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The Yukon Court of Appeal dismissed an application for assigned counsel under s. 684(1) of the Criminal Code, finding no arguable ground of appeal.
Although the applicant lacks means and Legal Aid refused representation, the court exercised its s.684 discretion and dismissed the application because the putative issues on appeal were not shown to be sufficiently serious or legally complex and the appellant demonstrated the capacity to present the issues and the court to decide them without assigned counsel.
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The motion is granted because the appellant lacks sufficient means and, given arguable additional grounds, the complexity of pursuing amendments from custody, and the significant delay not caused by the appellant, it is desirable in the interests of justice to assign state-funded counsel to ensure timely and fair advancement of the appeal.
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Motion dismissed: although appellant lacks financial means and the grounds raise arguable issues, the appeal is not sufficiently complex, the appellant is articulate and capable of presenting the appeal, and the interests of justice do not require appointment of state-funded counsel; the Court will review the record and the Crown must ensure a fair response.
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Although it was in the interests of justice for L.H. to have counsel on appeal, L.H. failed to prove he lacked sufficient means to obtain counsel because available savings and credit would cover the cost; therefore s.684 relief (government-funded counsel) is not available and the application is dismissed.
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The appellant lacks sufficient means and has identified arguable and potentially complex issues (ineffective assistance, Charter challenge, admissibility/authentication issues, need for fresh evidence) which he cannot effectively advance himself given limited education and incarceration; in the interests of justice under s.684(1) the court ordered the Attorney General to assign counsel for the appeal.
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Although the applicant lacks sufficient means, the motion judge concluded the interests of justice did not require appointment of counsel because the issues on appeal were relatively straightforward and capable of being fairly addressed on an inmate appeal despite the applicant's learning disability; therefore the s.684 application was dismissed.
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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.
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Because the appellant lacks the financial means and the appeal raises complex, technical legal issues (notably admissibility of K.G.B. hearsay) that the appellant is not capable of adequately presenting, it is desirable in the interests of justice to assign counsel under s.684(1) Criminal Code.
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The application was granted because the court concluded that assignment of counsel was necessary in the interests of justice given the Crown appeal and its potential legal complexity combined with the appellant's limited financial means and inability to obtain legal aid.
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