Court Appointed Counsel

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 95350)

General Principles

See also: Representation at Trial

State-funded Counsel ("Rowbotham" applications)

There is no constitutional right to state-funded trial counsel.[1] However, the right to a fair trial under s. 7 and 11(d) of the Charter enables the accused to apply for state-funded counsel in certain circumstances.[2]

Burden

The onus is upon the accused seeking counsel to establish their impecuniosity and that representation by counsel is necessary to ensure a fair trial.[3]

Requirements for State-funded Counsel

The central issue is "whether the accused can receive a fair trial."[4]

In order for the court to grant an order requiring the attorney general to pay for counsel of an accused, the applicant must prove on a balance of probabilities:[5]

  1. that he is ineligible for, or has been refused Legal Aid and has exhausted all available appeals;
  2. that he is indigent and has no other means to retain counsel; and,
  3. that counsel is essential to his right to a fair trial.

The third requirement for trial fairness includes the "concept of the ability to make full answer and defence and the appearance of trial fairness."[6]

Appointment of counsel should not limited to "exceptional cases."[7]

Conduct of Accused as a Factor

The right to counsel requires that the accused be "acting in good faith", sincerely wanting legal representation and has been diligent in attempting to retain counsel. It should not be used a tool of delay.[8] Whether the accused acted in good faith or attempted delay proceedings is a finding of fact and given considerable deference.[9]

An accused is the "author of his own misfortune" where he has "forfeited his right to counsel" by his own conduct.[10]

The safeguards for the represented or self-represented accused "cannot be allowed to give rise to a right ...to disrupt the orderly process of a trial."[11]

Reasons for Rejection by Legal Aid

When a person is rejected by legal aid, the court is not to do a review of the reasons for doing so. It largely does not matter why legal aid was refused.[12]

However, refusal for something the accused "has done or failed to do" is important. The applicant must establish that rejection was not due to their non-cooperation or honesty with legal aid in getting qualified.[13]

Financial Means

The case law suggests the applicant must demonstrate financial evidence that details:[14]

  1. extraordinary financial circumstances;
  2. attempts to obtain funds to retain counsel;
  3. prudence with expenses and prioritization of payment of his legal fees;
  4. efforts to save for the cost of counsel and to raise funds by earning additional income;
  5. he has made all reasonable effort to use his assets to raise funds, for example by obtaining loans;
  6. whether he is in a position to pay some of the costs of counsel;
  7. the income and assets of his spouse and family.

It is not unusual for funding to be denied where the applicant was employed or had assets that could be sold.[15]

A lack of financial prudence may disentitle the accused from funding.[16]

Fair Trial

The right to fair trial may be affected where the case is complex.[17]

Those offences that are less serious as they attract lesser penalties will more likely be compelled to proceed to trial unrepresented.[18]

Limited Retainer

It is possible for the court to order a limited retainer for only part of a trial to prevent an unfair trial.[19]

Stay of Proceedings

The court has a limited authority to grant a conditional stay of proceedings where the accused cannot afford counsel and so cannot receive a fair trial without counsel.[20]

Where a provincial court is faced with a person who cannot have a fair trial without representation, it cannot order the province to fund his defence. Rather the only remedy available to the provincial court is a conditional stay of proceedings.[21]

  1. ↑ R v Ewing, 1974 CanLII 1394 (BC CA), 18 CCC (2d) 356 (BCCA), per MacLean JA
    R v Rowbotham et al, 1988 CanLII 147 (ON CA), 41 CCC (3d) 1(CA){{TheCourtONCA}
    R v Rockwood, 1989 CanLII 197 (NS CA), NSR (2d) 305 (CA), per Chipman JA
  2. ↑ R v Dow, 2009 MBCA 101 (CanLII), 247 CCC (3d) 487, per Steel JA, at para 25
    R v Lichtenwald, 2017 SKQB 94 (CanLII), per Gabrielson J, at para 5
  3. ↑ See R v Baker, 2012 MBCA 76 (CanLII), 280 Man R (2d) 284, per Hamilton JA
    Lichtenwald, supra, at para 9
  4. ↑ R v Drury (L.W.) et al., 2000 MBCA 100 (CanLII), 47 WCB (2d) 512, per Huband JA, at para 23
    Dow, supra, at para 26
  5. ↑ R v Imona-Russel, 2019 ONCA 252 (CanLII), 145 OR (3d) 197, per Lauwers JA, at para 38
    R v Tang, 2015 ONCA 470 (CanLII), 122 WCB (2d) 411, per curiam, leave to appeal refused, 2016 CarswellOnt 5402 and 5403, at para 9 R v Baksh, 2013 ONCJ 57 (CanLII), 286 CRR (2d) 171, per McArthur J, at para 4
    See Rowbotham, supra
    R v Montpellier, 2002 CanLII 34635 (ON SC), [2002] OJ No 4279, per Gordon J, at paras 5 to 7
  6. ↑ Imona-Russel, supra, at para 39
    R v Rushlow, 2009 ONCA 461 (CanLII), 96 OR (3d) 302, per Rosenberg JA, at para 39 ("The purpose of the right to counsel in the context of a Rowbotham case is reflected in the nature of the test itself. Counsel is appointed because their assistance is essential for a fair trial. In my view, fair trial in this context embraces both the concept of the ability to make full answer and defence and the appearance of fairness.")
  7. ↑ Rushlow, supra, at paras 19 to 21
    Dow, supra, at para 28
  8. ↑ Dow, supra, at para 16
  9. ↑ Dow, supra, at para 21
  10. ↑ Dow, supra, at para 17
    R v Bitternose, 2009 SKCA 54 (CanLII), 244 CCC (3d) 218, per Wilkinson JA, at para 29
  11. ↑ R v Howell, 1995 CanLII 4282 (NS CA), NSR (2d) 1 (CA), per Chipman JA, aff'd at 1996 CanLII 145 (SCC), [1996] 3 SCR 604, per Sopkina J, at para 55 [T]he many safeguards built into the criminal justice system for an accused, particularly an unrepresented one, cannot be allowed to give rise to a right in an accused person to disrupt the orderly process of a trial"
  12. ↑ Dow, supra, at para 23
    R v Peterman, 2004 CanLII 39041 (ON CA), 185 CCC (3d) 352, per Rosenberg JA, at para 22 ("when a court makes a Rowbotham order, it is not conducting some kind of judicial review of decisions made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial")
  13. ↑ R v Plange, 2017 ONSC 134 (CanLII), per O'Marra J, at para 8
    R v Montpellier, 2002 CanLII 34635 (ON SC), [2002] OJ No 4279 (ONSC), per Gordon J, at para 34
  14. ↑ R v Malik, 2003 BCSC 1439 (CanLII), 111 CRR (2d) 40, per Stromberg-Stein J, at para 23 R v Rushlow, 2009 ONCA 461 (CanLII), 66 CR (6th) 245, per Rosenberg JA, at para 20
  15. ↑ e.g. R v Darby, 2001 BCSC 1868 (CanLII), BCTC 1868, per Grist J
  16. ↑ R v Crichton, 2013 BCSC 416 (CanLII), per Bracken J, at para 41
  17. ↑ R v Moodie, 2016 ONSC 3469 (CanLII), per Nordheimer J - Stay granted on drug trafficking trial with complex issues including severance, co-conspirator's exception, possible challenge for cause.
    R v Rushlow, 2009 ONCA 461 (CanLII), 245 CCC (3d) 505, per Rosenberg JA, at para 24
  18. ↑ Moodie, supra, at para 8
    Rushlow, supra
  19. ↑ Dow, supra, at paras 32 to 37
  20. ↑ R v Rowbotham, 1988 CanLII 147 (ON CA), 41 CCC (3d) 1, per curiam
  21. ↑ e.g. R v Dobson, 2016 NBCA 18 (CanLII), 129 WCB (2d) 420, per curiam

Cross-Examination

A self-represented accused will not be permitted to cross-examine a witness in a number of situations, including trials with witnesses under 18, trials for criminal harassment, or otherwise where requested. In such cases, the court may appoint counsel to conduct the cross-examination.

For details see Cross-Examinations#Cross-Examination by Self-Represented Accused

Appeals

See also: Appeals to the Supreme Court of Canada#Legal Assistance for Appeals
Legal assistance for appellant

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.

Counsel fees and disbursements

(2) Where counsel is assigned pursuant to subsection (1) [legal assistance for appellant] and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal.

Taxation of fees and disbursements

(3) Where subsection (2) [legal assistance for appellant – fees and disbursements] applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court of appeal and the registrar may tax the disputed fees and disbursements.
R.S., 1985, c. C-46, s. 684; R.S., 1985, c. 34 (3rd Supp.), s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 684(1), (2) and (3)


Defined terms: "court" and "judge"

In order for the court to appoint counsel in preparation of an appeal under s. 694, the accused must establish that it is in the "interests of justice". This requires that he show:[1]

  1. the appeal has merit[2] and at least is arguable;[3]
  2. the appellant cannot properly present the issue without counsel; or
  3. the court may not be able to decide the appeal without counsel.

The factors to consider have been stated as:[4]

  1. The merits of the appeal;
  2. The complexity of the appeal;
  3. The appellant’s capability;
  4. The court’s role to assist; and
  5. The responsibility of Crown counsel to ensure that the applicant is treated fairly.
Arguable Issue

An "arguable issue" requires there to be sufficient substance to the ground of appeal that the panel is capable of being convinced to allow the appeal.[5] This assessment must be mindful that there is not a complete record before the chambers justice and that the petitioner may have difficulty in identifying the potential errors.[6]

Complexity

On the second branch of the test, the court must assess the appellant's ability to understand the applicable principles and marshal the arguments.[7]

Consideration should include the appellant's ability to read and write, understand principles, relate principles to the facts, and articulate themselves.[8]

  1. ↑ R v Forrest, 2019 NSCA 47 (CanLII), per Beveridge JA, at para 3
  2. ↑ R v Robinson, 1989 ABCA 267 (CanLII), 51 CCC (3d) 452, per McClung JA
    R v Clark, 2006 BCCA 312 (CanLII), 227 BCAC 237, per Donald J
  3. ↑ R v Ewanchuk, 2008 ABCA 78 (CanLII), 429 AR 254, per Berger JA
    R v Ermine, 2010 SKCA 73 (CanLII), 7 WWR 605, per Jackson JA
    R v BLB, 2004 MBCA 100 (CanLII), 190 Man R (2d) 6, per Freedman JA
    R v Murray, 2009 NBCA 83 (CanLII), 910 APR 178, per curiam
    R v Bernardo, 1997 CanLII 2240 (ON CA), 121 CCC (3d) 123, per Doherty JA
    R v Abbey, 2013 ONCA 206 (CanLII), 115 OR (3d) 13, per Watt JA, at para 32
  4. ↑ R v Kelsie, 2016 NSCA 72 (CanLII), per Farrar JA
  5. ↑ Forrest, supra, at para 5
  6. ↑ Forrest, supra, at para 5
  7. ↑ Bernardo, supra, at para 24 ("This inquiry looks to the complexities of the arguments to be advanced and the appellant’s ability to make an oral argument in support of the grounds of appeal. The complexity of the argument is a product of the grounds of appeal, the length and content of the record on appeal, the legal principles" Forrest, supra, at para 5
  8. ↑ Bernardo, supra, at para 24 (" An appellant’s ability to make arguments in support of his or her grounds of appeal turns on a number of factors, including the appellant’s ability to understand the written word, comprehend the applicable legal principles, relate those principles to the facts of the case, and articulate the end product of that process before the court.")

See Also

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