





CITATION: United
          States of America v. Beltran, 2011
          ONCA 775

DATE: 20111208


DOCKET: M40477 (C53106 & C53906)


COURT OF APPEAL FOR
          ONTARIO


Sharpe J.A. (In Chambers)


BETWEEN


The Attorney
          General of Canada on behalf of the United States of America



Respondents


and


Francisco Javier Beltran


Applicant


Michael H. Gordner, for the applicant


Moiz Rahman, for the respondents


Heard: December 02, 2011


Sharpe J.A.:

[1]

The applicant seeks an order
    pursuant to s. 684 of the
Criminal Code
for the appointment of counsel
    to argue his appeal from committal for extradition and his application for
    judicial review of the surrender order made by the Minister of Justice (the
    Minister).
[2]

The United States of America seeks
    the applicants extradition for prosecution in Texas on charges of fraud and
    aggravated identity theft. The applicant was committed by the extradition judge
    on a charge of fraud and the Minister has ordered his surrender for trial on
    both charges specified in the extradition request. The applicant filed an
    inmate notice of appeal from committal as well as an in-person application for
    judicial review of the surrender order. He has been denied a legal aid
    certificate on the grounds that his case has insufficient merit. The applicant
    appears to have no assets to retain counsel, although he has had the assistance
    of counsel at the committal hearing, in making submissions to the Minister and in
    making this application.
2.

Jurisdiction
[3]

As directed by the order of Cronk
    J.A., October 21, 2011, counsel made submissions as to the jurisdiction of this
    court to make a s. 684 order in the circumstances of this case.
[4]

It is common ground that a single
    judge of this court has jurisdiction to appoint counsel for an appeal from a
    committal order. Although, the Attorney General concedes that a panel of this
    court has jurisdiction to appoint counsel to argue judicial review of the
    Ministers order, the contentious issue is whether a single judge of this court
    also has jurisdiction to appoint counsel for a judicial review.
[5]

Section 684 provides:
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
Extradition Act
, S.C.
    1999, c. 18, s. 52, expressly incorporates s. 684 of the
Criminal Code
in relation to appeals under this Act. An application for judicial review
    from the Ministers surrender order pursuant to s. 57 of the
Extradition Act
is a proceeding distinct from an appeal from the committal order pursuant to s.
    49. There is no provision comparable to s. 52 that expressly incorporates s.
    684 in relation to applications for judicial review.
[7]

The question, therefore, becomes:
    does that leave me without jurisdiction to appoint counsel to assist an
    applicant for judicial review?
[8]

The Attorney General submits that
    absent express statutory authority, the only possible source of jurisdiction to
    appoint counsel in relation to the judicial review application is this courts
    ancillary jurisdiction to make orders to control its own process.
R. v. Russel,
2011 ONCA 303, 270 C.C.C. (3d) 256, at paras. 40-43 holds that a statutory
    trial court has the authority to appoint
amicus
where such an order is
    necessary for the court to properly exercise the jurisdiction conferred by statute.
    The Attorney General concedes that it therefore must follow that this court
    also has that jurisdiction. However, the Attorney General further submits that
    as the power is that of the court, it must be exercised by a panel of three
    judges and that a single judge sitting in chambers has no such authority:
R.
    v. Church of Scientology of Toronto
(1986), 25 C.C.C. (3d) 149 (Ont. C.A.).
[9]

That analysis allows this court to
    appoint counsel where necessary, but requires the additional time-consuming
    step of an application to a three judge panel, rather than allowing the matter
    to proceed more efficiently and expeditiously before a single judge in
    chambers.
[10]

The case law is inconclusive as to
    the jurisdiction of a single judge. In
United States of America v. Peay,
[1996] O.J. No. 1688 (Ont. C.A. [In Chambers]), Moldaver J.A. assumed, without
    deciding, that he had jurisdiction to appoint counsel in a case like the
    present, but declined to do so. Other cases have considered the merits of
    appointing of counsel for an application for judicial review without raising or
    dealing with the jurisdictional issue: see
United States of America v.
    Wilson,
2011 BCCA 96, B.C.W.L.D. 2601 [In Chambers]; affd 2011 BCCA 164,
    B.C.W.L.D. 3640;
United States of America v. OBrien,
[2009] B.C.J. No.
    966 (B.C.C.A. [In Chambers])
[11]

In my view, the answer is found in
    s. 57(9):
If an appeal under section 49 or any other appeal
    in respect of a matter arising under this Act is pending, the court of appeal
    may join the hearing of that appeal with the hearing of an application for
    judicial review.
Here, the hearing of the application
    for judicial review has been joined with the hearing of the s. 49 appeal. I see
    no reason why I should not regard the two proceedings as joined for the
    purposes of the preliminary and incidental procedural issue of appointment of
    counsel pursuant to s. 684. I note that s. 684 allows for the appointment of
    counsel in relation to proceedings preliminary or incidental to an appeal.
[12]

This interpretation is consistent
    with the language of the
Extradition Act
read as a whole. Moreover, it
    achieves the practical and efficient result of allowing these applications to
    be dealt with by a single chambers judge.
[13]

Accordingly, I find that I do have
    jurisdiction to appoint counsel for the purposes of all aspects of the joined
    appeal and judicial review proceeding before this court.
2. Should counsel be appointed pursuant to s
    684?
[14]

There does not appear to be any
    issue that the applicant lacks the means to obtain legal assistance and the
    issue is whether it is in the interests of justice that counsel be appointed to
    argue his appeal and application for judicial review.
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.) at paras.
20-21, directs an inquiry whether the applicant
    requires the assistance of counsel to be afforded a meaningful opportunity to
    establish the merits of the grounds advanced.  That question falls to be
    assessed on the basis of two closely related principles:
First, counsel must be appointed where an accused
    cannot effectively present his or her appeal without the help of a lawyer.
    Second, counsel must be appointed where the court cannot properly decide the
    appeal without the assistance of counsel. In most situations, both or neither
    principle will operate to require the appointment of counsel. Sometimes,
    however, one or the other, standing alone, will justify the appointment of a
    lawyer for the appellant.
[15]

The first step in assessing a s.
    684 application is to inquire into the merits of the appeal. This inquiry is limited
    to asking whether the appeal is arguable. In my view, for  the applicant, this
    will be a difficult appeal and application for judicial review.
[16]

Given the low threshold for
    committal and the carefully considered reasons of the committal judge, the
    appellant faces a decidedly uphill battle in contending that the committal
    judge erred in finding that the evidence warranted committal for fraud.
[17]

The application for judicial
    review will also face substantial challenges. In making the surrender order,
    the Minister considered and rejected the contention that to surrender the
    appellant would be unjust, oppressive and contrary to s. 7 of the
Charter
on the following bases:
·

the
    impact of false allegations made in support of the extradition arrest warrant application;
·

prejudicial
    effect of the Canadian criminal investigations on the extradition proceedings
    and the United States prosecution;
·

the
    evidence of duress and restricted application of the law of duress in the
    United States;
·

the
    misleading allegations in the record of the case regarding the nature of the
    fraud in the amount of the loss; and
·

the
    unduly harsh penalty sought by the United States authorities.
[18]

The Minister considered these
    submissions individually and collectively and concluded that it would not be
    unjust or oppressive to surrender the applicant. While there were false
    allegations made in support of the extradition warrant, those allegations were
    withdrawn and not relied upon at the extradition hearing. The Minister
    explained why the Canadian criminal investigation had no impact on, and caused
    no prejudice with respect to, the extradition proceedings. The Minister also
    explained that matters of defence were for trial in the requesting state and
    that differences in substantive law do not constitute a reason to refuse
    surrender. The nature of the fraud in the amount of the loss were, according to
    the Minister, matters for the extradition judge in assessing the sufficiency of
    the evidence warranted committal, not matters for the Minister. The fact that a
    person sought for extradition faces a harsher sentence in the requesting state
    does not automatically make surrender unfair or oppressive.
[19]

The applicant also contends that
    it was not open to the Minister to surrender the applicant on the aggravated
    identity theft charge that was not dealt with by the committal judge. To
    succeed on that argument, the applicant will have to distinguish both
Canada
    (Minister of Justice) v. Fischbacher
, 2009 SCC 46, 3 S.C.R. 170, and
United
    States of America v. Barbu
2010 ONCA 891,  265 C.C.C. (3d) 244, leave to
    appeal refused
[2011] S.C.C.A. No. 66
.
    I fail to see how he will be able to do so.
[20]

I conclude that there is little
    hope of success on the appeal and application for judicial review.
[21]

Even if the applicant satisfies
    the minimal arguable threshold test on the merits, I am not persuaded that he
    satisfies the second step, set out in
Bernardo
, at para. 21:
can the appellant effectively advance his grounds
    of appeal without the assistance of counsel? This inquiry looks to the
    complexities of the arguments to be advanced and the appellants ability to
    make an oral argument in support of the grounds of appeal. The complexity of
    the argument is a product of the grounds of appeal, the length and content of
    the record on appeal, the legal principles engaged, and the application of
    those principles to the facts of the case. An appellants ability to make
    arguments in support of his or her grounds of appeal turns on a number of
    factors, including the appellants ability to understand the written word,
    comprehend the applicable legal principles, relate those principles to the
    facts of the case, and articulate the end product of that process before the
    court.
[22]

While extradition proceedings in
    this court involve a level of complexity that a lay person would find difficult
    to navigate, this appeal will be heard as an inmate appeal where the appellant
    will have the assistance of duty counsel. Counsel for the applicant outlined
    for me the arguments to be advanced on the appeal from the committal order and
    on the application for judicial review. The panel hearing the appeal will have
    the benefit of the applicants written submissions to the Minister of Justice
    which set out, in some detail, the applicants position. This is not a case,
    like
Bernardo
, involving a voluminous record yet to be compiled. Nor
    does it involve legal issues that will be unfamiliar to either the panel
    hearing the appeal or to duty counsel. In my view, particularly with the added
    benefit of duty counsel, this case falls into the same category as
United
    States v. Peay
where Moldaver observed, at para. 3,
I am confident that if the panel hearing the appeal
    and the application for judicial review is provided with this material, as well
    as the additional material in the appeal book, the applicant should have little
    difficulty presenting his own case with full assurance that the court will have
    a firm grasp of the issues raised and the arguments for and against.
[23]

The appellant has not persuaded me
    that it is in the interests of justice to appoint counsel pursuant to s. 684.
[24]

Finally, I note that where a
    single judge refuses as s. 684 application, it remains open to a panel to
    consider the matter afresh: see
Bernardo
at para. 12. Accordingly,
    should the panel conclude, for reasons not apparent to me on this application,
    that more than duty counsel assistance is required to satisfy the interest of
    justice in this case, it will be open to the panel to entertain a renewed s.
    684 application.
Disposition
[25]

Accordingly, the application for
    the appointment of counsel pursuant to s. 684 is dismissed.
Robert
    J. Sharpe J.A.
RELEASED: December 08, 2011