Tuesday, January 14, 2014

On a motion for appointment of counsel on appeal the test is arguable issue only

R. v. Sykes2014 NSCA 4:

[18]        I agree with the comments of Doherty, J.A. in R. v. Bernardo1997 CanLII 2240 (ON CA), (1997), 121 C.C.C. (3d) 123 (Ont. C.A.) that to go any further than a determination of whether there is an arguable case would be unfair to the appellant.  He observed:

[22]  In deciding whether counsel should be appointed, it is appropriate to begin with an inquiry into the merits of the appeal. Appeals which are void of merit will not be helped by the appointment of counsel. The merits inquiry should not, however, go any further than a determination of whether the appeal is an arguable one. I would so limit the merits inquiry for two reasons. First, the assessment is often made on less than the entire record. Second, any assessment beyond the arguable case standard would be unfair to the appellant. An appellant who has only an arguable case is presumably more in need of counsel than an appellant who has a clearly strong appeal.

[19]        Therefore, it is my view that the appropriate threshold in doing a merits assessment is an arguable issue.  To the extent Grenkow suggests otherwise, that reasoning has been overtaken by more recent cases.

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