When it is appropriate to assign counsel for an individual who is party to an appeal in a criminal matter

R. v. Hoskins, 2012 BCCA 51 considers when it is appropriate to assign counsel for an individual who is party to an appeal in a criminal matter.  The test is two-fold:  the part must be both indigent and the position of the individual of some merit and unlikely to be put fully to the court without counsel.  The Court writes:

 

[29]         In R. v. Donald, 2008 BCCA 316, Madam Justice Saunders, in chambers, described the test under s. 684 as follows:

 

[10]      Section 684(1) provides:

 

684(1)  A court of appeal or a judge of that court may … 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.

 

[11]      It is clear from the material that Mr. Donald lacks the means to obtain assistance of counsel and he has been denied legal aid.  The question is whether it is in the interests of justice that he should have legal assistance on either of his appeals.

 

[12]      The purpose of s. 684 was described by Madam Justice Ryan in R. v. Barton, 2001 BCCA 477 at para. 7:

 

One of the fundamental principles upon which our legal system operates is the right of each side in a legal dispute to be heard … The Court is impressed with the duty to fully hear and consider both sides and to render a considered judgment as to the proper disposition of the case.  A hearing will not be fair if either of the two sides cannot be properly heard … A person is properly imprisoned when he is serving a sentence that he truly deserves having had the opportunity to put his position before the Court.

 

[13]      Madam Justice Southin, in R. v. Mills, 1999 BCCA 269 at para. 13, 122 B.C.A.C. 157, observed that:

 

“Interests of justice”, as that phrase is used in s. 684, is not a term which admits of closed categories.

 

[14]      The factors often considered in determining whether the interests of justice favour the application include factors such as the points to be argued on appeal; the complexity of the case; the level of education of the accused and his competency to advance his appeal; whether the assistance of counsel is necessary in order to marshal the evidence and make the argument; the nature and extent of the penalty imposed; and the merits of the appeal:  R. v. Aiwekhoe, 2000 BCCA 287, 139 B.C.A.C. 158; R. v. Madrusan, 2004 BCCA 194.

 

[15]      As to the merits of the proposed appeal, I adopt the observation of Madam Justice Rowles in R. v. Butler, 2006 BCCA 476, 231 B.C.A.C. 303, that the factors the court considers when determining whether counsel ought to be appointed, are not the same criteria the Legal Services Society applies under its statutory mandate.  The merits on an appeal are not always able to be discerned with clarity at the time of an application for the appointment of counsel.  However, as set out by Doherty J.A. in R. v. Bernardo (1997), 105 O.A.C. 244,121 C.C.C. (3d) 123 at para. 22, the merits inquiry need not go any further than determining whether the appeal is an arguable one. Given the nature of the issues raised and the volume of the materials before me, I cannot conclude that the appeal is not arguable.