



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Mahmood, 2015 ONCA 442

DATE: 20150616

DOCKET: M44911 (C59069)

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Najam Mahmood

Applicant

Najam Mahmood, acting in person

Erin Carley, for the respondent

Heard: April 8, 2015

Application for appointment of counsel under s. 684 of
    the
Criminal Code
.

Watt J.A.:

[1]

Najam Mahmood had a business. He taught foreign exchange trading. He
    earned a lot of money. About $3,000,000. He also collected GST.

[2]

Mahmood was much better at earning money than at paying his bills. Tax
    bills, in particular. For the taxation years 2003 to 2006, Mahmood did not file
    any income tax returns. He paid no income tax. Nor did he remit the GST
    collected during those same years.

[3]

A jury found Mahmood guilty of eight counts of tax evasion. He has
    appealed his convictions. The Attorney General of Canada has appealed the
    sentence imposed at trial, the carceral portion of which Mahmood has already
    served.

[4]

Mahmood had a lawyer at trial. He is now self-represented. However, he
    wants a lawyer to pursue his appeal from conviction and to respond to the
    Crowns appeal from sentence. He also wants the Attorney General of Canada to
    pay for this lawyer, a request the Attorney General says is undeserving.

[5]

To this end, Mahmood filed an application under s. 684 of the
Criminal
    Code
, R.S.C. 1985, c. C-46
.
    In these reasons, I will explain why I reject Mahmoods application.

The Background Facts

[6]

Nothing more than a brief overview of the circumstances underlying
    Mahmoods convictions and the procedural course the proceedings have taken
    since conviction is required.

The Allegations

[7]

During a four year period between 2003 and 2006, Mahmood operated a business
    teaching foreign exchange trading. By his own admission, he earned revenues of
    nearly $3,000,000. He filed no income tax returns, thus paid no income tax for
    any of those taxation years.

[8]

Mahmood also collected GST, which he failed to remit to the Canadian
    Revenue Agency.

[9]

The prosecution alleged that Mahmood evaded payment of nearly $500,000
    in exigible taxes.

The Trial Proceedings

[10]

Mahmood
    was represented by privately-retained counsel at trial. The trial lasted three
    months. The jury found Mahmood guilty of eight counts of tax evasion in respect
    of the 2003 to 2006 taxation years.

[11]

The
    trial judge sentenced Mahmood to a term of imprisonment of 12 months, which the
    judge reduced to 11 months because of time spent in pre-trial custody. He was
    also ordered to pay a fine of $687,000 within ten years.

The Appellate Proceedings

[12]

On
    August 1, 2013 the Attorney General of Canada filed a notice of appeal against
    the sentence imposed at trial. The remedy sought is an increase in the carceral
    portion of the sentence and a reduction in the time within which Mahmood is to
    pay the fine.

[13]

About
    the same time the Attorney General filed the notice of appeal against sentence,
    Mahmood completed an Inmate Notice of Appeal against conviction. For reasons
    that are not readily apparent, that notice of appeal was not recorded as filed
    in this court until almost a year later.

[14]

Mahmood
    has served the carceral portion of his sentence. He has successfully completed
    his period of parole supervision.

The Pursuit of Legal Aid Funding

[15]

Mahmood
    applied for Legal Aid funding to retain counsel to act on his behalf on both
    appeals.

[16]

About
    a month after the notices of appeal had been filed or completed, Legal Aid
    Ontario notified Mahmood that his request for funding had been refused. The
    Area Committee refused the request because members of Mahmoods family, who are
    considered as part of the assessment unit for financial eligibility purposes,
    had not provided the financial information that Legal Aid Ontario had
    requested. The Committee concluded that Mahmood appeared to have access to
    financial resources to retain counsel privately.

[17]

Mahmood
    appealed this decision. Several months later, the decision to deny funding on
    the basis of incomplete financial disclosure was affirmed.

The s. 684 Application

[18]

In
    August of last year, Mahmood filed an application under s. 684 of the
Criminal
    Code
. He sought an order appointing counsel to represent the Cross-Appellant
    and asked that the Attorney General of Ontario [
sic
] be directed to
    pay the fees of that counsel, as well as disbursements including the costs of
    preparing the transcripts of his three-month trial.

[19]

In
    the months that elapsed between the filing of the s. 684 application and the
    hearing, Crown counsel cross-examined Mahmood on the affidavit he filed in
    support of his application. Mahmood had counsel appointed under a limited s.
    684 order to protect his interests at the cross-examination.

The Arguments Advanced

[20]

Mahmood
    says the interests of justice require the appointment of counsel under s. 684.

[21]

Mahmood
    contends that his appeal from conviction has significant merit. The charge to
    the jury, he says, was confusing and cumbered by legal error, both in the
    instructions that were provided and those that were wrongly omitted. The
    convictions are unreasonable. He is entitled to legal assistance and payment of
    the costs associated with it, including payment for the transcripts of the
    entire trial. Although the appeal from sentence has no merit, counsel should be
    appointed to act on his behalf to resist the Crowns submissions that he should
    go back to jail and have less time to pay his fine.

[22]

Mahmood
    submits that he has insufficient means to retain counsel privately. He has not
    fully paid his trial counsel. He is an undischarged bankrupt. He is on social
    assistance and lives with his parents and other family members. While out of
    custody prior to and during trial, he was unable to get a job because his bail
    terms did not permit him to work in his chosen field.

[23]

Mahmood
    adds that he is incapable of presenting his appeal, which involves complex
    legal issues, without professional assistance. For similar reasons, he is
    ill-equipped to respond to the Crowns appeal from sentence, unaware of the
    principles of sentencing or their application to his case.

[24]

The
    respondent resists the application. The conviction appeal has no merit. Mahmood
    has not established that he lacks the financial means to retain counsel as he
    did at trial. As an in-person appellant and as the respondent on the Crown
    sentence appeal, he will have the assistance of experienced duty counsel paid
    for by the state and aided by an adequate evidentiary record.

[25]

The
    respondent says Mahmoods complaints about the correctness and completeness of
    the trial judges final instructions to the jury fall on barren ground.

[26]

The
    trial judge explained the essential elements of tax evasion in accordance with
    the decision of this court in
R. v. Klundert
(2004)
, 187 C.C.C. (3d) 417 (Ont. C.A.). He
    was under no obligation to go further to explain the difference between tax
    evasion and tax avoidance, or between an audit and a prosecution.

[27]

The
    evidentiary issues Mahmood complains about  the introduction of expert
    evidence from a witness not qualified as an expert and the admission of hearsay
     are belied by rulings of the trial judge and the record at trial. The witness
    who is said to have given expert evidence without being qualified to do so gave
    evidence of fact, not of opinion. What is alleged to be hearsay was not
    tendered or admitted for its truth. The evidentiary references provided by the
    trial judge in his final instructions were fair and balanced.

[28]

The
    respondent adds that Mahmood has failed to establish that he is without
    sufficient means to retain counsel privately. Legal Aid Ontario refused to
    provide funding because Mahmoods family members, part of the assessment unit
    for Legal Aid Ontarios purposes, failed to provide the financial information
    requested of them. By his own admission, Mahmood earned nearly $3,000,000
    during the period specified in the indictment. He lived with his parents who
    provided funds to pay for counsel who acted for Mahmood at trial on a private
    retainer. Mahmood himself provided funds for the purchase of a new family home.

[29]

The
    respondent points out that Mahmood has structured his activities to avoid
    holding assets in his own name. He has failed to provide a clear and concise
    statement of his assets and liabilities so that meaningful assessment of his
    financial means can be made. He has failed to provide a credible explanation
    for an alleged depletion of $5,300,000 in gross revenues from 2003 until 2007.
    He continues to be an undischarged bankrupt because the bankruptcy proceedings
    are awaiting the result of these outstanding appeals.

The Governing Principles

[30]

Section
    684(1) of the
Criminal Code

permits, but does not require, a
    single judge or a panel of this court to 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 to this court. The judge or panel of judges must be satisfied that
    it appears desirable in the interests of justice that an accused should have
    legal assistance and it appears further that the accused has insufficient means
    to obtain that assistance. The conditions precedent are cumulative.

[31]

Section
    684(2) controls where counsel is assigned and Legal Aid is not granted under
    the prevailing Legal Aid program. Where this occurs, the fees and disbursements
    of appointed counsel are to be paid by the Attorney General who is a party to
    the appellate proceedings.

[32]

Several
    basic principles inform the exercise of discretion under s. 684(1).

[33]

First,
    the phrase the interests of justice appears frequently in the
Criminal
    Code
. It takes its meaning from the context in which it appears and
    signals the existence of 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 the interests of justice must take cognizance
    of the broad access to appellate review provided in s. 675, as well as the
    expansive remedial authority of an intermediate appellate court under s. 686 of
    the
Criminal Code
:
Bernardo
, at para. 20.

[34]

Second,
    the factors to be considered reflect the operation of two closely related
    principles. Counsel should be appointed where an accused cannot effectively
    present an appeal without a lawyers help. Counsel should also be appointed
    where the court cannot properly decide the appeal without the assistance of
    counsel. Most of the time neither principle or both will operate to require the
    appointment of counsel. But, sometimes, one or the other, on its own, will
    justify the appointment:
Bernardo
, at para. 21.

[35]

Third,
    to determine whether counsel should be appointed, we begin with an inquiry into
    the merits of the appeal. Typically, the merits assessment, as here, is
    hampered by the incompleteness of the record. In the result, the merits inquiry
    extends no further than a determination of whether the appeal raises arguable
    issues:
Bernardo
, at para. 22. Appeals uninhabited by merit cannot be
    repopulated by the appointment of counsel:
Bernardo
, at para. 22.

[36]

Fourth,
    an assessment of the financial resources of an accused to retain counsel, an integral
    component of the inquiry under s. 684(1), is not to become a judicial review of
    decisions made by provincial 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.

[37]

Finally,
    the applicant must show that counsel should be appointed under s. 684(1) on a
    balance of probabilities.

The Principles Applied

[38]

Several
    reasons persuade me that this application fails.

[39]

First,
    even making generous allowance for grounds of appeal cast in the language of a
    self-represented litigant without legal training, an arguable ground of appeal
    remains elusive.

[40]

The
    case against Mahmood at trial proceeded on the basis that despite acknowledged
    earnings of nearly $3,000,000 in the relevant taxation years and collection of
    exigible GST, Mahmood neither filed tax returns nor remitted any GST he
    collected. The instructions of the trial judge, provided by the respondent,
    tracked the language used in
Klundert
to describe the essential
    elements of the offence. The omissions alleged by Mahmood lack merit. The same
    may be said of the suggestion of an inadequate or improperly weighted
    evidentiary review.

[41]

Further,
    the complaints of improper admission of expert evidence from a non-expert and
    the reception of inadmissible hearsay fall on barren ground. The trial judges
    ruling clarifies the nature of the evidence admitted and puts paid to any
    suggestion that the evidence was other than a factual recounting of steps taken
    during the investigation. As for the alleged hearsay, the evidence was not
    admitted for a prohibited purpose and the jury instructions did not invite
    improper use.

[42]

Second,
    Mahmoods claim of lack of financial means to retain counsel privately rings
    hollow. He was represented at trial by counsel who was privately retained. The
    trial lasted three months. He acknowledges having earned a total of nearly $5,300,000
    between 2003 and 2007. He offers no credible explanation for its disappearance.
    Certainly none of it made its way to the tax authorities. Other family members
    have declined to provide financial information so that an informed assessment
    may be made about financial means. Mahmoods sense of entitlement to state
    funding from the authority which prosecuted him is misplaced.

[43]

Third,
    dismissal of his application does not mean that Mahmood will be deprived of
    legal assistance or required to make his submissions on the basis of an
    inadequate evidentiary record. As a self-represented party, he is entitled to the
    assistance of duty counsel, an experienced appellate lawyer well qualified to
    assess the adequacy of any record compiled by the Attorney General of Canada
    for the determination of the issues raised on appeal and to make submissions on
    Mahmoods behalf.

[44]

Mahmood
    is obviously an intelligent man. He is out of custody and thus not inhibited in
    access to resources not available to those confined within prison walls.
    Nothing he advances raises any novel issue or inhabits some jurisprudential
    wilderness devoid of guidance. The response to the Crown appeal against
    sentence is straightforward.

Conclusion

[45]

For
    these reasons, the application fails and is dismissed.

David Watt
    J.A.


