COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Lac,

2011 BCCA 12

Date: 20110114

Docket: CA038576

Between:

Regina

Respondent

And

Edward Kam Hong Lac

Appellant

Before:

The Honourable Madam Justice Prowse

(In Chambers)

Appellant Appearing in Person
(Via Video):

E. Lac

Counsel for the Respondent:

W.J.S. Bell

Place and Date of Hearing:

Vancouver, British
  Columbia

January 11, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 14, 2011

Reasons for Judgment of the
Honourable

Madam Justice Prowse:

[1]

Mr. Lac is applying for the appointment of counsel pursuant to s. 684 of
the
Criminal Code
, R.S.C. 1985, c. C-46 (the
Code
).  He is also
applying for release pending his conviction appeal.

[2]

On May 28, 2010, Mr. Lac was convicted by a provincial court judge of
breaking and entering a dwelling house, extortion, assault with a weapon (a
baseball bat) and aggravated assault.  He was sentenced to five-and-a-half
years imprisonment on October 7, 2010, after receiving credit on a 2 for 1
basis for time spent in pre-sentencing custody.  The effective sentence of
imprisonment was seven years.

[3]

Mr. Lac has been appearing in person by videoconference from the
institution in which he is being held in custody.  He initially provided
written submissions supporting his request to be released on bail.  I directed
that he be permitted to attend in person by videoconference for hearings on
December 23rd, January 4th

and January 11th so that he could fully
participate in the proceedings.  At the hearing on December 23rd, Mr. Lac
advised that he had further documents which he wished to file in relation to
bail, and it was necessary to adjourn the bail hearing to enable those
documents to be provided to the Court.  These documents are now available and
consist of a client profile assessment, which I understand was prepared by
psychologists for the North Fraser Pretrial Centre, and an inmate application
by Mr. Lac for employment within the institution.  Mr. Lac also provided an
affidavit attesting to the truth of information he had previously provided the
Court.

[4]

Subsequent to filing materials relevant to his bail application, Mr. Lac
also filed the requisite materials for an application for the appointment of
counsel pursuant to s. 684 of the
Code
.

[5]

The January 4, 2011 hearing had to be adjourned because transcripts of a
significant portion of the trial which I had requested had not yet been
received.  Since that date, I have received further written submissions and
materials from Mr. Lac, and a substantial portion of the trial
transcript.  The Crown also filed an affidavit from defence counsel at trial in
response to Mr. Lacs ground of appeal alleging ineffective assistance of
counsel.

[6]

At the January 11th hearing, I invited Mr. Lac and Crown counsel to
address both applications together based on all of the materials before the
Court.  I advised the parties that if I determined that counsel should be
appointed pursuant to s. 684, then I would leave it to that counsel to make
further submissions with respect to bail.

[7]

For the reasons which follow, I would dismiss both Mr. Lacs application
for the appointment of counsel, and his application for release pending appeal.

[8]

By way of brief background, the trial judge found that Mr. Lac sold used
automobile tires to Mr. Curtis Kirkness via Craigslist.  After paying for the
tires, Mr. Kirkness was not satisfied with them and he requested his money
back.  Mr. Lac refused to repay Mr. Kirkness, although he did offer him other
tires in return.  As a result of this sale transaction, which involved three
meetings between Mr. Kirkness and Mr. Lac, Mr. Kirkness posted a negative
message on Craigslist warning others not to deal with Mr. Lac.

[9]

The trial judge accepted the evidence of Mr. Kirkness and of his
17-year-old daughter, Ms. Keesic, that on December 31, 2009, Mr. Lac attended
at their basement suite late at night with a baseball bat, forced his way in,
and demanded that Mr. Kirkness remove the negative message on Craigslist.
During the course of this confrontation, Mr. Kirkness obtained a knife from his
kitchen and ultimately chased Mr. Lac out of the  basement suite onto the
street.  Ms. Keesic grabbed a camera and  followed Mr. Lac and her father out
of the house.  While outside the home, Mr. Lac struck both Mr. Kirkness and his
daughter with the baseball bat.  Apparently, Ms. Keesic was attempting to take
a picture of Mr. Lac when this occurred.  Mr. Kirkness suffered minor injuries,
but the blow to Ms. Keesics head was potentially life-threatening and resulted
in her undergoing emergency surgery with potential long-term consequences.

[10]

The trial judge found Mr. Kirkness and Ms. Keesic to be credible
witnesses.  Mr. Lac did not testify nor call any evidence.  At the conclusion
of the Crowns case, defence counsel confirmed a statement he had made to the
court at the outset of the trial that identity was not in issue.  Defence
counsels primary submission related to the lack of credibility, reliability,
and probability of the evidence of Mr. Kirkness and Ms. Keesic.  In the result,
the trial judge was satisfied beyond a reasonable doubt that Mr. Lac had
committed the offences which are the subject of this appeal.

[11]

Following conviction, the trial judge ordered a pre-sentence report.
The probation officer who prepared the report expressed concern about Mr. Lacs
guarded presentation and unwillingness or inability to provide collateral
contact information.  She noted that he did not accept responsibility for the
offences and that he was unwilling to participate in counselling or other
interventions.  The trial judge noted the limited information available about
Mr. Lac, including the lack of family or other ties, and the difficulty that
presented in terms of assessing Mr. Lacs level of future risk to the
community.  The additional information recently provided by Mr. Lac does not
add a great deal to the limited information available at the time of
sentencing.

[12]

I will deal firstly with Mr. Lacs application for the appointment of
counsel under s. 684 of the
Code
.  Section 684(1) provides:

684(1)  A court of appeal or a
judge of that court may, at any time, 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.

[13]

Mr. Lac has been in custody since January 2010.  It is apparent that he
does not have the money necessary to fund his appeal.  Nor does he appear to
have family or other resources he can call upon to assist him with funding.
His application for legal aid funding was refused by letter dated December 24,
2010.  I am satisfied, therefore, that he meets the financial criteria for the
appointment of counsel.

[14]

Some of the other factors which must be considered in determining
whether it is in the interests of justice to appoint counsel under s. 684 of
the
Code
are referred to by Madam Justice Levine in
International
Forest Products Ltd. v. Wolfe
, 2001 BCCA 632 at para. 6, 94 B.C.L.R. (3d)
67 [In Chambers] as follows:

Whether it is desirable in the
interests of justice that counsel be assigned requires consideration of such
factors as the points to be argued on appeal; the complexity of the case; any
point of general importance in the appeal; the applicants competency to
present the appeal; the need for counsel to marshall facts, research law or
make the argument; the nature and extent of the penalty imposed; and the merits
of the appeal.

[15]

Two of the arguments Mr. Lac proposes to make on appeal are that the
verdict was unreasonable or unsupported by the evidence, and that the trial
judge should not have accepted the evidence of Mr. Kirkness and Ms. Keesic
because of inconsistencies in their evidence and a general lack of probability
in their version of events.  In his written submission filed January 11, 2011,
Mr. Lac also goes on at length about the evidence concerning the circumstances
of the Craigslist advertisements and the evidence of Mr. Kirkness surrounding
the purchase of the tires.  Very little of Mr. Lacs submission is directed to
the key events which took place on December 31st as described by these
witnesses.

[16]

Mr. Lac also argues that he did not receive effective assistance from
his counsel at trial.  He submits that he requested, but was never provided,
proper or adequate disclosure of the Crowns case by his counsel; that his
counsel made unauthorized admissions, with particular emphasis on the admission
regarding identity; and that his counsel did not accept suggestions he made
with respect to the conduct of his case.  Although Mr. Lac did not say that
counsel precluded him from testifying, he suggests that his failure to testify
may be linked to other errors he attributes to his counsel.

[17]

Mr. Lac also suggests that the medical evidence with respect to Ms.
Keesics injuries and/or the type of weapon used in the attack was deficient
and that the experts report was not properly admitted into evidence.  He
challenges the adequacy of the reasoning and the reasons for judgment given by
the trial judge.  He suggests that certain remarks made by the trial judge
reflect bias or pre-judgment of his guilt.

[18]

The nature and number of grounds of appeal have been enlarged since
Mr. Lac first made his application for bail, and it is fair to say that
there is nothing about the trial process, or result, which he feels was fair or
just.  He says that he did not commit these offences.

[19]

In my view, the proposed grounds of appeal raised by Mr. Lac are weak.
I say this after having read all of the extensive materials filed so far in
this matter, with particular emphasis on the transcript, the reasons for
judgment and Mr. Lacs submissions.  It is apparent that Mr. Lac is attacking
the trial judges findings of credibility in relation to the two key Crown
witnesses who were the victims of Mr. Lacs behaviour.  While the trial
judge noted there were inconsistencies in the evidence of these witnesses on
some points, she did not find that those inconsistencies went to the substance
of the offences charged.  In that regard, there is no doubt that Mr. Kirkness
and Ms. Keesic were struck and injured by someone, and the trial judge accepted
the evidence of these witnesses, including their evidence that Mr. Lac was the
perpetrator.  As earlier noted, Mr. Kirkness had dealt with Mr. Lac in person
on three occasions prior to the night in question and these two individuals
were face to face inside the basement suite during a significant portion of
their interaction that evening.  Even without the admission of identification,
there was a body of evidence from which the trial judge could readily conclude
that Mr. Lac was the perpetrator. Further, the medical evidence with respect to
the nature of the injuries suffered by these witnesses was never seriously in
dispute.

[20]

With respect to Mr. Lacs argument that he was inadequately represented
at trial, his trial counsel has filed an affidavit which essentially denies Mr.
Lacs allegations and provides some detail of the extent of his dealings with
Mr. Lac leading up to and during the trial.  It is apparent from that evidence,
and from the transcript that has been provided, that Mr. Lac did take differing
positions as to whether he was making admissions at trial.  But the transcripts
also indicate that the court adjourned to permit defence counsel to clarify his
instructions, following which defence counsel confirmed that identity was not
in issue.  I advised Mr. Lac that he will have the opportunity to file an
affidavit in response to defence counsels affidavit for consideration by the
Court at trial.  In the meantime, I have taken his submission into account in
my assessment of the merits of this ground of appeal.  As with the other
grounds of appeal, I find that Mr. Lac faces an uphill battle.

[21]

With respect to the other factors to be considered on the s. 684
application, I do not find that the appeal itself is complex and there are no
questions of general importance raised.  Although I am concerned about the
seriousness of these offences and the fact that Mr. Lacs focus in his
materials appears to be on aspects of the evidence which are not critical to
his convictions, I conclude that he is capable of presenting the arguments he
wishes to pursue, and that the Court will be able to address the issues he has
raised without the assistance of counsel on his behalf.

[22]

In the result, Mr. Lac has not persuaded me that it is necessary in the
interests of justice to appoint counsel to represent him at trial.  As earlier
stated, I would dismiss his application under s. 684 of the
Code
.

[23]

I now turn to Mr. Lacs application for release pending appeal.  The
criteria I must consider are set out in s. 679(3) of the
Code
, which
provides:

(3)  In the case of an appeal referred to in paragraph (1)(
a
)
or (
c
), the judge of the court of appeal may order that the appellant be
released pending the determination of his appeal if the appellant establishes
that

(
a
) the appeal or application for leave to appeal is
not frivolous;

(
b
) he will surrender himself into custody in
accordance with the terms of the order; and

(
c
) his detention is not necessary in the public
interest.

[24]

With respect to the first criterion, while I have already stated that I
find Mr. Lacs grounds of appeal are weak, I am not prepared to say that
Mr. Lacs appeal is frivolous.  The issue of ineffective assistance of counsel
may be developed more fully when Mr. Lac provides affidavit material of his own
to meet that of his former counsel.  Ultimately, Mr. Lac will have to establish
not only that his counsel was ineffective, but that he thereby suffered
prejudice.

[25]

The next criterion is whether Mr. Lac would surrender himself in
accordance with a court order if he were released.  In that regard, it is
important to note that Mr. Lac has no criminal record.  He is 28 years old
and has provided addresses for himself in the Vancouver area for the past three
years, including 18 months at his last address.  He gave the name of his
landlord to the probation officer who prepared his pre-sentence report, but she
was unable to make contact with him, and there is no letter or other
information which indicates whether that accommodation is still available to
Mr. Lac, who has been in custody for almost a year.  Nor does Mr. Lac have
any other contacts who will stand surety for him, or attest to his character,
or provide support for him in the community.

[26]

Mr. Lac is estranged from his family and appears to take pride in the
fact that he has supported himself since the age of 17.  His main source of
income prior to being incarcerated appears to have been selling items on
Craigslist, with intermittent employment with a security loss prevention
company or companies.  He describes himself as an entrepreneur.  He also says
that he does not suffer from any substance abuse or other health problems,
including mental health problems.  There is some indication in the materials
before the Court that Mr. Lac had a problem with gambling at the time these
events occurred, but he advised the Court that he does not have gambling debts
and I am prepared to accept that is so for the purpose of this application.

[27]

Given the fact that Mr. Lac does not appear to have any significant ties
with either family or members of the community, with the possible exception of
his former landlord, who has not provided any information to the Court, I tend
to agree with Crown counsel that there is a real risk that Mr. Lac will not
attend court when required to do so.  He appears to be a loner who has
preferred to work on his own and, in that respect, his skills are portable.  He
has no real ties to the community which would hold him here.  Although these
offences are first offences, they are extremely serious and quite
inexplicable.  Further, Mr. Lac no longer has the presumption of innocence
operating in his favour.

[28]

More significantly, I am not persuaded that Mr. Lacs detention is not
necessary in the public interest.  In coming to that conclusion, I rely on the
apparent weakness of his grounds of appeal, the serious nature of the charges,
and Mr. Lacs apparent readiness to resort to the use of violence in response
to a perceived wrong done to him by Mr. Kirkness.  His actions, as accepted by
the trial judge, were premeditated, involved a weapon, and apparently involved
a second individual who fled the scene after knocking on Mr. Kirkness door.
The fact that Mr. Lac was also prepared to strike a young, defenceless woman
with whom he had no prior contact is also very troubling, albeit the evidence
suggests that he did not intend the degree of harm which ultimately occurred.
The inmate assessment report does not shed much light on Mr. Lacs
psychological state and one of its authors, Dr. Worth, suggested that the Court
exercise caution in relying on the limited nature of the assessment in the context
of a bail application.

[29]

In the result, Mr. Lac has not satisfied me that he should be released
pending his conviction appeal.  I would, therefore, dismiss his application for
bail.

[30]

It follows from my refusal of bail that steps should be taken to ensure
that Mr. Lacs conviction appeal is moved ahead as quickly as possible.
The most significant portions of the transcript are now available.  The new
evidence, in the form of the affidavit of former defence counsel and any
evidence which Mr. Lac wishes to lead in reply, or otherwise, will have to be
presented in proper form.  Mr. Lac has provided a form of written argument
on these applications which will eventually have to take the form of a factum.

[31]

I suggest that a hearing date be set for a half day for some date toward
the end of March or in early April 2011 with a view to arranging to have other
necessary filings made in relation to that date.

[32]

There should be a further case management hearing as soon as possible to
enable Mr. Lac and Crown counsel to consider their positions arising from these
reasons.  I suggest that Crown counsel contact the Registry to arrange an early
date.  The principal purpose of that hearing will be to confirm a hearing date,
and to set a filing schedule for factums for the application to adduce new
evidence, and for any other applications which may be necessary to keep this
appeal moving forward.

[33]

In the meantime, I would direct that a copy of these reasons be faxed to
Mr. Lac immediately upon their release.  I would also direct that Mr. Lac
be permitted to attend the next scheduled case management conference by
videoconference on a date to be determined.

The Honourable Madam Justice Prowse