



WARNING

The Judge hearing this application directs that the
    following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486(1), (1.1), (2), or (3) of the
Criminal Code
shall
    continue. These sections of the
Criminal Code
provide:

486(1)          Any proceedings against an accused
    shall be held in open court, but the presiding judge or justice may, on
    application of the prosecutor or a witness or own his or her own motion, order
    the exclusion of all or any members of the public from the court room for all
    or part of the proceedings, or order that the witness testify behind a screen
    or other device that would allow the witness not to be seen by members of the
    public, if the judge or justice is of the opinion that such an order is in the
    interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made, during the
    proceedings, to the presiding judge or justice or, before the proceedings
    begin, to the judge or the justice who will preside at the proceedings or, if
    that judge or justice has not yet been determined, to any judge or justice
    having jurisdiction in the judicial district where the proceedings will take
    place.

(2)     In determining whether the order is in the
    interest of the proper administration of judge, the judge or justice shall
    consider

(a) societys interest in encouraging the
    reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests of witnesses
    under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and
    candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their
    security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants
    who are involved in the proceedings;

(f) whether effective alternatives to the making
    of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the
    proposed order; and

(h) any other factor that the judge or justice
    considers relevant.

(3)     If an accused is charged with an offence
    under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or
    section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the
    accused applies for an order under subsection (1), the judge or justice shall,
    if no such order is made, state, by reference to the circumstances of the case,
    the reason for not making an order.

(4) No adverse inference may be drawn from the fact
    that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1;
    1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999,
    c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13,
    s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014,
    c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2018 ONCA 9

DATE: 20180108

DOCKET: M48639 (C63301)

Trotter J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Suvaughan Brown

Applicant

Paul J.I. Alexander, for the applicant

Andrew Hotke, for the respondent

Heard: December 29, 2017

Trotter J.A.:

A.

INTRODUCTION

[1]

This is an application for an order under s. 684 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, appointing counsel to represent the applicant on his
    appeal.

B.

the facts

[2]

The applicant was charged with sexual assault causing bodily harm (s.
    271(1)) and forcible confinement (s. 279(2)). After a two-day trial before Peter
    A.J. Harris J. of the Ontario Court of Justice, he was found guilty of both
    offences and sentenced to 48 months imprisonment. The applicant appeals both
    his conviction and sentence.

[3]

A brief summary of the evidence will suffice for the purposes of this
    decision. The case involves a serious sexual assault perpetrated by the
    applicant on a stranger. The complainant testified that she went to a local bar
    one night. When she started to feel intoxicated, she decided to walk back home.
    As she walked, two men in a car stopped and offered her a ride. The men spoke
    in the Somali language (as did the complainant), and she decided to go with
    them. Instead of taking her home, the men drove her to a secluded parking lot,
    where she was punched in the face, then sexually assaulted by the two men. She
    was penetrated vaginally and anally. The complainant was able to get away. She
    called a friend immediately, and then 911 a few hours later.

[4]

The complainant sustained injuries that night. She had cuts and bruises
    to her face, as well as a chipped tooth. The applicants semen was found in her
    vaginal and rectal areas.

[5]

The applicant, an admitted drug dealer, testified that he went to the
    same bar as the complainant. His purpose was to collect drug debts. The
    applicant testified that he saw the complainant sitting on the ground outside
    the bar. She had fallen and injured her face. He testified that they hung out
    in his car for a while. Even though the complainant was injured and bleeding,
    she consented to (indeed, initiated) unprotected vaginal and anal sexual intercourse
    with the appellant, a stranger, outside a car.

[6]

In thorough reasons for judgment, the trial judge rejected the
    applicants evidence because it falters badly in term[s] of plausibility,
    credibility and reliability. Citing
R. v. W.(D.)
, [1991] 1 S.C.R.
    742, and after cautioning himself against applying differential standards of
    scrutiny to the Crown and the defence evidence, he was satisfied of the
    applicants guilt beyond a reasonable doubt.

C.

the appointment of counsel

(1)

Section 684

[7]

The decision whether to appoint counsel is governed by s. 684(1) 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 appears
    desirable in the interests of justice that counsel be appointed.

[8]

This court has considered the meaning of desirable in the interests of
    justice in this context in numerous decisions, most of them drawing upon the
    leading case of
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont.
    C.A.). To succeed under this part of s. 684(1), 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.

[9]

Addressing the two necessity factors above, Doherty J.A. said in
Bernardo
,
    at para. 21: 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.
    See also
R. v. Mahmood
, 2015 ONCA 442, [2015] 6 C.T.C. 230 (in
    Chambers), at para. 34;
R. v. Adams
, 2016 ONCA 413, 350 O.A.C. 110 (in
    Chambers), at para. 26.

(2)

Financial Means

[10]

At
    trial, the applicants defence was funded by Legal Aid Ontario (LAO).
    However, after having pursued all avenues, LAO has refused to fund his appeal,
    based on lack of merit. Mr. Hotke for the Crown concedes that the applicant has
    established that he does not have the financial means to fund his appeal. I
    agree.

(3)

Arguable Merit

[11]

The
    applicant plans to advance five grounds of appeal, as outlined in an opinion
    letter to LAO: (i) the trial judge improperly found that the applicants evidence
    was tailored to the disclosure he received; (ii) the trial judge applied different
    standards of scrutiny to the evidence of the applicant and the complainant;
    (iii) the trial judge resorted to speculation; (iv) the trial judge effectively
    reversed the burden of proof; and (v) the trial judge improperly used the
    content of the 911 call to bolster the complainants credibility.

[12]

Mr.
    Hotke argues that none of these grounds have merit. I agree that some of the
    grounds of appeal appear meritless. The suggestion that the trial judge
    reversed the burden of proof is not borne out in his thorough reasons, which
    specifically refer to
W.(D.)
.
The assertion of differential standards
    of scrutiny, a difficult ground on which to succeed at the best of times (see
R.
    v. Aird
, 2013 ONCA 447, 307 O.A.C. 183, at para. 39), also seems unlikely
    to succeed here.

[13]

However,
    some of the grounds appear to be arguable. In particular, the contention that
    the trial judge misused the content of the complainants statements made during
    a 911 call is arguable. The passage from the trial judges reasons that the applicants
    counsel relies upon is, at best, ambiguous.

[14]

Moreover,
    the argument that the trial judge found that the applicant had tailored his
    evidence to meet the disclosure may also pan out, but that remains to be seen.
    The trial judge said the following about the applicants evidence: I found his
    answers had the air of being scripted, practiced and tailored. If the trial
    judge was referring to testimony being scripted to the Crowns case at trial,
    that would not be problematic. However, Mr. Alexander submits that the trial
    judges remarks were in response to the Crowns closing submissions, which referenced
    disclosure. If this was the point of reference, it could well turn out to be
    problematic: see
R. v. White
(1999), 132 C.C.C. (3d) 373 (Ont. C.A.),
    at para. 20. It will be necessary to examine the closing submissions in order to
    decide this ground of appeal.

[15]

Lastly,
    the applicant points to a passage in the trial judges reasons where he
    speculated about whether the applicant was able to converse in Somali (an important
    fact in the complainants narrative). The applicant testified that he does not
    speak Somali. The trial judge said: in spite of [the applicants] statements
    to the contrary, it may be that he is able to communicate some expressions in
    the Somalian language. In my view, this ground is arguable.

[16]

Mr.
    Hotke submits that, even if some of the grounds of appeal are arguable, none of
    them, alone or in combination, will win the day. He relies on the curative
    proviso in s. 686(1)(b)(iii). This position may well have merit, but it is difficult
    to properly evaluate at this stage.

(4)

Necessity

[17]

The
    applicant has not met the necessity threshold.

[18]

The
    materials filed on this application offer little more than conclusory
    observations about the applicants ability to pursue his appeal without the
    assistance of counsel. The opinion letter to LAO states that the applicant, is
    a 24 year old recidivist (not for sexual assault though). He has spent a huge
    proportion of his young life in custody. He does not have the ability or
    sophistication to represent himself. The affidavit in support of the
    application simply states that the grounds of appeal are complex and cannot be
    effectively argued by the appellant, a lay person with no legal training.

[19]

I
    accept that the ground concerning the use of the 911 call taps into a body of
    law (
i.e.
prior consistent statements) that can sometimes be
    complicated: see
R. v. Khan
, 2017 ONCA 114, 136 O.R. (3d) 520, leave
    to appeal refused, [2017] S.C.C.A. No. 139. However, the issue in this case is straightforward
    (
i.e
.
, whether the trial judge improperly used the complainants
    utterances to corroborate her testimony). The issue is well-developed in the opinion
    letter, which will be available to the panel that hears the appeal.

[20]

The
    other grounds of appeal are largely factual in nature. As noted above, the
    complainant and the applicant were the main witnesses at trial. Given the presence
    of the applicants semen in the complainants vaginal and anal areas, the only
    live issue was consent. The case turned on credibility. The applicant has not
    established that he is incapable of advancing these arguments on appeal.

[21]

Another
    factor that weighs against the applicant on the necessity scale is the size of
    the record. Previous decisions of this court have recognized that a voluminous trial
    record, combined with complex issues, often present challenges for self-represented
    appellants: see
Bernardo
, at para. 24; and
R. v. Lubin
, 2016
    ONCA 780 (in Chambers), at para. 19. This case is different. The trial took
    only two days, and the main issue was straightforward. Assuming that it is
    necessary to obtain a transcript of the entire trial, and I am not convinced
    that it is, the record would still be manageable for a self-represented
    litigant.

[22]

Turning
    to the other branch of the necessity inquiry, this court will be able to
    properly decide the straightforward issues raised on this appeal without the
    assistance of defence counsel. The panel will have the benefit of the LAO
    opinion letter, as well as the assistance of experienced counsel from the Crown
    Law Office (Criminal). An appointment of state-funded counsel is not necessary
    to achieve fair and effective appellate review.

[23]

Lastly,
    I mention the Ontario Inmate Appeal Duty Counsel Program (the Program). I
    recognize that the availability of assistance from the Program should not
    undermine meritorious s. 684 applications: see
Lubin
, at para. 18; and
R. v. Fiorilli
, 2016 ONCA 814, 133 O.R. (3d) 161 (in Chambers), at para.
    19. Although I have decided that this application must fail, this case may be
    deserving of consideration by the Program, especially given the manageable
    record and the focused grounds of appeal: see
Mahmood
, para. 43; and
R.
    v. Dickson
, 2016 ONCA 665 (in Chambers), at para. 30. Of course, it will
    be for the Program to decide whether this appeal is worthy of assistance, based
    on the application of its own criteria.

D.

conclusion

[24]

The
    application is dismissed.

Trotter J.A.


