
But “I found those submissions speculative and I am satisfied that the appellant does not have the means to retain counsel,” ruled Justice Hourigan. “The appellant has met his onus on the test for a s. 684 order and the application is granted.”
It’s not unusual for the Crown to oppose s. 684 applications because appointing government-funded counsel is considered exceptional, said Moustacalis. But the barriers that impoverished accused and appellants must overcome to obtain legal representation can be daunting.
Prior to his trial, Campbell was rejected by Legal Aid Ontario as ineligible, but succeeded in obtaining government-funded representation through a Rowbotham application, which is similar to a s. 684 application on appeal.
It’s not unusual for the Crown to oppose s. 684 applications because appointing government-funded counsel is considered exceptional, said Moustacalis. But the barriers that impoverished accused and appellants must overcome to obtain legal representation can be daunting.
“Here we were fighting the same battle again with legal aid after an earlier trial decision said that … he wasn’t eligible,” explained Moustacalis. “And unfortunately somebody who has an appeal with merit is forced to rely on the good graces of finding a lawyer that will bring this application at their own expense because it’s not guaranteed that we’re going to be covered for the time and the expenses that we had with this application.”
Working pro bono, lawyers who agree to take on a s. 684 application face an additional challenge, noted Cole. The three-part test necessitates that the appeal has some merit for it to be in the interests of justice to fund counsel for the appellant. But obtaining the full trial record can be prohibitively expensive. The task is difficult for a trained lawyer, and virtually impossible for a self-represented litigant.
“If they don’t have a complete record in front of them,” she explained, “if they don’t have a lawyer there to frame it properly, to argue it property, then it makes if very difficult for the court to properly assess merit.
“So it’s difficult on these applications to try to accurately and fully represent the grounds of appeal,” she added. “At this stage, the court may say the grounds of appeal aren’t particularly strong. But on a more full record, on a complete record, they may well conclude differently.”
In the Campbell application, as is typically the case, Cole and Moustacalis said they had to rely on trial transcripts that were selectively ordered by the Crown, so they were left only with the judge’s charge to the jury and transcripts of the testimony by two out of 12 witnesses. Now that they’ve been appointed for the appeal, they will have access to all the transcripts.
Moustacalis said in a number of other countries, including the United States, an appeal is funded as a matter of right if the prospective appellant meets the financial eligibility requirements.
“The potential tragedy of this case,” he said, “is here’s someone who said, ‘I’m innocent, I testified, I did my side of the story, I don’t like some of the things that were said to the jury because I think they were misleading, and there were some other mistakes that were made in the case. I need a lawyer to assist me.’
“And it’s a very difficult process to get to that under the present system,” he added. “And this process was meant to be a safeguard because it assumed there would be a more robust legal aid process. Now that the legal aid process is not as strong as it used to be because of the decline in federal government payments and cuts provincially, it becomes a very challenging process for someone to get a review of their conviction.”
At the Sept. 23 Opening of the Courts of Ontario ceremony, the chief justices of the province’s three levels of court called on the federal and provincial governments to invest more in legal aid.
“When litigants are unrepresented and unsupported,” said Ontario Court of Appeal Chief Justice George Strathy, “the justice system slows to a crawl, valuable resources are drained, and other cases are held back. More important, the most vulnerable members of society, those whom our justice system purports to protect, are further victimized because their playing field is uneven.”
Lorne Goldstein, a partner and specialist in criminal law with Ottawa-based Abergel Goldstein & Partners LLP, said most trial Crowns he knows want the accused to have a lawyer. The motivation to oppose Rowbotham and s. 684 applications may be more political than legal, he suggested.
“There’s no political gain for funding criminals,” he told The Lawyer’s Daily. “This [Campbell] was an example of a particular odious opposition. To make the submission that he has to go down the entire family tree and you should do a search on Ancestry.ca before the Crown will concede that you’ve exhausted all funding possibilities is silly.”
In our adversarial judicial system, argued Goldstein, your adversary should not have the right to decide whether you, as the accused, get counsel.
“That’s not an even playing field,” he observed. “And the judge in this case said very clearly it’s a low standard, quite properly.
“So I don’t know if defence lawyers have much to take from this decision — it’s what we already knew,” he added. “But I think it’s a decision that should be considered by prosecutors to remind them that they are not the guardians of the minister’s wallet and they should be very, very reluctant to oppose an even playing field — and that means having experienced counsel.”
Lorna Bolton, the Crown attorney in the application, referred a request for an interview to the Ministry of the Attorney General’s communications department. A spokesperson for the Ministry, Maher Abdurahman, declined to comment, saying it would be “inappropriate” because the case is before the courts.
Article originally published in The Lawyer’s Daily, September 29, 2020 by John Schofield. View original post.