



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
    22, 48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15




COURT OF APPEAL FOR ONTARIO

CITATION: R.
    v. J.M., 2021 ONCA 735

DATE: 20211018

DOCKET: M52652 (C68627)

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.M.

Applicant

Jessica Zita, for the applicant

David Friesen, for the respondent

Heard: September 23, 2021 by videoconference

Watt J.A.:

[1]

A jury found the applicant guilty of sexual assault. The trial judge
    imposed a sentence of imprisonment for eighteen months. A judge of this court
    ordered the applicant released pending the determination of his appeal against
    conviction.

[2]

The applicant sought funding for his appeal from Legal Aid Ontario (LAO).
    He relied on an opinion letter from counsel that set out several proposed
    grounds of appeal. Each ground alleged an error or omission in the trial judges
    charge to the jury.

[3]

On November 20, 2020, LAO declined the applicants funding request. The
    applicant appealed. On February 25, 2021 the appeal was dismissed. LAO would
    not be funding the applicants appeal.

[4]

On April 8, 2021, the applicant applied to the chambers judge for an
    order under s. 684(1) of the
Criminal Code
that counsel be assigned to
    act on his behalf on his appeal from conviction. The chambers judge dismissed
    the application.

[5]

The applicant now seeks an order quashing the order of the chambers
    judge and directing that counsel be appointed under s.684(1) to act on the
    applicants behalf with her fees and disbursements being paid by the Attorney
    General who is the respondent on appeal in accordance with s. 684(2) of the
Criminal

Code

[6]

At the conclusion of argument, we dismissed the application. We said
    that we would explain why we came to that conclusion. We do so now.

The Essential Background

[7]

A brief reference to the proceedings before the chambers judge will
    provide the essential background.

The Chambers Motion

[8]

Before the chambers judge, the applicant contended that an order under
    s. 684 of the
Criminal Code
was desirable in the interests of justice.
    The applicant lacked sufficient means to retain counsel. His appeal was
    meritorious. And, left to his own devices, he lacked the ability to argue the
    case on his own.

[9]

The respondent opposed the motion, principally on the basis that the
    appeal was bankrupt of merit. The respondent acknowledged that the applicant
    lacked the means necessary to retain counsel and appears to have accepted that
    the applicant lacked the ability to advance argument on his own behalf.

The Decision of the Chambers Judge

[10]

The chambers judge accepted that the statutory standard in s. 684(1)
    required her to determine whether it appeared desirable in the interests of
    justice that the applicant should have legal assistance to argue his appeal and
    that he lacked sufficient means to do so.

[11]

It was uncontroversial, the chambers judge explained, that the applicant
    lacked the financial means to retain counsel. She was also not prepared to say,
    as counsel for the respondent had argued, that the appeal lacked merit.
    However, funding orders are exceptional. The circumstances did not satisfy the
    interests of justice standard. The issues raised were straightforward. They
    could be advanced by duty counsel in an inmate appeal with the assistance of
    the opinion letter counsel wrote to LAO seeking funding. The issues could also
    be determined by a panel of the court assigned to inmate appeals.

This Application

[12]

In this court the applicant seeks an order quashing the order of the
    chambers judge. In its place, he asks that we appoint Ms. Zita as his counsel
    and direct that her fees and disbursements be paid by the Attorney General who
    is the respondent in the appeal.

The Arguments of Counsel

[13]

The applicant invokes several sources as a basis upon which we can
    review the order of the chambers judge. Those sources include:


i.

the Practice Direction concerning Criminal Appeals;


ii.

section 683(3) of the
Criminal

Code
;


iii.

the Practice Direction concerning Civil Appeals; and


iv.

section 7(5) of the
Courts of Justice Act
, R.S O. 1990, c.C 43.
    (
CJA
).

[14]

To obtain an order under s. 684, the applicant accepts, he must show
    that it is in the interests of justice that counsel be appointed to act on
    his behalf. The order is discretionary. Whether it should issue depends upon
    and requires consideration of all the circumstances. These include the merits
    of the appeal, the appellants ability to present his case without the
    assistance of counsel, and the ability of the court to determine the issues
    raised without the assistance of counsel.

[15]

In this case, the applicant continues, the appeal has substantial merit.
    It alleges specific errors and omissions in the charge to the jury, thus
    surpasses the standard that it be arguable. The proceedings under review were a
    10-day jury trial with pre-trial and in-trial motions including a s 276. application.
    There was a pre-charge conference about what should be included in the charge.
    The jury asked questions. These issues are well beyond the ability of the
    appellant to present to the Court. Further, the Duty Counsel Program available
    in inmate appeals is not an adequate substitute for fully-funded counsel. The
    availability of assistance from that program should not undermine meritorious
    s. 684 applications.

[16]

The respondent challenges the review mechanisms asserted by the
    applicant. Rights of appeal are entirely statutory. The
Criminal

Code
provides no right of appeal from refusal of an order under s. 684. And the
Criminal

Code
is where any appellate rights must be found. Section 7(5) of the
    C
JA
, alone or together with s. 683(3) of the
Criminal

Code,
is of no avail. The
CJA
does not apply to criminal proceedings. And it
    is well settled that it, in tandem with s. 683(3) of the
Criminal

Code
,
    affords no basis of appeal or review. Likewise, Practice Directions which
    implement but cannot create rights of appeal or review.

[17]

Turning to the merits, the respondent points out that the remedy
    afforded by s. 684 is discretionary. Decisions granting or refusing the
    appointment of funded counsel are accorded significant deference on appeal. In
    this case, the applicant has not demonstrated any basis upon which we should
    interfere. The circumstances have not changed. The chambers judge did not err in
    law or depart from governing principles. She did not dismiss the application on
    the basis that the Duty Counsel Program would be an adequate or sufficient
    substitute for funded counsel. The chambers judge simply observed that the
    straightforward issues advanced by the applicant could be properly advanced by
    Duty Counsel aided by the opinion letter prepared by counsel. And this court,
    assisted by Duty Counsel, and counsel for the respondent, is well-positioned to
    decide the appeal without funded counsel.

Discussion

[18]

Like counsel, we approach our task in two steps. The first examines the
    existence and scope of our authority, if any, to review the decision of the
    chambers judge refusing to make an order for funded counsel. Second, we
    consider the merits of the claim.

Issue #1: The Availability of
    Review

[19]

The applicant invokes several different sources as a basis upon which we
    are entitled to review the decision of the chambers judge.

Rights of Appeal under the
Criminal Code

[20]

The right of appeal is an exceptional right. Appellate rights, procedure
    on appeal, and the jurisdiction of appellate courts are wholly creatures of
    statute. An appellate court such as this has no inherent jurisdiction to
    entertain an appeal in criminal cases
: Welch v. The King
[1950], S.C.R
    412, at page 428;
R. v. Morgentaler, Smoling and Scott
(1984), 16 CCC (3d)
    1 (Ont. CA), at pages 5-6;
R. v. Smithen-Davis
, 2020 ONCA 759, at
    paras. 27-28. Where no right of appeal is given, none exists.

[21]

Section 684 contains no provision that authorizes an appeal by any party
    to the proceedings under the section. Nor is an appeal authorized by any other
    provision in Part XXI or elsewhere in the
Criminal

Code
. See
    by comparison, s. 490(17) of the
Criminal

Code
.

Sections 683(3) of the
Criminal

Code
and 7(5) of the
CJA

[22]

Section 683(3) of the
Criminal

Code
permits a court of
    appeal to exercise, in relation to proceedings in the court, any powers beyond
    those in s. 683(1) that the court can exercise in civil matters. Section 7(5)
    of the
CJA
permits a panel of the court, on motion, to set aside or
    vary a decision made by a single judge of the court on a motion.

[23]

Section 683(3) cannot reasonably be read as extending the appellate
    jurisdiction of a court of appeal beyond the jurisdiction the
Criminal

Code
expressly grants it.

[24]

Section 683(1) defines the authority of a court of appeal to make
    procedural orders to facilitate the hearing and adjudication of an appeal,
    provided the court concludes that it is in the interests of justice to make
    these orders. Section 683(3) expands the express authority granted by s. 683(1)
    to include any power the court may exercise in civil matters:
R. v. Perkins
,
    2017 ONCA 152, 347 CCC (3d) 58, at paras. 21-22;
R. v. Codina
, 2009
    ONCA 907, 266 CCC (3d) 1, at para. 8.

[25]

On its own, s. 7(5)
CJA
cannot ground a right of appeal in
    criminal proceedings. The province lacks the constitutional competence to
    create rights of appeal in criminal cases:
Perkins
, at para. 63.

[26]

Nor does the combination of sections 683(3) of the
Criminal

Code
and 7(5) of the
CJA
fare any better as a source of appellate
    jurisdiction. To decide otherwise would be to encroach on Parliaments
    exclusive jurisdiction to determine rights of appeal in criminal proceedings:
Perkins,
at para. 23.

The
Criminal Appeal Rules
and
Practice
    Directions

[27]

Section 482(1) of the
Criminal

Code
permits a court of
    appeal to make rules of court not inconsistent with the
Criminal

Code
or any other Act of Parliament. These rules apply to appeals within the
    jurisdiction of the court instituted in relation to criminal proceedings. Rules
    may be made under s. 482(3)(d) to carry out the
Codes
provisions
    relating to appeals. However, this rule-making authority cannot be invoked to
    extend the substantive jurisdiction of the court. The authority to make rules,
    equally to issue practice directions, is limited to matters already within the
    jurisdiction of the court. Rules implement jurisdiction otherwise granted. They
    do not create substantive rights that do not otherwise exist:
Smithen-Davis
,
    at paras. 27-28;
McEwen (Re)
, 2020 ONCA 511, at paras. 53-55. See
    also,
R. v. OMalley
(1997), 119 CCC (3d) 360 (BCCA), at para. 18.

[28]

In the result, neither the
Criminal Appeal Rules
nor the
Practice

Directions
of the court can ground a right of appeal or of review for
    which the
Criminal

Code
does not provide.

Section 684 and Concurrent Jurisdiction

[29]

A judge and a panel of judges of this court have equivalent jurisdiction
    to determine whether an order for state-funded counsel is desirable in the
    interests of justice under s. 684(1) of the
Criminal

Code
. In
    other words, the jurisdiction of a single judge and a panel of judges is
    concurrent. This is not unique to s. 684. See, for example, ss. 675(1)(a)(ii);
    (b)(1.1); 678(2); and 839(1).

[30]

The mere fact of concurrent jurisdiction in a single judge and a panel
    of the court does not mean that a panel of judges has authority to review the
    order of a single judge or sit on appeal of that order. To decide otherwise
    would be at odds with the very essence of concurrent jurisdiction. Separate,
    but equal. Indeed, the
Criminal

Code
confirms as much when it
    provides, for example, in s. 675(4), for a right to a panel hearing when leave
    to appeal is refused by a single judge.

[31]

Yet the absence of a review authority does not mean that a judge and a
    panel of the court cannot both exercise jurisdiction to consider a request for
    the appointment of state-funded counsel in the same case. As this court has
    previously decided, in an appropriate case, a panel of the court may exercise
    its s. 684 jurisdiction even though a judge of the court has refused to do so:
R.
    v. Bernardo
(1997), 121 CCC (3d) 123 (Ont. CA), at para. 12.

[32]

The
Bernardo
court did not define the scope of what it
    considered appropriate to warrant panel consideration of an application for
    state-funded counsel under s. 684 after rejection of an application for the
    same relief by a single judge. It was not necessary for the court to formulate
    a test or standard or otherwise to define the outer reaches of what might
    engage the concurrent jurisdiction of a panel after consideration by a single
    judge. Suffice it to say, that what prompted the
Bernardo
court to
    exercise its concurrent jurisdiction was a change of circumstances. What
    changed, as the single judge contemplated in his refusal of the application,
    was that substantial parts of the trial record not available to the single
    judge became available to the panel. This enabled the panel to make a more
    mature assessment of the complexity of the appeal and the appellants ability
    to effectively argue the appeal without the assistance of counsel:
Bernardo,
at para. 12.

[33]

Absent from the decision in
Bernardo
is any suggestion that the
    panel was exercising an appellate jurisdiction in relation to the decision of
    the single judge. The authorities invoked by the
Bernardo
court, as
    well as its analysis reveal a
de

novo
assessment based on
    changed circumstances:
Bernardo
, at para 12;
R. v. Foster
(1954), 110 CCC 214 (Ont. CA), at page 215;
R. v. Walker
(1978), 46
    CCC (2d) 124 (Que. CA), at page 25.

[34]

From this review of the authorities, we are satisfied that there is no
    right of appeal or other review from the chambers judge refusing to direct the
    appointment of state-funded counsel. Our concurrent jurisdiction permits us to
    consider the application afresh, provided we are satisfied that circumstances
    have changed sufficiently from those before the single judge to warrant a
    reassessment.

Issue #2: The Merits of the
    Claim

[35]

In large measure, the scope of our jurisdiction on this application
    predestines its demise. We exercise no appellate or cognate review function.
    Rather, we canvass whether there has been a change in circumstances since the
    decision of the application judge. Further, if there has been such a change, we
    evaluate its nature and extent to determine whether the interests of justice
    warrant a different conclusion than reached by the chambers judge.

[36]

In this case, the applicant asserts no change in circumstances between
    those prevalent on the determination of the chambers judge and those current on
    this application. This is not a case in which additional relevant material has
    become available after the initial decision. It follows, that the application
    cannot succeed on the basis of changed circumstances.

[37]

Even if we were prepared to conclude that we could exercise our
    concurrent jurisdiction on the basis of a legal error in the reasoning or
    conclusion of the chambers judge, we would not do so here.

[38]

The remedy afforded by s. 684(1) -  the appointment of state-funded
    counsel - is discretionary. The applicable standard - the interests of
    justice - involves the exercise of a case-specific discretion which is subject
    to substantial deference on appeal absent any error of law or principle,
    misapprehension of material evidence, or a decision that is plainly
    unreasonable.

[39]

In this case, the error alleged is that the chambers judge essentially
    concluded that the Duty Counsel Program for inmate appeals was an adequate
    proxy or surrogate for state-funded counsel. We are not persuaded that the
    chambers judge declined the application on this basis. As we understand her
    reasons, the chambers judge concluded that the grounds of appeal to be
    advanced, all of which related to the charge to the jury, were straight forward
    and could be properly advanced on an inmate appeal. This was so despite the
    applicants evidence about his learning disability and his challenges with
    reading comprehension and communication.

Disposition

[40]

It is for these reasons that we dismissed the application for an order
    for state-funded counsel under s. 684.

Released: October 18, 2021 D.W.

David Watt J.A.

I agree. M.L. Benotto
    J.A.

I agree. Gary Trotter
    J.A.


