Canada Case Law

R. v. Nauss

Court

Supreme Court of Nova Scotia

The Rowbotham application was dismissed because the applicant failed to prove the second element (indigence/unable to privately retain counsel): evidence established significant unremitted income, discretionary non-essential expenditures and no meaningful efforts to retain counsel or reallocate funds, so state-funded counsel was not warranted despite the complexity of charges.

Source excerpt

• Rowbotham application
• Right to counsel
• Indigence
• Publication restriction s.486.4 criminal code

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R. v. Keeping

Court

Newfoundland and Labrador Court of Appeal

The applications judge did not err: the disclosures by former counsel were within the scope permitted to rebut allegations, were properly handled (materials under seal and publication restrictions), did not objectively undermine the appellant's ability to form a solicitor-client relationship with available Legal Aid counsel (Gruchy), and thus did not justify derogating from the Legal Aid scheme; appeal dismissed.

Source excerpt

• Right to counsel
• Rowbotham application
• Solicitor-client privilege and deemed waiver
• Legal aid funding
• Publication restrictions

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R. v. Gooch

Court

Supreme Court of Nova Scotia

Applicant satisfied the Rowbotham test on the balance of probabilities: he was refused legal aid and exhausted appeals; he is indigent and unable to retain private counsel; and there is a high degree of probability his right to a fair trial would be infringed without counsel given the seriousness and complexity of the criminal negligence causing death charge (including Charter issues, voir dire and expert evidence). The court therefore granted a conditional stay pending AGNS agreement to provide legal defence funding at legal aid tariffs.

Source excerpt

• Criminal negligence causing death
• Right to counsel
• Legal aid funding
• Rowbotham application
• Charter s.24(2)

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Green v Green

Court

Supreme Court of Nova Scotia

The motion was denied because the court's jurisdiction to order state-funded counsel is constrained in private family disputes and the applicant failed to prove need or indigency by not providing any required financial disclosure; prior divorce records indicated substantial income and assets, so state-funded counsel was not warranted.

Source excerpt

• State-funded counsel
• Rowbotham application
• Child custody/parenting
• Indigency/poverty
• Legal aid exhaustion
• Recusal motions

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R. v. Marr

Court

Nova Scotia Court of Appeal

Leave to appeal was denied because the appellants failed to show that their proposed defences were factually and legally relevant or that the regulatory charges were sufficiently serious or complex to require state-funded counsel under the Rowbotham framework; the SCAC correctly applied the governing principles and Pottie leave standards.

Source excerpt

• Rowbotham application
• Legal aid
• Right to state-funded counsel
• Aboriginal and treaty fishing rights
• Right to silence
• Leave to appeal under s.839

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R. v. Vuong

Court

Court of Appeal for Ontario

The s.684 application was dismissed because the applicants failed to show it was in the interests of justice—they are capable of presenting the discrete and already‑litigated issues on appeal without counsel—and failed to prove insufficient means, having not exhausted legal aid and family resources and not provided full and transparent financial disclosure; consequently appointment or funding of counsel was not warranted.

Source excerpt

• Right to counsel
• Legal aid eligibility
• S.684 criminal code
• Rowbotham application
• Charter s.11(b) (delay)
• Expert witness qualification

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R v. Nicholson

Court

Supreme Court of Nova Scotia

The judge found both s.684 requirements satisfied: Mr. Nicholson has an arguable appeal involving complex Aboriginal/treaty rights issues that he cannot effectively present himself, and he lacks the financial means to retain counsel; accordingly counsel was to be assigned in the interests of justice.

Source excerpt

• Section 684 criminal code
• Rowbotham application
• Section 35 constitution act, 1982
• Assignment of counsel
• Air of reality test
• Legal aid eligibility

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R. v. McPherson

Court

Nova Scotia Court of Appeal

The appellant was not unreasonably denied counsel; the trial record shows he understood and meaningfully participated and received appropriate judicial assistance as a self-represented accused; the trial judge correctly instructed the jury on the mental element and the evidence supported a finding of mens rea beyond a reasonable doubt; and the probation order was lawful under s.731(1)(b) and not manifestly unfit given the offender’s mental health needs, so the convictions and sentence are upheld.

Source excerpt

• Uttering threats
• Rowbotham application
• Self-representation
• Mens rea
• Probation order
• Appeal procedure

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R v. Paquette

Court

Supreme Court of British Columbia

The court dismissed Mr. Paquette’s Rowbotham application, finding he had not shown a real risk of unfair trial without counsel or proven financial indigency.

• Rowbotham application
• Right to counsel
• Indigency/financial eligibility
• Stay of proceedings
• Fair trial principles
• Rowbotham-application

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R. v. J.H.T.

Court

Supreme Court of British Columbia

The court granted a judicial stay for s. 11(b) delay, finding the post-charge delay exceeded the Jordan ceiling and was not justified by exceptional circumstances.

• Section 11(b) delay
• Section 7, 11(d), 12 charter rights
• Stay of proceedings
• Jordan framework
• Pre-charge delay
• Police conduct

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