



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Rootenberg, 2022 ONCA 28

DATE: 20220114

DOCKET: M53075 (C67988)

Brown
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent/Responding Party

and

Shaun
    Rootenberg

Appellant/Applicant

Bryan Badali, for the applicant

Nicolas de Montigny, for the responding
    party

Heard: January 7, 2022 by video conference

ENDORSEMENT

OVERVIEW

[1]

The applicant, Shaun Rootenberg, applies under s. 684(1) of the
Criminal
    Code
,
R.S.C.
    1985, c. C-46,

for the appointment of
    counsel.

[2]

The basic facts of this case are set out in the trial judges Reasons
    for Judgment (2019 ONSC 4145), Decision Reopening Stay of Proceedings
    Application (2020 ONSC 171), and Reasons for Sentence (2020 ONSC 5928). MacPherson
    J.A. also provided an overview of the case in his reasons denying bail pending
    appeal:
R. v. Rootenberg

(October
    7, 2020), Toronto, M51295 (C67988) (Ont. C.A.).

[3]

The applicant has exhausted his efforts to obtain legal aid for his
    appeal.

[4]

Pursuant to s. 684, a court may assign counsel where, in its opinion,
    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. The jurisprudence requires an applicant to
    demonstrate the following: (i) the appeal is arguable; (ii) the appointment of
    counsel is necessary, having regard to whether the applicant is capable of
    effectively advancing the grounds of appeal without a lawyer and whether the
    court will be able to properly decide the appeal without the assistance of
    defence counsel; and (iii) it appears the applicant lacks sufficient means to
    obtain such legal assistance:
R. v. Brown
,
    2018 ONCA 9, at paras. 7-8.

[5]

The Crown opposes the application, taking the position that the
    applicant has failed to establish elements (i) and (ii).

AGRUABILITY

[6]

Defence counsel, in his opinion letter to Legal Aid Ontario (the
    Opinion Letter), identified three grounds of appeal:

1.

Unreasonable verdict:
The trial
    judge convicted the applicant of one count of fraud over $5000 pursuant to s.
    380(1) of the
Criminal Code
. Although the
    trial judge was not persuaded beyond a reasonable doubt that the applicant
    defrauded the complainant by deceit or falsehood, she was persuaded that he
    had done so by other fraudulent means, within the meaning of s. 380(1). The
    applicant contends that result was the product of inconsistent reasoning by the
    trial judge and inconsistent with certain factual findings she made;

2.

Error in dismissing stay application:
The applicant had sought to stay the criminal proceedings against him on the
    basis that strip searches conducted of him during pre-trial custody  namely,
    searches when taken from and returned to the detention centre and searches upon
    leaving the institutions kitchen where he worked  violated his rights under
    s. 8 of the
Canadian Charter of Rights and Freedoms
.
    The trial judge gave extensive reasons for dismissing the stay application.
    Although defence counsel acknowledges that [t]here has been little
    jurisprudence addressing the use of strip searches in a detention centre or
    correctional facility, the applicant plans to argue that the trial judges
    analysis was deficient and that she erred in the balance she struck between the
    applicants privacy rights and the safety and security concerns of the
    detention facility;

3.

Error in imposing a harsh and excessive
    sentence and in failing to award additional credits for pre-sentence detention:
The Crown sought a 6 to 7-year prison term; the defence argued for a 3.5 to
    4-year term. The sentencing judge imposed a 6-year prison term, against which
    she gave
Summers
credit for the applicants pre-sentence custody. In
    rejecting the applicants submission for enhanced
Duncan
credits,
    as they were then called, the sentencing judge took into account, in part, that
    his work on the kitchen range had resulted in fewer restrictions on his
    movement in the institution. In her reasons, the sentencing judge also
    explained why she would not reduce the sentence on the basis of the principles
    in
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206
, or
    award any
Downes
credit for the conditions
    faced by the applicant while on judicial interim release. The applicant intends
    to argue on appeal that the sentencing judge erred by failing to grant him
Duncan
and
Downes
credits.

[7]

The Crown submits that there is insufficient merit to any of the
    applicants proposed grounds of appeal and, as a result, the applicant has not
    established that his appeal is arguable.

[8]

In his reasons denying the applicant bail pending appeal, MacPherson
    J.A. wrote: Although I cannot say that the applicants proposed appeal is
    frivolous, I do say that, to my eyes, it looks very weak. Applicants counsel fairly
    points out that those comments were made about differently framed grounds of
    appeal, not those described in the Opinion Letter, which the applicant now
    intends to advance.

[9]

Although the three grounds of appeal identified in the Opinion Letter
    strike me as weak, I cannot say they are not arguable for the purposes of a s.
    684 application.

NECESSITY

[10]

The
    applicant is a university graduate, although he failed to provide details of
    his university studies in his affidavit in support of this application.

[11]

The
    applicant is familiar with the basic workings of the banking and property
    financing systems. Prior to the conviction under appeal, the applicant had been
    convicted of uttering forged documents (2006) and several fraud-related
    offences (2009), which included defrauding his brother of $1.8 million. It is
    clear from the facts found by the trial judge that the applicant is familiar at
    least with the basics of the banking and property financing systems.

[12]

In
    his affidavit in support of this application, the applicant described himself
    as a business consultant. He deposed that while on interim release he
    performed consulting work for a medical marijuana company. Although his affidavit
    does not provide particulars of his employment history, from the Reasons for
    Judgment it appears that prior to committing the offence under appeal the
    applicant was involved in developing technology-related business ventures.

[13]

In
    his affidavit, the applicant asserts that he does not feel equipped to advance
    the grounds of appeal myself. However, his conduct to date strongly indicates
    that the applicant is a well-educated and sophisticated individual.

[14]

While
    the applicant does not have formal legal training, the first ground of appeal
    he advances  unreasonable verdict  is not complicated or factually complex.
    The size of the record would be manageable by a self-represented appellant. As
    well, the trial judge gave extensive reasons for conviction that provide the
    applicant with a focused target for his submissions.

[15]

However,
    the second and third grounds of appeal, which are based on the legal
    implications of common strip searches that were conducted on the applicant in
    the institutions in which he has been detained, contain a significant legal
    component. The second ground of appeal is novel. Combined, those factors lead
    me to conclude that the appointment of state-funded counsel is necessary to
    achieve fair and effective appellate review of the second and third grounds of
    appeal. Yet, I see no practical way to separate the first ground of appeal from
    the rest since the second ground of appeal also falls within the ambit of the
    conviction appeal. Given that circumstance, I think the most practical way to
    achieve the interests of justice is to appoint counsel to advance all three
    grounds of appeal.

DISPOSITION

[16]

For the reasons set out above, I conclude that the interests of
    justice warrant the appointment of counsel to advance the three grounds of
    appeal identified in the Opinion Letter. An order shall go granting the
    application to that extent. Mr. Badali is prepared to act for the applicant on
    the appeal.

David Brown J.A.


