



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dickson, 2016 ONCA 665

DATE: 20160908

DOCKET: M46815 (C58692)

Epstein J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Responding Party (Respondent)

and

Brian Dickson

Applicant (Appellant)

Eva Tache-Green, for the applicant

Grace Choi, for the responding party

Heard: August 23, 2016

ENDORSEMENT

[1]

Brian Dickson brings this application under s. 684 of the
Criminal
    Code
seeking an order requiring the Attorney General of Canada to pay for
  a lawyer to represent him in his appeal to this court from a conviction of
  first degree murder.  The Attorney General resists the application.

[2]

On April 15, 2011, Quan Liu was chatting via webcam with a friend in
Beijing. Mr. Dickson knocked on her door and forced his way into her room. The
friend on the webcam heard several bangs and heavy breathing. He then saw Mr.
Dickson - naked from the waist down  turn off the webcam feed. Ms. Liu was
found dead the next morning. Her laptop had been taken. Mr. Dicksons semen was
found on her thigh and abdomen. His DNA was found under her fingernails.

[3]

The Crowns theory was that Mr. Dickson came to Ms. Lius room to
sexually assault her and did so. The case for first degree murder rested on a
finding that Mr. Dickson killed Ms. Liu by choking her during or after the
sexual assault.

[4]

The defence agreed that Mr. Dickson assaulted Ms. Liu and accidentally
caused her death in the course of the assault and that therefore the appropriate
verdict was manslaughter.

[5]

Mr. Dickson was represented by privately-retained counsel at trial. The
trial lasted twelve days.

[6]

At the beginning of the pre-trial motions, Mr. Dickson was arraigned and
pleaded not guilty to first degree murder but guilty to manslaughter. The Crown
rejected the plea of guilty to manslaughter. Counsel for Mr. Dickson undertook
to enter the same plea before the jury and undertook that he would not tell the
jury that a verdict of not guilty was appropriate. Mr. Dickson did not admit
that he caused Ms. Lius death by way of the specific unlawful act of a sexual
assault and made no undertakings as to whether he would testify or call a
defence.

[7]

At trial, the Crown sought to adduce into evidence a formal statement
Mr. Dickson gave to the Toronto Police on April 19, 2011. The statement was
videotaped and audio recorded. It contained a false and innocent account of his
actions the night of Ms. Lius death.

[8]

The defence objected to the admission of the statement, taking the
position that once culpability for Ms. Lius death had been admitted, the
statement had no probative value, since the post-offence conduct of lying to
police was as consistent with manslaughter as it was with first degree murder. The
defence also argued that the prejudicial effect of the statement outweighed its
probative value. The Crown argued that since the plea and inherent admissions
had not been accepted, culpability was a live issue for the jury and Mr.
Dicksons statement was probative of a number of live issues relevant to
culpability, such as his general level of lucidity about the events of the
night in question, and, by extension, his level of intent.

[9]

The trial judge allowed the statement into evidence. On April 7, 2014,
Mr. Dickson was convicted of first degree murder arising out of Ms. Lius
death.

[10]

Mr. Dickson has appealed his conviction on the basis that the trial
judge erred by finding that the Crown properly refused to accept the factual
admissions underpinning Mr. Dicksons guilty plea. Alternatively, Mr. Dickson
appeals on the basis that the trial judge erred in admitting the statement as
its prejudicial effect exceeded its probative value.

[11]

Mr. Dickson applied for Legal Aid funding to retain counsel to act on
his behalf on the appeal. Legal Aid Ontario notified Mr. Dickson that his
request for funding had been refused. The Area Committee refused the request
because of its view that his appeal lacked merit. Mr. Dickson appealed this
decision. Legal Aid has affirmed the decision to deny funding on the basis of
lack of merit.

The Governing Legal Principles

[12]

Section 684(1) of the
Criminal Code

permits a single
judge or a panel of this court to 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 to this court. The judge or panel of judges must be satisfied that it
appears desirable in the interests of justice that an accused should have legal
assistance and it appears further that the accused has insufficient means to
obtain that assistance. These conditions are cumulative.

[13]

Section 684(2) controls where counsel is assigned and Legal Aid is not
granted. Where this occurs, the fees and disbursements of appointed counsel are
to be paid by the Attorney General who is a party to the appellate proceedings.

[14]

Several basic principles inform the exercise of discretion under s.
684(1).

[15]

First, the phrase the interests of justice signals the existence of a
judicial discretion that is to be exercised on a case-by-case basis:
R. v.
Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16. The phrase
the interests of justice must take cognizance of the broad access to
appellate review provided in s. 675, as well as the expansive remedial
authority of an intermediate appellate court under s. 686 of the
Criminal
Code
:
Bernardo
, at para. 20.

[16]

Second, the factors to be considered are closely related. Counsel should
be appointed where an accused cannot effectively present an appeal without a
lawyers help. Counsel should also be appointed where the court cannot properly
decide the appeal without the assistance of counsel. One or the other, on its
own, will justify the appointment:
Bernardo
, at para. 21.

[17]

Third, to determine whether counsel should be appointed, the first step
involves an inquiry into the merits of the appeal. As here, the merits
assessment is typically hampered by the incompleteness of the record. In the
result, the merits inquiry involves only the question of whether the appeal
raises arguable issues:
Bernardo
, at para. 22.

[18]

Finally, the applicant must show that counsel should be appointed under
s. 684(1) on a balance of probabilities.

The Arguments Advanced

[19]

Mr. Dickson argues that he is entitled to legal assistance and payment
of the costs associated with it, including payment for the transcripts of the
entire trial.

[20]

Mr. Dickson submits that he has insufficient means to retain counsel
privately. He adds that he is incapable of presenting his appeal, which
involves complex legal issues, without professional assistance.

[21]

Mr. Dickson further contends that his appeal from conviction has
significant merit. He says that the trial judge erred in permitting the Crown
to artificially keep an issue alive in order to introduce evidence that had
significant prejudicial effect and no probative value; namely, his statement to
the police.

[22]

The respondent resists the application primarily on the basis that the conviction
appeal has no merit. The respondent says Mr. Dicksons complaints about the
correctness of the trial judges pre-trial rulings are doomed to fail.

[23]

Moreover, says the Crown, Mr. Dickson, an intelligent man and relatively
sophisticated litigant himself, will have the assistance of experienced duty
counsel paid for by the state and aided by an adequate evidentiary record.

Analysis

[24]

Several reasons persuade me that this application must be dismissed.

[25]

First, it is conceded that Mr. Dickson does not have the means to retain
counsel.

[26]

However, even making generous allowance for grounds of appeal that are
capable of being expanded upon, I am not persuaded that there is an arguable
ground of appeal.

[27]

I do not see how it could be said that, in the circumstances of this
case, the trial judge erred by allowing the Crown to reject Mr. Dicksons
proposed plea of guilty to manslaughter and its inherent admissions. The
Crowns response to the proposed plea lies at the heart of prosecutorial
discretion.

[28]

I also do not see how it could be said that the trial judge committed
reversible error by exercising her discretion and allowing Mr. Dicksons
statement to police to go into evidence. This experienced trial judge provided
detailed reasons for her decision. In the light of the trial judges strong
caution in her instructions, the statement to the police, one that had some
relevance, could have little, if any, prejudicial effect.

[29]

The Crowns case against Mr. Dickson was very strong. As noted above,
among other things, it was supported by Mr. Dicksons admission that he caused
Ms. Lius death and by proof that his semen was found on her body and his blood
under her fingernails.

[30]

Moreover, the dismissal of his application does not mean that Mr. Dickson
will be deprived of legal assistance or required to make his submissions on the
basis of an inadequate evidentiary record. As a self-represented party, he is
entitled to the assistance of duty counsel, an experienced appellate lawyer
well qualified to assess the adequacy of any record compiled by the Attorney
General of Canada for the determination of the issues raised on appeal and to
make submissions on Mr. Dicksons behalf. This observation is particularly
compelling in this case given the narrow and discrete basis upon which Mr.
Dickson in challenging his conviction.

[31]

In addition, the record supports the conclusion that Mr. Dickson is a
capable and intelligent man. He has completed three quarters of the credits he
needs to graduate with an undergraduate degree from York University where he
was actively involved in activities such as Model UN, NATO and where he served
as vice-president of External Affairs for the undergraduate political science
student council and fundraising.

Conclusion

[32]

For these reasons, Mr. Dickson has not demonstrated, on balance, that it
is desirable in the interests of justice to allow this application. Mr. Dicksons
application is therefore dismissed.

Gloria Epstein
J.A.


