



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sauve, 2018 ONCA 755

DATE: 20180917

DOCKET: M49580 (C64134)

Trotter J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Clark Sauve

Applicant

Clark Sauve, acting in person

Lorna Bolton, for the respondent

Heard: In Writing

Trotter J.A.:

A.

INTRODUCTION

[1]

Mr. Sauve was found guilty of second degree murder (
R. v. Sauve
,
    2017 ONSC 2577) and sentenced to life imprisonment, with no parole eligibility
    for 12 years (
R. v. Sauve
, 2017 ONSC 4425). He appeals conviction and
    sentence.

[2]

Mr. Sauve applies under s. 684 of the
Criminal Code
, R.S.C.
    1985, c. C-46, for an order appointing counsel to represent him on his appeal.
    For the reasons that follow, the application is dismissed.

B.

factual background

[3]

Mr. Sauve was tried by a judge sitting without a jury. He was convicted
    of killing his wife, Linda, by shooting her in the head while she was in bed.

[4]

Mr. Sauve called 911 to report that he had been beaten and his wife had
    been shot. He said that they had been attacked by two female intruders who wore
    Halloween-type masks. When the police arrived, they noticed no signs of a
    forced entry. Mrs. Sauves purse was on the kitchen counter and was
    undisturbed.

[5]

The police located Mr. Sauve upstairs, laying on his bed, with his
    wheelchair at the foot of the bed. In the bedroom next door, they found the
    body of Mrs. Sauve. The police returned to Mr. Sauves room and noticed a gun
    on the floor. One of the officers asked Mr. Sauve: You did this, didnt you?
    He did not respond.

[6]

One of the issues at trial concerned the activation and deactivation of
    the home security system. The alarm had been set off, and then turned off 32 seconds
    later, before the 911 call. Mr. Sauves position at trial was that it was not
    proved that he deactivated the alarm; because of his use of a wheelchair, he
    could not have got downstairs to the alarm keypad within 32 seconds.

[7]

The police created a video in which they used a wheelchair to move from
    Mr. Sauves bedroom to the chair lift on the stairs, into a wheelchair at the
    bottom of the stairs, and then to the alarm keypad. This took 53 seconds.

[8]

The trial judge addressed this issue in his reasons for judgment. As he
    said at para. 81:

I also acknowledge the evidence of the police that one of their
    members was timed in getting from the accused bedroom to the alarm by using the
    accused's wheelchair and it took him 52 seconds which was longer than the
    evidence of the time the alarm was activated until shut off.
The officer who
    performed the actual demonstration did not give evidence, nor was there any
    video recording of the demonstration to allow the court to see the details of
    this demonstration.
There was no evidence as to how familiar the officer
    was with wheelchairs, the stair lift or the alarm system. I also note the
    discrepancy between the evidence of Mr. Holgate and Mr. Radu as to whether the
    alarm could be turned off remotely by the fob. I give little weight to this
    evidence and it certainly does not raise any reasonable doubt in my mind as to
    the guilt of Mr. Sauve. [Emphasis added.]

[9]

In addition to other grounds, Mr. Sauve intends to argue on appeal that
    this paragraph reflects a serious misapprehension of the evidence, and a
    reversal of the burden of proof.

C.

procedural background

[10]

Mr.
    Sauve filed a Notice of Appeal for Inmate Appeal. His case proceeded in the inmate
    appeal stream. The Crown prepared the Appeal Book (four volumes) and ordered
    transcripts of most of the evidence at the trial. The appeal was listed to be
    heard on July 11, 2018 in Kingston. Mr. Sauve was to be assisted by Ms. Erin
    Dann, an experienced appellate counsel, appearing as part of the Ontario Inmate
    Appeal Duty Counsel Program (the Program). Ms. Dann had prepared submissions
    on the ground of appeal mentioned above. At that time, Mr. Sauve also provided
    written submissions, advancing further grounds of appeal. However, he also
    indicated, for the first time, that he wished to pursue a s. 684 application.
    The hearing was adjourned so that Mr. Sauve could make his application in
    writing. He has done so, and the Crown has responded.

D.

the denial of legal aid

[11]

Mr.
    Sauve was represented at trial. He was able to retain counsel privately. After
    filing his Notice of Appeal, Mr. Sauve applied for legal aid. The Area
    Committee of Legal Aid Ontario (LAO) denied his application, finding that Mr.
    Sauve failed to satisfy the financial criteria for eligibility.

[12]

The
    Area Committees decision was affirmed on appeal. LAO determined that Mr. Sauve
    is in receipt of WSIB and CPP benefits totalling $16,440 annually. After
    expenses, that are largely discretionary, he receives a net monthly income of
    roughly $900. To qualify for legal aid, an applicant in Mr. Sauves situation
    (being classified as a family of one) must have a gross annual income that is less
    than $13,635 in order to qualify for a legal aid certificate on a
    non-contributory basis, or less than $15,781 to qualify for legal aid
    assistance with a contribution agreement. Mr. Sauve does not qualify for
    either type of assistance.

[13]

In
    his materials on this application, Mr. Sauve disclosed that he has bank
    deposits totalling $11,780.26. It would appear that this was not disclosed to
    LAO.

[14]

There
    is some dispute about the proceeds from the sale of the matrimonial home that
    Mr. Sauve shared with his wife, as well as his personal property. However,
    given Mr. Sauves income stream and his savings, it is not necessary to resolve
    this issue.

E.

the appointment counsel

[15]

The
    decision to appoint counsel is governed by s. 684 of the
Criminal Code
.
    An applicant must establish on a balance of probabilities that he or she does
    not have sufficient means to obtain legal assistance
and
that it is
    desirable in the interests of justice that counsel be appointed.

(1)

Sufficient Means

[16]

Mr.
    Sauve has failed to establish that he does not have sufficient means to fund
    his appeal. Mr. Sauve has savings of nearly $12,000 and a net monthly income of
    approximately $900. Being in this financial position, Mr. Sauve is capable of funding
    an appeal, especially when the bulk of the trial proceedings have already been
    transcribed, and the voluminous appeal book prepared. It would appear that Mr.
    Sauve would rather retain his funds than retain counsel. This undermines his claim
    for assistance by government-funded counsel.

(2)

The Interests of Justice

[17]

Mr.
    Sauve has not established that it is in the interests of justice that he receive
    government-funded counsel.

[18]

This
    court has considered the meaning of the interests of justice in the context
    of s. 684 in numerous decisions, most drawing upon the leading judgment in
R.
    v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.). To succeed under s.
    684, an applicant must show that:

a. the appeal is arguable;
    and

b. it is necessary that
    counsel be appointed, having regard to,

(i) whether the applicant is capable of effectively
    advancing his grounds of appeal without a lawyer; and

(ii) whether the court will be able to properly decide the
    appeal without the assistance of defence counsel.

See also
R. v. Mahmood
, 2015 ONCA 442, 122
    W.C.B. (2d) 458, at para. 34; and
R. v. Adams
, 2016 ONCA 413, 350
    O.A.C. 110, at para. 26.

[19]

As
    the Crown concedes, the ground of appeal discussed above is arguable. This
    ground of appeal has already been prepared for argument by Ms. Dann, who was
    prepared to advance it on Mr. Sauves behalf earlier this year. The Crown advises
    that the Program is prepared to further assist Mr. Sauve if he remains
    self-represented.

[20]

The
    other issues raised by Mr. Sauve in his written submissions are factual in
    nature and do not appear complex. His written submissions are detailed and
    reflect no difficulty in communication. I am mindful of the claims by Mr. Sauve
    (and his sister) about having a head injury and suffering from mental illness. However,
    there is nothing before me to substantiate the claim that he would be
    compromised in arguing his appeal, with the assistance of the Program.

F.

conclusion

[21]

The
    application is dismissed. This appeal should be listed for hearing at the October
    2018 sittings of Kingston inmate appeals.

G.T. Trotter
    J.A.


