March 27, 2009

The Court Appointed Lawyer in Criminal Appeals

In some cases, the Legal Services Society will not provide a legal aid lawyer to represent an accused where a criminal matter is appealed to the British Columbia Court of Appeal. The reasons for this vary, but the most common one is where the LSS determines that the accused has little chance of success on appeal. However, there is another way to obtain free legal representation.

Under section 684 of the Criminal Code, a court may appoint a lawyer to act on behalf of a self-represented party in a criminal appeal where a two-part test is met:
  1. it is in the interests of justice that the accused should have legal assistance, and

  2. the accused has not sufficient means to obtain that assistance.

In deciding if the test is met, the judge will consider the merit of the appeal as well as the following factors, summarized recently by the BC Court of Appeal in R. v. Butler:

  • the accused’s ability to pay for a lawyer
  • the availability of legal aid
  • the seriousness of the offence and the penalty imposed
  • the accused's education
  • the accused’s written and spoken language skills
  • the accused's ability to present the appeal effectively without legal assistance; and
  • how complicated the appeal is and whether a lawyer is necessary to present the evidence and argument.

If appointed by the court under s.684, a lawyer is paid either by legal aid or by whichever Attorney-General is the opposing party in the appeal.

The Criminal Code does not set out the procedure for applying for a court-appointed lawyer, however the case law indicates that this can be done by bringing a Notice of Motion for the appointment of a lawyer under section 684 of the Criminal Code. The Court of Appeal Registry will be able to provide further advice on how to prepare and serve a Notice of Motion.

In preparing your application for a court-appointed lawyer it is important to have evidence of your financial situation, including your most recent tax returns, pay stubs, rent receipts, as well as other evidence of your income, any assets (like a car or house) and expenses (for example, child support). This evidence will need to be attached to an affidavit, sworn by you.

1 comment:

  1. Nice piece. You have well defined the procedure of appointing lawyer by court. It will help those people who cannot afford to hire a personal lawyer.


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