When should counsel be appointed to prosecute a criminal appeal

R. v. Frank, 2012 NSCA 114 deals with when counsel should be appointed to prosecute a criminal appeal:

[7]            Section 684 of the Criminal Code 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.

 (2) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal.

[8]            In R. v. J.W., 2011 NSCA 76 (CanLII), 2011 NSCA 76, Fichaud, J.A. (in Chambers) summarized the  test as follows:

[11]     Under s. 684(1), literally I have two inquiries - (1) whether it is desirable in the interests of justice that J.W. have legal assistance, and (2) whether J.W. has sufficient means to obtain that assistance. R. v. Assoun, 2002 NSCA 50 (CanLII), 2002 NSCA 50, paras. 41-44. In R. v. Innocente, [1999] N.S.J. No. 302, paras. 10-12, Justice Freeman agreed with the statement of Justice Doherty in R. v. Bernardo 1997 CanLII 2240 (ON CA), (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), para 22, that, in addition, the chambers judge should be satisfied that the appellant has an arguable appeal.

[9]            It is apparent on the information Mr. Frank has provided to the Court that he lacks the means to otherwise retain counsel.  Therefore, I am only left to complete the "interests of justice analysis".  Cromwell, J.A. (as he then was) noted in R. v. Assoun,2002 NSCA 50 (CanLII), 2002 NSCA 50, this inquiry involves a number of considerations including: (i) the merits of the appeal; (ii) its complexity; (iii) the appellant's capability; and (iv) the court's role to assist.  Chief Justice MacDonald inR. v. Morton, 2010 NSCA 103 (CanLII), 2010 NSCA 103 added an additional consideration, that is, the responsibility of Crown counsel to ensure that the applicant is treated fairly (¶5).