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Representation - State-funded Counsel. United States v. Georgiou
In United States v. Georgiou (Ont CA, 2026) the Ontario Court of Appeal dismissed an extradition-related appellate application, here where the appellant sought "state-appointed counsel or amicus and a stay until counsel or amicus is appointed to prevent a miscarriage of justice" - and the underlying proceeding was "leave to appeal to this court under s. 35 of the Mutual Legal Assistance in Criminal Matters Act":A. The Governing Principles
[6] Because Mr. Georgiou has not been charged under the Criminal Code, R.S.C. 1985, c. C-46, this is not an application for the appointment of counsel under s. 684 of the Code. However, the principles governing the appointments of lawyers under that section provide helpful guidance to me in the exercise of my discretionary and inherent power to ensure a fair process, adapting this court’s holding in R. v. Rowbotham, 1988 CanLII 147, 41 C.C.C. (3d) 1 (Ont. C.A.), at paras. 165-69, and the Supreme Court’s considerations in Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, as to the appointment of state-funded amicus, as applied in R. v. Imona-Russel, 2019 ONCA 252, 145 O.R. (3d) 197, at para. 74: see also Morwald-Benevides v. Benevides, 2019 ONCA 1023, 148 O.R. (3d) 305, at para. 25. While Rowbotham did not address whether the court could order state funding of counsel, the court in Criminal Lawyers’ Association held that such funding is available in the appropriate case.
[7] The issue for me to resolve is whether it is appropriate in this case to appoint state-funded counsel or amicus to assist Mr. Georgiou in his effort to obtain leave to appeal and beyond.
[8] Section 684(1) of the Code provides: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. [9] To appoint counsel, in addition to finding that the accused has insufficient means, the court must be satisfied, in the words of s. 684(1), that “it appears desirable in the interests of justice that the accused should have legal assistance.” The onus is on the applicant to establish that desirability: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 31. In Abbey, Watt J.A. observed, at para. 29, that the phrase “the interests of justice” is a “legal chameleon that takes its meaning from its surroundings” and explained that it “contemplates a judicial discretion exercisable on a case-by-case basis,” citing para. 16 of R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.).
[10] The elements of the test under s. 684(1) of the Criminal Code were summarized in R. v. Staples, 2016 ONCA 362, 352 O.A.C. 392, at para. 34:1. Does the applicant have the means to hire counsel privately?
2. Does the applicant have arguable grounds of appeal?
3. Is the applicant able to effectively advance the appeal without the assistance of counsel
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