BC Court of Appeal orders limited counsel assistance for appeal of assault conviction

Lawyer appointed only for limited purpose as appeal appeared to lack merit

BC Court of Appeal orders limited counsel assistance for appeal of assault conviction

The British Columbia Court of Appeal has allowed the appointment of counsel for the accused in a criminal assault case, but only to provide limited assistance.

In R. v. R.D.W., 2022 BCCA 373, the accused allegedly sexually and physically assaulted his daughter several times since she was four years old. The child testified that her father had also threatened to kill her if she told anyone. A jury convicted the accused and he was sentenced to eight years’ imprisonment.

The accused appealed the conviction, but his counsel withdrew from the case. The accused applied for the appointment of counsel to assist him with his appeal, but he was refused legal aid. The accused then proceeded to bring his appeal to the BC Court of Appeal, where he also requested the appointment of counsel to assist him with his appeals.

Appeal appeared to lack merit

The court recognized that the accused met the financial criteria for a court order appointing counsel. However, based on the existing record, the court found that his various grounds of appeal appeared to lack merit. One of the contentions of the accused was the trial took place during the COVID-19 pandemic when courtroom restrictions were in place, including social distancing and mandatory wearing of masks. The accused claimed that the jury was hostile towards him from the outset, that and they focused on the pandemic rather than the trial. However, the appeal court found nothing in the records to support a conclusion that the COVID-19 pandemic had any impact on the outcome of the trial.

The accused also argued that his lawyer did not represent him in the way that he wanted to be represented. He complained that his counsel was busy on his phone during the breaks, lost his temper, and did not provide feedback to the trial judge about what to instruct the jury on.  However, the court upheld the strong presumption that counsel acted in a reasonably professional manner. The accused’s grievances fell short of the type of conduct that would warrant intervention on appeal, according to the court. Overall, the court found that the grounds of appeal raised by the accused appeared to lack merit.

Limited assistance of counsel

Despite the seemingly meritless appeal, the court did not entirely deny appointing counsel for the accused. The court acknowledged that all relevant evidence may not be before the court. The accused had filed a 14-page document in support of his application for the appointment of counsel. On the existing record, there were no grounds to conclude that the accused’s counsel provided ineffective assistance, but the court was not satisfied that all relevant information was before it.

Based on these circumstances, the court considered it appropriate to order that counsel be appointed for the limited purpose only of evaluating the alleged ineffective assistance of counsel as a ground of appeal. If, after evaluation, the counsel found this proposed ground of appeal to have sufficient merit, he or she must prepare and argue a full application on the accused’s behalf.

See R. v. R.D.W., 2022 BCCA 373.

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