In her August 12, 2014 decision, R. v. P.C., Justice Weiler, for a unanimous Ontario Court of Appeal, rejected an accused’s argument that he had an automatic right to state-funded counsel for a first appeal in a criminal case and that any obligation upon him to show that his appeal had some merit offended the Charter. In doing so, she also gave a comprehensive overview of when s. 684(1) of theCriminal Code will lead to a conclusion that it is in the “interests of justice” for an appellate court to appoint counsel for an accused. In overview, she held:

[4]        Because the accused’s liberty interests are affected, s. 7 gives him the right to state funded counsel where it is essential to ensure the exercise of his right of appeal is both meaningful and effective. This determination is made on a case-specific basis. The fact that s. 684 does not give an accused person an automatic right to publicly funded counsel in all cases does not violate the Charter of Rights and Freedoms. Contrary to the appellant’s submission, s. 684 does not undermine an accused’s Charter right to fair treatment; it enhances them.

After a trial where he was represented by legal aid-funded lawyers, the accused appealed his convictions, but his legal aid request was turned down due to lack of merit in his appeal. He then made a motion to have counsel appointed pursuant to s. 684(1) of the Criminal Code, which allows the Court of Appeal to appoint counsel if it is “desirable in the interests of justice that the accused should have legal assistance” and the accused lacks funds to retain counsel. The motions judge did not make the order, finding that the appeal had no merit, and it is accepted that appointing counsel to argue meritless appeals is not in the interests of justice. The accused then argued that the legislation offended ss. 7, 10(b), 11(d) and 15 of the Charter.

With respect to s. 15 (equality rights), Weiler J.A. clearly doubted that distinctions based on economic situation fell within the ambit of s. 15 of the Charter (the Ontario Court of Appeal has previously rejected “poverty” being an “analogous ground” akin to marital status, citizenship, or sexual orientation within the meaning of s. 15). But in any event, s. 684(1) assists those in poverty – it does not discriminate against them, and therefore does not offend s. 15, instead falling within the ambit of s. 15(2) of the Charter (which concerns ameliorative programs), even if it does not extend a benefit to all those in poverty.

Turning to s. 7 (the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice), s. 10(b) (the right to retain and instruct counsel upon arrest or detention) and s. 11(d) (the right to a fair trial), Weiler J.A. accepted that, though the latter two rights do not directly concern appeals, these rights, taken together, “protect an accused’s right to fair treatment from the point of arrest or detention through to the end of the adjudicative process”. She nonetheless held that s. 684(1) was constitutional:

[26]       … The accused must have a full and fair opportunity to exercise any right of appeal he has and he must be able to effectively present it.

[27]       As a preliminary step, meaningful exercise of a right of appeal may, in exceptional circumstances, require the appointment of counsel to assist an accused in ascertaining whether he has identified an arguable ground of appeal. When this is the case at the time of a s. 684 application, the motion judge can appoint counsel for that limited purpose: see e.g. R. v. J. N., 2013 ONCA 251, 305 O.A.C. 175.

[29]       Once the grounds of appeal have been ascertained and the question is whether to appoint counsel under s. 684 for the purposes of effectively presenting the appeal, the appeal must be arguable. In this context, the comment of Doherty J.A. in Bernardo, at para. 22, that “[a]ppeals which are void of merit will not be helped by the appointment of counsel” is a common-sense one. The accused is entitled to conduct his appeal as he sees fit. It is not unheard of for an accused to raise a ground of appeal for which there is a complete lack of support in the trial record, such as alleging that the trial judge was biased. Although the appeal does not raise an “arguable” issue, the accused can still make the submission. However, assuming the accused has the ability to have his submission communicated to the court, either directly or through an interpreter, the appointment of counsel will not assist the accused in effectively presenting his appeal. Nor will the panel hearing the appeal require the assistance of counsel in order to decide the appeal. Thus, requiring the accused to demonstrate that he has an arguable appeal does not treat the accused unfairly.

[30]       The inquiry as to whether an appeal is arguable imports an aspect of rational objectivity into the appeal process. Rational objectivity does not equate to unfair treatment of an accused and is not contrary to the Charter. … there is a balancing of the accused’s right to fair treatment against the state’s interest in effective and efficient conclusion of litigation. … [Emphasis added]

[31]       Four aspects of the manner in which s. 684 functions ensure that an accused person is treated fairly and support its constitutionality. First, the fact that legal aid has been refused is certainly not determinative of whether “the interests of justice” require counsel to be appointed.Were this so, s. 684 would be redundant. The criteria for determining whether it is “justified” to fund an appeal under the legal aid plan pursuant to s. 25(1) of the Legal Aid Services Act, 1998, S.O. 1998, c. 26, are not the same as those considered under s. 684(1) in determining whether “the interests of justice” require the appointment of counsel. Second, the court’s decision under s. 684(1) is not in any way a review of the correctness of Legal Aid’s decisions: Bernardo, at para. 4. [Emphasis added]

[32]       Second, unlike legal aid, the cost of assigning counsel cannot affect the court’s determination under s. 684(1) because “the costs associated with the appointment of counsel must be accepted as the price of the proper administration of justice.” Bernardo, at para. 28. [Emphasis added]

[33]       Third, an indigent accused almost always has the assistance of duty counsel or legal aid-funded counsel to argue the s. 684 motion. And, as I have said, the court may in exceptional circumstances provide a limited s. 684 appointment for the purpose of assisting the accused in determining whether there are arguable grounds of appeal. If duty counsel has been asked to make the application on behalf of the accused, then, in addition to the notice of appeal, the reasons of the trial judge or the charge to the jury, duty counsel may have access to the opinion letter containing a written analysis of the grounds of appeal done for the purposes of requesting funding from legal aid for the appeal. If the accused has legal aid funded counsel for the s. 684 application, then, in addition to the record, counsel’s opinion respecting the legal issues will go a long way towards ensuring that any arguable issues are raised for the court’s consideration. This assistance helps ensure that the accused’s exercise of his right of appeal is meaningful. [Emphasis added]

[35]       Fourth, a decision on a motion pursuant to s. 684 is not a final one. The accused may ask that a panel review the motion judge’s decision refusing the appointment of counsel. An accused may also renew his application for the appointment of counsel. The decision as to whether or not to appoint counsel pursuant to s. 684 is often made on the basis of a preliminary record. If that preliminary record does not disclose any arguable grounds of appeal, the accused, with the benefit of the trial transcripts often paid for with public funds, may reapply to have counsel appointed to assist him. These procedural aspects reinforce the case-specific approach to ensuring fair treatment of an accused.  [Emphasis added]