Decision underscores importance of access to counsel

By John L. Hill

Law360 Canada (March 21, 2023, 8:58 AM EDT) --
John Hill
John L. Hill
The case against Brent William Diehl who was convicted of sexual assault with a weapon in January 2022 was a typical “he said/she said” case. The complainant said that when she attended at the accused’s home to engage in sex, the accused became violent with her when he found himself suffering from erectile dysfunction.

The accused said the allegations of digital penetration and forced fellatio were a fabrication from a woman disappointed that her expectations went unmet. She did attend at a hospital the following day and took photos of herself to substantiate the bruising she suffered.

The trial judge rejected the defence contention that it is a stereotype that women will simply accept sexual rejection. It is also credible that some women will be so angered as to concoct a vicious allegation. Further the defence claimed the judge paid only lip service the judge’s duty to carefully weigh the evidence in making findings of credibility as required by R. v. W. (D.), [1991] 1 S.C.R. 742. In his reasons, the trial judge stated, “his evidence does not raise a reasonable doubt.”

Diehl wanted to challenge the issues of the use of stereotypes and the laxity of the trial judge’s W.(D.) analysis in bringing an appeal. The problem was that he could not get legal aid, although he financially qualified for assistance. An appeal to an area committee was unsuccessful. He decided to bring a motion before a Court of Appeal judge to have state-paid representation under s. 684 of the Criminal Code.

The motions judge rejected his application (R. v. Diehl, 2023 ONCA 191). He surely qualified financially but failed to show the necessity that counsel be appointed. The arguments based on “myths and stereotypes” did not have merit since the conviction turned on physical evidence. The trial judge had also referred to W.(D.). in the penultimate paragraph of his reasons although the analysis had to be implied. It was held that the appellate court would be able to adjudicate the appeal without assistance of counsel. The motions judge cited R. v. Bernardo [1997] O.J. No. 5091 and R. v. Brown 2018 ONCA 9 in this regard.

Unfortunately, the motions judge did not take a deeper dive into the history of the importance of counsel in serious criminal cases as was summarized in R. v. Rowbotham [1988] O.J. No. 271. There was no thorough s. 10(b) of the Charter consideration requiring a right to instruct counsel on arrest or detention without delay.   

The development of an accused right to counsel has been an uphill fight for centuries. The common law, the source of many of the legal rights enshrined in the Charter, did not recognize the right of a person charged with a felony to be defended by counsel. It was not until 1836 that an accused in England, charged with a felony, became entitled to the assistance of counsel in all aspects of his trial. Similar provisions were enacted in Canada in 1841.

The right to counsel under these statutory provisions originally meant no more than that an accused had the right to retain counsel if he was able to do so. However, in modern times but prior to the advent of the Charter, the concept of the right to counsel had evolved into a social right or a human right implying an obligation on the state to provide counsel for an accused. This evolution is reflected in the provisions of the International Covenant on Civil and Political Rights and the European Convention on Human Rights.

The 1988 International Covenant on Civil and Political Rights, which was signed by Canada, contains the following provision: In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.  

It may well be that the Court of Appeal will find the accused’s narrative unconvincing and deny his appeal. Would it not have been better for the motions judge to have allowed public funding for this impecunious appellant, and allowed for a thorough discussion on important legal issues?

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the authors firm, its clients, Law 360Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

Photo credit / Vladimir Cetinski ISTOCKPHOTO.COM

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