Your applications for legal aid [Garth Barriere (Legal Aid BC); Patrick Fox]

Mr. Fox:

On August 19, 2020, the trial judge convicted you of one count of breach of probation and acquitted you on another charge of breach of probation . On that same day you were sentenced to an effective sentence of six months and an actual sentence of one day with probation for six months. You have applied for legal aid to appeal your conviction and sentence .

I regret to inform you that your applications for legal aid are denied. I will first provide the reasons for denying your applications and then I will outline your options for appealing without the assistance of legal aid.

Legal aid is not provided for every conviction or sentence appeal. Legal aid is only provided where our Section is of the opinion there is a reasonable prospect of success on appeal.

I have carefully reviewed your letter in support of your application for legal aid to appeal your conviction and the trial judge's Reasons for Conviction, a copy of which is enclosed. In my opinion, there is no reasonable prospect of demonstrating the trial judge made a wrong decision on a question of law or that the guilty verdict was unreasonable.

Condition #12 of the Probation Order must be interpreted purposively. In my opinion, if you published the website and it remained publicly available during the period the Probation Order was in effect, then that would fall within the prohibition to not "make publicly available" the prohibited content. It does not matter when you published the website, whether before or after the coming into force of the Probation Order. The prohibition on "make publicly available" is distinct from the prohibition on "[publishing]" that content. As long as you published the website and it was publicly available while your Probation Order was in effect, you would be in breach of that Condition.

The evidence at trial was that you published the website and that the website was publicly available on March 18, 2019, during the time your Probation Order was in effect and in particular within the dates alleged in the Information. In my opinion, those facts alone reasonably supported the trial judge's finding that you made publicly available the website on that date and thus the content prohibited under Condition #12. You were also found to have, in your letter, admitted to continuing to engage in "exactly the same conduct which Justice Heather Holmes declared formed much of the basis of the guilty verdict in 2017 ... ". That adds further support to the finding that you "made publicly available" that content.

The fact that you may also have been breaching another Condition of your Probation Order for that same conduct does not mean that you are not guilty of this offence.

For the reasons given above, in my opinion there is no reasonable prospect of success on an appeal of your conviction and therefore your application for legal aid to appeal that conviction is denied.

I have also reviewed with care the Reasons for Sentence, a copy of which is enclosed. In my opinion, there is no reasonable prospect of demonstrating the trial judge erred in principle in sentencing you for that offence or that the sentence is unfit. In the context of your previous criminal harassment of the complainant and this further offending, there is no reasonable prospect of demonstrating the conditions of the probation order are unreasonable. For those reasons, your application for legal aid to appeal your sentence is also denied.

You may decide to appeal your conviction, sentence or both without the assistance of legal aid. I have enclosed our booklets which explain how to do so. The booklets also explain how to apply to the Court of Appeal for a court-appointed lawyer under section 684 of the Criminal Code.

Yours truly,
Garth Barriere
Barrister and Solicitor
Appeals Section