R. v. Fudge (C.), (2013) 338 N.S.R.(2d) 269 (CA)

• Judge: Beveridge, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 05, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 338 N.S.R.(2d) 269 (CA);2013 NSCA 149

R. v. Fudge (C.) (2013), 338 N.S.R.(2d) 269 (CA);

    1071 A.P.R. 269

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. DE.041

Chad Fudge (appellant) v. Her Majesty the Queen (respondent)

(CAC 408524; 2013 NSCA 149)

Indexed As: R. v. Fudge (C.)

Nova Scotia Court of Appeal

Beveridge, J.A.

December 5, 2013.

Summary:

On February 12, 2012, the accused committed a break and enter into an apartment where the owner was assaulted and robbed. On April 6, 2012, while on remand, he was captured on video committing an aggravated assault on another inmate. With the assistance of counsel, the accused agreed to plead guilty to the robbery charge (and a related charge of breach of a recognizance), and the aggravated assault charge. A joint recommendation of 10 years' incarceration was accepted by the trial judge on September 21, 2012. The accused applied for leave to appeal, and if granted, appealed his sentence. The grounds he advanced were: "my lawyer did not represent me properly" and "other people got lesser sentences for the same crimes". The accused applied for court appointed counsel under s. 684(1) of the Criminal Code after being denied legal aid.

The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the application. The court was not satisfied that it was in the interests of justice to appoint counsel on the application for leave to appeal sentence where the accused had not identified an arguable issue.

Criminal Law - Topic 4974

Appeals - Indictable offences - Powers of Court of Appeal - Power to appoint counsel for accused - The accused applied for leave to appeal, and if granted, appealed his sentence - The grounds he advanced were: "my lawyer did not represent me properly" and "other people got lesser sentences for the same crimes" - The accused's request to have counsel assigned to him by Nova Scotia Legal Aid was denied - The Appeal Committee of the Legal Aid Commission affirmed the denial - The accused applied for court appointed counsel under s. 684(1) of the Criminal Code - The Nova Scotia Court of Appeal, per Beveridge, J.A., stated that "I have no information before me as to the test utilized by the staff at Nova Scotia Legal Aid, or the Commission, to assess merit. An application under s. 684 is not an appeal from their determination. With all due respect, I fail to see how it can be said that I should owe deference to their assessment." - See paragraph 27.

Criminal Law - Topic 4974

Appeals - Indictable offences - Powers of Court of Appeal - Power to appoint counsel for accused - On February 12, 2012, the accused committed a break and enter into an apartment where the owner was assaulted and robbed - On April 6, 2012, while on remand, he was captured on video committing an aggravated assault on another inmate - With the assistance of counsel, the accused agreed to plead guilty to the robbery charge (and a related charge of breach of a recognizance), and the aggravated assault charge - A joint recommendation of 10 years' incarceration was accepted by the trial judge on September 21, 2012 - The accused applied for leave to appeal, and if granted, appealed his sentence - The grounds he advanced were: "my lawyer did not represent me properly" and "other people got lesser sentences for the same crimes" - The accused applied for court appointed counsel after being denied legal aid - The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the application - The court was not satisfied that it was in the interests of justice to appoint counsel on the application for leave to appeal sentence where the accused had not identified an arguable issue.

Cases Noticed:

R. v. Bernardo (P.K.) (1997), 105 O.A.C. 244; 121 C.C.C.(3d) 123 (C.A.), refd to. [para. 8].

R. v. Assoun (G.E.) (2002), 203 N.S.R.(2d) 316; 635 A.P.R. 316; 2002 NSCA 50, refd to. [para. 9].

R. v. Grenkow (I.G.) (1994), 127 N.S.R.(2d) 355; 355 A.P.R. 355 (C.A.), refd to. [para. 10].

R. v. Innocente (D.J.) (2003), 214 N.S.R.(2d) 295; 671 A.P.R. 295 (C.A.), refd to. [para. 10].

Smith et al. v. R. (2001), 203 Nfld. & P.E.I.R. 90; 610 A.P.R. 90; 156 C.C.C.(3d) 461; 2001 NFCA 38, refd to. [para. 10].

R. v. Clark (C.J.) (2006), 227 B.C.A.C. 237; 374 W.A.C. 237; 2006 BCCA 312, refd to. [para. 10].

R. v. Koehn (D.C.), [1999] B.C.A.C. Uned. 85; 1999 BCCA 265, refd to. [para. 12].

R. v. Chan (C.W.), [2001] B.C.A.C. Uned. 24; 2001 BCCA 138, refd to. [para. 12].

R. v. M.A.R., [2002] B.C.A.C. Uned. 2; 2002 BCCA 4, refd to. [para. 12].

R. v. Donald (M.) (2008), 258 B.C.A.C. 117; 434 W.A.C. 117; 2008 BCCA 316, refd to. [para. 12].

R. v. Silcoff (D.L.), [2012] B.C.A.C. Uned. 88; 2012 BCCA 463, refd to. [para. 12].

Canada (Attorney General) v. Adam (2013), 337 B.C.A.C. 249; 576 W.A.C. 249; 2013 BCCA 207, refd to. [para. 12].

R. v. J.W. (2011), 307 N.S.R.(2d) 155; 975 A.P.R. 155; 2011 NSCA 76, refd to. [para. 13].

R. v. Frank (R.D.) (2012), 323 N.S.R.(2d) 1; 1025 A.P.R. 1; 2012 NSCA 114, refd to. [para. 13].

R. v. George (L.A.), [2013] N.S.R.(2d) Uned. 68; 2013 NSCA 41, refd to. [para. 13].

R. v. Ewanchuk (S.B.) (2008), 429 A.R. 254; 421 W.A.C. 254 (C.A.), refd to. [para. 14].

R. v. Ermine (R.H.) (2010), 359 Sask.R. 48; 494 W.A.C. 48; 2010 SKCA 73, refd to. [para. 14].

R. v. B.L.B. (2004), 190 Man.R.(2d) 6; 335 W.A.C. 6; 2004 MBCA 100, refd to. [para. 14].

R. v. Murray (R.) (2009), 353 N.B.R.(2d) 178; 910 A.P.R. 178; 2009 NBCA 83, refd to. [para. 14].

R. v. Abbey (W.) (2013), 303 O.A.C. 335; 2013 ONCA 206, refd to. [para. 14].

R. v. Butler (M.H.) (2006), 231 B.C.A.C. 303; 381 W.A.C. 303; 2006 BCCA 476, refd to. [para. 14].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 684(1) [para. 7].

Counsel:

Chad Fudge, for the appellant in person;

Marian Fortune-Stone, Q.C., for the respondent;

Edward Gores, Q.C., for the respondent, Attorney General of Nova Scotia.

This application was heard and orally decided in Halifax, N.S., on December 5, 2013, by Beveridge, J.A., of the Nova Scotia Court of Appeal, in Chambers, who delivered the following written reasons on December 16, 2013.