



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2020 ONCA 573

DATE: 20200918

DOCKET: M51716 (C67054)

Hourigan
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Andrew Campbell

Appellant (Applicant)

Christen Cole and Anthony Moustacalis, for the
    appellant

Lorna Bolton, for the respondent

Heard: September 14, 2020 by videoconference

REASONS
    FOR DECISION

(a)

Introduction

[1]

On November 2,
    2018, the appellant was convicted of kidnapping, pointing a firearm, and
    assault causing bodily harm. He was sentenced to 7 years imprisonment, less
    credit for pre-trial custody and time spent on restrictive bail conditions.

[2]

The appellant
    brings an application for an order for the appointment of counsel under s. 684
    of the
Criminal Code
. For the reasons that follow, the
    application is granted.

(b)

Analysis

(i)

Governing Principles

[3]

Pursuant to s.
    684 (1), this court has the authority to assign counsel to act on an
    appellants behalf if, in its opinion, it appears both:

(i) desirable in the
    interests of justice that the appellant should have legal assistance; and

(ii) the appellant
    does not have sufficient means to obtain that assistance:
R v. Staples
,
    2016 ONCA 362, at paras. 31-32, reconsideration allowed,
R. v. Staples
,
    2017 ONCA 138.

[4]

Two general
    principles applicable to s. 684 applications are worth noting. First, an order
    for government-funded counsel is exceptional relief:
Staples
, (2016),
    at para. 40. Second, the appellant bears the burden of proof on a s. 684 application:
R. v. Abbey
, 2013 ONCA 206, 115 O.R. (3d) 13, at
    para. 31.

[5]

As part of the
    analysis of the interests of justice component of the test, the court should
    consider the merits of the appeal on the basis of the record. Put simply,
    appeals that are devoid of merit will not be helped by appointing counsel.
    Given that the record is often incomplete at the time of the application, this
    is not a probing examination of the merits:
R.
    v. Adams
, 2016 ONCA
    413.  Rather, the applicant need only satisfy that the court that the proposed
    grounds of appeal are arguable: see
R. v.
    Bernardo
, (1997), 121
    C.C.C. (3d) 123 (Ont. C.A.).

[6]

Where an
    appellant advances arguable grounds, the next component of the interests of
    justice analysis is whether the appellant can effectively advance the grounds
    of appeal without the assistance of counsel or the court can properly decide
    the appeal without the assistance of counsel. As part of this inquiry, the
    court examines the complexities of the arguments to be advanced and the
    appellants ability to make legal argument in support of the grounds of appeal:
Bernardo
, at para. 24.

[7]

The financial
    eligibility requirement in s. 684(1) of the
Criminal
    Code
reflects two
    values. First, the governments resources to fund legal representation are limited.
    Second, if it is in the interests of justice for an appellant to have a lawyer
    to argue the appeal, yet the appellant cannot afford to retain one, then the
    denial of a s. 684(1) order will adversely affect the appellants fair appeal
    rights:
R. v. Le
, 2016 ONCA 798, 134 O.R. (3d) 623, at
    para. 17.

[8]

An appellant
    seeking appointment of counsel under s. 684(1) must be clear and transparent in
    disclosing his or her financial affairs. The court must be satisfied that he or
    she has exhausted all other means of paying for counsel:
Staples
(2016), at para. 40.

(ii)

Application of
    the Principles

[9]

The appellant
    argues that is in the interests of justice that he should have legal assistance
    in pursuing his meritorious appeal and that he does not have the means to
    obtain that assistance.  In contrast, the Crown takes the position that the
    applicant has failed to demonstrate that he lacks financial means to retain
    counsel privately and has failed to establish that the appointment of counsel
    is in the interests of justice.

[10]

I turn first to
    a consideration of the merits of the appeal. The appellant raises various
    grounds of appeal, including ineffective assistance of counsel, the
    voluntariness of his police statement, the sufficiency of the jury charge
    regarding the use of prior inconsistent statements and post offence conduct,
    and unreasonable verdict. I would not categorize any of the grounds of appeal
    as strong, however I am not prepared to conclude that none of the grounds are
    arguable.

[11]

The next part
    of the analysis is whether the appellant can effectively advance the grounds of
    appeal without the assistance of counsel or the court can properly decide the
    appeal without the assistance of counsel. The appellant has not completed high
    school and has limited experience with the court system. The issues are not
    novel, but they are, in my view, beyond his capabilities to effectively argue.
    I also believe that the court will be greatly assisted by having s. 684
    counsel, as opposed to duty counsel, make submissions on these issues.

[12]

The final
    consideration is the financial means of the appellant.  The appellant has filed
    sworn affidavit evidence that since 2013 he has earned less than $11,000 per
    annum and that he has exhausted his ability to obtain financial assistance from
    his mother and aunt. While the Crown submits that the appellant is not credible
    and that there is a possibility that one of his cousins can assist him, I found
    those submissions speculative and I am satisfied that the appellant does not
    have the means to retain counsel.

(c)

Disposition

[13]

The appellant
    has met his onus on the test for a s. 684 order and the application is granted.
    On the state of the record, I am not prepared to limit the order to specific
    grounds of appeal. Counsel may provide me with a draft order. If no agreement
    can be reached on its terms, they may make written submissions and I will
    settle the order.

C.W. Hourigan J.A.


