R. v. Hurren

R. v. Hurren Collection Decisions of the Court of Appeal Date 2022-10-18 Neutral citation 2022 ONCA 717 Docket numbers C69353, M53783 Judges Tulloch, Michael H. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hurren, 2022 ONCA 717 DATE: 20221018 DOCKET: M53783 (C69353) Tulloch J.A. (Motion Judge) BETWEEN His Majesty the King Respondent (Responding Party) and Corey Hurren Appellant (Applicant) Chris Rudnicki, for the applicant Avene Derwa, for the responding party Heard: October 6, 2022 REASONS FOR DECISION [1] The applicant makes this motion pursuant to s. 684 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, for an order granting an appointment of counsel to assist in the representation of his sentence appeal. [2] The applicant applied for legal aid funding but was denied on a final basis on July 5, 2022. He submits that he is financially impecunious and suffers from clinical depression and mental illness which will make it impossible for him to represent himself on his appeal. [3] The Crown opposes the application on the basis that it would not be in the interest of justice to grant the application, as the proposed appeal lacks merit. [4] I agree with the Crown’s submissions. As such, for the reasons below, the application is dismissed. A. Background Facts [5] The facts of this case are set out in the sentencing judge’s reasons for sentence reported at 2021 ONCJ 148. Below is a brief summary. [6] On July 2, 2020, the applicant drove his pick-up truck into the front gates of the Prime Minister’s residence at Rideau Hall in Ottawa, causing approximately $100,000 in damages. [7] The applicant exited his truck with three loaded firearms to search for the Prime Minister. He left a note in his truck saying that he was “afraid for the future of Canada” and that he hoped his actions would be a “wakeup call and a turning point.” [8] The applicant was subsequently confronted by police, at which time he took cover behind a tree. A stand-off ensued, during which the applicant told the police he had come to arrest the Prime Minister. After 90 minutes, the applicant agreed to drop his firearms. He was subsequently arrested and taken into custody. [9] Later, in an interview with a forensic psychiatrist, Dr. Gray, the applicant said that he had intended to go to Rideau Hall to “send a message”. He also told Dr. Gray that he expected to be shot dead in the process, and that this would serve as a message about his frustration. [10] The applicant pleaded guilty to the following charges: • Possessing a weapon for a purpose dangerous, contrary to s. 88 of the Code; • Careless use/storage of a firearm (x2), contrary to s. 86(2) of the Code; • Possessing a prohibited device, contrary to s. 92(2) of the Code; • Possessing a restricted/prohibited firearm (x3), contrary to s. 95(2) of the Code; and • Committing mischief over $5,000, contrary to s. 430(3) of the Code. [11] The applicant was sentenced to six years’ incarceration. The sentence was apportioned as follows: Total sentence: 6 years less credit of 1 year for pre-sentence custody Breakdown: 6 years for possession of firearm for a dangerous purpose; 2 years concurrent for each count of careless handling of the firearms; 5 years concurrent for each count of possession of restricted and prohibited weapons; 2 years concurrent for mischief Net sentence: 5 years Ancillary Orders: DNA; Forfeiture (firearms); Weapons prohibition (s.109, life). [12] At the time of sentencing, the applicant was 46 years old. His criminal record consisted of a dated and unrelated impaired driving offence. He had no prior psychotic disorder nor post-traumatic stress disorder, and there was no indication of abuse of drugs or alcohol. The applicant was, however, experiencing major depression as a result of losing his small business during the COVID-19 pandemic and the recent ban on his firearms. [13] In assessing the aggravating factors, the sentencing judge noted that the applicant left his home for the sole purpose of committing armed confrontation. As well, the degree to which he was armed was shocking: the applicant had three loaded firearms on his person, and another two stored in his truck. [14] Other aggravating factors identified by the sentencing judge included the applicant’s political motivations and lack of remorse. The sentencing judge found that the applicant’s decision to attack Rideau Hall was spurred by his political views, including some conspiracy theories. Furthermore, there was no evidence that the applicant recognized the wrongfulness of his actions, or that he has since renounced his views. [15] Upon considering the psychiatric evidence, the sentencing judge found no indication that the applicant had insight into his depression, or that he would work to cure it. There was also no evidence of any treatment which would be available to him. [16] Overall, the applicant represented an ongoing risk. The sentencing judge noted that the principles of denunciation and deterrence – both specific and general – were paramount in crimes involving loaded guns. The deliberateness of the applicant's actions and the intentional use of loaded weapons to make a political statement brought the applicant “a long way from the usual first offender caught with a single gun”: at para. 45. Consequently, the applicant’s armed aggression against the government had to be denounced in the strongest terms. For this reason, he was sentenced to six years’ imprisonment, which was described as “the lowest appropriate sentence that could be given in this case”: at para. 47. [17] In his proposed appeal, the applicant contends that his sentence is excessive in the circumstances. B. Governing Principles [18] The governing principles underlying a s. 684 application were aptly stated by Hourigan J.A. in R. v. Campbell, 2020 ONCA 573, at paras. 3-5: [3] Pursuant to s. 684 (1), this court has the authority to assign counsel to act on an appellant’s behalf if, in its opinion, it appears both: (i) desirable in the interests of justice that the appellant should have legal assistance; and (ii) the appellant does not have sufficient means to obtain that assistance: R. v. Staples, 2016 ONCA 362, at paras. 31-32, reconsideration allowed, R. v. Staples, 2017 ONCA 138. [4] Two general principles applicable to s. 684 applications are worth noting. First, an order for government-funded counsel is exceptional relief: Staples, (2016), at para. 40. Second, the appellant bears the burden of proof on a s. 684 application: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 31. [5] As part of the analysis of the interests of justice component of the test, the court should consider the merits of the appeal on the basis of the record. Put simply, appeals that are devoid of merit will not be helped by appointing counsel. Given that the record is often incomplete at the time of the application, this is not a probing examination of the merits: R. v. Adams, 2016 ONCA 413. Rather, the applicant need only satisfy that the court that the proposed grounds of appeal are arguable: see R. v. Bernardo, (1997), 121 C.C.C. (3d) 123 (Ont. C.A.). C. ANALYSIS [19] There is no issue taken on the financial eligibility ground. The Crown concedes that the applicant does not have the financial means to retain counsel for his appeal. [20] However, the Crown submits that the applicant’s appeal is devoid of merit. As a result, it would not be in the interests of justice to grant his application. [21] I agree with the Crown’s submissions. As indicated, this is a sentence appeal following a guilty plea. The record before me is complete. The facts were egregious and public. The offence generated international attention. Accordingly, the applicant has a very high threshold to meet to establish that the appeal is even arguable. In my view, he has not done so. [22] The standard of review on a sentencing appeal is highly deferential: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. An appellate court cannot intervene absent an error in principle impacting the sentence, or a finding that the sentence was demonstrably unfit. [23] The applicant alleges that the sentencing judge erred in legal principle by (1) failing to appreciate the true character of the offences; and (2) relying on a lack of remorse as an aggravating factor. I see no merit to either argument and I will address each in turn below. (1) True Character of the Offence [24] To begin, I am not persuaded that the sentencing judge failed to appreciate the true character of the offence. [25] It was open for the sentencing judge to find that the motivation behind the applicant’s offences was political. Not only is this factual finding entitled to deference, but I also find that it is entirely consistent with the evidence put before the sentencing judge. In light of (1) the applicant’s statement to police during the stand-off; (2) the applicant’s note left in the car; and (3) the statements the applicant made to Dr. Gray about his intention to go to Rideau Hall to “send a message”, it was reasonable for the sentencing judge to conclude that the applicant was spurred by his political views. [26] Furthermore, the sentencing judge properly considered the impact of the applicant’s depression on his decision to go to Ottawa. The applicant’s mental health is expressly listed and discussed as a mitigating factor in the reasons for sentence. The sentencing judge referenced Dr. Gray’s assessment of how the applicant likely expected to die that day. However, importantly, Dr. Gray never said that this was the only reason why the applicant went to Rideau Hall. Consequently, it was open and reasonable for the sentencing judge to find that the applicant’s motivation was a political one. Accordingly, I find that the applicant has failed to establish this is an arguable ground of appeal. (2) Lack of Remorse as an Aggravating Factor [27] The Crown concedes that lack of remorse is not an aggravating factor but submits that this is not a sufficient reason for this court to intervene. Lacasse established that errors in principle must have an impact on the sentence in order to justify intervention by appellate courts: at para. 44. To the extent that the sentencing judge committed a legal error by relying on lack of remorse as an aggravating factor, the Crown submits that it did not impact the sentence imposed. [28] I agree with the Crown’s submission. In this case, regardless of the sentencing judge’s error in assessing the aggravating factor, I see no possibility that this court will reduce the imposed sentence. [29] The applicant’s convicted offences were extremely serious and carefully planned. He had told the police that he knew the Prime Minister was on the grounds that day, and he intended to have an armed confrontation. In the sentencing judge’s words, this case involved “armed aggression against the government which must be denounced in the strongest terms”: at para. 46. Furthermore, the sentencing judge noted that “Mr. Hurren is not the worst offender, but the circumstances of the crimes he committed… are very nearly the worst circumstances for the illegal possession and handling of firearms”: at para. 43. [30] These findings by the sentencing judge are reasonable and they are owed a high degree of deference. Accordingly, the sentencing judge’s decision to impose a sentence of six years is unlikely to be interfered with by this court. As such, I find the applicant has failed to satisfy his onus that it would be in the interest of justice to grant his application, or that he has an arguable case. (3) The Appeal Can Be Effectively Argued Without Counsel [31] While I am satisfied that this application can be disposed of on the basis that it lacks merit, it is also my view that the proposed appeal is one that can effectively be argued by the applicant without counsel or, if necessary, with the assistance of appellate duty counsel. [32] I am cognizant of the fact that the applicant suffers from clinical depression and is not legally trained. However, his sentencing appeal involves two non-complex issues, both of which are rooted in settled law. The record is also relatively small. As such, I am of the view that the applicant will be able to advance his grounds of appeal on his own. Furthermore, I am satisfied that this court will be able to decide each ground of appeal fairly and effectively on its own merit and without the assistance of counsel. D. DISPOSITION [33] In all the circumstances, and having considered the objective of s. 684, I am not persuaded that the applicant has satisfied the threshold requirement for the appointment of a state funded counsel. [34] Accordingly, the application is dismissed. “M. Tulloch J.A.”