Right to counsel

Today's brief Court of Appeal decision in R. v. Blanchard 2008 ONCA 761emphasizes just how important the right to counsel at trial is.

In Blanchard the accused sought an adjournment of a trial so as to retain counsel. The Court of Appeal acknowedged that a trial court may refuse to adjourn a trial where the request to retain counsel is made at the last minute but noted that the request was made a week before trial and the judge considering the request made several striking factual errors in refusing the adjournment.

What is more interesting is that the Court of Appeal set aside the conviction merely upon concluding that the request for adjournemnt was improperly denied. No consideration of whether the trial was otherwise flawed was made. Put otherwise, it was enough for the Court of Appeal to find that the opportunity to retain counsel was infringed for the conviction to be ovcerturned.

This suggests that the Court of Appeal considers it necessary, for a fair trial, for an individual to be represented by counsel of their choice. So what does this mean for those who cannot afford a lawyer and for whom legal aid will not fund counsel? This author suspects the Court of Appeal may not have considered that issue in this brief Blanchard decision.

The Court of Appeal holds:

[1] We recognize and fully support the power of a trial judge to refuse a last-minute adjournment request to ensure the fair and efficient running of the trial courts.
...
[5] As the refusal of an adjournment to allow the appellant to retain counsel was premised on an erroneous factual foundation, and as the appellant was then forced to proceed with a trial in a proceeding where the Crown made it clear that it sought a custodial term, we are persuaded that the appeal must be allowed, the decision of the summary conviction appeal court judge set aside, the conviction vacated, and a new trial ordered.