The Nova Scotia Court of Appeal’s May 26 decision in R. v. A.B.C., 2023 NSCA 39 involved a man identified only as A.B.C., who served prison time after being found guilty of luring, invitation to sexual touching and “making sexually explicitly material available to a child.”
Despite having already served 18 months, A.B.C. is now appealing those convictions. However, at the time the Appeal Court heard this issue of whether to provide him a government-funded lawyer, A.B.C. ended up back in custody, on remand for “other charges” and attempting to get bail.
Before the court was whether it should order Nova Scotia’s attorney general to provide A.B.C. with a state-funded lawyer to act for him in appealing his convictions.
It was acknowledged all around that A.B.C. is destitute and does not have the money for a lawyer to appeal his convictions, having spent everything on defence counsel for his three criminal trials — the third of which led to the findings of guilt.
But the written appeal decision notes that Nova Scotia Legal Aid (NSLA) denied him a lawyer. Financially, A.B.C. qualified for one, but the NSLA felt there was a lack of merit in his grounds of appeal.
Subsequently, the NSLA Appeal Committee refused to reverse this decision.
Specific details on NSLA’s decision to deny the lawyer due to lack of merit were not provided.
A.B.C. is appealing his conviction based on nine grounds, including allegations that the trial judge erred in preventing the defence from questioning the complainant about their use of electronic messages “to request nude photographs from classmates”; in finding that the defence was unable to argue that the Crown had failed to bring forth electronic evidence relating to the identity of A.B.C.; and in finding that a stay was not appropriate in view of caselaw from 1988.
In terms of A.B.C.’s request he be provided a lawyer for his appeal, he argued that due to his remand incarceration on the other charges, he would be unable to access “sufficient resources” to adequately prepare for an appeal in which he would be self-represented.
A.B.C. also stated that even if he were granted bail, the release conditions restricting his movements and his access to electronic devices and Internet would hinder his ability to prepare.
He also argued that he lacked legal training and struggled in constructing arguments due to the complexity of his grounds of appeal.
Counsel for New Brunswick’s attorney general questioned the complexity of the grounds, arguing that A.B.C. “demonstrated a grasp of the record and his grounds of appeal and thus should be to articulate his arguments to the panel without counsel.”
In the end, Appeal Court Justice Elizabeth Van den Eynden sided with A.B.C., ordering the attorney general to foot the bill for a lawyer to represent A.B.C at appeal.
“The appellant was able to express himself clearly during this motion,” states Justice Van den Eynden. “That said, I accept some of the grounds advanced have a degree of complexity that would present challenges for a self-represented litigant, such as the appellant, to effectively grapple with on appeal. … I also accept the appellant faces challenges within the institution to meaningfully and in a timely manner, access sufficient resources necessary to advance his appeal.”
She also spoke of A.B.C.’s inability to adequately prepare to self-represent if let out on bail.
Megan Longley, Dalhousie Legal Aid Service
Justice Van den Eynden ordered that the AG arrange and pay for a lawyer to represent A.B.C.
Megan Longley, executive director of Dalhousie Legal Aid Service and a former CEO of NSLA, said that the province’s legal aid body does not “turn people away without serious consideration.”
“I don’t know how often these applications get reported [in] decisions,” said Longley. “There’s a handful of them every year, and in my past experience, they are almost always denied by the Court of Appeal. … It sounds to me like [A.B.C.] convinced the court that the matter was sufficiently complex, and that he was able to articulate to some extent his argument that the court wants counsel assisting him.”
Longley said it is likely NSLA did not provide specific reasons why there was lack of merit in providing a lawyer due to concerns around harming A.B.C.’s appeal of his convictions.
Longley spoke more about the ruling, as well as next steps.
“My sense is the fact of this person’s incarceration was significant to the court in that when you’re incarcerated, you have very little access to things like Internet research, those kinds of things. … What will happen now is legal aid will facilitate … counsel like they would in any other matter, except the bill goes to the attorney general and isn’t paid from the legal aid funds.”
Longley said that in order to be approved for help from NSLA, one must financially qualify, their matter must be included on its menu of services and there has to be merit to their matter.
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