McCotter v. Mission Institution (Warden)

2026 BCCA 107 McCotter v. Mission Institution (Warden) COURT OF APPEAL FOR BRITISH COLUMBIA Citation: McCotter v. Mission Institution (Warden), 2026 BCCA 107 Date: 20260306 Docket: CA50680 Between: William James McCotter Appellant (Applicant) And Warden of Mission Institution Respondent (Respondent) Before: The Honourable Justice Riley (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated April 17, 2025 (McCotter v. Warden of Mission Institution, 2025 BCSC 1169, Vancouver Docket 37284-1). Oral Reasons for Judgment The Appellant, appearing in person (via videoconference): W.J. McCotter Counsel for the Respondent: C.N. Landsiedel A. Collins, Articled Student Place and Date of Hearing: Vancouver, British Columbia February 13, 2026 Written Submissions Received: February 20 and 27, March 3, 2026 Place and Date of Judgment: Vancouver, British Columbia March 6, 2026 Summary: The applicant, Mr. McCotter, applies for appointment of counsel to assist him in arguing his appeal from the decision of a Supreme Court justice, refusing appointment of counsel in connection with a petition of habeas corpus. Mr. McCotter seeks the order appointing counsel under either s. 684 of the Criminal Code, or under the common law based on Charter jurisdiction. HELD: Application dismissed. Mr. McCotter cannot rely upon s. 684 of the Criminal Code, because his habeas corpus petition -- which relates to the apparent refusal of Corrections officials to prepare a community release plan for use at future parole applications -- is civil in nature. Nor has Mr. McCotter pointed to any statutory provision or court rule giving a justice of this Court the jurisdiction to appoint counsel to assist an appellant in a civil appeal. The principal authority relied upon by Mr. McCotter, New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, is distinguishable on a number of bases, and is not authority for the appointment of counsel in the appeal court to assist an appellant in a civil appeal. RILEY J.A.: Introduction [1] This is a ruling on an application by Mr. McCotter for appointment of counsel to assist him in arguing his appeal. Initially, it was framed and argued as an application for appointment of counsel under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46. In that regard, the key issue I have to decide is whether the court has jurisdiction to grant a s. 684 order given the nature of the appeal. If that question is answered in the affirmative, then I would have to go on to consider whether Mr. McCotter has met the test for appointment of counsel. I will add that in his written argument, Mr. McCotter seemed to expand his application, to argue that s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter], affords an alternative basis for appointment of counsel, relying principally on New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46. I will deal with that argument in this ruling as well. [2] I am going to begin by briefly describing the nature of the underlying proceedings from which the appeal is taken. I will then discuss the procedural history of the case. Next, I will address the question of jurisdiction to entertain a s. 684 application in the circumstances of this case, and if I answer that question in the affirmative, I will consider whether Mr. McCotter meets the test. Finally, I will address Mr. McCotter's alternative argument under s. 7 of the Charter. Nature of the Underlying Proceedings [3] Mr. McCotter is a federally incarcerated inmate at Mission Institution. He is serving a life sentence for two counts of second degree murder, in relation to the killing of his ex-girlfriend and a male companion in 2001. These crimes occurred just after protection orders associated with an earlier offence of criminal harassment had lapsed. [4] Mr. McCotter has applied for and been refused parole on a number of occasions. The Parole Board has consistently held that Mr. McCotter poses a risk of re-offending and lacks insight into his offending behaviour. Mr. McCotter says that one of the key reasons why his parole has been refused is that he has been unable to obtain a community safety plan, which is a necessary element of a successful release plan. [5] What is before this Court is a notice of application for leave to appeal from a ruling of the Supreme Court of British Columbia dismissing an application for appointment of counsel in connection with a habeas corpus application. [6] The underlying habeas corpus application is a challenge to either the refusal of corrections authorities to obtain a community safety plan, or the refusal of the Parole Board to order such a report. Mr. McCotter says the Parole Board decisions denying his parole application have been based at least in part on the absence of a community plan for his release; Mr. McCotter says Correctional Service Canada ("CSC") refused to obtain a community plan based on Commissioner's Directive 712-1, which Mr. McCotter says is inconsistent with s. 7 of the Charter; he says the directive is an unconstitutional law. [7] Mr. McCotter filed an application in the Supreme Court of British Columbia for appointment of counsel to argue his habeas corpus. [8] On 17 April 2025, in reasons indexed as McCotter v. Warden of Mission Institution, 2025 BCSC 1169, a judge of the Supreme Court dismissed Mr. McCotter's appointment of counsel application. The judge found, among other things, that the habeas corpus application was civil in nature, that there was no statutory or constitutional right to apply for appointment of counsel in connection with a civil habeas corpus proceeding, and that the stringent common law test for appointment of counsel was not satisfied. [9] The judge did not dismiss Mr. McCotter's underlying habeas corpus application, which is still pending in the Supreme Court. History of Proceedings in this Court [10] On 16 May 2025, Mr. McCotter filed a handwritten notice of application for leave to appeal from the Supreme Court justice's decision refusing appointment of counsel. In it, Mr. McCotter alleges that the chambers judge erred in failing to grant appointment of counsel per R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (ONCA) and Mackay (Re), 2017 SKQB 19. The notice of application for leave to appeal also references s. 684 of the Criminal Code, which is the provision for appointment of counsel in connection with an appeal under the Criminal Code. [11] On 4 June 2025, Mr. McCotter sent a letter to the Court of Appeal Registry addressing a number of points, including a stated intention to pursue an application for appointment of counsel on appeal per s. 684 of the Criminal Code. In particular, I refer to point 8 of Mr. McCotter's letter, which states that he has filed a "Notice of Application for s. 684 Rowbotham - MacKay funding" and delivered it to counsel for the respondent. [12] On 14 July 2025, there was a case management conference before the Registrar. The Registrar discussed the nature and status of the appeal and gave Mr. McCotter several months to consider his options. [13] On 30 December 2025, Mr. McCotter filed a "notice of motion for appointment of counsel", along with a supporting affidavit addressing the criteria normally considered by the court in determining an application for appointment of counsel under s. 684, including his financial circumstances and some information relating to the apparent legal complexity of his appeal. [14] On 6 February 2026, I presided over a case management conference in which I confirmed, after some discussion, that Mr. McCotter wished to proceed with an application for appointment of counsel to assist him with the appeal. I informed Mr. McCotter that his application raised questions about whether the court had jurisdiction to grant an order appointing counsel in his case, and whether s. 684 of the Criminal Code applied. Mr. McCotter was concerned with mounting delay and lack of progress in his appeal. I set Mr. McCotter's application for appointment of counsel down for hearing on 13 February 2026. In the course of the argument on 13 February 2026, it became apparent that Mr. McCotter was also advancing an alternative argument, that the court had jurisdiction under s. 7 of the Charter to order appointment of counsel to assist him on the appeal. I granted the parties leave to file supplementary written submissions on that issue and set up an appearance today for a decision on the matter. Analysis [15] Appeals are creatures of statute. To paraphrase from Justice DeWitt-Van Oosten's comments in R. v. B.L., 2024 BCCA 108 at para. 18, this Court's jurisdiction to hear and determine appeals, as well as matters incidental to those appeals, must find support in legislation or related regulations. [16] In this case, Mr. McCotter asks the court to appoint counsel under s. 684 of the Criminal Code to assist him on the appeal. The full text of s. 684 reads as follows: Legal assistance for appellant 684 (1) 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. [17] The central question I have to ask here is whether s. 684 of the Criminal Code can be invoked in connection with an appeal from a decision made by a judge of the Supreme Court in a habeas corpus proceeding. [18] I have been referred to several cases where appeal courts have considered the possible application of s. 684 of the Criminal Code to habeas corpus proceedings. What I can discern from these cases is that the question of whether s. 684 of the Criminal Code can be invoked depends on the nature of the underlying habeas corpus proceeding. Where the appeal is from a ruling on a habeas corpus matter that relates to criminal proceedings under the Criminal Code, then s. 684 applies. Where the appeal is from a habeas corpus proceeding that is civil in nature, then s. 684 cannot be invoked. The two cases from which I derive this conclusion are Ross v. Riverbend Institution, 2008 SKCA 19 and Jolivet v. Mountain Institution, 2008 BCCA 194 (Chambers). [19] I will review each of these cases briefly. [20] In Ross, two prisoners brought habeas corpus applications in superior court seeking to challenge various decisions made by prison staff with respect to their custodial status within the institution. Their habeas corpus applications were dismissed by the Court of Queen's Bench. Both prisoners appealed and sought appointment of counsel under s. 684 to assist in their appeals. The Court reasoned that it could only consider appointment of counsel under s. 684 if satisfied that the appeals were matters within the purview of the Criminal Code and not civil matters. The Court noted that s. 684 is found in Part XXI of the Criminal Code, which governs appeals in relation to indictable offences. Neither case involved an appeal of that sort. Nor did either case involve proceedings under Part XXVI of the Criminal Code, which deals with extraordinary remedies in connection with criminal proceedings. The Court concluded that there was no jurisdiction to entertain the applications for appointment of counsel under s. 684, because the underlying habeas corpus applications were civil, not criminal in nature. [21] In Jolivet, the prisoner appealed an order dismissing his petition for habeas corpus and then applied for appointment of counsel under s. 684 of the Criminal Code to represent him on the appeal. Justice Prowse carefully considered the reasoning in Ross and some of the other cases I will discuss below and concluded that the underlying habeas corpus proceeding had at least some "criminal aspect", based on the prisoner's argument as to the complete absence of a warrant of committal authorizing his continued detention: Jolivet at paras. 10-11. Justice Prowse appeared to distinguish the case before her from cases in which "the nature of the habeas corpus proceedings arose from circumstances which were determined to be basically administrative, or civil, in nature as opposed to criminal in nature": Jolivet at para. 10. Justice Prowse went on to exercise her discretion in favour of appointing counsel to represent the prisoner on the appeal. [22] I have also been referred to numerous cases dealing with the more general question of whether a particular habeas corpus proceeding is properly characterized as civil or criminal in nature. [23] In Vukelich v. Mission Institution, 2005 BCCA 75, the court was dealing with an appeal from a costs ruling in connection with the prisoner's habeas corpus petition, challenging the decision to place him in administrative segregation. To determine whether there was jurisdiction to award costs, the Court had to be satisfied that the habeas corpus proceeding was civil in nature, and not criminal. The Court cited Re Storgoff, [1945] S.C.R. 526, for the proposition that whether an application for habeas corpus is characterized as criminal or civil in nature will depend on the nature of the underlying proceedings giving rise to the detention which is being challenged: Vukelich at para. 32. The Court went on to conclude, relying on R. v. Shubley, [1990] 1 S.C.R. 3 and Winters v. Legal Services Society, [1999] 3 S.C.R. 160, that habeas corpus proceedings relating to prison disciplinary matters were "non-criminal" in nature: Vukelich at paras. 33-38. [24] As noted, the Court in Vukelich followed the approach of the Supreme Court of Canada in Storgoff. In that case, a habeas corpus petitioner sought to challenge the lawfulness of his warrant of committal on the basis that the magistrate who sentenced him had no jurisdiction to impose a penitentiary sentence. The Court explained at p. 582 that habeas corpus "takes its character from the proceeding into which it is introduced or which becomes its subject-matter". Applying that framework, the Court concluded that Mr. Storgoff's habeas corpus proceeding was criminal in nature. [25] In Wilson v. Correction Service Canada, 2011 NSCA 116, the Court drew a distinction between "habeas corpus to review the validity of decisions made within penitentiary walls, and criminal appeals from conviction", relying in part upon May v. Ferndale Institution, 2005 SCC 82. On this basis, the Court concluded that Mr. Wilson's habeas corpus application seeking to challenge a parole board decision denying him day parole was civil in nature. [26] In Forster v. Canada (Correctional Service), 2019 ONCA 91, the court was dealing with an appeal from the decision of a superior court judge summarily dismissing the prisoner's habeas corpus application. Back in 1988, the prisoner pleaded guilty to various sexual offences. The sentencing judge found him to be a dangerous offender and imposed an indeterminate sentence. In 1995, the prisoner's sentence appeal was dismissed. Skipping over some of the procedural history, in 2014 the prisoner brought a habeas corpus application based on a challenge to the lawfulness of the original warrant of committal on various grounds. These included an assertion that the initial psychiatric remand was not lawful, that the Crown failed to give proper notice of a dangerous offender application, and that the prisoner was improperly excluded from parts of the dangerous offender proceedings. A judge of the superior court summarily dismissed this habeas corpus application. The Court of Appeal allowed the prisoner's appeal and remitted the matter for a hearing on its merits, reasoning that the court had no inherent jurisdiction to refuse to hear a properly constituted habeas corpus application. In reaching this conclusion, the Court held that the proceeding was "criminal in nature" because it arose "directly from the imposition of a penal sanction under the Criminal Code": Forster at para. 14, citing Vukelich at para. 32. As I understand it, the habeas corpus in Forster was criminal in nature because it was a challenge to the lawfulness or validity of the warrant of committal, based on alleged irregularities in the underlying criminal proceedings. [27] My conclusion from this review of the case law is that in determining whether a particular habeas corpus proceeding is civil or criminal in nature, one must consider the nature or character of the underlying challenge to the lawfulness of the prisoner's detention. As Justice Mayer recently put it in Leinen v. Mission Institution (Warden), 2025 BCCA 257 (a case to which I did not refer in my survey of the law above, but which is instructive): [37] Habeas corpus is not an intrinsically criminal or civil procedure. Whether an application for habeas corpus is civil or criminal in nature "will depend on the nature of the underlying proceedings giving rise to the detention which is being challenged": Vukelich v. Mission Institution, 2005 BCCA 75 at para. 32. [28] It is difficult to fashion any categorical rule for drawing the line between habeas corpus proceedings that are civil in nature, and those that are criminal in nature. [29] On the one hand, where the habeas corpus application involves a challenge to the lawfulness of a detention in connection with a Criminal Code proceeding, or some other proceeding before a court of criminal jurisdiction, it is likely to be characterized as criminal in nature. This would include, but not be limited to, cases involving a challenge to the validity of or lawful basis for the issuance of a warrant of committal. [30] On the other hand, where the habeas corpus application pertains solely to matters of prison discipline or administration, or to the administration of a sentence, it is likely to be characterized as civil in nature. This would include, but not be limited to, cases raising issues about the manner in which a warrant of committal is implemented or administered by prison officials. [31] Applying these legal principles to the facts of the case before me, I conclude that s. 684 of the Criminal Code does not apply here. Mr. McCotter's appeal is not from a conviction or sentence imposed by a criminal court that is governed by Part XXI of the Criminal Code. Nor, in my view, could it be properly characterized as an appeal from the dismissal of a prerogative relief application under s. 784, within Part XXVI of the Criminal Code. [32] The case law distinguishing habeas corpus applications that are civil in nature from those that are criminal in nature supports the view that Mr. McCotter's appeal is from a decision that is fundamentally civil in nature. Mr. McCotter's habeas corpus application does not involve any challenge to the validity or lawfulness of the warrant of committal in his case. Rather, it involves a challenge to the conduct of CSC officials and, or the Parole Board in connection with administration of Mr. McCotter's sentence, specifically the lawfulness of CSC policies or practices regarding the ordering of a community safety plan, for use in future parole applications. [33] Mr. McCotter emphasizes that his case does not involve any challenge to prison disciplinary proceedings. That may be true, but I do not think it makes this a criminal case. Although a habeas corpus application involving a challenge to prison disciplinary proceedings is very likely to be characterized as civil in nature, this is not the only form of civil habeas corpus. [34] Mr. McCotter also submits that parole denial is a form of punishment, and punishment is a part of sentencing, and on that basis his habeas corpus application ought to be characterized as criminal. I do not agree with this reasoning. This is not a case involving a challenge to the lawfulness of detention based on an alleged flaw in the underlying criminal proceedings. It is a case involving a challenge to the lawfulness of detention based on the decision of prison officials refusing to order a particular report that Mr. McCotter says is a critical part of a successful parole application. In short, the proceedings relate to the actions of CSC and, or Parole Board officials, having to do with the serving of Mr. McCotter's sentence, not the validity of the underlying sentence. [35] I conclude that s. 684 of the Criminal Code does not apply in this case. This is a civil appeal, not an appeal from proceedings under the Criminal Code or that are properly regarded as criminal in nature. The Court therefore does not have jurisdiction under s. 684 of the Criminal Code to entertain Mr. McCotter's application for appointment of counsel to advance the appeal on his behalf. [36] Mr. McCotter also relies on Mackay to argue that the court should consider the appointment of state funded counsel on some broader basis, not tied to s. 684 of the Criminal Code. Mackay is a trial court decision. It does not address appellate jurisdiction to appoint counsel. It is also distinguishable in that the applicant in that case sought appointment of state-funded counsel to assist in a hearing for reduction of parole ineligibility under s. 745.6 of the Criminal Code, sometimes referred to as a faint hope application. In other words, it too was a criminal proceeding, not a civil matter. [37] The only statutory authority cited by Mr. McCotter in support of his application for appointment of counsel is s. 684 of the Criminal Code. I have not been referred to any civil statute or rule that would give a justice of this Court the authority to appoint counsel in a civil matter. [38] In M.P.W. v. Victoria (City), 2023 BCCA 111 (Chambers), Justice Skolrood, then of this Court, dealt with an application for appointment of counsel in a civil appeal. It was unlike the case at bar in that the underlying appeal was from a judgment dismissing the applicant's claim for a damages award based on an alleged wrongful arrest. Justice Skolrood made a number of points of relevance to the question of state-funded counsel outside of the criminal context. [39] He observed that apart from statute, "there is no legal rule or general principle of law supporting court ordered appointment of state-funded counsel", either at trial or on appeal, in the civil context: M.P.W. at para. 20. Further, general access to legal services is not currently recognized as an aspect of the rule of law: M.P.W. at para. 21, citing British Columbia (Attorney General) v. Christie, 2007 SCC 21 at para. 21. For my own part, I would add that there are good reasons why the court would be reluctant to make an order for appointment of state-funded counsel in the absence of some statutory authority. "[A] court of law does not have a general power to expropriate public funds in the absence of a specific authorization": Pavlis v. HSBC Bank Canada, 2009 BCCA 450 at para. 5, citing R. v. Ho, 2003 BCCA 663 at para. 70 (per Justice Southin concurring in result). [40] Justice Skolrood did acknowledge that the Court has authority to appoint amicus, but because such orders involve expenditure of public resources, they "will only be made in exceptional circumstances when the appointment of amicus is essential to the Court fulfilling its obligations": M.P.W. at para. 19, citing J.E.S.D. v. Y.E.P., 2018 BCCA 286 at para. 85. In the case at bar, there is no application for appointment of amicus, and I would not conclude, based on the nature of the arguments or the state of the record either in this Court or the court below that the matter is of such a nature that the court would be unable to discharge its function without the appointment of counsel to assist the court. The issue here is not so much assistance to the court in discharging its function, but rather Mr. McCotter's wish to have counsel represent him, to assist in advancing his position as effectively as possible. [41] Justice Skolrood did not rule out the possibility of state-funded counsel for an appeal, although he did observe that it would be "exceptional", citing G.(J.) at para. 2, a case which involved the s. 7 Charter rights of a parent in connection with child custody proceedings. Justice Skolrood's comments about the applicability of G.(J.) to appointment of counsel in connection with a civil appeal proceeding are, in my respectful view, not part of the ratio of his decision. For my part, I am not satisfied that G.(J.) is authority for the appointment of counsel by a justice of this Court in connection with a civil appeal. [42] There are at least three important distinguishing features of G.(J.), which tell me that it is not of assistance to Mr. McCotter in the case at bar. [43] First G.(J.) was a case in which the party seeking appointment of counsel was not the moving party, but rather the responding party (a parent) in connection with a pending child custody proceeding. As Chief Justice Lamer explained at para. 74, if no legal aid is available, "the parent is forced to participate in the proceedings without the benefit of counsel". In these circumstances, the Court reasoned that in order to ensure the fairness of that proceeding, which engaged the parent's s. 7 Charter rights, the court of first instance had the jurisdiction under s. 24(1) of the Charter to order appointment of counsel. This was a case specific ruling taking into account the seriousness of the interests at stake, the complexity of the proceedings, and the capacity of the parent to represent herself: G.(J.) at paras. 2, 75, 104. In effect, it was a form of Rowbotham order in the context of a child custody proceeding: G.(J.) at para. 90; see also the discussion of remedy at paras. 101-104. This can be contrasted with the case at bar in which Mr. McCotter is not the responding party faced with a proceeding in which the government seeks an order against him with the potential to infringe his rights. Rather, Mr. McCotter is the moving party, seeking remedies against the government to assist him in his effort to secure parole in connection with a validly imposed sentence. [44] Second, in terms of the basis for the exercise of jurisdiction to order the remedy of appointment of counsel at the first instance child custody hearing, Chief Justice Lamer appears to have focused on the constitutionality of a government decision not to fund counsel for parents in child protection proceedings under the provincial legal aid scheme. This is apparent from the Court's consideration and rejection of the government's argument that the denial of counsel was a reasonable limit under s. 1 of the Charter: G.(J.) at paras. 94-100. And Chief Justice Lamer further stressed that his ruling was limited to the particular context of child protection proceedings: G.(J.) at para. 104. [45] Third, G.(J.) was not a case considering the jurisdiction of an appeal court to appoint counsel on an appeal. It was, rather, a case dealing with the jurisdiction of the court of first instance to order appointment of counsel, in order to ensure the fairness of a child protection proceeding. The court of first instance had jurisdiction under s. 24(1) of the Charter to fashion a remedy -- the appointment of counsel at the hearing -- as a means of ensuring the fairness of the proceedings. That is a fundamentally different context from the case at bar, in which Mr. McCotter is seeking appointment of counsel to assist him in arguing an appeal in which he is the moving party, and in which he is seeking to appeal a ruling in a lower court proceeding in which he is also the moving party. [46] The Court of Appeal is a court of statutory jurisdiction. I have not been directed to any provision in the Court of Appeal Act, S.B.C. 2021, c. 6, or the Court of Appeal Rules, B.C. Reg. 120/2022, which would give a justice of the Court jurisdiction to appoint state-funded counsel to a self-represented appellant in a civil proceeding. [47] For all of these reasons, despite Mr. McCotter's resourcefulness, I conclude that his appeal is a civil proceeding, and that I have no jurisdiction to grant an order appointing counsel to assist him in prosecuting it. I will add that it is apparent to me, Mr. McCotter has considerable facility with the law relating to habeas corpus, and he has the ability to advance rational legal arguments. The respondent says he is putting his efforts into the wrong legal forum, as he should be pursuing remedies in other forums, but that is not something I need to decide in this application. My point is this: I do not believe Mr. McCotter is legally trained but that does not appear to be a bar to his ability to marshal arguments in support of his positions. I therefore agree with counsel for the respondent, that assuming a denial of parole implicates Mr. McCotter's liberty interests, he has not demonstrated that denial of state-funded counsel in this Court -- in which he is the moving party -- occasions any procedural unfairness, or is contrary to the principles of fundamental justice so as to infringe his s. 7 Charter rights. [48] The application is dismissed. [Discussion with parties re: next administrative steps] [49] RILEY J.A.: Mr. McCotter's notice of application for leave to appeal is converted into a notice of appeal, effective as of the date it was filed. "The Honourable Justice Riley"