PEI Court of Appeal denies request for legal aid because accused had sufficient financial means

Accused had privately funded lawyer for trial, net property of $25,000

PEI Court of Appeal denies request for legal aid because accused had sufficient financial means

The Prince Edward Island Court of Appeal has refused an accused’s request for counsel because the court was not satisfied that he lacked sufficient financial means to obtain legal assistance.

In Waite v. R., 2022 PECA 9, Jason Clay Waite was convicted and sentenced to 40 months in custody for several offences, including possession for the purposes of trafficking and unauthorized possession of a firearm. He appealed his conviction and applied for an order that a lawyer be appointed to act on his behalf during the appeal proceedings.

Under s. 684 of the Criminal Code, the court may assign a counsel to act on behalf of an accused on appeal if it is desirable in the “interests of justice” that the accused should have legal assistance, and if the accused has no sufficient means to obtain that assistance.

Sufficient means

PEI Legal Aid reviewed the case and considered a range of factors, including the complexity of the appeal, legal merit, financial eligibility, and public interest. It concluded that Waite had, in fact, the financial means to retain counsel. Legal Aid pointed out that he had retained a privately funded counsel during trial and at sentencing.

Waite acknowledged that he owned his residence, but he argued that he should not have to sell it to raise sufficient funds to finance his appeal.

The appeal court noted that the Legal Aid’s determination on the issue of financial eligibility was not conclusive on the court. The judge must still make his own independent assessment of the relevant criteria on the record, while Waite bore the burden to persuade the court that he did not have sufficient means to obtain legal assistance.

After an independent assessment of the relevant criteria, the court ultimately ruled that Waite failed to show that he lacked sufficient means to obtain privately funded legal assistance. The court considered his admission that he had net property of approximately $25,000, as well as the fact that he had retained privately funded legal counsel for the trial and sentencing.

Interests of justice

The other criteria to consider in determining whether the accused should have legal assistance is the “interests of justice” element. The appeal court noted several factors that must be considered, including the merits and complexity of the appeal, the ability of the accused to effectively present his appeal without the assistance of a lawyer, and the capacity of the court to properly decide the appeal without the assistance of counsel.

However, the court said that it was not necessary to address the “interests of justice” element in Waite’s case because he had failed to meet the requirement of lack of sufficient means to obtain assistance. The court dismissed his application.

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