2006 BCCA 374 R. v. Ellard

Before:	The Honourable Mr. Justice Donald
	(In Chambers)

Oral Reasons for Judgment

P.J. Wilson, Q.C.	Counsel for the Appellant
J.M. Gordon, Q.C.	Counsel for the (Crown) Respondent
Place and Date:	Vancouver, British Columbia
3 August 2006

[1] DONALD, J.A.: This is an application for appointment of counsel pursuant to s. 684 of the Criminal Code in a second degree murder case.

[2] The appellant was convicted after her third trial. She seeks a new trial on several grounds. They have been assessed by two eminent criminal lawyers at the request of the Legal Services Society in the course of dealing with the appellant's application for legal aid. Neither lawyer thought there was a reasonable chance of success. On that basis, the Legal Services Society refused the application.

[3] Mr. Gil McKinnon, Q.C. did the first assessment; Mr. Leonard Doust, Q.C. performed an independent review. Mr. Doust found there were arguable points of law but thought the totality of the evidence supporting the conviction might result in the application of the curative proviso under s. 686 (1)(b)(3).

[4] Mr. McKinnon read Mr. Doust’s opinion at the request of the Legal Services Society and reported that he remained of the view that the appeal had no reasonable chance of success.

[5] Mr. Doust said in his opinion letter to the Legal Services Society :

Conclusion

Having reviewed the materials provided to me and considered the applicable law, it is my view that:

1. it is arguable that Mr. Justice Bauman erred in law by failing to specifically caution the jury with respect to possible collusion or contamination;

2. it is arguable that Mr. Justice Bauman erred in law by allowing the Crown to adduce on re-examination evidence of Marissa Bowles' prior consistent testimony and, having allowed the Crown to adduce this evidence, by failing to properly instruct the jury on its proper use; and

3. it is arguable that the verdict is unreasonable and cannot be supported by the evidence.

However, for the reasons set out above, we are not in a position to say also that there is a reasonable chance of success in respect of any of these proposed grounds of appeal.

[6] The appellant cannot afford a lawyer, nor does she have the education, training or skill to make effective argument on the points listed above.

[7] The question is whether it is in the public interest that a lawyer be appointed to present her appeal. I think it is. Few murder cases in this jurisdiction have attracted as much attention as this one. It relates to an event when the appellant was 15 years old. The course of the proceedings has been anything but smooth. Since arguable points of law have been identified, and I respectfully agree with the assessments of counsel assisting the Legal Services Society that such exist, the public interest requires, in my view, that they be addressed by the Court so that no doubt may linger about the quality of justice meted out in this case. In this regard, I adopt the views expressed by Mr. Justice Doherty for the Ontario Court of Appeal in R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.) at ¶ 19, 20:

[19] Appellate review as provided for by Part XXI of the Criminal Code is not an indulgence to be doled out to those who are somehow seen as deserving of the opportunity to challenge their conviction. The salutary purposes underlying broad appellate review on appeals from convictions are engaged and must be served no matter how heinous the crime or despicable the accused. Detached and reflective appellate review of the trial process is perhaps most important in notorious, emotion-charged cases involving the least deserving accused. It is in those cases that the public eye is most closely focused on the process and the mettle of the criminal justice system undergoes its severest test. By giving the most repugnant appellant full recourse to meaningful appellate review, and by subjecting the apparently most deserving convictions to careful appellate scrutiny the integrity of the process is maintained and a commitment to the unbending application of the rule of law is affirmed.

[20] The "interests of justice" referred to in s. 684(1) must take cognizance of the broad access to appellate review contemplated by s. 675 and the wide remedial powers of the court of appeal set out in s. 686. Justice demands that an accused who appeals under s. 675 be afforded a meaningful opportunity to establish the merits of the grounds of appeal advanced by that appellant. That same interest also insists that the court be able to fully and properly exercise its broad jurisdiction at the conclusion of the appeal. Anything less is inconsistent with the statutory scheme created by Part XXI of the Criminal Code.

[8] I think it is difficult to make an early prediction in any given case whether a division of the Court will say no substantial miscarriage of justice has occurred despite errors of law. Much depends on the force of the argument at the hearing and the Court's overall impression, having reviewed the record and considered the submissions. In Bernardo, the operative test was said to be an arguable case. I quote again from Mr. Justice Doherty’s decision where he sets out a less stringent test than that required by the Legal Services Society:

[22] 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.

[9] In this extraordinary case, I find it is enough that there are meritorious arguments available to the appellant and that the curative proviso is not an inevitability.

[10] I grant the order sought.

“The Honourable Mr. Justice Donald”