Procedure on Appeals

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PROCEDURE ON APPEALS



684. (1) Legal assistance for appellant - 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) Counsel fees and disbursements - 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.
(3) Taxation of fees and disbursements - Where subsection (2) applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court of appeal and the registrar may tax the disputed fees and disbursements.
R.S., 1985, c. C-46, s. 684; R.S., 1985, c. 34 (3rd Supp.), s. 9.

*Judicial Consideration* -

Re White and The Queen - (1977) 32 CCC (2d) 478 (Alta SC)
	- It is doubted that there is any significance to Parliament having expressly given power to the Court of Appeal but not to trial courts to appoint counsel, for the following reasons:

		"The power was first expressly given to the Court of Appeal in 1923 by 1923 (Can.), C41, at which time it was found in s1021A(1). This provision was introduced as part of a legislative package which generally introduced a new appeal procedure to replace the previous provisions of the Criminal Code pursuant to which the right to appeal from conviction was limited to a case stated on a question of law. The 1923 legislation introduced new appeal provisions which, as the editor of Tremeear's Annotated Criminal Code, 4th ed (1929), observed at p1362, "generally are adopted from the English statute of 1907, ch23", That statute was the Criminal Appeal Act, 1907 (UK), c23, which created the English Court of Criminal Appeal, What is now s611 of the Criminal Code of Canada was in 1923 taken almost verbatim from s10 of the Criminal Appeal Act, 1907. This, then being the historical context of the birth of the pre- sent s611, it is not surprising that the Criminal Code expressly gives to a Court of Appeal the power to appoint counsel, without mentioning the trial Courts. In enacting the predecessor of s611 in 1923, Parliament was concerned only with the powers the Courts of Appeal should have, ancillary to their new statutory jurisdiction. From the enactment of the predecessor of s611 it is not possible to draw the inference that Parliament tacitly was negating the existence of any power which then existed or might in the future exist on the part of the accused to apply to a Judge of any of the trial Courts of any Province for the appointment by the Court of counsel to represent him."

	When an accused asks a court, including a provincial court, to appoint counsel to represent his interests at his trial, the judge must consider the request and take into account all relevant considerations, some of which are as follows:

		"1 Is the accused not in a position financially to retain counsel himself? It is true that this inquiry may be a difficult one, but no more difficult than many other matters a Court is required to inquire into without the assistance of counsel. The Judge may wish the accused to swear under oath, orally or by affidavit, as to his financial circumst 2 Is the case one in which the Legal Aid Society may grant a legal aid certificate? If so, an adjournment may be granted to enable the accused to apply to the Society. 3 What is the educational level of the accused? Apart from formal education, are there other reasons for which it can be said that he is competent to defend himself without counsel? For example, does he have the language skills which would enable him to express himself adequately in the English language? 4 Does the case appear to be complex in the sense of raising any question of fact or of law as to which an accused is likely to be at a significant disadvantage if he is unrepresented by counsel? 5 Does the case appear to be one raising any question of fact or of law as to which without the benefit of counsel an accused is likely to find it difficult to marshall relevant evidence? 6 Is the case one which may result in the imprisonment of accused, in the event of conviction? There may well be other relevant considerations which should be considered in the circumstances of a particular case."

	When such an application is made by an accused and the judge fails to exer. cise the discretion available to him as required by law to the extent that he fails to take into account a relevant consideration or where the judge fails to exercise his discretion according to law in the sense that the ground upon which he exercised his discretion was erroneous and was, therefore, an ex. traneous consideration, an order in the nature of mandamus will lie to require either one judge or the other to exercise his discretion according to law. The rationale of the power of a court to appoint counsel remains the same whether it is in the Court of Appeal, the Supreme Court or the provincial court.



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