New & Notable: When is it "desirable" to have a lawyer...

One jury found Warren Abbey not guilty of first-degree murder; another jury found him guilty. One jury heard nothing about the significance of Abbey’s tear drop tattoo near his eye; another jury heard from an expert on the significance of just such a tattoo among members of urban street gangs. The Ontario Court of Appeal decided that the first jury had been unfairly and erroneously deprived of that evidence and thus ordered that a second trial be held. Abbey appealed that second jury’s finding on the basis that it was unreasonable. Although Abbey had a lawyer acting on his behalf at his first trial, the Crown’s appeal therefrom and at his second trial, Legal Aid Ontario dismissed Abbey’s application to have a lawyer argue his appeal. Abbey applied to the Court of Appeal pursuant to section 684 of the Code to have counsel appointed. Watt JA dismissed that application: 2013 ONCA 206.


Section 684 of the Code permits a judge or panel of judges of the Appellate court to appoint counsel to act on behalf of an accused who is a party before the court. The judge or panel must be satisfied that it is “desirable and 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” [para 29].

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