684: Common Sense and Constitutional

PC was charged with manslaughter. During his trial, he was assisted by two legal-aid lawyers and an interpreter. He was convicted. PC filed notice that he would appeal his conviction, but was not granted additional legal aid on the grounds that his appeal lacked merit. He then brought a motion to have counsel appointed for him to facilitate his appeal, pursuant to s. 684(1) of the Criminal Code. The Crown argued such an appointment would not be “desirable in the interests of justice” because PC did not demonstrate his appeal possessed arguable merit. The motions judge dismissed PC’s application. PC responded by challenging the constitutionality of s. 684: 2014 ONCA 577.

PC argued that because persons who can afford to hire counsel can do so whether or not their appeal has merit, indignant accused persons should have the same right under s. 7, s. 10(b), s. 11 and s.15 of the Charter [para 3].

The Court of Appeal rejected PC’s Charter arguments for two reasons:

First, the Court found the Charter does not require an automatic right to publicly funded counsel for appellate purposes, and that s. 684 is an ameliorative program that falls within s. 15(2) of the Charter. PC’s challenge on the basis of s.15 was dismissed [para 11-14].

Second, the court found that ss. 7, s. 10(b) and s. 11 work in tandem to ensure an accused person is always treated fairly, from the point of arrest or detention through to the end of an adjudicative process [paras 16-19]. This includes the appeals process.

In the context of a trial, fairness will sometimes require that counsel be appointed where provincial legal aid has been denied: R v Rowbotham, 25 OAC 321 [para 20].

In the context of an appeal, the Court concluded that if the following criterion is satisfied, fairness will be ensured:

  1. The accused has a full and fair opportunity to exercise any right of appeal, and
  2. The accused is able to effectively present their appeal.

Concerning the first criteria, the court noted that in exceptional circumstances, counsel may need to be appointed to assist an accused in ascertaining whether or not grounds for an appeal exist. A motions judge can appoint counsel for this limited purpose [para 27].

Concerning the second criteria, once a ground of an appeal has been ascertained, for the purposes of effectively presenting the appeal, the appeal must be arguable. The court found that it is common sense to conclude that “appeals which are void of merit will not be helped by the appointment of counsel”: R v Bernardo, 105 OAC 244 [para 29]. An aspect of “rational objectivity” must be imported in order to balance the interests of the accused and the state. Requiring an accused to demonstrate that an arguable appeal exists does not treat the accused unfairly [para 30].  

After articulating these criteria, the Court then highlighted four additional aspects of s. 684 that demonstrate why it withstands constitutional scrutiny:

First, the fact that legal aid has been refused is not determinative of whether or not the “interests of justice” require counsel to be appointed [para 31].

Second, the cost of assigning counsel cannot influence a Court’s determination under s. 684, because these costs are to be accepted as “the price of the proper administration of justice”: Bernardo, supra [para 31].

Third, an indignant accused almost always has the assistance of duty counsel or legal aid to argue a s. 684 motion. Here, the Court went further and commented that this assistance may also include the preparation of an affidavit, which outlines whether an accused can meaningfully exercise his right of appeal, and effectively present it, with reference to relevant considerations such as:

  • the accused’s means,
  • the seriousness of the charge of which the accused was convicted,
  • the sentence received,
  • age,
  • youthfulness,
  • education,
  • ability to speak, understand and write English or French,
  • disability,
  • familiarity or lack thereof with the criminal justice system,
  • the length of the trial,
  • the complexity of the appeal, and
  • the legal principles engaged and the appellants ability or lack theory to effectively relate them to the facts of the case [paras 33-34].

Fourth, a decision on a motion pursuant to s. 684 is not a final one. An accused may seek a panel review of a refusal, or renew an application with the benefit of an expanded record following trial [para 35].

For these reasons, PC’s challenge on the basis of ss. 7, 10(b) and 11 was dismissed.

The Court of Appeal upheld s. 684 of the Criminal Code as constitutional. However, the Court did note that a renewed application in PC’s case could succeed on the basis of the newly expanded record (which included a full consideration of his age at the time of conviction, the seriousness of the crime, his inability to communicate in English except through an interpreter, and his lack of familiarly with the legal system and its principles) [para 35].