



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Schiel,









2012 BCCA 1




Date: 20120104

Docket: CA038797

Between:

Regina

Respondent



And

Endeavour
Developments Ltd.,
Golden Horizon Resort Ltd.,

Adolf Schiel and
Sandy Schiel

Applicants






Before:



The Honourable Madam Justice Bennett





(In Chambers)




On appeal from: 
Provincial Court of British Columbia,
June 4, 2010 & February 15, 2011,
(
R. v. Schiel et al
, Vancouver Docket No. 131180)




Adolf Schiel and Sandy Schiel:



In Person





Counsel for the Respondent:



Raymond D. Leong





Place and Date of Hearing:



Vancouver, British
  Columbia

November 25, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 4, 2012








Reasons for Judgment of the
Honourable

Madam Justice Bennett:

[1]

Adolf Schiel and Sandy Schiel were convicted of eight offences contrary
to s. 327(1)(a) and (d) of the
Excise Tax Act
, R.S.C. 1985, c.
E-15.  The charges, simply put, involved allegations of false statements in
relation to Goods and Services Tax (GST) refunds.  They were convicted along
with two of their companies of obtaining over $1.9 million dollars in refunds
from the government to which they had no entitlement.

[2]

Mr. Schiel is Ms. Schiels father.  He was a property developer and she
worked in the family businesses.

[3]

This is the second time this case has come to appeal.  The Schiels were
acquitted at their first trial, but that conviction was overturned on appeal. 
They were convicted at the second trial on all eight counts on the Information,
three of which the trial judge stayed pursuant to the principle in
R. v.
Kienapple
, [1975] 1 S.C.R. 729.  The Schiels have been self-represented
through the entire process.

[4]

The Schiels have brought an application pursuant to s. 684 of the
Criminal
Code
for the appointment of counsel for this appeal.  There is no
application on behalf of the companies.  They have filed appeal books and
transcripts; thus, the appointment request concerns the preparation of a factum
and oral argument.

[5]

Section 684(1) of the
Code
reads:

684. (1) A court of appeal or a
judge of that court may, at any time, 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 where, in the opinion of the court or judge, 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.

[6]

The factors which must be considered are:

i)        the applicants financial
ability to retain counsel on their own behalf;

ii)        whether legal aid would
be granted to the applicants;

iii)       the
level of education of the applicants and their competency to advance their
appeals;

iv)       the complexity of the
case;

v)       whether
the case is one where the assistance of counsel is necessary in order to
marshal the evidence;

vi)       whether
the case is one which may result in a term of imprisonment; and

vii)      whether
there is an arguable ground of appeal.

(See
R. v. Baig
(1990), 58 C.C.C. (3d) 156 (B.C.C.A.
Chambers) at 158;
R. v. Bernardo
(1997), 105 O.A.C. 244, 121 C.C.C. (3d)
123 at para. 22.)

i)        Financial ability to retain counsel

[7]

The Schiels were given two opportunities to file financial information. 
They have provided considerable information setting out their personal circumstances
and it appears that they have few assets and little income.

[8]

The difficulty with this application is that the Schiels have filed no
affidavit evidence with supporting documents showing the disbursement of the
substantial amount of money they received in GST tax refunds.  When I asked
during submissions where the money went, the response was vague.

[9]

The onus is on the applicants to establish that they do not have
sufficient means to obtain that assistance.  In my respective view, neither applicant
has met this onus.

(ii)      Legal aid

[10]

Funding from the Legal Services Society has been refused for both applicants
because they did not meet the financial eligibility requirements.

iii)      The level of education of the applicants and their competency
to advance their appeals

[11]

I need to address the circumstances of each applicant individually.  Mr.
Schiel is 75 years old.  He lives in Surrey, B.C. with his wife of 50 years. 
Mr. Schiel has serious health issues, including heart disease, Type 2 diabetes,
hypertension and organic brain damage from a heart attack, which has resulted
in a decline in cognitive function.

[12]

Ms. Schiel is 43 years old.  She entered the family business after three
years of university education,  before she finished her degree.

[13]

Ms. Schiel and her brother, Roy Schiel, have made the submissions during
the case management procedures and this application for both applicants.

[14]

Adolf Schiel and Sandy Schiel do not appear to have conflicting
defences.

[15]

Mr. Schiel, on his own, is not capable of mounting his own defence.  Ms.
Schiel has the ability to defend herself, although she has always done so with
the assistance of Roy Schiel.

iv)       The complexity of the case

[16]

The Crown contended that the case was not complex.  I do not agree. 
There are approximately 10,000 pages of exhibits.  The trial took 29 days.  The
issues at trial involved assessments of credibility as well as a detailed
analysis of the tax documents filed in the proceedings.

v)       Assistance of
counsel necessary to marshal the evidence

[17]

There is a large volume of evidence.  However, no one is more familiar
with the evidence than the applicants, who generated many of the documents. 
They have heard the evidence twice.  While the assistance of counsel would be
helpful, it is not necessary to marshal the evidence.

vi)       Imprisonment

[18]

Sandy Schiel was sentenced to five years in prison and a fine of
$1,959,910.  Adolf Schiel was sentenced to four years in prison and a fine of
$1,959,910.

vii)      An arguable case

[19]

The Crown argued strongly that the case has no merit.  The Schiels were granted
bail pending appeal on March 25, 2011.  One judge of this Court has concluded
that their appeal is not frivolous.  Some of the points raised before me have
little or no merit.  Other grounds, while not strong, are nonetheless arguable. 
There is merit to the Schiels sentence appeal.

[20]

Section 684 has two fundamental requirements for the appointment of
appellate counsel: it must be desirable in the interests of justice that the applicant
have legal assistance
and
the applicant must not have sufficient means
to obtain that assistance.

[21]

I have found that the applicants have not satisfied the second criterion,
and therefore I must dismiss the application.

The
Honourable Madam Justice Bennett


