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| John L. Hill |
During court proceedings, an accused has the right to legal assistance at every stage of the criminal justice process. With that Charter guarantee, one might assume a lawyer would be automatically provided when appealing a conviction and sentence. However, Ajesh Jacob found otherwise when he was forced to apply for the appointment of counsel to argue his appeal in the British Columbia Court of Appeal.
Ajesh Jacob, originally from India and a Malayalam speaker, arrived in Canada in 2018. He faced nine charges of sexual assault involving nine different complainants, all connected to his work as a masseuse at Big Feet in Victoria between 2019 and 2021. He denied any non-consensual touching. His trial was significantly delayed due to difficulties securing Legal Aid funding. Delays were also caused by counsel and witness unavailability, as well as by issues related to interpreter availability and competence. A mistrial was declared when the initial judge recused herself.
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On Dec.13, 2024, Jacob was convicted of five counts and acquitted of four (R. v. Jacob, 2024 BCSC 2359). Then, on March 24, 2025, he was sentenced to two years less a day plus three years of probation (R. v. Jacob, 2025 BCSC 688).
During sentencing, aggravating factors were noted, including breach of trust, premeditation, manipulation of complainants, and victim impact. The judge also took into account mitigating factors such as his age (38), education, employment, bail compliance and community support. Deportation consequences were not considered mitigating because the appropriate sentence exceeded six months.
Jacob appeared unrepresented before the British Columbia Court of Appeal. He was serving his sentence as an incarcerated individual and was denied Legal Aid for non-financial reasons.
He sought the appointment of counsel under s. 684 of the Criminal Code to assist with appeals of both conviction and sentence. He presented grounds for appeal involving interpreter errors, credibility assessments, unreasonableness of verdicts, and Charter breaches (ss. 11(b) and 14).
The issues raised in seeking appellate relief included whether Jacob had insufficient means to retain counsel and whether the appointment of counsel was “in the interests of justice” under s. 684.
It was established that Jacob earned $12,000 annually and had $20,000 in student debt. He was denied Legal Aid. The court accepted that he lacked sufficient means.
The main issue was whether the appointment of counsel is considered "in the interests of justice” under s. 684. The appeal was complex: there were nine complainants and multiple counts. The court needed to review detailed credibility findings. There were also issues involving a lengthy voir dire on interpreter competence. Additionally, potential Charter concerns required legal argument and possibly new evidence. Ultimately, Jacob’s incarceration and documented difficulties in navigating the legal system supported appointing counsel.
A major concern was whether the proposed grounds of appeal had an “arguable basis.” The judge concluded that although Jacob faces significant challenges, the appeals were not frivolous.
The issues involving the interpreter relate to section 14 of the Charter, which guarantees a fair trial to an accused who cannot speak the language. Based on R. v. Tran, [1994] 2 S.C.R. 951, perfection isn’t required, but errors affecting comprehension could support a claim.
Trial delays could affect the right to a speedy trial under section 11(b) of the Charter. Although delays raised plausible R. v. Jordan, 2016 SCC 27 arguments, his failure to raise the issue at trial complicates matters.
On issues concerning the trial judge’s credibility and reliability findings, appellate review is deferential but not impossible.
Examining Jacob’s sentence appeal, no obvious errors were evident, but questionable issues related to unconsidered mitigating factors and immigration consequences might need review.
The application judge referenced and applied relevant legal precedents. The purpose of section 684 is to ensure that an appellant can properly present their case (R. v. Barton, 2001 BCCA 477). However, the burden remains on the applicant to demonstrate the need for appointed counsel (R. v. Dickins, 2025 BCCA 242), including showing insufficient financial means (R. v. Schiel, 2012 BCCA 1).
Factors relevant to assessing what constitutes the Interests of justice are outlined in (R. v. Silcoff, 2012 BCCA 463): merit of appeal; complexity; applicant’s competency; need for legal research or fact-finding; penalty imposed; and issues of general importance. A court will also consider the merits of the case. An appointment is typically not granted if the appeal lacks a realistic prospect of success (R. v. Dancho, 2024 BCCA 393).
In this case, Jacob satisfied both prongs of the s. 684 test: insufficient means and interests of justice. The court appointed counsel for both the conviction and sentence appeals (R. v. Jacob, 2025 BCCA 424).
The right to counsel may be guaranteed, but it doesn't remain easy to exercise.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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