





CITATION:
R. v. Sadiqi, 2011
          ONCA 226



DATE:  20110323



DOCKET:  (C51399), M39733



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O. (In Chambers)



BETWEEN



Her Majesty the Queen



Respondent



and



Hasibullah Sadiqi



Applicant/Appellant



H. A.
          McArthur, for the applicant/appellant



C.
          Tier, for the respondent







Heard:  March 21, 2011



ENDORSEMENT



[1]

This is a motion brought by the appellant pursuant to
    s. 684(1) of the
Criminal Code
to
    have counsel appointed to represent him on his appeal and to have counsels fees
    and disbursements paid by the Attorney General for Ontario.  The respondent resists the motion.

[2]

Section 684(1) 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.

[3]

Section 684(2) provides that in the event that the
    Court appoints counsel and legal aid has been refused, the Attorney General
    shall pay counsel.

[4]

The appellant was convicted before a judge and jury on
    two counts of first degree murder for having killed his sister and her fiancé.  The appellant admitted to having shot the
    couple.  The Crown alleged that these
    were first degree murders, having been planned and deliberate.  The appellants defence to first degree murder
    charges was that he was provoked into committing the killings.  He contended that a comment made by one of the
    victims had caused him to lose control and shoot the couple in a state of
    provocation.  Thus, the defence argued
    that he should be convicted of manslaughter, not murder.

[5]

The appellants application for legal aid to appeal his
    conviction was refused on the ground that the appeal lacked sufficient merit to
    justify granting a legal aid certificate.  He appealed the funding refusal.  The Director of Appeals refused to grant his
    appeal.

[6]

In
R. v. Bernardo
(1997)
,
121 C.C.C. (3d) 123 (Ont.
    C.A.)
,
Doherty J.A. stated the
    approach to be taken in disposing of an application under s. 684(1), at paras.
    21-22:

The factors identified in these cases and others
    reflect 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.

In deciding whether counsel should be appointed, it
    is appropriate to begin with an inquiry into the merits of the appeal.  Appeals which are void of merit will not be
    helped by the appointment of counsel.  The
    merits inquiry should not, however, go any further than a determination of
    whether the appeal is an arguable one.  I
    would so limit the merits inquiry for two reasons.  First, the assessment is often made on less
    than the entire record. Second, any assessment beyond the arguable case
    standard would be unfair to the appellant.  An appellant who has only an arguable case is
    presumably more in need of counsel than an appellant who has a clearly strong
    appeal.

[7]

The appellant makes two submissions.  First, he asserts that there are two arguable
    grounds of appeal.  Secondly, given the
    individual characteristics of the appellant, together with the complexity of
    the legal issues and the extent of the record, he is incapable of effectively
    arguing his case.

[8]

The respondents position is that there is no merit to
    the appeal, on either of the two grounds identified by the appellant.  The crown further contends that the appellant
    is capable, with the assistance of duty counsel, of adequately advancing the
    arguments on his appeal on his own behalf.

[9]

I will first deal with the question of whether the
    appeal discloses an arguable case on behalf of the appellant.  Two grounds of appeal are identified.  The first relates to the admissibility of the
    expert evidence tendered by the Crown.  This evidence, adduced through the testimony
    of Dr. Mojab, a professor at the University of Toronto, was about the
    socio-cultural phenomenon known as honour killing.  The evidence was ruled admissible by the trial
    judge, after a
voir dire
, on the
    basis that it was relevant to the issues of provocation, planning and
    deliberation.  The appellant concedes
    that the issue of the admissibility of this evidence is the weaker of the two
    grounds of appeal; nevertheless, he argues that it meets the low threshold of
    arguability necessary to meet the test required to appoint counsel under s.
    684(1).

[10]

The second ground of appeal was that a
W.D.
jury instruction ought to have been
    given.  The appellant testified on his
    own behalf.  At trial, defence counsel
    (not counsel on the motion) submitted that a
W.D.
instruction was required to be given to the jury.  The Crown did not oppose this request and
    instead stated that, in light of the special circumstances of this case, the
    instruction would have to be modified.  The
    trial judge declined to include a modified
W.D.
instruction in his charge to the jury.

[11]

The appellant contends that, particularly because of
    the juxtaposition of the evidence of the Dr. Mojab and the appellant, which
    provided two alternative explanations for the behaviour of the appellant, it
    was necessary to instruct the jury on the proper treatment of the appellants
    testimony and the consequences of disbelieving him.

[12]

In my view, although the first ground of appeal is not
    as strong as the second, both meet the test of being arguable.  On the first ground, this appeal raises the
    novel issue of whether expert evidence regarding honour killing is sufficiently
    probative to outweigh any prejudicial impact it may have.  Dealing with the second ground, the issue of
    whether a modified
W.D.
instruction
    should have been given in the context of this appeal, where the appellant is
    advancing a defence of provocation in response to the Crowns theory that the
    appellant was engaged in a planned and deliberate honour killing, is a complex
    argument that cannot be simply dismissed as meritless.

[13]

The
    next question is whether the appellant can effectively present his or
    her appeal without the help of a lawyer.

I am not satisfied that the
    appellant is capable of doing so.  The
    appellant did not complete his high school education.  Although he testified at trial in English,
    English is not his first language.  His
    high school English marks reflect this reality.  The record in this case includes approximately
    2100 pages of evidence, 100 pages on the relevant
voir dire
, exhibits numbering some 500 pages and a jury charge of
    100 pages.  Although not a huge record,
    it is substantial.  In this case,
    although the legal issues are relatively few, they are complicated.

[14]

The
    appellants language skills must be assessed against the complexity of the
    case.   Here the motion record affirms
    that the appellants skills are not likely to be up to the task.  Given the complexity of the issues, the extent
    of the record and the appellants relative language skills, the appellant is
    not capable of effectively presenting his case without the assistance of a
    lawyer.

[15]

I
    cannot leave this question without emphasizing that, given the nature and
    novelty of the issues raised, the Court hearing the appeal will be greatly
    assisted by the appointment of counsel.

[16]

Accordingly,
    I appoint counsel for the appeal pursuant to s. 684(1) of the
Criminal Code
.  I designate Ms. Heather McArthur as counsel.

[17]

The
    respondent urged the Court to restrict the appointment of counsel such that it
    only applies to arguing the grounds of appeal put forward to support this
    motion.  The appellant did not oppose
    this request.  Accordingly, I so order.

[18]

The respondent asked that the Court not deal with the
    scale of fees to which counsel will be entitled pursuant to this order.  Accordingly, I will not address this issue.

W.
    Winkler C.J.O.


