View source for Court Appointed Counsel

{{LevelZero}}{{HeaderProcedure}}
==General Principles==
{{seealso|Representation at Trial}}

===State-funded Counsel ("Rowbotham" applications)===
There is no constitutional right to state-funded trial counsel.<ref>
{{CanLIIRP|Ewing|gcn6m|1974 CanLII 1394 (BC CA)|18 CCC (2d) 356 (BCCA)}}{{perBCCA-H|MacLean JA}}<br>
{{CanLIIRP|Rowbotham et al|1npn6|1988 CanLII 147 (ON CA)| OAC 321; 41 CCC (3d) 1(CA)}}{{TheCourtONCA}<br>
{{CanLIIRP|Rockwood|1nx1m|1989 CanLII 197 (NS CA)| NSR (2d) 305 (CA)}}{{perNSCA|Chipman JA}}<br>
</ref>
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.<ref>
{{CanLIIR|Dow|266rl|2009 MBCA 101 (CanLII)}}{{perMBCA|Steel JA}}{{atL|266rl|25}}<br>
{{CanLIIR|Lichtenwald|h3h09|2017 SKQB 94 (CanLII)}}{{perSKQB|Gabrielson J}}{{atL|h3h09|5}}<br>
</ref>

; 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.<ref>
See {{CanLIIR|Baker|fs953|2012 MBCA 76 (CanLII)}}{{perMBCA|Hamilton JA}}<br>
{{supra1|Lichtenwald}}{{atL|h3h09|9}}<br>
</ref>

; Requirements for State-funded Counsel
The central issue is "whether the accused can receive a fair trial".<ref>
{{CanLIIRP|Drury (L.W.) et al.|1fl9g|2000 MBCA 100 (CanLII)|47 WCB (2d) 512}}{{perMBCA|Huband JA}}{{atL|1fl9g|23}}<br>
{{supra1|Dow}}{{atL|266rl|26}}<br>
</ref>

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:<ref>
{{CanLIIR|Imona-Russel|hzgjv|2019 ONCA 252 (CanLII)}}{{perONCA|Lauwers JA}}{{atL|hzgjv|38}}<br>
{{CanLIIR|Tang|gjntd|2015 ONCA 470 (CanLII)}}{{TheCourtONCA}}, leave to appeal refused, 2016 CarswellOnt 5402 and 5403{{at-|9}}
{{CanLIIR|Baksh|fw3tw|2013 ONCJ 57 (CanLII)}}{{perONCJ|McArthur J}}{{atL|fw3tw|4}}<br>
See {{supra1|Rowbotham}}<br>
{{CanLIIRP|Montpellier|1cjqb|2002 CanLII 34635 (ON SC)|[2002] OJ No 4279}}{{perONSC|Gordon J}}{{atsL|1cjqb|5| to 7}}<br>
</ref>
# that he is ineligible for, or has been refused Legal Aid and has exhausted all available appeals; 
# that he is indigent and has no other means to retain counsel; and, 
# 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."<ref>
{{supra1|Imona-Russel}}{{atL|hzgjv|39}}<br>
{{CanLIIRP|Rushlow|23tcq|2009 ONCA 461 (CanLII)|96 OR (3d) 302}}{{perONCA|Rosenberg JA}}{{atL|23tcq|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.")<br>
</ref>

Appointment of counsel should not limited to "exceptional cases".<ref>
{{supra1|Rushlow}}{{atsL|23tcq|19| to 21}}<br>
{{supra1|Dow}}{{atL|266rl|28}}<br>
</ref>

; 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.<ref>
{{supra1|Dow}}{{atL|266rl|16}}</ref>
Whether the accused acted in good faith or attempted delay proceedings is a finding of fact and given considerable deference.<ref>
{{supra1|Dow}}{{atL|266rl|21}}
</ref>

An accused is the "author of his own misfortune" where he has "forfeited his right to counsel" by his own conduct.<ref>
{{supra1|Dow}}{{atL|266rl|17}}<br>
{{CanLIIR|Bitternose|23hrv|2009 SKCA 54 (CanLII)}}{{perSKCA|Wilkinson JA}}{{atL|23hrv|29}}<br>
</ref>

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."<ref>
{{CanLIIRP|Howell|1mq10|1995 CanLII 4282 (NS CA)| NSR (2d) 1 (CA)}}{{perNSCA|Chipman JA}}, aff'd at [http://canlii.ca/t/1fr6m 1996 CanLII 145] (SCC), [1996] 3 SCR 604{{perSCC|Sopkina J}}{{atL|1fr6m|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"<br>
</ref>

; 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.<ref>
{{supra1|Dow}}{{atL|266rl|23}}<br>
{{CanLIIRP|Peterman|1h09b|2004 CanLII 39041 (ON CA)|185 CCC (3d) 352}}{{perONCA|Rosenberg JA}}{{atL|1h09b|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")
</ref>

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.<ref>
{{CanLIIRx|Plange|gwqf5|2017 ONSC 134 (CanLII)}}{{perONSC|O'Marra J}}{{atL|gwqf5|8}}<br>
{{CanLIIRP|Montpellier|1cjqb|2002 CanLII 34635 (ON SC)|[2002] OJ No 4279 (ONSC)}}{{perONSC|Gordon J}}{{atL|1cjqb|34}}<br>
</ref>

; Financial Means
The case law suggests the applicant must demonstrate financial evidence that details:<ref>
{{CanLIIR|Malik|55zw|2003 BCSC 1439 (CanLII)}}{{perBCSC|Stromberg-Stein J}}{{atL|55zw|23}}
{{CanLIIRP|Rushlow|23tcq|2009 ONCA 461 (CanLII)|66 CR (6th) 245}}{{perONCA|Rosenberg JA}}{{atL|23tcq|20}}<br>
</ref>
#extraordinary financial circumstances;
# attempts to obtain funds to retain counsel;
# prudence with expenses and prioritization of payment of his legal fees;
# efforts to save for the cost of counsel and to raise funds by earning additional income;
# he has made all reasonable effort to use his assets to raise funds, for example by obtaining loans;
# whether he is in a position to pay some of the costs of counsel;
# 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.<ref>
e.g. {{CanLIIR|Darby|1g85v|2001 BCSC 1868 (CanLII)}}{{perBCSC|Grist J}}<br> 
</ref>

A lack of financial prudence may disentitle the accused from funding.<ref>
{{CanLIIR|Crichton|fwj9c|2013 BCSC 416 (CanLII)}}{{perBCSC|Bracken J}}{{atL|fwj9c|41}}</ref>

; Fair Trial
The right to fair trial may be affected where the case is complex.<ref> 
{{CanLIIR|Moodie|grtvd|2016 ONSC 3469 (CanLII)}}{{perONSC|Nordheimer J}} - Stay granted on drug trafficking trial with complex issues including severance, co-conspirator's exception, possible challenge for cause.<br>
{{CanLIIR|Rushlow|23tcq|2009 ONCA 461 (CanLII)}}{{perONCA|Rosenberg JA}}{{atL|23tcq|24}}
</ref>

Those offences that are less serious as they attract lesser penalties will more likely be compelled to proceed to trial unrepresented.<ref>
{{supra1|Moodie}}{{atL|grtvd|8}}<br>
{{supra1|Rushlow}}
</ref>

; Limited Retainer
It is possible for the court to order a limited retainer for only part of a trial to prevent an unfair trial.<ref>
{{supra1|Dow}}{{atsL|266rl|32| to 37}}
</ref>

; 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.<ref>
{{CanLIIRP|Rowbotham|1npn6|1988 CanLII 147 (ON CA)|41 CCC (3d) 1}}{{TheCourtONCA}}
</ref>

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.<ref>
e.g. {{CanLIIR|Dobson|gp8sg|2016 NBCA 18 (CanLII)}}{{TheCourtNBCA}}
</ref>
{{Reflist|2}}

===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]]

{{Reflist|2}}

===Appeals===
{{seealso|Appeals to the Supreme Court of Canada#Legal Assistance for Appeals}}
{{quotation3|
; 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.
<br>
; Counsel fees and disbursements
(2) Where counsel is assigned pursuant to subsection (1) {{AnnSec6|684(1)}} 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.
<br>
; Taxation of fees and disbursements
(3) Where subsection (2) {{AnnSec6|684(2)}} 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.
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 684; 
R.S., 1985, c. 34 (3rd Supp.), s. 9.
{{Annotation}}
|[{{CCCSec|684}} CCC]
|{{NoteUp|684|1|2|3}}
|{{terms-
| "court"
| "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:<ref>
{{CanLIIR|Forrest|j0sv0|2019 NSCA 47 (CanLII)}}{{perNSCA|Beveridge JA}}{{atL|j0sv0|3}}
</ref>
# the appeal has merit<ref>
{{CanLIIRP|Robinson|1p6jr|1989 ABCA 267 (CanLII)|51 CCC (3d) 452}}{{perABCA|McClung JA}}<br> 
{{CanLIIR|Clark|1nqfx|2006 BCCA 312 (CanLII)}}{{perBCCA|Donald J}}<br>
</ref> and at least is arguable;<ref> 
{{CanLIIR|Ewanchuk|1vw7s|2008 ABCA 78 (CanLII)}}{{perABCA|Berger JA}}<br>
{{CanLIIR|Ermine|2b255|2010 SKCA 73 (CanLII)}}{{perSKCA|Jackson JA}}<br>
{{CanLIIR|BLB|234sn|2004 MBCA 100 (CanLII)}}{{perMBCA|Freedman JA}}<br>
{{CanLIIR|Murray|271kz|2009 NBCA 83 (CanLII)}}{{TheCourtNBCA}}<br>
{{CanLIIRP|Bernardo|6h51|1997 CanLII 2240 (ON CA)|121 CCC (3d) 123}}{{perONCA|Doherty JA}}<br>
{{CanLIIR|Abbey|fwtw1|2013 ONCA 206 (CanLII)}}{{perONCA|Watt JA}}{{atL|fwtw1|32}}<br>
</ref>
# the appellant cannot properly present the issue without counsel; or 
# the court may not be able to decide the appeal without counsel.

The factors to consider have been stated as:<ref>
{{CanLIIR|Kelsie|gv0dm|2016 NSCA 72 (CanLII)}}{{perNSCA|Farrar JA}}
</ref>
# The merits of the appeal;
# The complexity of the appeal;
# The appellant’s capability;
# The court’s role to assist; and
# 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.<ref>
{{supra1|Forrest}}{{atL|j0sv0|5}}
</ref>
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.<ref>
{{supra1|Forrest}}{{atL|j0sv0|5}}
</ref>

; 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.<ref>
{{supra1|Bernardo}}{{atL|6h51|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"
{{supra1|Forrest}}{{atL|j0sv0|5}}
</ref>

Consideration should include the appellant's ability to read and write, understand principles, relate principles to the facts, and articulate themselves.<ref>
{{supra1|Bernardo}}{{atL|6h51|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.")
</ref>

{{Reflist|2}}

==See Also==
* [http://www.legalaid.ab.ca/information-resources/Pages/Court-Ordered-Counsel.aspx Forms for Court Appointed Counsel (Alberta)]