



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary
    conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.C., 2014 ONCA 577

DATE: 20140812

DOCKET: M43452 (C56813)

Weiler, Feldman and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.C. (A Young Person)

Applicant (Appellant)

John R. Mann III, for the applicant

J. Sandy Tse, for the respondent

Heard: April 23, 2014

On an application for a declaration that s. 684(1) of the
Criminal Code
violates the applicants rights under the
Charter of
    Rights and Freedoms
and is of no force and effect.

Weiler J.A.:



A.

overview

[1]

The accused, a young offender at the time, was tried by a judge and jury
    and found guilty of manslaughter. He wishes to appeal his conviction but lacks
    the resources to retain counsel.

[2]

Section 684(1) of the
Criminal Code
,

R.S.C., 1985, c.C-34
    gives a judge the discretion to appoint counsel for an indigent accused on
    appeal, where it appears desirable in the interests of justice.

[3]

The accused submits that an indigent person has an automatic right to
    state funded counsel for a first appeal especially when he is subject to
    imprisonment. In addition, the accused submits that any prerequisite on him to
    show that the appeal has some merit offends his
Charter
rights
[1]
.
    He relies specifically on ss. 15 (right to equal benefit and protection of the
    law), 10(b) (the right to counsel on arrest or detention), 7 (right to life,
    liberty, and security of the person and the right not to be deprived thereof
    without due process of law), and 11(d) (right to a fair trial).

[4]

For the reasons that follow I would dismiss the appeal and uphold the
    constitutionality of s. 684. Because the accuseds 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 appellants submission, s. 684 does not undermine an accuseds
Charter
right to fair treatment; it enhances them.

B.

Background

[5]

At his trial, the accused had the benefit of assistance from two legal aid-funded
    counsel. In addition, he required the assistance of an interpreter throughout
    the trial. Following his conviction, the accused filed a notice of appeal and
    applied for legal aid to fund his appeal. His request was denied on the basis
    of lack of merit. His appeal from that decision was also denied.

[6]

The accused then brought a motion to have counsel appointed for him to
    argue his appeal pursuant to s. 684(1). The Crown conceded that the second
    requirement of s. 684(1) was met, as the accused does not have sufficient means
    to retain counsel.

[7]

The Crown submitted, however, that the accused had failed to satisfy the
    first requirement of showing that it appeared desirable in the interests of
    justice that the accused should have legal assistance. In support of this
    submission, the Crown asserted that the accused must show that the appeal has
    merit in the sense of being an arguable appeal. The Crown relied on the
    decision of Doherty J.A. in
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123
    (Ont. C.A.), at para. 22, that it was appropriate for the court to begin with
    an inquiry into the merits of the appeal to determine whether the appeal was
    arguable. The Crown also relied on Doherty J.A.s comment, at para. 22, that [a]ppeals
    which are void of merit will not be helped by the appointment of counsel. In
    support of its position, the Crown filed the reports refusing the accused legal
    aid for his appeal.

[8]

The motions judge dismissed the application for the appointment of
    counsel pursuant to s. 684(1). The accused also requested that the transcripts
    of the trial necessary for the appeal be produced at public expense, and this
    request was granted.

[9]

The accused now challenges the constitutionality of s. 684 of the
Criminal
    Code
.

C.

analysis

[10]

Section
    684(1) provides:

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.

(1)

Section 15

[11]

The
    accused argues that because persons with means can hire counsel for an appeal
    irrespective of whether the appeal has merit, indigent accused should have the
    same right.


[12]

Section
    15(1) gives every individual a guarantee of equality before and under the law
    as well as the right to equal protection and equal benefit of the law without
    discrimination. The grounds of discrimination enumerated in s. 15(1) are not
    exhaustive. Discrimination on grounds analogous to those set out in s. 15(1),
    generally discrimination on the basis of irrelevant personal characteristics, is
    also prohibited:
Andrews v. Law Society of B.C.
[1989] 1 S.C.R. 143 at
    p. 165.

[13]

The
    accuseds argument was directly addressed by the Alberta Court of Appeal in
R.
    v. Robinson
(1989), 51 C.C.C. (3d) 452 (Alta. C.A.) which held that the
Charter
did not require an automatic right to publicly funded counsel for an accuseds
    appeal. In relation to s. 15, the court held, at p. 485, that:

The Canadian public would hardly class as discriminatory social
    schemes that make public legal assistance available to the deserving. Quite the
    reverse.



If, somehow, the inability to pay for advocacy can be an
    irrelevant personal characteristic and therefore, discriminatory, then section
    684 and the other legal aid schemes combat it.

[14]

I
    agree with these comments. Section 684 is an ameliorative program that falls
    within s. 15(2) of the
Charter
. Even assuming that poverty is an
    analogous ground for the purposes of s. 15  an argument that this court
    rejected in
R. v. Banks
, 2007 ONCA 19, 84 O.R. (3d) 1, leave to appeal
    to S.C.C. refused, [2007] S.C.C.A. No. 139  s. 684 remedies any disadvantage suffered
    by low-income appellants by supplying them with state-funded counsel provided it
    is desirable in the interests of justice to do so. A remedial program need not
    assist all members of a disadvantaged group:
Alberta (Aboriginal Affairs
    and Northern Development) v. Cunningham
, 2011 SCC 37, [2011] 2 S.C.R. 670,
    at para. 41. Therefore, the fact that s. 684 does not provide state-funded
    counsel for all indigent accused does not mean that it automatically violates
    the
Charter
. I would dismiss the applicants challenge on the basis of
    s. 15.


(2)

Sections 10(b), 11(d) and 7 of the
Charter

[15]

In
    interpreting the rights and freedoms guaranteed by the
Charter
, the
    proper approach is to adopt a purposive analysis:
R. v. Big M. Drug Mart
    Ltd.,
[1985] 1 S.C.R. 295. The purpose of s. 684 is to provide counsel for
    an indigent accused person on a case-specific basis where it is in the
    interests of justice to do so.

[16]

Section
    10(b) gives a person the right to retain and instruct counsel upon arrest or
    detention. I am not aware of any Canadian jurisprudence holding that s. 10(b)
    has application on an appeal. The s. 10(b) right has two main purposes: to
    ensure individuals who are arrested or detained are informed of their legal
    rights and obligations, and to permit them to obtain information about how to
    exercise those rights:
R. v. Manninen
, [1987] 1 S.C.R. 1233, at pp.
    1242-43. In so doing, s. 10(b) aims to foster the principle of adjudicative
    fairness by ensuring the accused is treated fairly:
R. v. Brydges
,
    [1990] 1 S.C.R. 190, at p. 203.

[17]

This
    concept of fairness also underlies the guarantees in ss. 7 and 11(d) of the
Charter
.
    For example, s. 7 guarantees a fair process, having regard to the nature of
    the proceedings at issue:
United States of America v. Ferras
, 2006
    SCC 33, [2006] 2 S.C.R. 77, at para. 14. Similarly, the right to a fair trial
    in s. 11(d) recognizes the vital importance in ensuring that the state
    treat each individual in accordance with basic principles of decency and fair
    play:
R. v. Burlingham
, [1995] 2 S.C.R. 206, at para. 86. Thus,
    together, ss. 10(b), 7 and 11(d) promote fair treatment of the accused, from
    the point of arrest or detention and throughout his or her interactions with
    the criminal justice system.

[18]

Robinson
points out that the
Charter
does not contain specific reference to
    appeals. I do not read
Robinson
as saying the fact that there is no
    constitutionally protected right of appeal does not mean that the
Charter
has no application to s. 684. As I have said, ss. 10(b), 7 and 11(d)
    together protect an accuseds right to fair treatment from the point of arrest
    or detention through to the end of the adjudicative process. The liberty
    interests protected by s.7 would also encompass appeals. Moreover, to the
    extent the phrase the interests of justice in s. 684 is considered to be
    ambiguous, any ambiguity in a statute must be resolved in light of
Charter
values:
Bell ExpressVu Limited Partnership v. Rex
, 2002 SCC 42, [2002]
    2 S.C.R. 559, at paras. 62-64. The
Charter
s silence respecting the
    right to an appeal therefore does not mean that the underlying value of fair
    treatment of an accused enshrined in the
Charter
does not apply to
    appeals.

[19]

An
    indication of what the international community considers to be fair treatment
    towards an indigent accused is contained in Article 14 of the International
    Covenant on Civil and Political Rights, 999 U.N.T.S. 171, to which Canada is a
    signatory. Article 14 guarantees the right of a person accused of criminal
    charges to have legal assistance assigned to him, in any case where the
    interests of justice so require, and without payment by him in any such case if
    he does not have sufficient means to pay for it. The phrase the interests of
    justice mirrors that used in s. 684 and mandates an individual case-specific
    approach. A factor to consider in deciding whether s. 684 is constitutional is
    the the fact that the international community, and Canadas obligations as part
    of that community, do not automatically require state-funded counsel for all
    indigent accused persons facing criminal proceedings. See by analogy
R. v.
    Stucky
, 2009 ONCA 151, 240 C.C.C. (3d) 141,

at paras. 37, 42,
    leave to appeal to S.C.C. granted, [2009] S.C.C.A. No. 186 (appeal subsequently
    abandoned); and
R. v. Keegstra
, [1990] 3 S.C.R. 697, at pp. 733-34.

[20]

Our
    court has held that in the context of a trial, an indigent accused has no
    automatic right to be provided with publicly funded counsel but, in cases not
    falling within provincial legal aid plans, ss. 7 and 11(d) may require the
    appointment of counsel if that is necessary for a fair trial
[2]
:
R. v. Rowbotham
(1988), 41 C.C.C. (3d) 1 (Ont. C.A.), at p. 66.

[21]

In
    asserting that the
Charter
gives an indigent accused an automatic
    right to state funded counsel without a preliminary showing of merit on an
    appeal, the accused relies on jurisprudence respecting the Sixth Amendment to
    the United States Constitution and decisions such as
Gideon v. Wainwright,
372
    U.S. 335 (1963);
Douglas v. California,
372 U.S. 353 (1963);
Miranda
    v. Arizona
, 384 U.S. 436 (1966); and
Argersinger v. Hamlin,
407
    U.S. 25 (1972).

[22]

This
    American jurisprudence has already been considered in
Rowbotham
and
    rejected as inapplicable to the Canadian context, partly on the basis of the
    comprehensive legal aid plans in each province. The Supreme Court has also
    emphasized the importance of the legal aid and duty counsel systems in carrying
    out the purposes of s. 10(b):
Brydges
, at pp. 206-14. In addition,
Rowbotham
recognizes that on a case-specific basis the appointment of counsel may be
    required under the
Charter.

[23]

Thus,
    unlike the American jurisprudence, the
Charters
s. 11(d) fair trial
    jurisprudence requires a case-specific determination of whether the assistance
    of counsel is essential to maintain a constitutionally appropriate level of
    fair treatment of an accused. It makes no sense to suggest that an accused can
    have a constitutionally fair trial without a lawyer, but that a
    constitutionally fair appeal without a lawyer is impossible. In interpreting a
    statute, courts are reluctant to accept interpretations that violate legal
    norms such as rationality and coherence. Ruth Sullivan,
Sullivan on the
    Construction of Statutes
, 5
th
ed. (Markham: LexisNexis, 2008),
    at p. 8. Sullivans conclusion applies equally to the interpretation of rights
    under the
Charter
.



[24]

Robinson
also rejected the American jurisprudence on which the appellant relies. The
    accused seeks to distinguish
Robinson
on the basis that [t]he Alberta
    Court of Appeal did not address the conflict raised here between the express
    language of section 10(b) with section 684 of the
Criminal Code
. I
    disagree that
Robinson
can be distinguished on this basis. The accused
    in
Robinson
initially sought the appointment of counsel under s. 684(1),
    and the issue before the court was whether, when ss. 7, 10(b), 11(d) and 15 of the
Charter
are considered, s. 684(1) is unconstitutional. That is
    precisely the question before this court.

[25]

The
    Crown concedes that ss. 7 and 11(d) of the
Charter
give an indigent
    accused the right to counsel in certain circumstances but submits that a
    preliminary showing of merit is always necessary. The Crown states that:

Sections 7 and 11(d) of the
Charter
only demand that counsel
    be provided where it is necessary to ensure a fair trial or appeal. As noted by
    this Court in
Bernardo
"Appeals which are void of merit will
    not be helped by the appointment of counsel.

[26]

The
    Crowns position is too narrow. I say this for two reasons. First, Doherty J.A.
    noted that he was not dealing with the constitutionality of s. 684(1).
    Therefore, the Crown cannot use his comments as determinative of the
    constitutional issue before this court. Second, the interests of justice
    involve other considerations besides the effective presentation of an appeal,
    and
Bernardo
does not cover all of the situations in which an
    application under s. 684 arises. As I will explain, the need to appoint counsel
    in order for the accuseds appeal to be fair has two aspects. 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.

[28]

In
Bernardo
,

the court was dealing with the second aspect of an
    appeal  the presentation or argument of the appeal itself. The grounds of
    appeal had been determined. As this was the second request to appoint counsel,
    the court had the benefit of an expanded record as well as an opinion with
    respect to the merits of the appeal from a well-regarded defence counsel. On
    the initial application to appoint counsel under s. 684, the motion judge did
    not find the appeal to be frivolous and the Crown had not suggested otherwise. The
    question was whether the appellant required the assistance of counsel to
    effectively present the grounds of appeal.

[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.
For example, to make out a breach of
    the s. 7 right to make full answer and defence under the
Charter
on the ground of lost evidence, the
    accused must establish actual prejudice:
R. v. La,
[1997] 2 S.C.R. 680.  Thus, there is a balancing of
    the accuseds right to fair treatment against the states interest in effective
    and efficient conclusion of litigation. Similarly, in
R. v.
    Hebert,
[1990] 2 S.C.R. 151, the
    Supreme Court held that in determining whether an accuseds right to silence
    has been breached under s. 7, the test is essentially objective and it seeks to
    effect a balance between the respective interests of the accused and the state.

[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 courts decision under s. 684(1) is
    not in any way a review of the correctness of Legal Aids decisions:
Bernardo
,
    at para. 4.

[32]

Second,
    unlike legal aid, the cost of assigning counsel cannot affect the courts
    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.

[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, counsels opinion respecting the legal issues will go a
    long way towards ensuring that any arguable issues are raised for the courts
    consideration. This assistance helps ensure that the accuseds exercise of his
    right of appeal is meaningful.

[34]

The
    assistance of legal aid funded counsel may also include assistance in preparing
    an affidavit to address the various criteria relevant to whether the accused
    can meaningfully exercise his right of appeal and effectively present it. In
    addition to information respecting the accuseds means, a non-exhaustive list
    of relevant considerations includes the seriousness of the charge of which the
    accused was convicted; the sentence he received; his age, education, and ability
    to speak, understand and write English or French; any disability he has; his
    familiarity or lack thereof with the criminal justice system; the length of the
    trial; the complexity of the appeal; the legal principles engaged; and the
    appellants ability or lack thereof to effectively relate them to the facts of
    the case. The fact that the accused is a youthful offender is also a factor of
    concern:
Robinson
, at p. 461.

[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 judges 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.

[36]

Indeed,
    it may be that in this case, although the accuseds motion to have counsel
    appointed pursuant to s. 684 was dismissed, a renewed application would
    succeed. The accuseds counsel has chosen to continue to represent him and is
    to be commended for doing so. I understand that the trial transcripts have been
    obtained and a full appreciation of the record can now be had. If he renews his
    s. 684 motion, it may be that, on the basis of the expanded record, an
    arguable issue or issues have been raised. Based on the issues disclosed by the
    expanded record, the court may decide that the accused is unable to effectively
    present his appeal without the assistance of counsel, having regard to the
    serious crime of which the accused was convicted, the fact he was a young
    offender at the time, his inability to communicate in English except through an
    interpreter, and his lack of familiarity with the legal system and its
    principles.

[37]

For
    the reasons I have given, I would dismiss the accuseds application to declare
    s. 684(1) unconstitutional.

Released: August 12, 2014

(KMW)                                                                    
    Karen M. Weiler J.A.

I agree K. Feldman J.A.

I agree C.W. Hourigan J.A.





[1]

Canadian Charter of Rights and Freedoms
, Part I of the
Constitution Act, 1982
,
    being Schedule B to the
Canada Act 1982
(U.K.), 1982, c. 11.



[2]
The Crown took the position that the holding in
Rowbotham
is binding on
    this court unless and until a five-judge panel holds otherwise: see
R. v. Docherty
, 2012 ONCA 76, 292 C.C.C.
    (3d) 465, at para. 43, leave to appeal to S.C.C. refused, [2013] S.C.C.A. No.
    18. The accused requested that a five-judge panel hear his application, but
    that request was denied.


