



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Griffith, 2021 ONCA 368

DATE: 20210528

DOCKET: M52463 (C68251)

Jamal
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent/Responding Party

and

Dexter
    Griffith

Appellant/Applicant

Andrew
Menchynski
,
    for the applicant

Diana Lumba, for the respondent

Heard: May 21, 2021 by video conference

REASONS
    FOR DECISION

Introduction

[1]

The applicant Dexter Griffith applies for an order under s. 684
    of the
Criminal Code
, R.S.C. 1985, c. C-46,
    appointing counsel to assist him with his appeal. The applicant was convicted
    of possession of cocaine
for the purpose of
    trafficking and
sentenced to 3½ years in prison. Although the
    applicantÕs inmate notice of appeal appeals the conviction and seeks leave to
    appeal the sentence, he seeks the s. 684 order only for the conviction
    appeal. The federal Crown opposes the application.

[2]

The applicant, who has no prior criminal record, qualified for
    legal aid based on his income but was denied funding because Legal Aid Ontario
    concluded that the appeal lacks sufficient merit.

[3]

For the reasons that
follow, I
    grant the application for a s. 684 order.

The Appeal

[4]

A principal issue on the appeal will be whether the trial judge erred in
    rejecting the appellantÕs pretrial motion challenging the issuance of a search
    warrant for a specified apartment on Rowntree Road in Etobicoke where drugs
    were found.
The
applicant submitted that the
    warrant breached s. 8 of the
Canadian Charter

of Rights and Freedoms
and the
    evidence obtained should have been excluded under s. 24(2). The trial judge
    rejected that submission:
R. v. Griffith
, 2018
    ONSC 6950. A jury then convicted the applicant.

The Test for a s. 684 Order

[5]

Section 684 of the
Criminal Code

authorizes a judge of this court to assign counsel to represent
    an accused in a criminal appeal, funded by the Attorney General if legal aid
    has been denied, where it is Òdesirable in the interests of justiceÓ that the
    accused should have legal assistance and the accused lacks sufficient means to
    hire counsel.

[6]

To obtain an order under s. 684, an applicant must show:

1.

The
    appeal is arguable or not frivolous:
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 23;
R.
    v. Smith
, 2001 NFCA 38, 203 Nfld. & P.E.I.R. 90, at para. 8.
    This is a Òmodest standardÓ:
R. v. Budlakoti
, 2021 ONCA 163, at para. 14.

2.

It is necessary
that

counsel be appointed having regard to
    whether the applicant
is capable of effectively
    advancing
his grounds of appeal without a lawyer and whether the court
    can decide the appeal without counselÕs assistance:
Budlakoti
,
    at para. 14;
R. v. Sauve
, 2018 ONCA 755, at
    para. 18; and
Bernardo
, at paras. 14 and
    24. In addressing whether counsel is necessary, the court examines matters such
    as the complexity of the legal arguments to be advanced on appeal and the applicantÕs
    ability to make those arguments:
R. v. Abbey
,
    2013 ONCA 206, 115 O.R. (3d) 13, at para. 33;
Bernardo
,
    at para. 24.

Application to this Case

[7]

The Crown does not dispute that the applicant lacks sufficient means to
    hire counsel. The applicant qualifies for legal aid based on his income and he has
    limited employment prospects because in November 2017 he had a serious car
    accident in which he suffered a traumatic brain injury. It has also been harder
    for him to find work during the pandemic.

[8]

Instead, the Crown submits I should
    exercise my discretion to refuse the s. 684 order because: (1) the
    conviction appeal has no merit; and (2) the applicant has not established that
    he cannot effectively present the appeal without a lawyer.

[9]

As I will explain, I do not accept the
    CrownÕs submissions. I will address
each point
and
    then address an ancillary issue the Crown asked me to consider if I were
    inclined to grant the s. 684 order.

(1)

The conviction appeal is arguable

[10]

In my view, the
applicant has met the modest
    standard of showing an arguable ground of appeal,
one
    that is not frivolous.

[11]

The applicant claims he has at least two arguable
    grounds of appeal.

[12]

First, the applicant says that based on the
    Information to Obtain (ÒITOÓ) available to the issuing justice, the search
    warrant could not have issued: see
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40;
R. v. Araujo
, 2000 SCC
    65, [2000] 2 S.C.R. 992, at para. 54.

He
    claims that in the ITO the police made only a bare assertion
that
he lived at the target residence on Rowntree
    Road with his girlfriend and that evidence of criminality would be found there.
He says that
the police knew his registered
    address was elsewhere but obscured this, even though the ITO disclosed the
    registered address of at least one other individual targeted by the warrant. He
    contends
that had the police
disclosed that he
    did not live at the target residence, an important basis for the warrant would
    have been undercut.

[13]

The Crown responds
that
there
    was much other evidence in the ITO establishing a nexus between the applicant,
    drugs, and the target residence.

[14]

I agree that the CrownÕs argument may well succeed on
    appeal, but at this stage I cannot say that the applicantÕs argument is
    frivolous. I note that paragraph 6(f) of Appendix A of the ITO identified the
    Rowntree Road location as the applicantÕs ÒresidenceÓ, even though the police knew
    then that his registered address was at a different location in Ajax, to which address
    the applicantÕs cellphone was also registered. Although the trial judge
    rejected this submission because Ò[h]aving one residence does not exclude
    having a second residenceÓ, the ITO did not seek the warrant
on the basis that
the applicant had multiple
    residences. The ITO stated, instead, that the applicantÕs ÒresidenceÓ was the
    target residence, arguably leaving the impression
that
this was his only residence. In the section on suspects of the
    investigation, the ITO also listed the applicantÕs date of birth, alias, and Ò[a]ddressÓ
    as the target residence on Rowntree Road, even though the police knew the
    applicantÕs registered address was in Ajax.

This
provides an arguable basis for the claim
    that the warrant could not have issued for the Rowntree Road location on the
    purported basis that this was the applicantÕs residence.

[15]

Second, the applicant claims that the application
    judge erred in principle by improperly ÒamplifyingÓ the ITO with substantial
    new information unavailable to the issuing justice. He notes that in
Morelli
, Fish J. for the
    majority of the Supreme Court held that Ò[a]mplification evidence is not a
    means for the police to adduce additional information so as to retroactively
    authorize a search that was not initially supported by reasonable and probable
    groundsÓ and may be used only to Òcorrect Ôsome minor, technical error in the
    drafting of their affidavit materialÕÓ: at paras. 42-43; see also
R. v. Booth
, 2019 ONCA
    970, 386 C.C.C. (3d) 281, at paras. 59-62. The applicant asserts that, absent
    this error in principle, the trial judge would have concluded that the warrant
    could not have issued and that the evidence should have been excluded under s.
    24(2) of the
Charter
.

[16]

The Crown responds that the trial judge
was entitled to refer
to information not included in
    the ITO and this did not affect the ultimate conclusion that the warrant could
    have issued.

[17]

Once again, although the Crown may
    well succeed on this ground of appeal, the applicantÕs argument is not
    frivolous. The trial judge referred to five categories of information Òas set
    out in the ITOÓ that provided Òcredible and reliable evidence uncovered by the
    policeÓ. At the hearing of this application, however, the Crown conceded that
    at least two of these five categories of information were not set out in the
    ITO. Crown counsel suggested that the trial judge may have misspoken and the
    trial judgeÕs comments must be read in
the context of
the rest of his reasons. However
, what
may
    have been a factual error in the trial judgeÕs reasons as to what was in the
    ITO certainly opens the door for the claim that the trial judge went beyond the
    bounds of permissible amplification of the ITO. I conclude that the applicantÕs
    submission presents an arguable ground of appeal.

[18]

To succeed on either argument, the applicant would
    also need to show that the evidence obtained in breach of s. 8 of the
Charter
should be
    excluded under s. 24(2). As
Doherty J.A. recently noted, Ò[t]he nature of the s. 24(2)
    inquiry means, in some cases, different judges will reasonably arrive at
    different conclusions with respect to admissibilityÓ:
R. v. Hobeika
, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 89.
Having found two arguable s. 8 arguments, I am not
    prepared to speculate on how the s. 24(2) issue might be resolved.

[19]

I conclude that the conviction appeal is arguable and
    not frivolous.

(2)

Counsel is ÒnecessaryÓ

[20]

I also find that the applicant has shown that the appointment of counsel
    is ÒnecessaryÓ because the applicant would not be capable of effectively
    advancing these grounds without a lawyer and the court could not decide the
    appeal without counselÕs assistance.

[21]

The Crown submits that, with the
    benefit of counselÕs work for the s. 684 application, the applicant could argue
    the appeal himself or with help from
pro bono

duty
    counsel. I reject that submission.

[22]

The legal issues
are relatively
    complex. I find that the applicant would be incapable of effectively arguing
    them himself. Although the applicant finished high school in Guyana, he has no
    higher education and has been hampered in his ability to function cognitively since
    his traumatic brain injury in 2017.

[23]

Nor does the potential assistance of
pro
    bono
duty counsel detract from the need for funded counsel to prepare
    and argue this appeal.
Pro bono
duty counsel are
    Ònot a substitute for fully-funded counsel, whether through Legal Aid or a s. 684
    order, where circumstances warrant such assistanceÓ:
R. v.
    Lubin
, 2016 ONCA 780, at para. 18; see also
R.
    v. Brown
, 2018 ONCA 9, at para. 23; and
R. v. Fiorilli
,
    2016 ONCA 814, 133 O.R. (3d) 161, at para. 19.

[24]

Given the extensive ITO here and the nature and relative complexity
    of the legal issues to be raised on the appeal,
e
xperienced
    criminal counsel such as Mr. Menchynski would assist the court: see
Fiorilli
, at para. 25.

[25]

I therefore find that funded counsel is ÒnecessaryÓ.

(3)

Should the s. 684 order be limited to the issues argued on this
    application?

[26]

Finally,
    the Crown submitted that, if I were inclined to grant the s. 684 order, the
    order should be limited to the two arguments above, even though the applicantÕs
    inmate notice of appeal listed other grounds on the conviction appeal.

[27]

I do
    not accept this submission. The legal arguments on this application were necessarily
    preliminary. Without funding, Mr. Menchynski cannot
order
the trial transcripts and thus understandably does not wish the
    applicant to be limited to the arguable grounds
presented
on this application. That strikes me as a reasonable position. I have
    found that, even without the benefit of the trial transcripts, the applicant
    has presented two arguable grounds on the conviction appeal, only one of which
    need succeed for the applicant to succeed on appeal. I am therefore granting
    a s. 684 order sought for the conviction appeal, without limiting the applicant
    to the two points argued on this application.

Conclusion

[28]

The application to appoint s. 684 counsel is granted. Mr. Andrew Menchynski
    is appointed to represent the applicant on this appeal.

ÒM.
    Jamal J.A.Ó


