Appeal Court case shows uneven playing field for unrepresented appellants, say lawyers

Faced with a relentless rise in self-represented litigants, two criminal defence lawyers are questioning why the process of obtaining state-funded legal representation for impoverished clients seeking to appeal their convictions remains so difficult — and is often further complicated by the Crown.

“This is a symptom of an endemic problem with the lack of funding of indigent defence,” lawyer Anthony Moustacalis of Toronto-based Anthony Moustacalis & Associate told The Lawyer’s Daily, referring to a recent experience with an application under s. 684 of the Criminal Code for court-appointed counsel on an appeal.

In a Sept. 18 Ontario Court of Appeal decision in R. v. Campbell 2020 ONCA 573, Moustacalis and co-counsel Christen Cole successfully argued for a government-funded lawyer for their client, Andrew Campbell, who is appealing his November 2018 convictions for kidnapping, pointing a firearm and assault causing bodily harm. Campbell is currently serving a seven-year jail sentence, less credit for pretrial custody and time spent on restrictive bail conditions.

Under a s. 684 application, the appellant bears the burden of proof and the three-part test begins with the court considering the merits of the appeal. But because the record is often incomplete at the time of the application, the applicant need only satisfy the court that the proposed grounds of appeal are arguable, noted Appeal Court Justice C. William Hourigan, acting as application judge. As a precedent, he pointed to R. v. Bernardo [1997] O.J. No. 5091.

The next component of the interests of justice analysis looks at the complexity of the arguments and whether the appellant can advance the appeal — or the court can decide on it — without the assistance of counsel.

The final step of the s. 684 test considers financial eligibility, the decision stated, and balances the government’s limited financial resources to fund legal representation with the interests of justice and the appellant’s fair appeal rights. Justice Hourigan cited R. v. Le 2016 ONCA 798 as an example.

The appellant must be clear and transparent in disclosing his or her financial affairs, and “the court must be satisfied that he or she has exhausted all other means of paying for counsel,” he wrote.

In a sworn affidavit, Campbell said he had earned less than $11,000 a year since 2013 and had exhausted financial assistance from his mother and aunt. The Crown argued that Campbell was not credible and that one of his cousins might be able to give him money for a lawyer.

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.