



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McCullough, 2017 ONCA 315

DATE: 20170413

DOCKET: M47639 (C62159)

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

James McCullough

Applicant/Appellant

Catriona Verner, for the applicant

Elise Nakelsky, for the respondent

Heard: April 4, 2017

Application for the appointment of counsel pursuant to s.
    684(1) of the
Criminal Code
.

ENDORSEMENT

[1]

James McCullough was convicted of first degree murder and of committing
    an indignity to a human body. He applies
for the
    appointment of publicly-funded counsel under s. 684(1) of the
Criminal
    Code
to argue his appeal.

[2]

For the reasons that follow, I allow the application on a limited basis.

A.

Overview

[3]

The applicant was tried by Pomerance J. of the Superior Court of Justice
    sitting with a jury. Following his conviction he was sentenced to life
    imprisonment without parole for 25 years.

[4]

The basic facts are not in dispute. The applicant and the deceased took
    a taxi from Orangeville to a hotel in London. Sometime after checking in, the
    applicant killed the deceased, dismembered him and placed the body parts into
    two hockey bags. Some tissue was found to be missing from the deceaseds arm.

[5]

The Crowns theory was that the applicant planned the deceaseds murder
    in order to act out his fantasies of murder, dismemberment and cannibalism. The
    defence position was that the applicant was provoked to kill the deceased by an
    unwanted sexual advance and attempted sexual assault. The applicant acknowledges
    the use of disproportionate force, but asserts that he is guilty only of
    manslaughter or, at worst, second degree murder.

B.

The Governing Principles

[6]

Section
684(1) of the
Criminal
    Code
provides for the appointment of appellate counsel in certain
    circumstances:

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.

[7]

The elements of the test
under s. 684(1)
    of the
Criminal Code
were summarized by Gillese J.A. in
R.
    v. Staples
, 2016 ONCA 392, 352 O.A.C. 392, at para. 34:

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?

[8]

The court must be satisfied, in the words of s. 684(1), that: 
it appears desirable in the interests of justice that
    the accused should have legal assistance.
The onus is on the applicant:
R. v. Abbey
, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 31. In
Abbey
,
Watt J.A. observed, at para. 29, that t
he
    phrase, "the interests of justice", is a legal chameleon that takes
    its meaning from its surroundings and explained that it contemplates a
    judicial discretion exercisable on a case-by-case basis, citing
R. v.
    Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16.

[9]

Justice Watt noted at para. 30 of
Abbey
:

The "interests of justice" in s. 684(1) must take
    cognizance not only of the broad access to appellate review contemplated by s.
    675 of the
Criminal Code
, but also of the expansive remedial powers of
    a court of appeal for which s. 686 provides. Justice demands that an accused
    who appeals against conviction for an indictable offence under s. 675 be
    afforded a meaningful opportunity to establish the merits of the grounds of
    appeal he or she advances. Justice demands, equally, that the court to which
    the appeal is taken be able to fully and properly exercise its broad review
    jurisdiction at the conclusion of the appeal:
Bernardo
, at para. 20.

[10]

After
    it is established that the accused does not have the means to hire counsel
    privately, which is conceded by the Crown here, s. 684 requires the court to undertake
    two inquiries. The first is into the merits of the appeal on the basis of the
    record. Given that, as in this case, the available record will often be
    incomplete, Watt J.A. stated in
Abbey
,

at para. 32, the
    merits inquiry simply requires the judge  to determine whether the grounds of
    appeal to be advanced are arguable, citing
Bernardo
, at para. 22. He
    added: This standard or threshold of an arguable case is a modest one.

[11]

The
    second inquiry is that after arguable grounds are found to exist, the judge
    must determine whether the applicant is able to argue the appeal without
    counsels assistance. I now undertake the inquiries.

C.

The Merits of the Appeal

[12]

The
    focus of the proposed appeal is set out in Mr. Lockyers appeal letter to Legal
    Aid Ontario. The applicant would attack the trial judges pre-trial ruling on
    the Crowns theory of the case, and her rulings on the admissibility of several
    pieces of evidence:
R. v. McCullough
, 2016 ONSC 1014.

(1)

The Ruling on the Crowns Theory of the Case

[13]

The
    trial judge determined that the Crown would not be permitted to advance the
    theory that the applicant had cannibalized the deceaseds remains. She found
    the evidence to be too speculative to be placed before the jury, at para 21,
    and stated, at para 23: There is not sufficient evidence to indicate that an
    act of cannibalism occurred, and this allegation shall not be placed before the
    jury. She ruled accordingly that the charge of indignity to a human body
    shall be restricted to an allegation that the accused dismembered the body of
    the deceased.

[14]

While
    the applicant agrees with this ruling, he disputes her conclusion that the
    Crown could pursue its theory that the applicant planned the deceaseds murder
    in order to act out his fantasies of murder, dismemberment and cannibalism.

(2)

The Rulings on the Evidence

[15]

The
    Crown sought to adduce three pieces of evidence supporting its theory,
    described by the trial judge in para. 28, that the accused's desire to cut up
    and eat a person was the motive behind the murder.

(a)

The Applicants Conversation with Brendan Carmichael

[16]

The
    applicant had a conversation with a psychiatric nurse, Brendan Carmichael, a
    year before the deceased was killed, in which he expressed an interest in
    killing and in cannibalism. The trial judge summarized the evidence, at para.
    27:

Mr. McCullough told the nurse that he had killed cats and cut
    up their insides. He said that he would do the same with a person and would
    consider eating it. He stated that, when you eat someone you take on their
    traits, you get their good qualities and their muscles.

[17]

The
    trial judge concluded that the probative value of the nurses evidence exceeded
    its prejudicial effect (at para. 32). She found there to be a logical nexus
    between the statements to Mr. Carmichael and the circumstances of the offence given
    the highly specific and unusual manifestation of violence  the dismemberment
    of a human body and consumption of the flesh (at para. 29). She was confident
    that a limiting jury instruction would allay the prejudicial effect.

[18]

The
    applicants counsel argues the evidence of Mr. Carmichael should have been
    admitted only with the references to cannibalism removed because it was
    overwhelmingly prejudicial and of limited probative value.

(b)

The Rap Lyrics

[19]

The
    second item of evidence the Crown wanted to introduce was a sheet containing
    rap lyrics written by the applicant. The police found it in searching the
    applicants home after the murder. The Crown argued the lyrics demonstrated the
    applicants fascination with murder, dismemberment and cannibalism:

Its me when I
    come thru the scene, homie, another day another dollar.  Only things in my
    dreams is your girl and your money, homie thinks im joking but aint a damn
    thang funny,

Ill dig ur
    pockets breack and jaw and ram a knife thru your tummy

You aint been
    thru half the shit I been through, ill go through, your whole crew, a routine
    used to

Chop em up and
    mail their parts to you

Im so fucking
    sick my favorite drink is the blood of a jew,

Always in the
    kitchen cooking but its never stew

Homie pass the pipe time for this rack to brew

[20]

The
    trial judge instructed herself, at para 36:

There is a risk that rap lyrics may be misinterpreted thus
    inflating the probative value of the evidence. The courts must be cautious in
    admitting this type of evidence: see
R. v. Simard
, 2000 SCC 61, as
    discussed in David Tanovich,
R. v. Campbell
: Rethinking the
    Admissibility of Rap Lyrics in Criminal Cases (2016), 24 C.R. (7th) 27, at p.
    33.

[21]

The
    trial judge considered, at para. 38, whether there was a concrete nexus
    between the specific details of the lyrics and the specific details of the
    crime and found, at para. 39, there to be an interconnection between the
    lyrics, the crime, and other evidence. In her view, the applicants statements
    to Mr. Carmichael provided a context that strengthens the nexus between the
    lyrics and the crime (at para. 39). She considered the evidence to be
    sufficiently probative to put to the jury, along with a limiting instruction
    to circumvent the potential for prejudicial reasoning (at paras. 42-43).

[22]

Applicants
    counsel submits the trial judge accurately described the rap lyrics in the jury
    charge as graphic and morbid and could be seen by some to be repulsive. Counsel
    points out that the trial judges discussion of dismemberment did not rely on
    the applicants ideation of cannibalism, and argues the rap lyrics ought to
    have been edited to remove any possible allusions to cannibalism.

(c)

The Dexter Photograph

[23]

The
    police found a photograph of the lead actor in the TV series "Dexter"
    in the applicants backpack. This is a character who murders people, dismembers
    them and disposes of the body parts. The trial judge excluded it on the basis
    that it did not have sufficient probity. I include this detail to complete
    the context for the trial judges rulings.

(3)

The principles respecting the merits inquiry applied

[24]

The
    Crown opposes the application on the basis that the appeal does not have
    sufficient merit to warrant the appointment of counsel for the applicant at
    public expense.

[25]

It
    is not my task in an application
for the
    appointment of publicly-funded counsel under s. 684(1) of the
Criminal
    Code
to decide the merits of the appeal, but only to determine whether
    they are arguable.

(a)

The Crowns position

[26]

On
    the relevance of the applicants cannibalistic ideation, the Crown points to
    the distinction the trial judge made, at paras. 22-24 of her ruling, between an
    act of cannibalism and the ideation of cannibalism. She did not allow the Crown
    to proceed with cannibalism as an allegation within the offence of committing
    an indignity to a human body because there was no evidence the applicant
    consumed the deceaseds flesh. The Crown argues that the ideation of
    cannibalism is quite distinct, and was part of the applicants motivation for
    the killing. The trial judge understood the difference and allowed the Crown to
    proceed because the evidence of cannibalistic ideation was strong and relevant
    to the applicants state of mind and his motivation.

[27]

The
    Crown accordingly takes the position that trial judge properly admitted the
    applicants utterances to Nurse Carmichael and his rap lyrics as evidence of
    his ideations of cannibalism on the basis that it was relevant to his motive
    for the murder. The Crown adds that the trial judge committed no error of law
    in her probative versus prejudicial analysis and deference ought to be given to
    her judgment in this regard. The Crown argues that the limiting instruction in
    relation to cannibalism was sufficient, as was the limiting instruction
    regarding the use of the rap lyrics and the precise and correct use to be made of
    the bad character evidence.

[28]

Finally,
    even if it was an error for the trial judge to permit the reference to
    cannibalism, the Crown submits the error is of minor importance because the
    evidence of the applicants planning and deliberation was significant, so that
    this was an overwhelming case of first degree murder.

(b)

The Applicants Position

[29]

The
    nub of the proposed appeal is this: the applicant will argue that the trial
    judge rightly ruled that the Crown could not pursue the theory that the
    applicant had cannibalized the deceased. That ruling rendered irrelevant any
    evidence related to the applicants cannibalistic ideation. But then,
    inconsistently with this ruling, the trial judge permitted the Crown to advance
    the theory the applicant planned the deceaseds murder in order to act out his
    fantasies of murder, dismemberment and cannibalism. The evidence was laced with
    prejudicial references to cannibalism, made considerably more salient because
    some of the deceaseds tissue was missing.

[30]

The
    applicant would argue that the trial judge got the probative value versus prejudicial
    effect balance right on the initial cannibalism ruling. However, the
    evidentiary rulings got the assessment of the probative/prejudicial balance wrong.
    The result, was a difficult jury charge that did not correct but instead
    compounded the prejudice, and inevitably led the jury to find the applicant
    guilty of first degree murder in the face of the otherwise available
    convictions of second degree murder and manslaughter.

(4)

Conclusion on the merits inquiry

[31]

As
    I noted earlier, it is not my task to decide the appeal, but only to decide if
    the merits are arguable. Moreover, it is incumbent on me to do little more than
    describe the parties arguments in view of the disposition of this application.
    I should avoid expressing a view on matters that will be the subject of a
    panels deliberations. As Watt J.A observed in
Abbey
, at para 32: This
    standard or threshold of an arguable case is a modest one.  Put simply, I find
    that the applicant has met that modest standard. I am persuaded that the trial
    judges admission of the statements to Mr. Carmichael and the rap lyrics gives
    rise to arguable grounds of appeal. This is particularly so given the
    relatively unsettled state of the law in relation to the admission of evidence
    of rap lyrics.

[32]

I
    turn to the second s. 684 inquiry.

D.

Can the
Applicant
Argue the Appeal Alone?

[33]

I
    must now determine whether the applicant should be left to argue this appeal on
    his own. In
Abbey
, at para. 33, Watt J.A. explained: This inquiry
    examines the complexities of the arguments to be advanced and the appellant's
    ability to make legal argument in support of the grounds of appeal to be
    advanced.

[34]

The
    Crown submits this applicant could effectively present his appeal without the
    help of a lawyer, particularly since Mr. Lockyers opinion letter appealing
    Legal Aid Ontarios refusal to fund the appeal argues the legal issues very
    well.

[35]

I
    disagree. The stakes for the applicant in the appeal, with a conviction for
    first degree murder, could not be higher. In my view, this appeal contemplates
    a complex and nuanced legal argument that requires careful excavation of the
    facts, the evidence, the jury charge and the law. The exercise would daunt many
    lawyers, let alone a lay person like the applicant, who is unsuited to the task
    by experience, education, capacity and personal disposition.

[36]

To paraphrase Watt J.A. in
Abbey
, in this case justice
    demands that the applicant be given a meaningful opportunity to establish the
    merits of the grounds of appeal, something he cannot do on his own. Justice
    also demands that the panel hearing the appeal be properly assisted by
    competent counsel.

E.

disposition

[37]

For
    these reasons, I have concluded that it would be appropriate to make an order
    under s. 684 of the
Criminal Code
. The next question to be determined
    is whether there should be limits on the scope of the appointment.

[38]

There
    are two issues about the scope. First, the applicant filed a rudimentary notice
    of appeal addressed to both conviction and sentence, citing the grounds of
    counsel incompetence and inadequate representation. This issue was not
    raised by Mr. Lockyer in his appeal letter to Legal Aid Ontario.

[39]

Second,
    in the course of her oral submissions, applicants counsel raised another area
    of possible appeal relating to the use of evidence of the applicants
    post-offence conduct by the Crown. This was not raised by trial counsel in her
    letter to Legal Aid Ontario, nor was it raised by Mr. Lockyer.

[40]

I
    would not include either of these issues in the mandate of appellate counsel.
    If the applicant wants to pursue the issues of post-offence conduct or
    ineffective assistance of counsel, he should bring another application to Legal
    Aid Ontario for funding in respect of that particular ground.

[41]

The
    position advanced by Mr. Lockyer in his letter, and discussed in these reasons,
    focused entirely on errors in the trial judges pre-trial rulings, which he
    asserts gave rise to a miscarriage of justice. I would limit the mandate of
    appellate counsel to addressing the effects of the pre-trial rulings on the
    fairness of the trial.

[42]

In
    my view, it would be appropriate to limit the appointment to a certain number
    of hours. I request the parties to advise the court if they are able to agree
    on this issue, and on the identity of appellate counsel to be appointed. If
    they are not, then I will accept written submissions from the applicant within
    10 days of the date of this decision, followed by the Crowns submissions
    within an additional 5 days.

[43]

The
    applicant will be represented by counsel appointed under s. 684(1)
Criminal
    Code
and counsels fees and disbursements, including preparation for and
    attendance on this motion, shall be paid by the Attorney General under s.
    684(2).

P. Lauwers J.A.


