



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adams, 2016 ONCA 413

DATE: 20160601

DOCKET: (M46536) C60031

Watt J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Herbert Adams

Applicant (Appellant)

Herbert Adams, acting in person

Lou Strezos, duty counsel

Craig Harper, for the respondent

Heard: May 10, 2016

ENDORSEMENT

[1]

Herbert Adams is a convicted fraudster. A judge convicted him of four
    counts of fraud after a lengthy trial. Then the judge sentenced Herbert Adams.
    Five years, six months in the penitentiary. Restitution of $5.3 million. A fine
    of $1.6 million in lieu of forfeiture.

[2]

Herbert Adams has appealed his conviction and sentence. He wants his
    convictions set aside. At the very least, he wants his sentence reduced. But he
    has a problem. He says he cant argue his appeal himself. The appeal is far too
    complicated for a person with a Grade 9 education and no legal training. He
    says he cant afford a lawyer. He has no money. And anyone in his family who
    has any money isnt prepared to spend it on a lawyer to argue his appeal.

[3]

Herbert Adams proposes a solution. He asks that I appoint counsel to
    represent him on appeal under s. 684 of the
Criminal Code
. He gets
    counsel. And the Attorney General pays for his counsel.

[4]

The Attorney General wants no part of Herbert Adams proposed solution.

[5]

These reasons explain why I have concluded that Herbert Adams
    application fails.

THE BACKGROUND FACTS

[6]

A brief overview of the allegations of fraud proven at trial and the
    procedural course that has followed since are sufficient for the purposes of
    this application.

The Allegations


[7]

Over a two year period, Herbert Adams (the applicant) is alleged to have
    defrauded three named persons and the shareholders of Majestic Supply Company
    Inc. of sums of money exceeding $5,000. The named persons and others were
    induced to invest in Majestic by representations made by the applicant or by
    others with his approval that were false, deceitful or otherwise dishonest. In
    time, Majestic ceased operations and became insolvent.

The Trial Proceedings

[8]

At trial, the applicant was represented by privately funded counsel. The
    trial, including final argument, appears to have lasted about seven weeks.

[9]

At the conclusion of the evidence and the final submissions of counsel,
    the trial judge reserved his decision. Four months later he provided written
    reasons for his decision. The reasons consist of 1119 paragraphs and nearly 200
    pages.

The Appellate
    Proceedings

[10]

Within
    a month of sentencing, the applicant filed an inmate notice of appeal against
    both conviction and sentence. He described his grounds of appeal as such
    grounds as may be suggested by counsel.

[11]

On
    August 30, 2015, almost eight months after he had been sentenced, a judge of
    this court released him pending the determination of his appeal. The applicant
    was represented by counsel on the application. The release order contains no
    sunset clause.

The Pursuit of Legal
    Aid Funding

[12]

The
    applicant sought legal aid funding to retain counsel to represent him on
    appeal. The Area Committee in Hamilton considered his request, which included a
    letter from trial counsel setting out what counsel considered were arguable
    grounds of appeal. The Area Committee rejected his application on April 14,
    2015.

[13]

The
    applicant appealed the Area Committee refusal to the Provincial Director. On
    June 15, 2015, Senior Legal Counsel, Appeals advised the applicant that his
    appeal of the refusal of the Area Committee to issue him a certificate was
    dismissed. The Director, like the Area Committee, concluded that the applicant
    failed to qualify financially for legal aid. Each noted a discrepancy between
    the applicants reported income and much larger deposits to his bank account,
    as well as unexplained withdrawals. In essence, legal aid authorities found
    that the information the applicant provided to the agency about his financial
    means was incomplete and incredible.

[14]

About
    four months later, the applicant renewed his request for legal aid funding. The
    Provincial Director treated the application as a request for reconsideration.
    The Director communicated the rejection in these terms:

The previous refusal was based on a conclusion that you failed
    to provide complete and credible information and you have access to resources
    through other persons who have assisted you. The information provided by you
    does not provide a basis for a different conclusion because even were Legal Aid
    to accept that your information is now complete and credible, Legal Aid
    considers you to have access to resources through other persons who have
    assisted you financially, those being your brother, son and sister. In the
    event that your family is no longer able to assist you, your family members may
    complete financial assessments in order that a determination may be made as to
    their financial eligibility. In the absence of your family members completing
    financial assessments, you fail to qualify financially for legal aid
    assistance.

[15]

About
    two months later, the applicant renewed his request for legal aid funding. He
    included some information about the financial circumstances of some members of
    his family. In rejecting this request, the Provincial Director pointed out that
    the applicant had access to other financial resources to fund retention of
    counsel. Legal Aid would not issue a certificate because neither the applicant
    nor his relatives could meet the required financial guidelines.

The Section 684
    Application

[16]

In
    his affidavit filed in support of this application, the applicant explained
    that he has exhausted all his financial resources and is living on pension
    income of about $1,300 per month. He owes the Canada Revenue Agency $131,000
    and his trial lawyer $31,000. Any family member who could provide financial
    assistance is not prepared to do so.

[17]

The
    applicant has a Grade 9 education and no legal training. His affidavit contains
    no reference to his business experience but includes, as an exhibit, a lengthy
    affidavit from trial counsel, filed in support of his application for release
    pending appeal, describing the nature of the evidence adduced at trial and
    listing several proposed grounds of appeal.

The Arguments Advanced

[18]

Duty
    counsel says that the applicant has made out a case for an order under s. 684.
    The proposed appeal has merit, as is evidenced by the finding of the chambers
    judge on the application for release pending appeal that the appeal is not
    frivolous. The applicant is inadequately equipped, by education or experience,
    to argue the appeal himself. The size of the appeal record means that Duty
    Counsel will not be a position to make submissions on the applicants behalf.

[19]

Further,
    duty counsel continues, the applicant lacks the financial resources to retain
    counsel privately. His own income is inadequate. His brother, a potential
    source of funding, has recently filed for bankruptcy. Other family members,
    even if able, are not prepared to assist. What is more, according to duty
    counsel, the court would be substantially assisted on the hearing of the appeal
    if counsel were appointed to focus the argument on the grounds with merit and
    leave aside those without it.

[20]

The
    respondent joins issue with the applicant on the inadequacy of financial
    resources to retain counsel, the inability of the applicant to argue the case
    without the assistance of counsel and, to some extent at least, on the merits
    of the proposed appeal.

[21]

The
    respondent says that the applicant has provided no credible information that he
    lacks access to sufficient funds to retain counsel privately. He did so at
    trial. His claim of penury is contradicted by large unexplained deposits in his
    bank account. He has never provided any explanation of where the proceeds of
    his fraud are currently residing. Nor do we have any satisfactory evidence
    about the state of his relatives finances or the fact or reasons of their
    refusal to assist.

[22]

The
    respondent takes issue with the applicants claimed inability to make
    submissions on his own behalf. After all, despite his limited formal education,
    the applicant incorporated companies, ran or directed the running of at least
    two businesses and participated in negotiations with international corporations
    to obtain the supplies necessary to pursue his business plans and goals. He
    also has available for assistance the materials prepared by trial counsel
    summarizing the underlying circumstances and setting out, in substantial detail,
    proposed grounds of appeal.

[23]

The
    respondent points out that although the chambers judge must have been satisfied
    that the appeal was not frivolous in order to grant release pending appeal, the
    test applicable there is a modest one, not dispositive of the merits inquiring
    for the purposes of an application under s. 684. At bottom, the grounds raised
    are largely complaints about factual findings, including the credibility of
    witnesses and the reliability of their evidence. These findings are largely
    impervious to appellate review, as is the claim of uneven scrutiny in accepting
    some and rejecting other evidence.

The Governing
    Principles

[24]

The
    discretion to assign counsel under s. 684 to act on behalf of an accused who is
    party to an appeal requires an applicant to satisfy two preconditions. The
    judge or panel of the court must be satisfied that:

i.

it appears desirable in the interests of justice that the accused should
    have legal assistance; and

ii.

it appears that the accused has insufficient means to obtain the
    necessary legal assistance.

[25]

The
    ubiquitous phrase, the interests of justice, takes its meaning from its
    context. It bespeaks a judicial discretion that is to be exercised on a
    case-by-case basis:
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont.
    C.A.), at para. 16. The phrase takes cognizance not only of the broad access to
    appellate review furnished by s. 675, but also of the expansive remedial
    authority of a court of appeal under s, 686 of the
Criminal Code
:
Bernardo
,
    at para. 20.

[26]

Further,
    two closely related principles are reflected in the factors to be considered
    under s. 684. The first is that counsel should be appointed where an accused
    cannot effectively present his or her case on an appeal without the help of a
    lawyer. And the second is that counsel should be appointed where the court
    cannot properly decide the case on appeal without assistance from counsel. In
    the majority of cases, neither or both principles will operate to require the
    appointment of counsel. On other occasions, perhaps fewer in number, one principle
    or the other on its own will justify the appointment:
Bernardo
, at
    para. 21.

[27]

Under
    s. 684, the first inquiry focuses on the merits of the appeal. With due
    allowance, in most cases at least, for incompleteness or other deficiencies in
    the record, the merits inquiry does not reach beyond a determination of whether
    the appeal raises arguable issues:
Bernardo
, at para. 22. The
    appointment of counsel cannot convert a desert into a rainforest.

[28]

A
    final point concerns the assessment of the financial resources component of the
    s. 684(1) inquiry. That inquiry is not and cannot become a judicial review of
    decisions made by legal aid authorities:
R. v. Peterman
(2004), 70
    O.R. (3d) 481 (C.A.), at para. 22; and
R. v. Rushlow
, 2009 ONCA 461,
    96 O.R. (3d) 302, at para. 18.

The Principles Applied

[29]

Several
    reasons persuade me that I should not make an order appointing or assigning
    counsel under s. 684.

[30]

First,
    the merits of the appeal. Despite the lengthy opinion letter of trial counsel
    about the merits of the appeal and the finding of the chambers judge on the
    application for release pending appeal that the appeal was not frivolous, the
    grounds of appeal advanced by trial counsel contest findings of fact made by
    the trial judge. Grounds of appeal that assert erroneous acceptance of the
    evidence of some witnesses and flawed rejection of the testimony of others are
    notoriously resistant to appellate correction. Likewise, the claim of uneven or
    unbalanced scrutiny of the appellants evidence in comparison with the testimony
    of other witnesses. A submission often made, but seldom successful.

[31]

Absent
    from the prospective grounds of appeal suggested by trial counsel are any
    claims of legal error, mistaken admission or rejection of evidence or an assertion
    of an unreasonable verdict.

[32]

Second,
    financial considerations. The record is barren of any explanation of the
    current residence of the funds obtained from the investors that are the subject
    of a $5.3 million restitution order. The applicant has expended no real effort
    to explain the discrepancies between the claim of penury advanced on his behalf
    and the reality of significant deposits made to his bank account. His denial of
    the availability of financial assistance from other family members remains
    simply his say-so, unconfirmed by any credible information from them.

[33]

Third,
    the applicants ability to advance argument on his own behalf. The applicant is
    a mature adult who ran or directed the running of businesses involved with sizeable
    commercial entities. He had employees and directed their activities. Despite
    his lack of formal education beyond early secondary school, it beggars belief
    that the applicant, with the benefit of extensive materials prepared by trial
    counsel, cannot advance his claims of error before a panel of this court.

CONCLUSION

[34]

The
    application is dismissed.

David Watt J.A.


