 provides:

3.3
Discretion
 The Corporation and its individual Members at all times retain the discretion
    as to whether to provide legal services or assistance on any particular case
    before the Court or to any particular appellant. Without limiting the
    generality of the foregoing, a Member may decide not to assist on a matter
    where that Member is of the view that:

(a)      it lacks merit or arguable grounds;

(b)      an appellant may not be indigent;

(c)
the matter is beyond the scope of what is reasonably
    expected of the Program
; or

(d)      for any other reason.

[Emphasis
    added.]

The Programs decision in this case was based on
    Article 3.3(c)  the matter is beyond the scope of what is reasonably expected
    of the Program.

[8]

The applicant now applies again
    for a s. 684 order to provide counsel for his appeal. The principal ground for
    the application this time is that there has been an important change in
    circumstances since his last application, namely, that the assistance of duty
    counsel presaged in MacFarland J.A.s endorsement is in fact not available for
    his appeal. The applicant will therefore be entirely without legal assistance for
    his appeal.

[9]

The Crown does not object to
    the applicant making this s. 684 application; however, it opposes the application
    on the merits.

C.

issue

[10]

The sole issue on the application is whether a s. 684 order should be
    made to provide legal assistance to the applicant on his appeal.

D.

analysis

[11]

Section 684(1) of the
Criminal Code
provides:

684
(1)
A court of appeal or a judge of that court may, at any time, assign
    counsel to act on behalf of an accused who is a party to an appeal or to
    proceedings preliminary or incidental to an appeal where, in the opinion of the
    court or 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.

[12]

The leading case dealing with the interpretation of s. 684 is
R. v.
    Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.). In that case, Doherty
    J.A. said, at para. 20:

The interests of justice referred to in s. 684(1) must take
    cognizance of the broad access to appellate review contemplated by s. 675 and
    the wide remedial powers of the court of appeal set out in s. 686. Justice
    demands that an accused who appeals under s. 675 be afforded a meaningful
    opportunity to establish the merits of the grounds of appeal advanced by that
    appellant. That same interest also insists that the court be able to fully and
    properly exercise its broad jurisdiction at the conclusion of the appeal.
    Anything less is inconsistent with the statutory scheme created by Part XXI of
    the
Criminal Code
.

[13]

Doherty J.A. then identified two closely related principles that
    anchor the s. 684 inquiry. He said, at para. 21:

First, counsel must be appointed where an accused cannot
    effectively present his or her appeal without the help of a lawyer. Second,
    counsel must be appointed where the court cannot properly decide the appeal
    without the assistance of counsel. In most situations, both or neither
    principle will operate to require the appointment of counsel.

[14]

Against this backdrop, I turn to the questions that must be addressed in
    a s. 684 application. In
R. v. Staples
, 2016 ONCA 362, Gillese J.A.
    set out the relevant questions, at para. 34:

In deciding an application under s. 684(1), the court must
    consider three general questions:

1. Does the applicant have the means to hire counsel
    privately?

2. Has the applicant advanced arguable grounds of appeal?

3. Does the applicant have the ability to effectively
    advance his or her appeal without the assistance of counsel? In answering this
    question, the court should examine such matters as the complexity of the legal
    arguments to be advanced on appeal and the applicants ability to make legal
    argument in support of the grounds of appeal. [Citation omitted.]

[15]

I am satisfied that the applicant does not have sufficient means to
    obtain private legal assistance. I did not understand Crown counsel to suggest
    otherwise.

[16]

The Crown concedes that the applicants appeal is, at least in part,
    arguable.

[17]

The real issue on this application is whether the applicant has the
    ability to effectively advance his appeal without the assistance of counsel. In
    her endorsement, MacFarland J.A. answered this question in the affirmative.
    However, she explicitly noted that the applicant would have the assistance of
    duty counsel, an experienced well-qualified lawyer to assess the record and
    make submissions on his behalf.

[18]

In fact, duty counsel will not be able to assist the applicant with his
    appeal. This is not because duty counsel have examined the record and do not
    see any possible ground of appeal  a position regularly taken by duty counsel.
    Rather, it is because the Program has determined that it cannot assist the
    applicant because his appeal, in the words of Article 3.3(c) of the Programs
    Bylaw No. 1, is beyond the scope of what is reasonably expected of the
    Program. Put bluntly, the Program has determined that the applicants appeal
    is too big for it to handle.

[19]

I do not criticize the Programs decision in this case. On the contrary,
    I accept and respect it. In a very recent decision,
R. v. Lubin
, 2016
    ONCA 780, Feldman J.A. said this about the Program, at para. 18:

[T]he pro bono duty counsel program [is] run by senior members
    of the defence bar, in cooperation with the Crown and the court, to assist
    inmates who have been denied Legal Aid for their appeals. Members of the pro
    bono duty counsel roster appear on inmate sitting days in Toronto and Kingston
    to assist appellants who are incarcerated throughout Ontario and across Canada.
    The pro bono duty counsel program is run by volunteer members of the defence
    bar. Unlike the Legal Aid program, the pro bono duty counsel are not obligated
    to assist unrepresented litigants - they give their time as a public service in
    the best traditions of the bar. Their presence is not a substitute for
    fully-funded counsel, whether through Legal Aid or a s. 684 order, where
    circumstances warrant such assistance.

[20]

I would add this to Feldman J.A.s description of the duty counsel
    program. In my experience, it is rare for the Program to decline to provide
    assistance on the basis of Article 3.3(c) of the Bylaw. Duty counsel are not
    known to shy away from hard cases. On the contrary, as one of the duty counsel
    lawyers, Breese Davies, noted in a speech given at this years Justice Marc
    Rosenberg Symposium, defence counsel love a good challenge. Collectively, duty
    counsel devote hundreds of hours each year to ensuring that unrepresented
    appellants have meaningful access to appellate review. I think it is fair to
    say that committed and generous
pro bono
duty counsel in the inmate
    appeal stream treat inmates with the same diligence and professionalism as they
    do their own clients.

[21]

So what should be made of the Programs decision to not provide
    assistance to the applicant on his appeal because, in the Programs view, it is
    outside the scope of what is reasonably expected of the Program? This is
    obviously a change in circumstances not contemplated by MacFarland J.A., and
    therefore it is appropriate to consider it on this revised s. 684 application:
    see
R. v. Assoun
, 2002 NSCA 119, 208 N.S.R. (2d) 340, at paras. 11-12.

[22]

In my view, the Programs decision tips the balance of the
Bernardo
analysis in the applicants favour. The Programs decision is significant as it
    signals to this court that the applicants appeal is not as straightforward as
    it initially appeared to be. While the appeal is not legally complex (the test
    for ineffective assistance of counsel is well-established), in order to make
    the arguments necessary to advance the grounds of appeal raised, one must have
    an in-depth knowledge of the case and how the facts revealed by the record
    support the legal arguments that must be made. Given the volume of the record (approximately
    3,500 pages of disclosure, 300 pages of preliminary inquiry transcript, 280
    pages of trial transcript, and 636 pages of transcript of the post-trial
    examinations and cross-examinations of the applicant and his trial counsel),
    duty counsel cannot reasonably be expected to engage in a detailed review of
    it. Nor do I think that this would be a reasonable expectation of the applicant
    given his limited education (grade 9) and disability (dyslexia).

[23]

In addition, in my view the applicant will struggle, without any legal
    assistance whatsoever, to explain why or how his trial lawyers conduct
    constitutes incompetence. Assessing, for example, which Crown witnesses could
    have had their credibility fundamentally undermined and demonstrating exactly
    how trial counsel ought to have gone about this task requires not only detailed
    knowledge of the trial record but also a firm grasp of trial advocacy. In my
    view, the applicant, without the assistance of duty counsel, does not have the
    knowledge or experience necessary to identify and marshal the facts necessary
    to support the legal arguments he wishes to advance.

[24]

In summary, I emphasize two crucial contextual points. First, the Crown
    concedes that the appeal is, at least in part, arguable. Second, the Inmate
    Appeal Duty Counsel Program has properly exercised its discretion and decided
    not to provide assistance to the applicant because his appeal is too big to
    handle, beyond the scope of what is reasonably expected of the Program.

[25]

Against the backdrop of these two contextual factors, I return to the
    two-pronged
Bernardo
test. First, I do not think that the applicant
    can effectively present his appeal without the help of a lawyer. This is enough
    to dispose of the application. Second, although I cannot say definitively that
    the court cannot properly decide the appeal without the assistance of counsel,
    I do say that, given the extent of the record and the nature of the legal
    issues that will be raised on the appeal, the assistance of experienced
    criminal counsel will be of great assistance to the court.

E.

disposition

[26]

The application to appoint s. 684 counsel is granted. John Kaldas is
    appointed to represent the applicant on his appeal.

[27]

This judgment is to be provided to the Legal Aid Director. If the
    Director does not issue a certificate, the applicant will be represented by
    counsel appointed under s. 684(1) and counsels fees and disbursements shall be
    paid by the Attorney General under s. 684(2) of the
Criminal Code
, up
    to a maximum of 40 hours.

Released:  JM  NOV 1 2016

J.C. MacPherson
    J.A.


