Nunavut Court of Appeal

Cour d'appel du Nunavut

Citation: R. v. VanEindhoven, 2015 NUCA 01

Date: 2015-02-10
Docket: 18-001-CAP
Registry: Iqaluit
Between:

Adrian VanEindhoven
Applicant

-and-

Her Majesty The Queen

Respondent

_______________________________________________________

The Court:
The Honourable Mr. Justice Ronald Berger
The Honourable Madam Justice Patricia Rowbotham
The Honourable Mr. Justice Russell Brown

Memorandum of Judgment
Application for court-appointed counsel

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

I. INTRODUCTION
[1]

Mr. VanEindhoven seeks Court-appointed counsel in order to prosecute his

appeal from a conviction for second-degree murder recorded on October 15,
2013. The thrust of his appeal is that the trial judge did not adequately
caution the jury to ignore certain personal opinions expressed by
prosecuting counsel during the course of his address to the jury. Defence
counsel took issue with that which she described as hyperbole. She also
contended that Crown counsel improperly speculated as to what may have
occurred at material times without the benefit of factual underpinnings to
support that theory. By way of illustration only, the jury address by Crown
counsel included the following:
But they do kill each other, and they do things that they know are going to kill
each other. You know, if you take a knife, and you stab someone in the hand
and they bleed to death, thats manslaughter. You cant have foreseen that.
But if you take a gun and you shoot them in the head or you take a knife and
you stab them in the heart because youre angry, because youre feeling mad,
thats murder.
Youll have to consider whether intoxication and the other circumstances
might have reduced his ability to form that [intent], and I think thats also
fairly easy to answer in this case. By his own actions the moments after this
happened, he knew how bad it was. The instant he saw the wound, he knew
how bad it was. He said so. He ran for help. So, if he understood how bad this
was the moment after it happened, he knew how bad it was the moment before
it happened.
(Appeal Book, Vol. 3, pages 376/31-377/3)

[2]

Another example is at page 378:

Its probably true that Leanne grabbed the knife maybe to defend herself. That
makes sense in this case. Its the rest that becomes the lie, and that where he
says, Well, she tried to stab me, okay, right? The knife was in her hand at
some point in a morning, but was it to kill, or was it to defend herself? What
does the evidence in this case tell you? Because the rest of the story about
how she then tried to stab him, thats where it all falls apart.
(Appeal Book, Vol. 3, pages 378/41-379/3)

[3]

A third example is found at page 379 of the Transcript:

Its not simple in that we dont know all of what went on between them, and
we never will, because Leannes not here to tell us what happened, and
Adrians version, frankly, we cannot trust, because it changes. It has not
stayed the same, and its tainted by, I think, his desire to make the story better.
(Appeal Book, Vol. 3, page 379/18-24)

II. DEFENCE POSITION

[4]

The position of defence counsel in the court, below, was clear and
unequivocal:
[I]t is improper for either counsel, ever, to express a personal opinion as to the
truth of evidence. One may argue that the jury should conclude that from the
evidence, but you cannot express your personal opinion, and you cannot
express your personal opinion about the guilt or innocence of the accused.
I quote, and I hope Im correct. I believe I tried very hard. This was following
a statement about what the evidence proves, that the knife was in his hand,
that he killed her, that this was murder:
I think the facts bear that out overwhelmingly.
That is a personal statement of belief. Its not allowed.
Id venture to say that that is true for almost every man who has killed a
woman in their lives, or some such thing. I dont accept that as true. It is an
expression of an opinion, its evidence that could never be in this trial, and its
given from counsel.
(Appeal Book, Vol. 3, page 384/7-34)

[5]

The arguable position is that the charge to the jury was insufficiently benign
and did not adequately caution the jury regarding the danger of relying upon
the personal opinions expressed by Crown counsel; which, in the opinion of
Defence counsel, misled the jury:
I also want to reiterate the fact that there were opinions given by Crown
counsel. Sometimes, he used the word I. Other times, it was clearly a
personal opinion, and I just want to reemphasize with you in strong terms that
the opinions of counsel are their opinions, and they really have nothing to do
with your deliberations.
(Appeal Book, Vol. 3, page 461/21-28)

[6]

We would add the following. It will be remembered that one theory of the
Defence submitted to the jury was that the deceased accidentally stabbed
herself when running into a wall. Were that accepted by the jury, the verdict
would have been not guilty. It is arguable that Crown counsels explanation
of the difference between murder and manslaughter might have confused
the jury and should have been expressly referred to by the trial judge and
rejected by the trial judge as an incorrect statement of the law. The
impugned statement (which also includes a personal observation) speaks of
manslaughter as an accidental death. It reads as follows:
His Honour will explain to you that the Crown, in addition to having to prove
that the knife was in Adrians hand in this case, which I think the facts bear
out overwhelmingly, has to satisfy you that he had the intention in his mind
that makes this murder and just not just manslaughter, and inelegant name we
have in law for what its called when you kill someone but you really didnt
mean it, its an accident. It was illegal, but it was an accident.
(Appeal Book, Vol. 3, page 375/22-31)

III. THE APPLICATION

[7]

Section 684 of the Canadian Criminal Code, RSC 1985, c C-46 [Criminal
Code], provides that a court of appeal may assign counsel for an
unrepresented appellant where two conditions are met:
a. It appears desirable in the interests of justice that the accused should have
legal assistance.
b. It appears that the accused has not sufficient means to obtain that
assistance.

[8]

By letter dated November 24, 2014, the Legal Services Board of Nunavut,
having advised Mr. VanEindhoven orally, confirmed that legal aid funding
was denied:
Further to your email correspondence concerning the captioned matter this
will confirm that the applicants request for funding was denied by the Legal
Services Board of Nunavut. Mr. VanEindhoven has been advised verbally of
this decision and is awaiting the Boards written decision for same;
accordingly the Legal Services Board will not be funding this matter nor will
counsel from the Legal Services Board be appointed to assist with this
proceeding.

[9]

The Crown concedes that the applicant does not have the necessary
financial means to retain counsel to prosecute his appeal.

[10] The interests of justice condition requires consideration of the following

factors:
i.

ii.
iii.
iv.

the arguable merits of the appeal (the appeal must not be

frivolous (R v Smith, 2001 NFCA 38, 156 CCC (3d) 461 (Nfld
CA));
its complexity;
the appellants capability; and
the Courts role to assist.

(See R v Sykes, 2014 NSCA 4, 339 NSR (2d) 191, at para 12, citing R v
Assoun, 2002 NSCA 50, 53 WCB (2d) 267)

IV. CONCLUSION
[11] The record before us leads us to conclude that the application for courtappointed counsel should be granted. In our view, the appeal is not
frivolous. Moreover, there are nuances raised by the ground of appeal which
challenges the Crowns closing remarks. These would be difficult for the
appellant to thoroughly pursue without the benefit of counsel. That order will
go. Fees and disbursements of counsel shall be determined and paid in
accordance with subsections 684(2) and (3) of the Criminal Code.

Written submissions only.

Memorandum filed at Iqaluit, Nunavut
This 10th day of February, 2015

Berger J.A.

As authorized by:

Rowbotham J.A.

Brown J.A.

Appearances:
B. Flight
for the Respondent
Applicant Adrian VanEindhoven
Self-Represented