New & Notable: When is it "desirable" to have a lawyer...

One jury found Warren Abbey not guilty of first-degree murder; another jury found him guilty. One jury heard nothing about the significance of Abbey’s tear drop tattoo near his eye; another jury heard from an expert on the significance of just such a tattoo among members of urban street gangs. The Ontario Court of Appeal decided that the first jury had been unfairly and erroneously deprived of that evidence and thus ordered that a second trial be held. Abbey appealed that second jury’s finding on the basis that it was unreasonable. Although Abbey had a lawyer acting on his behalf at his first trial, the Crown’s appeal therefrom and at his second trial, Legal Aid Ontario dismissed Abbey’s application to have a lawyer argue his appeal. Abbey applied to the Court of Appeal pursuant to section 684 of the Code to have counsel appointed. Watt JA dismissed that application: 2013 ONCA 206.


Section 684 of the Code permits a judge or panel of judges of the Appellate court to appoint counsel to act on behalf of an accused who is a party before the court. The judge or panel must be satisfied that it is “desirable and 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” [para 29].

In considering that issue, Watt JA first considered what is meant by the “interests of justice”.

[T]he ubiquitous phrase “the interests of justice” is a legal chameleon that takes its meaning from its surroundings. The phrase contemplates a judicial discretion exercisable on a case-by-case basis: R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16.  Section 684 offers no list of factors, whether exhaustive or expansive, to inform the exercise of the discretion conferred by s. 684(1) [para 29].

Watt JA then noted that the onus is on the appellant to satisfy the judge or panel of judges that it is in the interest of justice that the accused person have the benefit of legal assistance. In order to make that determination the judge or panel should enquire into the merits of the appeal. Because the record before the court at that stage will most often be incomplete the applicant need only establish that the grounds of appeal advanced are arguable; this is a modest standard.

Once the applicant has met their onus the next inquiry with whether the applicant can advance the arguable grounds of appeal without the benefit of counsel.

An interesting aspect of these types of applications is the opportunity it affords parties to the appeal to hear from a judge of that court on the merits of the appeal.

In this case, Abbey argued that the unreasonableness of the verdict is an arguable ground for the following reasons:

First, that two juries delivered two different verdicts.

Second, that the opinion evidence adduced by the crown at the second trial on the issue of gang tattoos was offered by a witness that was impeached in another matter and found to be unreliable.

Third, the conviction was based on the testimony of an eyewitness and “thoroughly disreputable Vetrovec witnesses, all of whom were fundamentally unreliable. Specifically, Abbey argued that the trial judge erred in his application of s.715 and permitting the preliminary hearing testimony of a witness to be read into the record when that same witness refused to testify at the trial. Additionally, Abbey argued that the trial judge erred by instructing the jury that the Vetrovec witnesses could corroborate each other.

Watt JA dealt with each argument in turn.

First, the appellant invokes the conclusion reached by the first jury to demonstrate the unreasonableness of the second jury’s finding of guilt. The conclusion reached by the first jury, on the evidence adduced and instructions given there, is irrelevant to a determination of whether the verdict of the second jury, on the evidence adduced and instructions given in that trial, was unreasonable. The reasonableness of the finding of guilt made by the second jury is determined by the application of the governing test to the evidence adduced at the second trial. Provided the finding of guilt is a conclusion that a properly instructed jury, acting judicially, could reasonably have rendered, the verdict is not unreasonable: R. v. Burke, [1996] 1 S.C.R. 474, at para. 4.  In this case-specific reasonableness inquiry, the verdict of the previous jury on different evidence moves no freight on the inquiry into the unreasonableness of the verdict under appeal [para 38].

With respect to the argument that the expert relied on in the second trial had been found by another court on another case to be inadmissible, Abbey noted that Totten was qualified in Abbey’s second trial as an expert witness offering an “opinion in generic terms about the meaning of a tear drop tattoo on the face of a member of an urban street gang” [para 40]. In a different proceedings defence counsel sought to have Totten qualified as an expert in the field of street gangs. The Crown in those proceedings opposed this qualification on the basis that Totten had no direct knowledge of the gangs involved in that case. The trial judge qualified Totten on a number of subjects relating to street gangs but not with respect to the specific gangs in that case.

Watt JA gave short shrift to Abbey’s argument.

Admissibility issues, including the qualifications of witnesses proposed as experts and, if qualified, the scope of the opinions they may proffer, are determined on a case-by-case basis, not in rem as the appellant suggests.  A party who tenders a witness as an expert on specific issues in one proceeding is not estopped from challenging the same witness’ qualifications, or the scope of the witness’ testimony, in another proceeding. Nor does the later challenge render the verdict in the prior proceeding so vulnerable as to be deemed unreasonable. Whether a verdict is unreasonable is determined by applying the governing principles to the evidence adduced in the proceedings under review. For the purposes of that inquiry, what happened in another trial is irrelevant [para 42].

Lastly, Watt JA found that evidentiary record in this case leaves:

(…)the argument of unreasonable verdict short of what is required under s. 684(1). 


In addition, and of significance to an appellate court’s task of assessing the reasonableness of a trial verdict, the appellant does not appear to have sought a directed verdict of acquittal at the end of the Crown’s case at trial.  Nor did the appellant testify at trial. The jury was entitled to consider the failure of the appellant to testify in their deliberations, as is an appellate court: R. v. Corbett [1975] 2 S.C.R. 275, at pp. 280-281 [para 43].

With respect to the Vetrovec issue, Watt JA noted that the trial judge properly instructed the jury on the dangers of relying on such witnesses and directed the jury to potentially confirmatory evidence; no objections to that aspect of the charge were made.

On the 715 issue Watt JA simply indicated that it is within the purview of the trial judge to admit such evidence so long as the probative value exceeds any prejudicial effect.

The end result leaves Abbey, at this stage, unrepresented by counsel for his appeal and with a preview of how his arguments are likely to be received by the Court.