ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ

Nunavunmi Apiqhuidjutainut Uuktuffaarutit

Nunavut Court of Appeal
Cour d'appel du Nunavut

Citation: R. v. Salomonie, 2018 NUCA 5

Date: 20180807
Docket: 08-16-002 CAP
Registry: Iqaluit

Between:

Her Majesty the Queen

Respondent

-and-

Jeffrey Salomonie

Applicant (Appellant)

The Court:

The Honourable Mr. Justice Neil Sharkey

Memorandum of Judgment

Request for appointment of counsel pursuant to section 684(1) of the Criminal

Code of Canada, RSC 1985, c C-46, on appeal from the conviction of murder
entered on April 5, 2016 by Justice Neil Sharkey of the Nunavut Court of Justice,
sitting without a jury.
 2

MEMORANDUM OF JUDGMENT

(NOTE: This document may have been edited for publication)

I. ENDORSEMENT

[1] At the Court of Appeal’s March 14, 2018 administrative speak-to-the-list sitting,
the applicant advised the Court that he wished to make an application
pursuant to s. 684 of the Criminal Code of Canada, RSC 1985, c C-46
[Criminal Code] seeking the assignment and funding of legal counsel for his
appeal against conviction. On July 24, 2018, with the assistance of pro bono
counsel, Mr. Salomonie delivered a notice of application with a supporting
affidavit and factum seeking the s. 684 relief.

[2] This appeal and application were briefly spoken-to by counsel on July 25,
2018. At that appearance, Crown counsel advised the Court that the Crown
would not be taking a position in relation to the application and as such the
application would proceed unopposed. The matter was set to August 7, 2018
for hearing. As persuasive written materials have been filed, the Crown’s
position has negated the need for an oral hearing of this application.

[3] For the reasons that follow, I would make an order assigning counsel to act on
behalf of Mr. Salomonie on this appeal. The fees and disbursements of
assigned counsel will be paid for by the Attorney General of Canada.

II. BACKGROUND IN BRIEF

[4] Following a trial, presided over by me, without a jury, the applicant was
convicted of murder in the first degree on April 5, 2016. He was sentenced to
life imprisonment.

[5] The applicant appealed his conviction by completing an Inmate Notice of

Appeal in Form A pursuant to Rule 7(1) of the Rules of the Court of Appeals
for the Northwest Territories as to A. Criminal Appeals B. Bail on Appeals,
 3

SOR/78-68 (the Rules). The Inmate Notice of Appeal appears to have been
prepared with the assistance of trial counsel, signed “with authority” on Mr.
Salomonie’s behalf. The Notice of Appeal was dated April 21, 2016.

[6] Both Rule 6(1) (i) of the Rules and the instructions on the bottom of Rule 7(1)’s
Form A, clearly indicate that notices of appeal, when prepared by appellants
who are in custody, are effected by serving three (3) copies of the notice of
appeal on the warden or designate of the applicable custodial institution. The
warden is then tasked with providing the registrar with a copy of the notice.

[7] The warden was not provided with a copy of the Notice of Appeal in this
instance. As a result of the confusion caused by the appellant’s procedural
misstep, the notice of appeal was not added to the Court of Appeal’s speak-to
docket until July, 2017; 15 months after conviction.

[8] This matter was first spoken to on November 15, 2017. On this date, counsel
for legal aid advised both the Court and Mr. Salomonie, who appeared from a
southern institution via video link, that legal aid had denied Mr. Salomonie’s
request for legal aid representation on his appeal. This matter was then put to
the March 14, 2018 speak-to sitting to enable legal aid to provide Mr.
Salomonie with a plain language letter explaining why legal aid denied his
application.

[9] On March 14, 2018, Mr. Salomonie again appeared on the Court of Appeal
matter via video link. It was apparent to me that Mr. Salomonie had significant
issues with his hearing and remained without counsel. No movement on the
appeal had taken place since the November sitting of the Court of Appeal.

[10] In the interests of moving this appeal forward and preventing the appeal from
becoming stale due to the passage of time, and seeing no prospects of the
appeal advancing to even a preliminary stage without the assistance of
counsel, I asked Mr. Salomonie if he wished the Court to consider a s. 684
application to have the Court appoint a lawyer to represent him on his appeal.
Mr. Salomonie indicated he would like such an application to be made and
subsequently, through the assistance of pro bono counsel, filed a s. 684
application on July 24, 2018.
 4

III. ANALYSIS

[11] Section 684(1) of the Criminal Code enables a court of appeal or a judge of
the court of appeal, at any time, to:

assign counsel to act on behalf of an accused who is a party to an appeal or

to proceedings preliminary or incidental to an appeal where, in the opinion
of the court or judge, it appears desirable in the interests of justice that the
accused should have legal assistance and where it appears that the accused
has not sufficient means to obtain that assistance.

[12] I am satisfied, for the purposes of this application, that Mr. Salomonie, who
was represented by legal aid during his trial and is now serving a life sentence,
satisfies the second part of the two part test under s. 684 relating to financial
need.

[13] This court must now determine if it is in the “interests of justice” that Mr.
Salomonie be assigned counsel, paid for by the Attorney General of Canada,
to represent him on his appeal.

[14] The “interests of justice” require this Court to consider Mr. Salomonie’s “age,
education, ability to understand and to express himself, experience with the
criminal process and the complexity of the appeal”: Annotations to s. 684 in
Martin’s Annual Criminal Code, 2018 edition at 1434, citing R v M(A) (1996),
30 OR 313, 92 OAC (SCC). In his affidavit sworn in support of this application,
Mr. Salomonie has put into evidence that his highest level of education is
grade five and that he has never held a job that required any “public speaking,
independent research, writing or reading of technical materials”. From this
evidence alone it appears desirable, in the interests of justice, that Mr.
Salomonie have legal representation to ensure this appeal can move forward.

[15] In addition to the above criteria, the “interests of justice” test also tasks this
court with analysis of the merits of the appeal: See R v Tang, 2014 ONCA 632
(CanLII) at paragraph 12. A court must look to the merits to determine if the
appeal is arguable. If the appeal is arguable, the complexity of the appeal is
looked to in order to aid in a determination as to whether or not counsel should
be assigned under s. 684.
 5

[16] Counsel has described this appeal as “exceedingly complex” in his factum
noting: “A preliminary review of the judgment raises issues of intoxication,
mens rea, constructive murder, credibility assessments and scientific/forensic
opinions”.

[17] To expect Mr. Salomonie, who is detained in an institution thousands of

kilometers away from home, suffers from noticeable hearing loss, and is
participating in the appeal of a first degree murder conviction in his second
language, to concisely and persuasively prosecute an appeal involving the
legally complex grounds articulated by counsel is unrealistic. It would not
serve the interests of justice to deny Mr. Salomonie’s application to have
counsel assigned.

IV. DISPOSITION

[18] As it appears desirable in the interests of justice that Mr. Salomonie should
have legal assistance on this appeal, and where it appears that Mr. Salomonie
has not sufficient means to obtain such assistance, an order shall go granting
the application. Counsel is to be assigned pursuant to s. 684(1) of the
Criminal Code to act on Mr. Salomonie’s behalf through to the conclusion of
this appeal. In accordance with s. 684(2), as legal aid has rejected Mr.
Salomonie’s application for legal representation, the Attorney General shall
pay for the fees and disbursements incurred by counsel on Mr. Salomonie’s
appeal.

Application heard in writing August 7, 2018.

Memorandum filed at Iqaluit, Nunavut, this 7th day of August, 2018.

____________________
Justice Neil Sharkey
Nunavut Court of Appeal
 6

Appearances:

Scott Cowan, for the Applicant Appellant

Moray Welch, for Respondent