



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rafferty, 2013 ONCA 741

DATE: 20131210

DOCKET: M43090 (C56187)

Rosenberg J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Rafferty

Applicant/Appellant

Paul Calarco, for the applicant

Randy Schwartz, for the respondent

Heard: December 2, 2013

On application for an order pursuant to s. 684 of the
Criminal
    Code
and for an order for extension of time to appeal conviction for
    sexual assault causing bodily harm and kidnapping entered on May 10, 2013 by
    Justice Thomas A. Heeney of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant applies for an order under s. 684 of the
Criminal Code
for appointment of counsel for his appeal. The appellant also applies for an
    extension of time to appeal his convictions for sexual assault causing bodily
    harm and kidnapping. The Crown agrees that the extension of time should be
    granted.

[2]

While Mr. Schwartz opposes the s. 684 application, he fairly concedes
    that there are a number of factors that favour counsel being appointed. First,
    there is no dispute that the appellant lacks sufficient means to retain
    counsel. Second, there is no dispute that the appellant cannot argue the appeal
    without the assistance of counsel. The 33-year old appellant has a grade 9
    education and is currently imprisoned outside of Ontario. He is in segregation
    and does not have access to a law library. Crown counsels position is that the
    appeal lacks merit and, in any event, the issues are relatively
    straight-forward and could be argued with the assistance of duty counsel as an
    inmate appeal.

[3]

Third, Mr. Schwartz also points out that this is a case that falls
    within the circumstances identified by Doherty J.A. in
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at paras. 19 and 26:

Appellate review as provided for by Part XXI of the
Criminal
    Code
is not an indulgence to be doled out to those who are somehow seen as
    deserving of the opportunity to challenge their conviction. The salutary
    purposes underlying broad appellate review on appeals from convictions are
    engaged and must be served no matter how heinous the crime or despicable the
    accused.
Detached and reflective appellate review of the trial process is
    perhaps most important in notorious, emotion-charged cases involving the least
    deserving accused. It is in those cases that the public eye is most closely
    focused on the process and the mettle of the criminal justice system undergoes
    its severest test. By giving the most repugnant appellant full recourse to
    meaningful appellate review, and by subjecting the apparently most deserving
    convictions to careful appellate scrutiny the integrity of the process is
    maintained
and a commitment to the unbending application of the rule of
    law is affirmed. [Emphasis added.]



In addition to these considerations, a further practical
    concern leads me to believe that counsel should be assigned. In inmate appeals,
    the court expects and receives the full co-operation of counsel appearing for
    the Crown. Often, the Crown alerts the court to matters which are favourable to
    the appellant and sometimes even assists the appellant in making his or her
    submissions. Given the notoriety of this case, and the unspeakable horror of
    the appellant's crimes (even on his own admissions), it would be unrealistic,
    and unfair to Crown counsel to expect that he or she would be able, despite
    best intentions, to provide the kind of assistance to the appellant which is
    routinely provided to other in-person appellants. It is better for the Crown if
    this appellant has his own advocate.

[4]

This motion turns on whether it is in the interests of justice that the
    appellant have legal assistance because he cannot effectively present his
    appeal without the help of a lawyer. In this appeal, the resolution of that
    issue turns on whether there is merit to the appeal and whether the
    availability of duty counsel is a suitable substitute for appointed counsel.
    For the following reasons, counsel should be appointed in accordance with s.
    684.

[5]

The affidavit of Stacey Nichols contains an outline of the facts and of
    the proposed grounds of appeal. I have also had an opportunity to review the
    lengthy charge to the jury and the several rulings that lie at the heart of
    several of the grounds of appeal. In my view this material shows that the
    appeal is an arguable one in the sense explained in
Bernardo
at para.
    22.

[6]

While there are other grounds of appeal referred to in Ms. Nichols
    affidavit, in his submissions, Mr. Calarco focused on three grounds of appeal.
    The first ground of appeal is the so-called accessory after the fact defence.
    This is not a defence in the classic sense and is more properly characterized
    as a submission that the charge to the jury on the use of after-the-fact
    conduct was deficient. In short, the appellant would argue on appeal that the
    conduct relied upon by the Crown to show that the appellant was a party to the
    first degree murder is consistent with the appellant merely being an accessory after
    the fact to the killing. I agree with Mr. Calarco that on this record it
    appears that the trial judges instructions on the issue were deficient. It
    seems to me that the Crown response is a submission that no substantial wrong
    was occasioned because of the strength of the Crowns case and the directions
    on after-the-fact conduct that were given. The burden would be on the Crown to
    establish that no substantial wrong or miscarriage of justice was occasioned.
    This will involve a full understanding of the case and the complexities of
    applying the test in s. 686(1)(b)(iii) of the
Criminal Code
.

[7]

The second ground of appeal concerns the failure of the trial judge to
    give a
Vetrovec
warning in relation to Ms. McClintic. There is no
    question that the trial judge refused to give this warning because of the
    position taken by the defence. Mr. Calarco points out that in making this
    decision the trial judge was influenced by the concurring reasons of Bastarache
    J. in
R. v. Brooks
, 2000 SCC 11, [2000] 1 S.C.R. 237. It is arguable
    that the reasons of Bastarche J. were not the reasons of the majority on this
    issue and this is one of the rare cases where a
Vetrovec
warning was
    not a matter of discretion, as discussed in
R. v. Bevan
, [1993] 2
    S.C.R. 599, at 614-15, and in the dissenting reasons of Major J. in
Brooks
at para. 80. Arguably Major J. is speaking for a majority of the court on this
    issue in light of the concurring reasons of Binnie J. at para. 127. The
    circumstances surrounding the decision whether or not to give the warning are
    complex. The argument that this was one of the cases where the trial judge
    should have overridden the tactical decision of experienced trial counsel is a
    difficult one and would again require a full familiarity with the trial record.
    Similarly, this may be one of the cases where the proviso can be applied as
    Binnie J. did in
Brooks
, given the strength of the prosecutions case
    and the warning that was given by the trial judge in relation to Ms. McClintics
    testimony. But, that again would be a matter of some complexity requiring the
    assistance of counsel.

[8]

The third ground of appeal concerns the decision of the trial judge to
    allow one of Ms. McClintics prior inconsistent statements to be admitted for
    its truth in accordance with
R. v. B. (K.G.)
,
[1993] 1 S.C.R. 740. In this statement,
    which was one of several that she gave to the police, Ms. McClintic implicated
    the appellant as having actually committed the murder. She did not, however,
    resile from her position that she was a party to the murder. The situation
    presented to the trial judge was an unusual one and whether the issues were
    properly resolved may involve the application of the reasoning in the very
    recent decision of the Supreme Court of Canada in
R. v. Youvarajah
,
    2013 SCC 41. Mr. Schwartz makes a very compelling argument that the trial judge
    properly exercised his discretion in admitting the evidence. However, I am
    satisfied that given the novelty of the situation and the argument, the ground
    of appeal is arguable.

[9]

Given Mr. Schwartzs very fair position that the appellant could not
    argue these grounds of appeal without the assistance of counsel, the issue is
    whether duty counsel would be an adequate substitute for appointed counsel. A
    letter from Mr. Russell Silverstein explains the operation of the duty counsel
    system. He points out that duty counsel is not a substitute for counsel of
    choice and that duty counsel cannot be expected to argue appeals where the
    appeal record is extremely large and the issues are sufficiently complex or
    novel. In my view, this case falls within that category of cases. It may well
    be that, with the agreement of counsel, the actual record that will be placed
    before the appeal court will be relatively limited. But, that result can only
    be fairly achieved with the assistance of appointed counsel familiar with the
    proceedings at the three-month trial. Duty counsel cannot be expected to
    perform that task in a case like this.

[10]

And,
    in my view, this is a case of sufficient complexity that duty counsel will not
    suffice. Duty counsel provide a remarkable service to the court and the
    unrepresented inmates. They work diligently and provide hours of their time
    without compensation to assist inmates, including inmates convicted of serious
    crimes serving lengthy sentences of imprisonment. However, those cases tend to
    have a limited record and involve one or two discrete points. Duty counsel
    cannot be expected to take on a case of this complexity involving difficult
    grounds of appeal, some of which will involve an attack on the tactical
    decisions made by very experienced trial counsel.

[11]

I
    agree with Mr. Schwartz that although Legal Aid Ontario has refused to fund the
    appeal, it would be appropriate to refer the matter back to the Corporation
    pursuant to s. 28(6) of the
Legal Aid Services Act, 1998
, S.O. 1998, c. 26
. In my opinion it is
    desirable in the interests of justice that the appellant be represented.

[12]

If
    legal aid is refused, an order will go appointing Mr. Calarco as counsel, his
    fees and disbursements to be paid by the Attorney General for Ontario.

[13]

As
    I indicated to counsel at the hearing of the motion, this is a case that would
    benefit from case management. The Associate Chief Justice has asked me to case
    manage this appeal. Accordingly, I direct the following:

1.       If Legal Aid Ontario has not made a decision in this
    matter by December 31, 2013, I would ask the parties to be in touch with Ms.
    Schirripa to arrange a conference call with me the week of January 6, 2014.

2.       Counsel should meet by December 31, 2013 to agree on
    those parts of the transcript that are required for the appeal. Based on my
    review of the materials placed before me on this motion it would seem to me
    that the evidence of McClintic will be necessary as well as the transcript of
    the pre-charge conference, the addresses of counsel, the charge to the jury and
    any objections to the charge. This should be the starting point for those
    discussions. There should be some demonstrable reason why other parts of the
    transcript are required. If counsel are unable to agree, they should be in
    touch with Ms. Schirripa to arrange a conference call with me the week of
    January 6, 2014.

3.       It is in the public interest and the interest of
    justice that this appeal proceed to hearing as soon as possible. I would ask
    counsel to be in touch with Ms. Schirripa to arrange a conference call no later
    than the end of May 2014 to arrange a timetable for filing of factums and the
    appeal book.

[14]

As
    indicated earlier in my reasons, the application to extend time to appeal the
    convictions for sexual assault causing bodily harm and kidnapping is granted.

M. Rosenberg J.A.


