



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Nelson,









2018 BCCA 45




Date: 20180130

Docket: CA44586

Between:

Regina

Respondent

And

Berk Vili Nelson

Appellant

Pursuant
to s. 16(4) of the
Sex Offender Information Registration Act
(
SOIRA
),
no person shall disclose any information that is collected pursuant to an order
under

SOIRA
or the fact that information relating to a person is collected
under
SOIRA
.




Before:



The Honourable Mr. Justice Fitch

(In Chambers)




On appeal from: an
order of the Supreme Court of British Columbia, dated
August 2, 2016 (conviction) (
R. v. Nelson
, Williams Lake Registry No.
33585) and
April 28, 2017 (sentence) (
R. v. Nelson
, 2017 BCSC 1050, Williams Lake
Registry No. 33585)

Oral Reasons for Judgment




Appellant appearing In Person (via videoconference re.
  conviction appeal)



B.V. Nelson





Counsel for the Appellant (sentence appeal):



E. Purtzki





Counsel for the Respondent:



D. Layton, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

January 30, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

January 30, 2018








Summary:

The appellant appeals both conviction
and sentence. He applies for an order allowing the sentence appeal to be heard before
the conviction appeal. The Legal Services Society is funding the sentence
appeal. The appellants application for court-appointed counsel to argue the
appeal from conviction has been dismissed. The appellant wishes to prosecute
the conviction appeal but does not currently have the resources to do so on his
own. Held: Application granted. In the exceptional circumstances of this case,
it would be in the interests of justice to hear the sentence appeal first. Because
the appellants application for state-funded counsel on his conviction appeal
has just been dismissed, he is entitled to more time to acquire resources to
prosecute that appeal. He has not yet ordered transcripts or appeal books and
may never be in a position to do so. The conviction appeal has not been show to
have merit. If the order sought is not made, the sentence appeal may be moot,
or nearly so, by the time it is heard. The appellant was sentenced to two
years imprisonment and has already served approximately nine months.

[1]

FITCH J.A.
: I have been case managing this appeal from conviction
and sentence since September 2017. The background circumstances were canvassed
in my reasons for judgment delivered on November 10, 2017, which dealt with the
appellants applications to extend time and to have counsel appointed on his
behalf pursuant to s. 684 of the
Criminal Code
, R.S.C. 1985, c. C-46.
The reasons I am delivering today should be read in conjunction with the
reasons given on November 10, 2017.

[2]

Since November 10, 2017, the following significant events have occurred.

[3]

First, the limited s. 684 appointment was accepted by Mr. Purtzki. By
letter dated January 24, 2018, Mr. Purtzki advised the Court that he had
conducted the investigations contemplated by the limited appointment of counsel
order in relation to the conviction appeal. Having conducted those
investigations, he has come to the conclusion that there is no basis on which
to proceed with a full application for the appointment of counsel to conduct
the appellants conviction appeal.

[4]

Second, the Legal Services Society has reconsidered its original
decision in relation to the appellants sentence appeal and has now determined
to fund that appeal. Mr. Purtzki has agreed to act for the appellant on the
appeal from sentence.

[5]

The appellant, who appears this afternoon by video conference, advises
that, despite Mr. Purtzkis assessment of the matter, he plans on pursuing the
conviction appeal. He is not prepared to abandon it at this stage even though he
has no current ability to pay for the required transcripts and appeal books.

[6]

In any event, I consider the limited s. 684 order to be spent at this
stage. I dismiss the original application to appoint counsel to argue the
conviction appeal. I do so because the appeal from conviction has not been
shown to be possessed of any merit. I addressed this issue in my reasons given
on November 10, 2017, at paragraphs 2029. Mr. Purtzkis assessment of the
matter, having had the opportunity to investigate the appellants ineffective
assistance of counsel claims and his contention that fresh evidence exists that
could assist him on the appeal, simply fortifies me in this conclusion. As the
appeal has not been shown to have any merit, it is not in the interests of justice
that public funds be expended on the full appointment of counsel order the
appellant sought.

[7]

Mr. Purtzki takes the position that, in the unusual circumstances of
this case, I should exercise my discretion to direct that the appeal from
sentence proceed in advance of the appeal from conviction. The application is
supported by the Crown. I confirmed with Mr. Nelson this morning that he, too,
supports the making of this order.

[8]

Despite the unusual nature of the application, the matter is time
sensitive and I have determined to give oral reasons today on the application
to reverse the usual order of hearing.

[9]

I will say at the outset that both counsel quite properly recognize that
the making of such an order is a departure from the usual practice of this Court.
For sound reasons, the practice of the Court is to hear conviction appeals
first. There are at least three reasons for this. The first is rooted in the
prudent allocation of judicial resources. If a conviction appeal is successful,
the sentence appeal becomes redundant and the Court will have wasted its time
and public resources in disposing of the sentence appeal first:
R. v.
Freeman
(1998), 101 B.C.A.C. 79 at para. 5 (Chambers);
R. v. Reed
(1998),
102 B.C.A.C. 157 at para. 10 (Chambers). Second, even when a conviction appeal
is dismissed, the reasons may provide a helpful perspective regarding facts and
issues relevant to the merit and disposition of the appeal from sentence:
R.
v. Owusu
, 2006 ABCA 91 at para. 6 (Chambers). Third, proceeding with the sentence
appeal first might be seen as potentially compromising the appearance of
fairness if the conviction appeal is allowed, a new trial is ordered, and the
appellant is convicted following a retrial. In these circumstances, the
appellant will appear for sentencing before a judge who has the considered
opinion of this Court as to the fitness of the sentence originally imposed. An
appellant in that situation might perceive (reasonably or not) that the
sentencing judge will feel bound to follow the decision of this Court.

[10]

While
the usual practice exists for good reasons, this Court has acknowledged that
there may be exceptions to the practice where it is shown that the interests of
justice would be served by an order reversing the usual order of hearing:
Freeman
at para. 5;
Reed
at paras. 910. Although rare, orders of the kind
sought in this case appear to have been made in the past both in this
jurisdiction (see
R. v. Hossainnia
, 2011 BCCA 379 at para. 2) and
elsewhere (see
R. v. Delchev
, 2014 ONCA 448 at para. 1;
R. v. M.W
.,
2015 ONCA 644 at paras. 915).

[11]

From
my review of the authorities provided in support of the application, it is
clear that the order sought should only be granted in exceptional circumstances
where compelling reasons to depart from the usual order of hearing have been
demonstrated.

[12]

I
agree with the joint position of counsel that the exceptional circumstances of
this case are such that the interests of justice would best be served by making
the order sought.

[13]

There
are a number of considerations that have led me to this conclusion. Many of
them are identified in the materials filed by the parties.

[14]

First,
transcripts from the five-day trial have not yet been ordered. The appellant
has just learned of the disposition of his s. 684 application and is entitled
to additional time to acquire the resources necessary to fund the conviction
appeal on his own. It is likely that an application to dismiss the conviction
appeal for want of prosecution would be viewed as premature at this stage.

[15]

Second,
although the appellant should be given some additional time to prosecute the
appeal with his own resources, there is a very real possibility in this case
that the appellant will be unable to fund the costs of transcripts and appeal
books such that the appeal from conviction will never be heard.

[16]

Third,
as the conviction appeal has not been shown to have any merit, it is unlikely
(at least on the basis of material before me) that hearing the sentence appeal
first will result in squandering scarce judicial resources because the
conviction appeal is subsequently allowed.

[17]

Fourth,
further delay in scheduling the sentence appeal to permit the appellant an
opportunity to proceed with his conviction appeal means that it is likely that
the sentence appeal will become moot, or nearly so, through the passage of
time. After being given credit for pre-sentence custody, the appellant was
sentenced on April 28, 2017, to two years imprisonment to be followed by two
years probation. By my calculations, he has now served approximately nine
months of that sentence. I would add that concerns arise about the sentence
appeal becoming moot from a pragmatic perspective even if the conviction appeal
languishes and is eventually dismissed for want of prosecution.

[18]

Fifth,
failing to grant the order sought would likely result in a sentence appeal the
Legal Services Society has determined to have sufficient merit to fund never
being heard by this Court, or heard at a time when no practical remedy will be
available to the appellant even if the original sentence is found to be unfit.
In my view, and in all the circumstances of this case, allowing the sentence
appeal to become moot, or nearly so, through the passage of time would be
contrary to the interests of justice.

[19]

Finally,
my assessment of the interests of justice in this case takes account of the
evidence before me that the appellant has experienced in the past, and
continued to experience at the time of sentencing, significant mental health
challenges. I appreciate that the appellant rejects the notion that he is
unwell or in need of professional assistance but the evidence before me is
capable of suggesting otherwise. While the appellant continues to assert his
desire to proceed with the conviction appeal, I question the extent to which
his decision is truly an informed one, or whether the appellant understands the
consequences of his intended course of conduct and how pursuit of what appears
to be a meritless conviction appeal could potentially prejudice the prosecution
of his appeal from sentence.

[20]

The
unusual features of this case, viewed cumulatively, support the making of an
order that the sentence appeal be heard in advance of the appeal from
conviction. I make that order.

[21]

Further,
I order that the appeal from sentence be expedited to the earliest possible
date. To that end, I would direct counsel to attend before the registry and
secure the earliest date upon which a one-hour sentence appeal could reasonably
be heard once it is known when the reasons on sentencing will be transcribed
and available for filing.

[22]

If the appellant determines to proceed with a bail application pending
the hearing of his appeal from sentence, it would be desirable that the
application come before me as I am familiar with the circumstances of this
appeal. Having said that, I am not seizing myself of the application for the
practical reason that I am sitting with a division of the Court during the
weeks of February 5 and February 12, 2018, and may not be in a position to
entertain the application, particularly if it is opposed. If an application for
bail is made, I will leave it with counsel to determine whether that
application should come before me or another judge.

The
Honourable Mr. Justice Fitch


