Appeal court determines self-represented accused capable, dismisses application for counsel

Law360 Canada (August 18, 2025, 10:50 AM EDT) --

John L. Hill

While writing these columns for Law360 Canada, I have found that a significant issue in appeals of conviction is the sufficiency or admissibility of evidence. Difficult questions often arise that challenge even well-trained and experienced lawyers. Is it likely that an intelligent self-represented litigant may also struggle when such evidential issues are central to an appeal? This was the question to be decided in the case of R. v. Moylett, 2025 NLCA 25.

Andrew Moylett was charged and convicted following a jury trial for armed robbery and other offences. Counsel represented him during the proceedings. The evidence showed that Moylett was one of two individuals responsible for the robbery, mainly based on circumstantial evidence. The only direct evidence was his identification by a police officer, who stated they recognized Moylett from security video footage recorded during the robbery.

When Moylett filed his appeal, he was without a lawyer. He tried to have the court appoint counsel to help him argue his case. He submitted an application under s. 684(1) of the Criminal Code, which allows an appeal court judge to appoint counsel when it is in the interest of justice.

Justice Frances J. Knickle of the Newfoundland and Labrador Court of Appeal heard the application. The ruling was delivered on July 22, 2025.

Justice Knickle examined the requirements for granting a s. 684(1) and (2) application, as interpreted through a body of case law, including R. v. Ryan, 2008 NLCA 42; R. v. Ikkusek, 2009 NLCA 39; R. v. R.J.H., 2012 NLCA 28; R. v. Marshall, 2011 NLCA 26; R. v. Higdon, 2021 NLCA 33; R. v. D.R., 2021 NLCA 54; R. v. Starkes, 2019 NLCA 4; R. v. Normore, 2019 NLCA 12.

These decisions informed the appeal court judge that four conditions must be met for counsel to be appointed. First, it was established that Moylett did not have the financial means to engage counsel. Second, Legal Aid was unavailable to him. Third, there were serious issues to be addressed in the appeal.

However, it was on the fourth consideration that Justice Knickle faced difficulty. She had to decide whether Moylett could effectively present his case and if the court could decide without the help of counsel. She noted that Moylett had completed his high school equivalency and attended trades programs while incarcerated. Although unemployed at the time of the robbery, he had previously held steady employment for an extended period. Moylett seemed to be intelligent and capable. He appeared to be literate and able to articulate his arguments in writing.

In his presentation to the court, Moylett outlined three grounds challenging the admissibility of the evidence against him: a backpack found near the robbery scene and handed over to the police (one of the robbers wore a similar backpack), evidence indicating that Moylett lived close to the scene at the time, and, lastly, what could be described as evidence of “bad character” that Moylett submitted, which created a “negative” impression of him before the jury.

Justice Knickle saw the issues in the appeal as “straightforward questions about the sufficiency or admissibility of the evidence” that Moylett could properly handle, and the court could decide without appointing counsel. Therefore, she dismissed his application.

One case that Justice Knickle did not mention was R. v. Rowbotham (Ont. C.A.), [1988] O.J. No. 271. Appointment of counsel was made in that case because the court believed their assistance was necessary for a fair trial. Courts will appoint an amicus curiae when counsel cannot help an accused so that the appearance of fairness is preserved. No one could deny that Robert “Rosie” Rowbotham lacked intelligence or was unable to communicate his thoughts; after his release from prison, he became an on-air personality for the CBC. It would be regrettable if the Knickle judgment were used in the future as a precedent to deny the appointment of counsel due to the accused’s educational level or ability to address a court.

Indeed, Justice Knickle acknowledged that presenting an argument in court involves more than just understanding the case and relevant law. In an interview with the Canadian Bar Association, she said, “When it comes to oral argument, you must be able to think on your feet. Do not get buried under written notes. If you have a weak link, you must address it.” It seems she understood that trial fairness includes expertise and experience that cannot be judged solely by an accused’s educational background.

Even for well-trained and experienced lawyers, sufficiency or admissibility of evidence is not always an easy and straightforward problem.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. 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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