Criminal Law Notebook

Court Appointed Counsel

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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.

Appointment of counsel should not limited to "exceptional cases".[6]

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.[7] Whether the accused acted in good faith or attempted delay proceedings is a finding of fact and given considerable deference.[8]

An accused is the "author of his own misfortune" where he has "forfeited his right to counsel" by his own conduct.[9]

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."[10]

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.[11]

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.[12]

Financial Means

The case law suggests the applicant must demonstrate financial evidence that details:[13]

  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.[14]

A lack of financial prudence may disentitle the accused from funding.[15]

Fair Trial

The right to fair trial may be affected where the case is complex.[16]

Those offences that are less serious as they attract lesser penalties will more likely be compelled to proceed to trial unrepresented.[17]

Limited Retainer

It is possible for the court to order a limited retainer for only part of a trial to prevent an unfair trial.[18]

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.[19]

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.[20]

  1. ↑ R v Ewing, (1973), 18 CCC (2d) 356 (BCCA)(*no CanLII links)
    R v Rowbotham et al. 1988 CanLII 147 (ON CA), (1988), 25 O.A.C. 321; 41 CCC (3d) 1(CA){{TheCourtONCA}
    R v Rockwood, 1989 CanLII 197 (NS CA), (1989), 91 N.S.R. (2d) 305 (CA), per Chipman JA
  2. ↑ R v Dow, 2009 MBCA 101 (CanLII), 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), per Hamilton JA
    Lichtenwald, supra, at para 9
  4. ↑ R v Drury (L.W.) et al., 2000 MBCA 100 (CanLII), per Huband JA, at para 23
    Dow, supra, at para 26
  5. ↑ R v Baksh, 2013 ONCJ 57 (CanLII), per McArthur J, at para 4
    See R v Rowbotham, 1988 CanLII 147 (ON CA), [1988] OJ No 271 (Ont. C.A.), per curiam
    R v Montpellier, 2002 CanLII 34635 (ON SC), [2002] OJ No 4279, per Gordon J at paras 5-7
  6. ↑ Rushlow, supra at para 19 to 21
    Dow, supra, at para 28
  7. ↑ Dow, supra, at para 16
  8. ↑ Dow, supra at para 21
  9. ↑ Dow at para 17
    R v Bitternose, 2009 SKCA 54 (CanLII), per Wilkinson JA, at para 29
  10. ↑ R v Howell, 1995 CanLII 4282 (NS CA), (1995), 146 N.S.R. (2d) 1 (C.A.), 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"
  11. ↑ Dow, supra, at para 23
    R v Peterman, 2004 CanLII 39041 (ONCA), 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")
  12. ↑ 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 (ON SC), per Gordon J, at para 34
  13. ↑ R v Malik, 2003 BCSC 1439 (CanLII), per Stromberg-Stein J at para 23 R v Rushlow, 2009 ONCA 461 (CanLII), 66 C.R. (6th) 245, per Rosenberg JA, at para 20
  14. ↑ e.g. R v Darby, 2001 BCSC 1868 (CanLII), per Grist J
  15. ↑ R v Crichton, 2013 BCSC 416 (CanLII), per Bracken J, at para 41
  16. ↑ 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), per Rosenberg JA at para 24
  17. ↑ Moodie, supra, at para 8
    Rushlow, supra
  18. ↑ Dow, supra at paras 32 to 37
  19. ↑ R v Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 CCC (3d) 1 (Ont. C.A.), per curiam
  20. ↑ e.g. R v Dobson, 2016 NBCA 18 (CanLII), 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) 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) 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.


– CCC

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

  1. the appeal has merit[1], or, is arguable.[2]
  1. ↑ R v Robinson, 1989 ABCA 267 (CanLII), (1989), 51 CCC (3d) 452 (Alta. C.A.), per McClung JA
  2. ↑ R v Bernardo, 1997 CanLII 2240 (ON CA), (1997), 121 CCC (3d) 123 (Ont. C.A.), per Doherty JA
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