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Criminal - Court-Appointed Representation. R. v. Beauparlant
In R. v. Beauparlant (Ont CA, 2023) the Court of Appeal considered (and allowed) an application under CCC 684 for state-funded counsel on the appeal:Analysis
[8] Section 684(1) of the Criminal Code provides for the appointment of appellate counsel in certain circumstances: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. [9] The court must be satisfied, in the words of s. 684(1), that “it appears desirable in the interests of justice that the accused should have legal assistance.” The onus is on the applicant: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 31. In Abbey, Watt J.A. observed, at para. 29, that the phrase “the interests of justice” is a “legal chameleon that takes its meaning from its surroundings” and explained that it “contemplates a judicial discretion exercisable on a case-by-case basis,” citing R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16.
[10] The elements of the test under s. 684(1) of the Criminal Code were summarized by Gillese J.A. in R. v. Staples, 2016 ONCA 362, 352 O.A.C. 392, at para. 34:1. Does the applicant have the means to hire counsel privately?
2. Has the applicant advanced arguable grounds of appeal?
3. Does the applicant have the ability to effectively advance his or her appeal without the assistance of counsel? ....
Disposition
[19] The application to appoint s. 684 counsel is granted. The applicant will be represented by counsel appointed under s. 684(1) and counsel’s fees and disbursements shall be paid by the Attorney General under s. 684(2) of the Criminal Code. . R. v. Nassr
In R. v. Nassr (Ont CA, 2023) the Court of Appeal considered an appellate motion for an order "appointing publicly funded counsel under s.684(1) of the Criminal Code, R.S.C. 1985, c. C-46 to assist with and argue his appeal" [CCC 684(1)]:[3] Section 684(1) provides for the appointment of counsel where “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”. The test for the appointment of counsel is set out in R. v. Staples, 2016 ONCA 362, 352 O.A.C. 392, at para. 34. Mr. Nassr must show that:1. He does not have the means to hire counsel privately;
2. He is advancing arguable grounds for appeal; and
3. He does not have the ability to effectively advance his appeal without the assistance of counsel. [4] The Crown conceded that Mr. Nassr met the second and third parts of the test, but questioned whether he had proved that he would not get Legal Aid assistance for an appeal. Whatever the Crown’s position on each of the three parts of the test, I must be satisfied that the appointment Mr. Nassr seeks is in the interests of justice.
Does Mr. Nassr have the means to hire a lawyer without public funding?
[5] I find that Mr. Nassr does not have the means to hire a lawyer privately. According to Mr. Nassr’s affidavit, he is disabled and relies on Ontario Disability Support Program benefits. His trial lawyer was paid through Legal Aid Ontario. Mr. Nassr applied for further funding from Legal Aid Ontario for this appeal. This application was denied because Legal Aid Ontario apparently does not get involved in appeals where a conditional sentence was imposed. Mr. Nassr has appealed the denial.
[6] Crown counsel contends that it is impossible to tell if Mr. Nassr meets the first leg of the s. 684(1) test because his funding appeal to Legal Aid Ontario may succeed. He suggests that a decision on this application should be delayed pending the outcome of the appeal or that I should grant it subject to confirmation from Legal Aid Ontario that it will not grant funding.
[7] I disagree. Mr. Nassr has no idea when he will get a decision on his funding appeal. Crown counsel concedes that the odds of a successful appeal are slim. On the evidence currently on the record, Mr. Nassr clearly does not have the money to retain a lawyer. In my view, neither the interests of justice nor the interests of the parties would be served by delaying a decision on the remote possibility that Legal Aid Ontario will change its mind.
Is Mr. Nassr advancing arguable grounds for appeal?
[8] On the second leg of the test, the applicant must establish that their appeal is at least arguable. The threshold is a modest one: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 32.
...
Does Mr. Nassr have the ability to advance his appeal effectively without the assistance of counsel?
[17] On the third leg of the s. 684(1) test, the applicant must establish that he does not have the ability to effectively advance his appeal without counsel’s assistance. The Crown concedes the point. Given the complexity of some of the issues raised on the appeal and Mr. Nassr’s circumstances, I agree that he and the court would benefit if he were represented by a lawyer.
Disposition
[18] I accordingly order the appointment of publicly funded counsel to Mr. Nassr for the purpose of his appeal. . R. v. Diehl
In R. v. Diehl (Ont CA, 2023) the Court of Appeal considers a CCC s.684 'court-appointed representation' application:[6] To succeed on an application under s. 684 of the Criminal Code, an applicant must establish on a balance of probabilities that he does not have “sufficient means” to obtain legal assistance, and that “it appears desirable in the interests of justice” that counsel be appointed. The first element of the test is met in this case. Legal Aid Ontario was satisfied that the applicant did not have the means to retain private counsel and the respondent does not seek to challenge that determination for the purposes of the s. 684 application.
[7] Respecting the “interests of justice”, the applicant must show that: (a) the appeal is “arguable”; and (b) it is “necessary” that counsel be appointed. In assessing necessity, the court considers whether the applicant is capable of advancing the grounds of appeal without a lawyer, and whether the court will be able to adjudicate the appeal without the assistance of defence counsel: R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 105 O.A.C. 244, 121 C.C.C. (3d) 123 (C.A.), at paras. 22-24; R. v. Brown, 2018 ONCA 9, at para. 8. . R. v. Hurren
In R. v. Hurren (Ont CA, 2022) the Court of Appeal considered the CCC provision [s.684] which addresses court appointment of counsel for an appeal:B. Governing Principles
[18] The governing principles underlying a s. 684 application were aptly stated by Hourigan J.A. in R. v. Campbell, 2020 ONCA 573, at paras. 3-5:[3] Pursuant to s. 684 (1), this court has the authority to assign counsel to act on an appellant’s behalf if, in its opinion, it appears both:
(i) desirable in the interests of justice that the appellant should have legal assistance; and
(ii) the appellant does not have sufficient means to obtain that assistance: R. v. Staples, 2016 ONCA 362, at paras. 31-32, reconsideration allowed, R. v. Staples, 2017 ONCA 138.
[4] Two general principles applicable to s. 684 applications are worth noting. First, an order for government-funded counsel is exceptional relief: Staples, (2016), at para. 40. Second, the appellant bears the burden of proof on a s. 684 application: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 31.
[5] As part of the analysis of the interests of justice component of the test, the court should consider the merits of the appeal on the basis of the record. Put simply, appeals that are devoid of merit will not be helped by appointing counsel. Given that the record is often incomplete at the time of the application, this is not a probing examination of the merits: R. v. Adams, 2016 ONCA 413. Rather, the applicant need only satisfy that the court that the proposed grounds of appeal are arguable: see R. v. Bernardo, (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.).
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