Ontario Criminal


Accused not entitled to state-funded counsel

Accused brought two applications: “Rowbotham Application” and “s. 684(1) Application”. Both applications sought order that agency, Attorney General of Ontario on Rowbotham Application and Legal Aid Ontario on s. 684(1) Application, provide funding for counsel for accused in respect of his appeals from his convictions for assault and mischief. Accused now alleged his ss. 7 and 11(d) rights had been violated, as Legal Aid Ontario had refused to grant certificate for counsel for his appeal. Crown conceded that first and second portions of Rowbotham test had been satisfied by accused. Argument on this application therefore focused on part three of test: whether or not this appeal involved serious charges that presented in factually and legally complex manner such that accused could not have fair appeal without assistance of counsel. Application dismissed. Plain reading of s. 684(1) indicated that it only creates jurisdiction for judges sitting as Ontario Court of Appeal justices to have such authority to entertain s. 684(1) type applications. Court was not sitting in that capacity. Accused’s appeal was neither complex and did not involve serious charges within context of Rowbotham application. Although there had been delays in appeal to date they were largely product of accused’s own conduct and not inherent complexity. Accused’s arguments concerning denial of Legal Aid at first instance did not relate at all to merits of his appeal, complexity of matters raised in appeal, nor seriousness of charges faced by accused. Accused’s appeal involved straightforward matter and accused was not facing sufficiently serious consequences to require Charter remedy of requiring state to provide funding for counsel. Accused could proceed to have fair appeal without assistance of counsel paid for by state.

R. v. Schell (Mar. 26, 2015, Ont. S.C.J., F. Bruce Fitzpatrick J., File No. Thunder Bay CR-13-0085-AP) 120 W.C.B. (2d) 311.

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