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A grainy video showing eight year old Tori Stafford being led away by one of her killers served as a tragic image in the trial of Tracy-Lynne McClintic and Michael Rafferty. McClintic pled guilty to first degree murder. Rafferty went to trial before a jury and was convicted of first degree murder. The high profile case captured the attention of the public and media, no doubt because Tori Stafford’s murder represented every parent’s worst nightmare.

Rafferty has appealed his conviction and requires a lawyer to assist in presenting his case to the Ontario Court of Appeal. His application for funding by the Legal Aid plan was turned down. Under the provisions of the Legal Aid Services Act, an applicant must demonstrate that an appeal has merit before public funds are made available. Applications for funding are decided by a panel of three experienced criminal lawyers. Having served on such panels, I know the lawyers take their responsibilities to review the materials and to ensure there is proper stewardship of public funds very seriously.

Section 684(1) of the Criminal Code provides that a judge of a Court of Appeal can assign counsel to act on behalf of an appellant “where it appears desirable in the interests of justice that the accused should have legal assistance.” Where a judge has made an appointment  and legal aid is not available, section 684(2) provides that the fees and disbursements of counsel are to be paid by the Attorney General.

In a decision released December 10, 2013, Justice Marc Rosenberg appointed counsel for Rafferty under these provisions of the Criminal Code. It was undisputed that Rafferty was unable to pay for a lawyer and required the assistance of counsel to assist in arguing the appeal. However, the Crown argued the appeal lacked merit and that Rafferty could receive assistance from the lawyers who appear as duty counsel and assist with inmate appeals. Those important services are provided in the best traditions of the profession, on behalf of inmates who appear at the Court of Appeal without a lawyer. Justice Rosenberg commented on the service:

Duty counsel provide a remarkable service to the court and the unrepresented inmates. They work diligently and provide hours of their time without compensation to assist inmates, including inmates convicted of serious crimes serving lengthy sentences of imprisonment. However, those cases tend to have a limited record and involve one or two discrete points. Duty counsel cannot be expected to take on a case of this complexity involving difficult grounds of appeal, some of which will involve an attack on the tactical decisions made by very experienced trial counsel.

Justice Rosenberg was thus faced with the unpalatable fact that even the most heinous of those amongst us are entitled to access the justice system. A similar situation had arisen in Paul Bernardo’s appeal, where Justice David Doherty made these compelling comments that strike at the very heart of our justice system:

Appellate review as provided for by Part XXI of the Criminal Code is not an indulgence to be doled out to those who are somehow seen as deserving of the opportunity to challenge their conviction. The salutary purposes underlying broad appellate review on appeals from convictions are engaged and must be served no matter how heinous the crime or despicable the accused. Detached and reflective appellate review of the trial process is perhaps most important in notorious, emotion-charged cases involving the least deserving accused. It is in those cases that the public eye is most closely focused on the process and the mettle of the criminal justice system undergoes its severest test. By giving the most repugnant appellant full recourse to meaningful appellate review, and by subjecting the apparently most deserving convictions to careful appellate scrutiny the integrity of the process is maintained and a commitment to the unbending application of the rule of law is affirmed…

In addition to these considerations, a further practical concern leads me to believe that counsel should be assigned. In inmate appeals, the court expects and receives the full co-operation of counsel appearing for the Crown. Often, the Crown alerts the court to matters which are favourable to the appellant and sometimes even assists the appellant in making his or her submissions. Given the notoriety of this case, and the unspeakable horror of the appellant’s crimes (even on his own admissions), it would be unrealistic, and unfair to Crown counsel to expect that he or she would be able, despite best intentions, to provide the kind of assistance to the appellant which is routinely provided to other in-person appellants. It is better for the Crown if this appellant has his own advocate.