No right to appeal an order declining request to fund an appeal: court

Where no right of appeal is given, none exists

No right to appeal an order declining request to fund an appeal: court
Appointing state-funded counsel is discretionary

The Court of Appeal for Ontario has ruled that an applicant has no right to appeal the dismissal of an order declining an applicant’s request to fund an appeal.

In R. v. J.M., 2021 ONCA 735, the appellant appealed his sexual assault conviction and sought funding for his appeal from the Legal Aid Ontario (LAO). The LAO declined the appellant’s request to fund the appeal. The appellant sought an order to have counsel assigned to act on his behalf on his appeal from conviction but was dismissed by the chambers judge.

The appellant sought an order quashing the chambers judge’s order and directing that counsel be appointed to act on the appellant’s behalf. In doing so, he invokes the right of appeal citing the Criminal Code R.S.C., 1985, c. C-46, the Courts of Justice Act RSO 1990, c C.43, the Criminal Appeal rules, and Practice Directions as possible sources.

However, after considering these different sources, the Court ruled that the appellant does not have the right of appeal. “The right of appeal is an exceptional right … where no right of appeal is given, none exists,” said the Court. Further, while the Criminal Code permits a court of appeal to make rules of court not inconsistent with the criminal code, this rule-making authority cannot be invoked to extend the substantive jurisdiction of the court, it said.

Neither does a panel of judges have authority to “review” the order of a single judge on whether an order for state-funded counsel is desirable in the interests of justice, since under the Criminal Code, a judge or panel of judges have concurrent jurisdiction over the same, said the Court.

“[We] are satisfied that there is no right of appeal or other review from the chambers judge refusing to direct the appointment of state-funded counsel,” said the Court.

Further, assuming the right of appeal was available, the Court said that it would still deny the motion. The appellant asserts no change in circumstances from the time of the dismissal of the application before the chambers judge and before this Court. The appointment of state-funded counsel is discretionary, and the applicable standard is the “interests of justice” standard, said the Court.

The interests of justice test “involves the exercise of a case-specific discretion which is subject to substantial deference on appeal absent any error of law or principle, misapprehension of material evidence, or a decision that is plainly unreasonable,” said the Court. In this case, the Court ruled that the appellant failed to meet this test.

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