



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adamson, 2014 ONCA 570

DATE: 20140801

DOCKET: M44037 (C57116)

Juriansz J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Adamson

Applicant/Appellant

Lance Beechner, for the applicant

Megan Stephens, for the respondent

Heard: July 29, 2014

On application for the appointment of counsel pursuant to
    section 684 of the
Criminal Code
.

ENDORSEMENT


[1]

This is an Application for an order pursuant to s. 684(1) of the
Criminal
    Code
appointing counsel to represent the applicant in his appeal against
    his convictions for attempted murder, assault with a weapon, break and enter
    and aggravated assault. He was granted a Legal Aid Certificate for his sentence
    appeal and refused a Certificate for his convictions appeal.

[2]

The Crown concedes that he is without the means to retain counsel
    privately, that the appeal, while weak, has sufficient merit to meet the
    threshold required by s. 684(1), and that the applicant cannot personally
    present his appeal effectively. The question is whether the court can properly
    decide the appeal without the assistance of counsel.

[3]

Counsel for the applicant advanced a thoughtful argument that the
    existence of the Inmate Duty Counsel Program should not be a relevant consideration
    in determining a s. 684 application. He provided the court with the Legal Aid
    Bylaw relating to the Ontario Inmate Appeal Duty Counsel Program, and a
    number of affidavits and letters of experienced defence counsel who regularly
    act as duty counsel in the Program. Relying on this material he submitted that
    it is not the intention of the Duty Counsel Program to supplant the Legal Aid
    Ontario Certificate Program, and that it cannot be assumed that duty counsel
    will take on each and every matter. He said the Duty Counsel Program relies on
    the sympathy, empathy and desire for accessible justice of defence counsel who
    essentially work on a volunteer basis. If s. 684 applicants were denied funding
    solely because of the existence of the Duty Counsel Program, some duty counsel
    might rethink their participation in the Program. The Program would not be
    sustainable in the longer term.

[4]

In response Crown counsel was careful to place no reliance on the
    presumed availability of duty counsel in this case. She submitted that the
    appeal could be dealt with in the inmate stream without duty counsel and still
    satisfy the interests of justice. She submitted that the record required would
    not be large. The jury charge, the pre-charge conference, the draft charge
    provided in writing ahead of time, were already available. The only additional
    material needed might be the closing addresses of counsel. She pointed out that
    the three identified grounds of appeal all relate directly to the jury charge.
    She submitted that even if the charge were found to be technically deficient in
    some way, the Crown would have a compelling argument that the curative proviso would
    apply. Granting the young applicant could not advance the legal arguments on
    his own, she stated the basis of his appeal was clearly articulated in the
    material filed on this motion. That material, she said, could be included in
    the Appeal Book. Finally, she submitted, as was recognized in
R. v. Bernardo
,
    [1997] O.J. No. 5091, at para. 26, that Crown counsel at the hearing of the
    appeal could be relied on to alert the court to matters that were favourable to
    the appellant and to assist him in making his submissions.

[5]

I am persuaded it appears desirable in the interests of justice that the
    applicant should have legal representation for his convictions appeal. He is
    young, just 19 at the time, and has been convicted of extremely serious
    offenses. Even if his sentence appeal is successful he faces a substantial term
    of imprisonment. That the appeal has sufficient merit is conceded. Judicial
    economy would be served by having his sentence appeal and convictions appeal
    proceed together in the same stream. Counsel on his sentence appeal will
    already have some familiarity with the trial proceeding. Much more of the
    record might be required to properly address the application of the curative
    proviso. Crown counsel should not be placed in difficult position of arguing
    the curative proviso applies and at the same being expected to assist the
    applicant in making submissions why it doesnt apply. It is desirable in the
    interest of justice that the applicant has his own advocate.

[6]

This endorsement is to be provided to the Legal Aid Director. If the Director
    does not issue a certificate, the applicant will be represented by counsel
    appointed under s. 684(1) and counsels fees and disbursements, including
    preparation for and attendance on this motion shall be paid by the Attorney
    General under s. 684(2) of the
Criminal Code
.

R.G. Juriansz
    J.A.


