



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Le, 2016 ONCA 798

DATE: 20161027

DOCKET: M47002 (C58466)

Laskin J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

John Le

Applicant (Appellant)

Brian H. Greenspan and Peter Hamm, for the applicant

Benita Wassenaar, for the respondent

Heard: October 13, 2016

Laskin J.A.:

A.

Introduction

[1]

Mr. John Le applies under s. 684(1) of the
Criminal Code
to
    have Mr. Brian Greenspan assigned as his counsel for his appeal. The Crown
    opposes the application.

[2]

Under s. 684(1), I may appoint counsel if, in my 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 (emphasis added). Thus, to
    qualify for government funding for an appellate lawyer, an applicant must meet
    two criteria: the interests of justice criterion and the financial eligibility
    criterion.

[3]

The first criterion is not in issue on this application. The Crown
    accepts, and I agree, that the appeal is sufficiently complex and important
    that it is in the interests of justice for Mr. Le to have a lawyer.

[4]

This application turns on the second criterion: financial eligibility. Mr.
    Le says that he meets this criterion. His sworn evidence on the application,
    together with that of his mother and brother, shows that Mr. Le does not have
    the financial means to retain a lawyer. In opposing the application, the Crown
    says that Mr. Le has not exhausted his legal aid remedies; and he has not been
    clear and transparent in disclosing his financial affairs.

[5]

I am satisfied that Mr. Le has met the financial eligibility criterion.
    I therefore order under s. 684(1) that Mr. Greenspan be assigned to represent Mr.
    Le on his appeal.

B.

Background

(a)

Mr. Les
    convictions

[6]

Mr. Le is 44 years old. He has been in custody since 2009. In December
    2013, he, together with his co-accused Mr. Singh, was convicted of two counts
    of second degree murder, two counts of kidnapping, and one count of committing
    an offence for organized crime. On his convictions for murder, Mr. Le was
    sentenced to two life sentences without eligibility for parole for 23 years.

[7]

According to the reasons of the sentencing judge, Mr. Singh was an
    upper echelon drug dealer, and Mr. Le worked for his criminal organization.
    One of the two people murdered had apparently stolen 35 kilograms of cocaine
    from Mr. Singhs organization, and Mr. Singh wanted to send a message that
    thefts of drugs would not be tolerated. The other person murdered was unfortunately
    in the wrong place at the wrong time.

(b)

Mr. Les financial
    means

[8]

The evidence of Mr. Les financial means is both historical and current.

[9]

Historically, Mr. Le had some income and access to other income. There
    is evidence that he worked for Mr. Singh and was paid $5,000 per month. Also,
    he apparently was a successful poker player and pocketed up to $2,000 per week
    in cash from his winnings. These two sources of income ended when he and Mr. Singh
    were incarcerated seven years ago. On Mr. Les arrest, however, a large amount
    of cash was found in the house where he lived with his mother and brother.

[10]

Mr. Le had a lawyer at his trial. His trial costs for his defence were
    about $130,000. They were funded by Mr. Singh, who is still incarcerated.

[11]

The last available tax return for Mr. Le, for the 2006 tax year, showed
    income of $33,800.

[12]

Mr. Les current financial situation paints a different picture. Mr. Le
    has sworn under oath that he has no assets, other than a 2006 Mercedes, which
    would need to be repaired before it could be sold. Ministry of Transportation
    records show that he is the owner of two other old cars.

[13]

Mr. Les mother and brother swore affidavits on this application and
    were cross-examined on them. His mothers evidence is that she has no assets
    and that to support herself she formerly relied on payments from the Ontario
    Disability Support Program and now relies on Canada Pension Plan payments. Mr.
    Les brother earns $1,000 every two weeks and has a child to support.

(c)

Mr. Le has been
    refused Legal Aid

[14]

In March 2015, Mr. Le applied for Legal Aid for his appeal. The Area
    Committee denied his application on financial grounds. The Committee said that
    it appeared Mr. Le had other financial resources available to obtain a lawyer
    privately. The Committee noted that Mr. Les family and friends had paid roughly
    $130,000 for his defence at trial.

[15]

Mr. Le appealed the Area Committees denial of funding, but his appeal
    was dismissed. In its reasons, Legal Aid found that Mr. Les family and friends
    were part of his assessment unit. Legal Aid commented that if Mr. Les family
    and friends are no longer able to assist him financially, they may complete
    financial assessments to demonstrate this inability. Absent their doing so,
    Legal Aid held, Mr. Le fails to qualify.

[16]

Mr. Le did not ask his mother or brother to complete financial
    assessments, and neither has provided any information to Legal Aid.

C.

Analysis

[17]

The financial eligibility criterion in s. 684(1) 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.

[18]

In opposing Mr. Les application, the Crown relies on the observation of
    my colleague Gillese J.A. in
R. v. Staples
, 2016 ONCA 362, [2016] O.J.
    No. 3280, at para. 40:

To obtain the exceptional relief of government funded counsel,
    the Applicant must satisfy the court that he has exhausted all other means of
    paying for counsel.  He must also be clear and transparent in disclosing his
    financial affairs.  In my view, the Applicant has done neither.

[19]

The Crown contends that I should dismiss Mr. Les application because he
    has failed to exhaust his Legal Aid remedies, as he has not had his mother and
    brother complete financial assessments, and because he has failed to be candid
    about his financial situation. Thus, he has not met the onus of showing he
    meets the financial eligibility criterion in s. 684(1).

[20]

I accept that Mr. Le bears the onus. I also accept that he was not
    candid about his sources of income before he was incarcerated, as Ms. Wassenaar
    effectively demonstrated during her cross-examination of Mr. Le. For example,
    under cross-examination Mr. Le admitted that some of his tax returns were
    inaccurate and that he had not been forthright with Legal Aid about the cars he
    owned. Finally, I accept that Mr. Le did not do what Legal Aid suggested:
    arrange for his mother and brother to fill out financial assessments to
    demonstrate that they could not assist him financially.

[21]

But two considerations weigh against the Crowns position. First, Mr. Les
    lack of candour relates to the period before he was incarcerated  over seven
    years ago. I am satisfied that his disclosure of his current financial means
    has been clear and transparent.

[22]

The second consideration is that I am not, on this application,
    judicially reviewing Legal Aids decision to deny funding. Instead, if I am to
    preserve Mr. Les fair appeal rights, I must do so on the basis of the current
    evidence about Mr. Les financial means, not the historical evidence. See
R.
    v. Peterman
(2004), 70 O.R. (3d) 481 (C.A.), at para. 22.

[23]

The reality of Mr. Les financial means today is as follows:

·

He has been incarcerated for seven years and no longer receives
    income from Mr. Singh, nor is he able to accumulate cash by playing poker;

·

He has no assets other than a 2006 Mercedes and possibly two
    other old cars, which, even if sold, would not come anywhere near generating
    enough money to retain a lawyer for his appeal;

·

Although his mother did not file a financial assessment with
    Legal Aid, her sworn evidence shows that she has no assets. She survives on a
    pension;

·

Although Mr. Les brother also did not file a financial
    assessment, he earns at best about $26,000 per year, out of which he has to
    support a child; and

·

Mr. Le has no one else he can turn to in order to fund his
    appeal.

[24]

In light of these considerations, Mr. Le has shown that he does not have
    sufficient means to obtain legal assistance and has no other source to obtain
    funding.

[25]

Therefore, I assign Mr. Greenspan to act on Mr. Les behalf on the
    appeal. I assume counsel can agree on any other terms of my order. If not, they
    can arrange a conference call with me.

Released: October 27, 2016 (J.L.)

John Laskin J.A.


