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Ontario and Canada
Appeal Court Dicta

Criminal - Court-Appointed Representation

. R. v. Diehl

In R. v. Diehl (Ont CA, 2023) the Court of Appeal considers a CCC s.684 'court-appointed representation' application:
[6] To succeed on an application under s. 684 of the Criminal Code, an applicant must establish on a balance of probabilities that he does not have “sufficient means” to obtain legal assistance, and that “it appears desirable in the interests of justice” that counsel be appointed. The first element of the test is met in this case. Legal Aid Ontario was satisfied that the applicant did not have the means to retain private counsel and the respondent does not seek to challenge that determination for the purposes of the s. 684 application.

[7] Respecting the “interests of justice”, the applicant must show that: (a) the appeal is “arguable”; and (b) it is “necessary” that counsel be appointed. In assessing necessity, the court considers whether the applicant is capable of advancing the grounds of appeal without a lawyer, and whether the court will be able to adjudicate the appeal without the assistance of defence counsel: R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 105 O.A.C. 244, 121 C.C.C. (3d) 123 (C.A.), at paras. 22-24; R. v. Brown, 2018 ONCA 9, at para. 8.
. R. v. Hurren

In R. v. Hurren (Ont CA, 2022) the Court of Appeal considered the CCC provision [s.684] which addresses court appointment of counsel for an appeal:
B. Governing Principles

[18] The governing principles underlying a s. 684 application were aptly stated by Hourigan J.A. in R. v. Campbell, 2020 ONCA 573, at paras. 3-5:
[3] Pursuant to s. 684 (1), this court has the authority to assign counsel to act on an appellant’s behalf if, in its opinion, it appears both:

(i) desirable in the interests of justice that the appellant should have legal assistance; and

(ii) the appellant does not have sufficient means to obtain that assistance: R. v. Staples, 2016 ONCA 362, at paras. 31-32, reconsideration allowed, R. v. Staples, 2017 ONCA 138.

[4] Two general principles applicable to s. 684 applications are worth noting. First, an order for government-funded counsel is exceptional relief: Staples, (2016), at para. 40. Second, the appellant bears the burden of proof on a s. 684 application: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 31.

[5] As part of the analysis of the interests of justice component of the test, the court should consider the merits of the appeal on the basis of the record. Put simply, appeals that are devoid of merit will not be helped by appointing counsel. Given that the record is often incomplete at the time of the application, this is not a probing examination of the merits: R. v. Adams, 2016 ONCA 413. Rather, the applicant need only satisfy that the court that the proposed grounds of appeal are arguable: see R. v. Bernardo, (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.).


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