Criminal Law – Application for Court-Appointed Counsel
The accused applied for a remedy pursuant to ss. 7, 11(b) and 24(1) of the Charter that would result in him obtaining an order for court-appointed counsel, known as a Rowbotham application. He sought court-appointed counsel because he had been denied Legal Aid, was indigent and incapable of representing himself at his upcoming trial due to its complexity, and would face significant jeopardy if convicted. He had been charged with six offences that included sexual assault contrary to s. 271 of the Code as well as kidnapping and confinement contrary to s. 279 of the Code. The Crown had asked that counsel be appointed by the court pursuant to s. 486.2(2) of the Code to cross-examine the complainant. Counsel for the Attorney-General for Saskatchewan (Court Services) did not contest the grounds on which the accused made his application except to argue that although he had been denied Legal Aid, the application should be denied on the basis of that he terminated his relationship with the lawyers assigned to him by Legal Aid without reasonable explanation. The issue at the hearing was whether the accused had been denied Legal Aid and whether he had terminated his relationship with lawyers. The accused maintained that he did not terminate his relationship with Legal Aid.
HELD: The application was granted. The court held that the accused had met all of the Rowbotham criteria and that there would be a prospective breach of his s. 7 Charter right unless he had state-funded counsel to assist him with his trial. It observed that the Charter provisions do not constitutionalize the right of an indigent person facing criminal consequences to be provided with a state-funded lawyer, but that ss. 7 and 11(d) have been interpreted as guaranteeing an accused a right to a fair trial and to be tried in accordance with the principles of fundamental justice. It established that Legal Aid had denied the accused its services. Although Legal Aid had done so in reliance on its assertion that the accused had fired his lawyers, the court found that Legal Aid had mischaracterized the accused’s conduct, contrary to the ruling of the Law Society of Saskatchewan’s Ethics Committee (see: 2019 SKLSPC 11). The accused had not terminated the solicitor-client relationship but rather each of the lawyers had when the accused would not agree to plead guilty as they had advised, whereupon they withdrew.