The Court of Appeal has recently posted reasons in the matter of an application for the appointment of counsel in R. v. Ellard. Ms. Ellard is the best known of several young defendants charged in the homicide of teenager Reena Virk. She has had three trials to date: the first ended in a conviction that was overturned on appeal, the second ended in a controversial mistrial, and the third resulted in a conviction earlier this year.
Ms. Ellard appealed her most recent conviction, but the Legal Services Society (aka legal aid) refused to fund the appeal on the basis that there was no reasonable prospect of success. The LSS opinion was provided by two senior and eminent counsel, Gil McKinnon, Q.C. and Len Doust, Q.C. Both lawyers appear to have agreed that, while there were some aruable points of law, the totality of the circumstances were such that the appeal court would likely apply the curative proviso under s. 686 (i.e. would dismiss the appeal on the basis that the errors, if they occurred, had no impact on the correctness of the result or the fairness of proceedings).
When an individual is refused legal aid for an appeal, all is not lost. Section 684 of the Criminal Code provides the Court of Appeal with the power to appoint counsel. The question in R. v. Ellard was whether the test for appointment of counsel under s. 684 was the same as the test that had been applied by the LSS in refusing to fund the appeal. If so, it would seem to follow that, barring a disagreement with the opinion of LSS counsel, the application for funding would be dismissed.
In addressing the issue, Mr. Justice Donald relied on a decision to order funding made under s. 684 by of one of Canada's leading appellate justices, Mr. Justice David Doherty, in a similarly notorious case, R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at paragraphs 19-20. The gist of the Bernardo decision, adopted by Mr. Justice Donald, is that in applying s. 684 the Court must not take into account the repugnance of the crime or the opproprium visited upon the appellant by the public. On the other hand, the Court should not proceed on the basis that every appeal is deserving of funding. The real focus should be on the ends of justice, which demand that every appellant be provided with a meaningful opportunity to establish the merits of the grounds advanced and that the Court of Appeal be in a position to fully and properly exercise its jurisdiction over criminal matters at the conclusion of the hearing.
Applying Bernardo, Mr. Justice Donald expressly found that the test under s. 684 is not as stringent as the test applied by the LSS. If there are "arguable" grounds of appeal, by which is meant grounds not devoid of merit, there will be a basis to order funding. The reason for applying such a low standard is based on two concerns. First, the assessment is being made on less than a complete record because at this early stage in the matter the transcripts are not available and no one has conducted a thorough review of the trial proceedings. Second, any higher standard would be unfair to the appellant. Indeed, in Bernardo Mr. Justice Doherty was of the view that the appellant with only an arguable case actually has a greater need for counsel than does the appellant who has a clearly strong appeal.
On the facts, Mr. Justice Donald held that there were enough meritorious arguments available to the appeallant to meet the Bernardo test, and that the application of the curative proviso was not an inevitability. He therefore made the requested order under s. 684.
What can appellate counsel take from the Ellard decision? Most importantly, that the "arguable merits" test is not at all demanding and, indeed, is less demanding even than a "reasonable prospect of success" test. Juxtaposing the two tests in this way is very helpful for counsel arguing a s. 684 application, for it emphasizes just how low the standard for funding has been set.
