Her Majesty the Queen v. P.C. (A Young Person)

[Indexed as: R. v. C. (P.)]

Ontario Reports

Court of Appeal for Ontario,

Weiler, Feldman and Hourigan JJ.A.

August 12, 2014

121 O.R. (3d) 401 | 2014 ONCA 577

Case Summary

Charter of Rights and Freedoms — Equality rights — Discrimination — Section 684 of Criminal Code not discriminating against indigent accused on ground of poverty by failing to provide automatic right to state-funded counsel for appeal — Criminal Code, R.S.C. 1985, c. C-46, s. 684.

Charter of Rights and Freedoms — Fundamental justice — Counsel — Section 684 of Criminal Code not violating indigent accused's rights under s. 7 or s. 11(d) of Charter by failing to provide automatic right to state-funded counsel for appeal — Requirement that accused demonstrate that he has arguable appeal not unfair — Canadian Charter [page402] of Rights and Freedoms, ss. 7, 11(d) — Criminal Code, R.S.C. 1985, c. C-46, s. 684.

The accused was convicted of manslaughter. He filed a notice of appeal and applied for legal aid to fund his appeal. His request was denied on the basis of lack of merit, and his appeal from that decision was dismissed. He applied unsuccessfully under s. 684 of the Criminal Code for the appointment of state-funded counsel to argue the appeal. The accused challenged the constitutionality of s. 686, arguing that an indigent person such as himself has an automatic right to state-funded counsel for a first appeal, especially when the accused is subject to imprisonment, and that any requirement that he show that the appeal had some merit violated his rights under the Canadian Charter of Rights and Freedoms.

Held, the application should be dismissed.

Section 684 is an ameliorative program that falls within s. 15(2) of the Charter. Even assuming that poverty is an analogous ground for the purposes of s. 15 -- an argument that has been rejected by the Court of Appeal -- s. 684 remedies any disadvantage suffered by low-income appellants by supplying them with state-funded counsel provided it is desirable in the interests of justice to do so. The fact that s. 684 does not provide state-funded counsel for all indigent accused did not violate s. 15 of the Charter.

The Charter's silence respecting the right to an appeal does not mean that the underlying value of fair treatment of an accused enshrined in the Charter does not apply to appeals. Because his liberty interests are affected, s. 7 gives the accused the right to state-funded counsel where it is essential to ensure that the accused's right to appeal is meaningful and effective, but such a determination must be made on a case-by-case basis. Section 684 does not violate s. 7 or s. 11(d) of the Charter. Requiring the accused to demonstrate that he has an arguable appeal did not treat the accused unfairly. An indigent accused almost always has the assistance of duty counsel or legal aid-funded counsel to argue the s. 684 application. A decision on the s. 684 application is not a final one. The accused could ask that a panel review the motion judge's decision, and could also renew his application for the appointment of counsel.

R. v. Bernardo, 1997 2240 (ON CA), [1997] O.J. No. 5091, 105 O.A.C. 244, 121 C.C.C. (3d) 123, 12 C.R. (5th) 310, 37 W.C.B. (2d) 34 (C.A.); R. v. Robinson, 1989 ABCA 267, [1989] A.J. No. 950, 63 D.L.R. (4th) 289, 70 Alta. L.R. (2d) 31, 100 A.R. 26, 51 C.C.C. (3d) 452, 73 C.R. (3d) 81, 8 W.C.B. (2d) 471 (C.A.), consd

Other cases referred to

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670, [2011] S.C.J. No. 37, 2011 SCC 37, 239 C.R.R. (2d) 124, 418 N.R. 101, [2011] 3 C.N.L.R. 36, 2011EXP-2271, EYB 2011-193383, 334 D.L.R. (4th) 577, [2011] 12 W.W.R. 417, 505 A.R. 1, 49 Alta. L.R. (5th) 272, 203 A.C.W.S. (3d) 750; Andrews v. Law Society British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, 56 D.L.R. (4th) 1, 91 N.R. 255, [1989] 2 W.W.R. 289, J.E. 89-259, 34 B.C.L.R. (2d) 273, 25 C.C.E.L. 255, 36 C.R.R. 193, 13 A.C.W.S. (3d) 347; Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006 (1972); Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); [page403] R. v. Banks (2007), 84 O.R. (3d) 1, [2007] O.J. No. 99, 2007 ONCA 19, 275 D.L.R. (4th) 640, 220 O.A.C. 211, 216 C.C.C. (3d) 19, 44 C.R. (6th) 244, 150 C.R.R. (2d) 239, 39 M.V.R. (5th) 1, 72 W.C.B. (2d) 720 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 139]; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18 C.C.C. (3d) 385, 85 CLLC Â14,023 at 12108, 13 C.R.R. 64, 14 W.C.B. 157; R. v. Brydges, 1990 123 (SCC), [1990] 1 S.C.R. 190, [1990] S.C.J. No. 8, 103 N.R. 282, [1990] 2 W.W.R. 220, J.E. 90-315, 71 Alta. L.R. (2d) 145, 104 A.R. 124, 53 C.C.C. (3d) 330, 74 C.R. (3d) 129, 46 C.R.R. 236, 9 W.C.B. (2d) 233; R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206, [1995] S.C.J. No. 39, 124 D.L.R. (4th) 7, 181 N.R. 1, J.E. 95-1110, 58 B.C.A.C. 161, 97 C.C.C. (3d) 385, 38 C.R. (4th) 265, 28 C.R.R. (2d) 244; R. v. Docherty, [2012] O.J. No. 5401, 2012 ONCA 784, 299 O.A.C. 31, 98 C.R. (6th) 390, 292 C.C.C. (3d) 465, 104 W.C.B. (2d) 473 [Leave to appeal to S.C.C. refused [2013] S.C.C.A. No. 18]; R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 110 N.R. 1, [1990] 5 W.W.R. 1, J.E. 90-990, 47 B.C.L.R. (2d) 1, 57 C.C.C. (3d) 1, 77 C.R. (3d) 145, 49 C.R.R. 114, 10 W.C.B. (2d) 435; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697, [1990] S.C.J. No. 131, 117 N.R. 1, [1991] 2 W.W.R. 1, J.E. 91-42, 77 Alta. L.R. (2d) 193, 114 A.R. 81, 61 C.C.C. (3d) 1, 1 C.R. (4th) 129, 3 C.R.R. (2d) 193, 11 W.C.B. (2d) 352; R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, [1997] S.C.J. No. 30, 148 D.L.R. (4th) 608, 213 N.R. 1, [1997] 8 W.W.R. 1, J.E. 97-1409, 51 Alta. L.R. (3d) 181, 200 A.R. 81, 116 C.C.C. (3d) 97, 8 C.R. (5th) 155, 44 C.R.R. (2d) 262, 35 W.C.B. (2d) 14; R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, [1987] S.C.J. No. 41, 41 D.L.R. (4th) 301, 76 N.R. 198, J.E. 87-811, 21 O.A.C. 192, 34 C.C.C. (3d) 385, 58 C.R. (3d) 97, 38 C.R.R. 37, 2 W.C.B. (2d) 307; R. v. N. (J.), [2013] O.J. No. 1834, 2013 ONCA 251, 305 O.A.C. 175; R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271, 25 O.A.C. 321, 41 C.C.C. (3d) 1, 63 C.R. (3d) 113, 35 C.R.R. 207, 4 W.C.B. (2d) 30 (C.A.); R. v. Stucky, [2009] O.J. No. 600, 2009 ONCA 151, 71 C.P.R. (4th) 402, 256 O.A.C. 4, 240 C.C.C. (3d) 141, 303 D.L.R. (4th) 1, 65 C.R. (6th) 46, 56 B.L.R. (4th) 1 [Leave to appeal to S.C.C. granted [2009] S.C.C.A. No. 186]; United States of America v. Ferras, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, 268 D.L.R. (4th) 1, 351 N.R. 1, J.E. 2006-1461, 209 C.C.C. (3d) 353, 39 C.R. (6th) 207, 143 C.R.R. (2d) 140, EYB 2006-107828, 69 W.C.B. (2d) 711

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 11(d), 15, (1), (2)

Criminal Code, R.S.C. 1985, c. C-46, s. 684, (1)

Legal Aid Services Act, 1998, S.O. 1998, c. 26, s. 25(1)

Treaties and conventions referred to

International Convention on Civil and Political Rights, 999 U.N.T.S. 171, art. 14

Authorities referred to

Sullivan, Ruth, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008)

APPLICATION challenging the constitutionality of s. 684 of the Criminal Code.

John R. Mann III, for applicant.

J. Sandy Tse, for respondent. [page404]

The judgment of the court was delivered by

WEILER J.A.: —

A. Overview

[1] The accused, a young offender at the time, was tried by a judge and jury and found guilty of manslaughter. He wishes to appeal his conviction but lacks the resources to retain counsel.

[2] Section 684(1) of the Criminal Code, R.S.C. 1985, c. C-46 gives a judge the discretion to appoint counsel for an indigent accused on appeal, "where . . . it appears desirable in the interests of justice".

[3] The accused submits that an indigent person has an automatic right to state-funded counsel for a first appeal, especially when he is subject to imprisonment. In addition, the accused submits that any prerequisite on him to show that the appeal has some merit offends his Charter rights.[^1] He relies specifically on ss. 15 (right to equal benefit and protection of the law), 10(b) (the right to counsel on arrest or detention), 7 (right to life, liberty, and security of the person and the right not to be deprived thereof without due process of law), and 11(d) (right to a fair trial).

[4] For the reasons that follow, I would dismiss the appeal and uphold the constitutionality of s. 684 [of the Criminal Code]. Because the accused's liberty interests are affected, s. 7 [of the Charter] gives him the right to state-funded counsel where it is essential to ensure the exercise of his right of appeal is both meaningful and effective. This determination is made on a case-specific basis. The fact that s. 684 does not give an accused person an automatic right to publicly funded counsel in all cases does not violate the Charter. Contrary to the appellant's submission, s. 684 does not undermine an accused's Charter right to fair treatment; it enhances them.

B. Background

[5] At his trial, the accused had the benefit of assistance from two legal aid-funded counsel. In addition, he required the assistance of an interpreter throughout the trial. Following his conviction, the accused filed a notice of appeal and applied for legal aid to fund his appeal. His request was denied on the basis of lack of merit. His appeal from that decision was also denied. [page405]

[6] The accused then brought a motion to have counsel appointed for him to argue his appeal pursuant to s. 684(1). The Crown conceded that the second requirement of s. 684(1) was met, as the accused does not have sufficient means to retain counsel.

[7] The Crown submitted, however, that the accused had failed to satisfy the first requirement of showing that it appeared "desirable in the interests of justice that the accused should have legal assistance". In support of this submission, the Crown asserted that the accused must show that the appeal has merit in the sense of being an arguable appeal. The Crown relied on the decision of Doherty J.A. in R. v. Bernardo, 1997 2240 (ON CA), [1997] O.J. No. 5091, 121 C.C.C. (3d) 123 (C.A.), at para. 22, that it was "appropriate" for the court to begin with an inquiry into the merits of the appeal to determine whether the appeal was arguable. The Crown also relied on Doherty J.A.'s comment, at para. 22, that "[a]ppeals which are void of merit will not be helped by the appointment of counsel". In support of its position, the Crown filed the reports refusing the accused legal aid for his appeal.

[8] The motion judge dismissed the application for the appointment of counsel pursuant to s. 684(1). The accused also requested that the transcripts of the trial necessary for the appeal be produced at public expense, and this request was granted.

[9] The accused now challenges the constitutionality of s. 684 of the Criminal Code.

C. Analysis

[10] Section 684(1) provides:

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.

(1) Section 15

[11] The accused argues that because persons with means can hire counsel for an appeal irrespective of whether the appeal has merit, indigent accused should have the same right.

[12] Section 15(1) [of the Charter] gives every individual a guarantee of equality before and under the law as well as the right to equal protection and equal benefit of the law without discrimination. The grounds of discrimination enumerated in s. 15(1) are not exhaustive. Discrimination on grounds analogous to [page406] those set out in s. 15(1), generally discrimination on the basis of irrelevant personal characteristics, is also prohibited: Andrews v. Law Society British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, at p. 165 S.C.R.

[13] The accused's argument was directly addressed by the Alberta Court of Appeal in R. v. Robinson, 1989 ABCA 267, [1989] A.J. No. 950, 51 C.C.C. (3d) 452 (C.A.), which held that the Charter did not require an automatic right to publicly funded counsel for an accused's appeal. In relation to s. 15, the court held, at pp. 484-85 C.C.C., that

The Canadian public would hardly class as discriminatory social schemes that make public legal assistance available to the deserving. Quite the reverse.

If, somehow, the inability to pay for advocacy can be an irrelevant personal characteristic and therefore, discriminatory, then section 684 and the other legal aid schemes combat it.

[14] I agree with these comments. Section 684 is an ameliorative program that falls within s. 15(2) of the Charter. Even assuming that poverty is an analogous ground for the purposes of s. 15 -- an argument that this court rejected in R. v. Banks (2007), 84 O.R. (3d) 1, [2007] O.J. No. 99, 2007 ONCA 19, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 139 -- s. 684 remedies any disadvantage suffered by low-income appellants by supplying them with state-funded counsel provided "it is desirable in the interests of justice" to do so. A remedial program need not assist all members of a disadvantaged group: Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670, [2011] S.C.J. No. 37, 2011 SCC 37, at para. 41. Therefore, the fact that s. 684 does not provide state-funded counsel for all indigent accused does not mean that it automatically violates the Charter. I would dismiss the applicant's challenge on the basis of s. 15.

(2) Sections 10(b), 11(d) and 7 of the Charter

[15] In interpreting the rights and freedoms guaranteed by the Charter, the proper approach is to adopt a purposive analysis: R. v. Big M. Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17. The purpose of s. 684 is to provide counsel for an indigent accused person on a case-specific basis where it is in the "interests of justice" to do so.

[16] Section 10(b) gives a person the right to retain and instruct counsel upon arrest or detention. I am not aware of any Canadian jurisprudence holding that s. 10(b) has application [page407] on an appeal. The s. 10(b) right has two main purposes: to ensure individuals who are arrested or detained are informed of their legal rights and obligations, and to permit them to obtain information about how to exercise those rights: R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, [1987] S.C.J. No. 41, at pp. 1242-43 S.C.R. In so doing, s. 10(b) aims to foster the principle of adjudicative fairness by ensuring the accused is treated fairly: R. v. Brydges, 1990 123 (SCC), [1990] 1 S.C.R. 190, [1990] S.C.J. No. 8, at p. 203 S.C.R.

[17] This concept of fairness also underlies the guarantees in ss. 7 and 11(d) of the Charter. For example, s. 7 guarantees a "fair process, having regard to the nature of the proceedings at issue": United States of America v. Ferras, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, at para. 14. Similarly, the right to a fair trial in s. 11(d) "recognizes the vital importance in ensuring that the state treat each individual in accordance with basic principles of decency and fair play": R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206, [1995] S.C.J. No. 39, at para. 86. Thus, together, ss. 10(b), 7 and 11(d) promote fair treatment of the accused, from the point of arrest or detention and throughout his or her interactions with the criminal justice system.

[18] Robinson points out that the Charter does not contain specific reference to appeals. I do not read Robinson as saying the fact that there is no constitutionally protected right of appeal does not mean that the Charter has no application to s. 684. As I have said, ss. 10(b), 7 and 11(d) together protect an accused's right to fair treatment from the point of arrest or detention through to the end of the adjudicative process. The liberty interests protected by s. 7 would also encompass appeals. Moreover, to the extent the phrase "the interests of justice" in s. 684 is considered to be ambiguous, any ambiguity in a statute must be resolved in light of Charter values: Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at paras. 62-64. The Charter's silence respecting the right to an appeal therefore does not mean that the underlying value of fair treatment of an accused enshrined in the Charter does not apply to appeals.

[19] An indication of what the international community considers to be fair treatment towards an indigent accused is contained in art. 14 of the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, to which Canada is a signatory. Article 14 guarantees the right of a person accused of criminal charges to have legal assistance assigned to him, "in any case where the interests of justice so require, and without payment by him in any such case if he does not have [page408] sufficient means to pay for it". The phrase "the interests of justice" mirrors that used in s. 684 and mandates an individual case-specific approach. A factor to consider in deciding whether s. 684 is constitutional is the fact that the international community, and Canada's obligations as part of that community, do not automatically require state-funded counsel for all indigent accused persons facing criminal proceedings. See, by analogy, R. v. Stucky, [2009] O.J. No. 600, 2009 ONCA 151, 240 C.C.C. (3d) 141, at paras. 37, 42, leave to appeal to S.C.C. granted [2009] S.C.C.A. No. 186 (appeal subsequently abandoned); and R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697, [1990] S.C.J. No. 131, at pp. 733-34 S.C.R.

[20] Our court has held that in the context of a trial, an indigent accused has no automatic right to be provided with publicly funded counsel but, in cases not falling within provincial legal aid plans, ss. 7 and 11(d) may require the appointment of counsel if that is necessary for a fair trial:[^2] R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271, 41 C.C.C. (3d) 1 (C.A.), at p. 66 C.C.C.

[21] In asserting that the Charter gives an indigent accused an automatic right to state-funded counsel without a preliminary showing of merit on an appeal, the accused relies on jurisprudence respecting the Sixth Amendment to the United States Constitution and decisions such as Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); and Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006 (1972).

[22] This American jurisprudence has already been considered in Rowbotham and rejected as inapplicable to the Canadian context, partly on the basis of the comprehensive legal aid plans in each province. The Supreme Court has also emphasized the importance of the legal aid and duty counsel systems in carrying out the purposes of s. 10(b): Brydges, at pp. 206-14 S.C.R. In addition, Rowbotham recognizes that on a case-specific basis the appointment of counsel may be required under the Charter.

[23] Thus, unlike the American jurisprudence, the Charter's s. 11(d) fair trial jurisprudence requires a case-specific determination of whether the assistance of counsel is essential to [page409] maintain a constitutionally appropriate level of fair treatment of an accused. It makes no sense to suggest that an accused can have a constitutionally fair trial without a lawyer, but that a constitutionally fair appeal without a lawyer is impossible. In interpreting a statute, courts are reluctant to accept interpretations that violate legal norms such as rationality and coherence (Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008), at p. 8). Sullivan's conclusion applies equally to the interpretation of rights under the Charter.

[24] Robinson also rejected the American jurisprudence on which the appellant relies. The accused seeks to distinguish Robinson on the basis that "[t]he Alberta Court of Appeal did not address the conflict raised here between the express language of section 10(b) with section 684 of the Criminal Code". I disagree that Robinson can be distinguished on this basis. The accused in Robinson initially sought the appointment of counsel under s. 684(1), and the issue before the court was whether, when ss. 7, 10(b), 11(d) and 15 of the Charter are considered, s. 684(1) is unconstitutional. That is precisely the question before this court.

[25] The Crown concedes that ss. 7 and 11(d) of the Charter give an indigent accused the right to counsel in certain circumstances but submits that a preliminary showing of merit is always necessary. The Crown states that

Sections 7 and 11(d) of the Charter only demand that counsel be provided where it is necessary to ensure a fair trial or appeal. As noted by this Court in Bernardo . . . "Appeals which are void of merit will not be helped by the appointment of counsel."

[26] The Crown's position is too narrow. I say this for two reasons. First, Doherty J.A. noted that he was not dealing with the constitutionality of s. 684(1). Therefore, the Crown cannot use his comments as determinative of the constitutional issue before this court. Second, the "interests of justice" involve other considerations besides the effective presentation of an appeal, and Bernardo does not cover all of the situations in which an application under s. 684 arises. As I will explain, the need to appoint counsel in order for the accused's appeal to be fair has two aspects. The accused must have a full and fair opportunity to exercise any right of appeal he has and he must be able to effectively present it.

[27] As a preliminary step, meaningful exercise of a right of appeal may, in exceptional circumstances, require the appointment of counsel to assist an accused in ascertaining whether he has identified an arguable ground of appeal. When this is the [page410] case at the time of a s. 684 application, the motion judge can appoint counsel for that limited purpose: see, e.g., R. v. N. (J.), [2013] O.J. No. 1834, 2013 ONCA 251, 305 O.A.C. 175.

[28] In Bernardo, the court was dealing with the second aspect of an appeal -- the presentation or argument of the appeal itself. The grounds of appeal had been determined. As this was the second request to appoint counsel, the court had the benefit of an expanded record as well as an opinion with respect to the merits of the appeal from a well-regarded defence counsel. On the initial application to appoint counsel under s. 684, the motion judge did not find the appeal to be frivolous and the Crown had not suggested otherwise. The question was whether the appellant required the assistance of counsel to effectively present the grounds of appeal.

[29] Once the grounds of appeal have been ascertained and the question is whether to appoint counsel under s. 684 for the purposes of effectively presenting the appeal, the appeal must be arguable. In this context, the comment of Doherty J.A. in Bernardo, at para. 22, that "[a]ppeals which are void of merit will not be helped by the appointment of counsel" is a common-sense one. The accused is entitled to conduct his appeal as he sees fit. It is not unheard of for an accused to raise a ground of appeal for which there is a complete lack of support in the trial record, such as alleging that the trial judge was biased. Although the appeal does not raise an "arguable" issue, the accused can still make the submission. However, assuming the accused has the ability to have his submission communicated to the court, either directly or through an interpreter, the appointment of counsel will not assist the accused in effectively presenting his appeal. Nor will the panel hearing the appeal require the assistance of counsel in order to decide the appeal. Thus, requiring the accused to demonstrate that he has an arguable appeal does not treat the accused unfairly.

[30] The inquiry as to whether an appeal is arguable imports an aspect of rational objectivity into the appeal process. Rational objectivity does not equate to unfair treatment of an accused and is not contrary to the Charter. For example, to make out a breach of the s. 7 right to make full answer and defence under the Charter on the ground of lost evidence, the accused must establish actual prejudice: R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, [1997] S.C.J. No. 30. Thus, there is a balancing of the accused's right to fair treatment against the state's interest in effective and efficient conclusion of litigation. Similarly, in R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, the Supreme Court held that in determining whether an accused's right to silence has been [page411] breached under s. 7, the test is essentially objective and it seeks to effect a balance between the respective interests of the accused and the state.

[31] Four aspects of the manner in which s. 684 functions ensure that an accused person is treated fairly and support its constitutionality. First, the fact that legal aid has been refused is certainly not determinative of whether "the interests of justice" require counsel to be appointed. Were this so, s. 684 would be redundant. The criteria for determining whether it is "justified" to fund an appeal under the legal aid plan pursuant to s. 25(1) of the Legal Aid Services Act, 1998, S.O. 1998, c. 26 are not the same as those considered under s. 684(1) in determining whether "the interests of justice" require the appointment of counsel. Second, the court's decision under s. 684(1) is not in any way a review of the correctness of legal aid's decisions: Bernardo, at para. 4.

[32] Second, unlike legal aid, the cost of assigning counsel cannot affect the court's determination under s. 684(1) because "the costs associated with the appointment of counsel must be accepted as the price of the proper administration of justice". Bernardo, at para. 28.

[33] Third, an indigent accused almost always has the assistance of duty counsel or legal aid-funded counsel to argue the s. 684 motion. And, as I have said, the court may in exceptional circumstances provide a limited s. 684 appointment for the purpose of assisting the accused in determining whether there are arguable grounds of appeal. If duty counsel has been asked to make the application on behalf of the accused, then, in addition to the notice of appeal, the reasons of the trial judge or the charge to the jury, duty counsel may have access to the opinion letter containing a written analysis of the grounds of appeal done for the purposes of requesting funding from legal aid for the appeal. If the accused has legal aid-funded counsel for the s. 684 application, then, in addition to the record, counsel's opinion respecting the legal issues will go a long way towards ensuring that any arguable issues are raised for the court's consideration. This assistance helps ensure that the accused's exercise of his right of appeal is meaningful.

[34] The assistance of legal aid-funded counsel may also include assistance in preparing an affidavit to address the various criteria relevant to whether the accused can meaningfully exercise his right of appeal and effectively present it. In addition to information respecting the accused's means, a non-exhaustive list of relevant considerations includes the seriousness of the charge of which the accused was convicted; the sentence he [page412] received; his age, education and ability to speak, understand and write English or French; any disability he has; his familiarity or lack thereof with the criminal justice system; the length of the trial; the complexity of the appeal; the legal principles engaged; and the appellant's ability or lack thereof to effectively relate them to the facts of the case. The fact that the accused is a youthful offender is also a factor of concern: Robinson, at p. 461 C.C.C.

[35] Fourth, a decision on a motion pursuant to s. 684 is not a final one. The accused may ask that a panel review the motion judge's decision refusing the appointment of counsel. An accused may also renew his application for the appointment of counsel. The decision as to whether or not to appoint counsel pursuant to s. 684 is often made on the basis of a preliminary record. If that preliminary record does not disclose any arguable grounds of appeal, the accused, with the benefit of the trial transcripts often paid for with public funds, may reapply to have counsel appointed to assist him. These procedural aspects reinforce the case-specific approach to ensuring fair treatment of an accused.

[36] Indeed, it may be that in this case, although the accused's motion to have counsel appointed pursuant to s. 684 was dismissed, a renewed application would succeed. The accused's counsel has chosen to continue to represent him and is to be commended for doing so. I understand that the trial transcripts have been obtained and a full appreciation of the record can now be had. If he renews his s. 684 motion, it may be that, on the basis of the expanded record, an arguable issue or issues have been raised. Based on the issues disclosed by the expanded record, the court may decide that the accused is unable to effectively present his appeal without the assistance of counsel, having regard to the serious crime of which the accused was convicted, the fact he was a young offender at the time, his inability to communicate in English except through an interpreter, and his lack of familiarity with the legal system and its principles.

[37] For the reasons I have given, I would dismiss the accused's application to declare s. 684(1) unconstitutional.

Application dismissed.

Notes

[^1]: Canadian Charter of Rights and Freedoms.

[^2]: The Crown took the position that the holding in Rowbotham is binding on this court unless and until a five-judge panel holds otherwise: see R. v. Docherty, [2012] O.J. No. 5401, 2012 ONCA 784, 292 C.C.C. (3d) 465, at para. 43, leave to appeal to S.C.C. refused [2013] S.C.C.A. No. 18. The accused requested that a five-judge panel hear his application, but that request was denied.

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