R. v. Barry, 2018 NLCA 48

Keith Barry (applicant/appellant) v. Her Majesty the Queen (respondent) (18/57) Indexed As: R. v. Barry 2018 NLCA 48 3 C.A.N.L.R. 227 Court of Appeal of Newfoundland and Labrador Welsh J.A. August 7, 2018

Summary: The appellant applied for an appointment of counsel for his criminal appeal under

section 684 of the Criminal Code . Held: Application allowed. Welsh J.A.: The appellant established that he had been denied legal aid and that he did not have the means to engage counsel. There is a serious issue in the appeal. The appeal is a

summary conviction appeal, which requires leave and is restricted to a question of law. These criteria increase the level of difficulty in arguing the appeal, and reduce Mr. Barry’s ability to adequately represent himself. The issues are such that the Court would benefit from the submissions of counsel. Counsel: Donald MacBeath Q.C., for the applicant/appellant; Jessica Pynn, for the Attorney General; Sheldon Steeves, for the respondent. This application was heard and decision rendered orally on August 7, 2018 by Welsh J.A.

The following memorandum of disposition was filed on August 7, 2018 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] Following written and oral submissions by counsel on behalf of the Attorney General and Keith Barry, with Crown counsel conducting a watching brief, I granted Mr. Barry’s application for the appointment of counsel under

section 684 of the Criminal Code . [ 2 ] Applying the appropriate analysis, the Attorney General acknowledged that Mr. Barry had been refused legal assistance by the Legal Aid Commission. [ 3 ] Further, at the hearing, counsel accepted that Mr. Barry had established that he did not have the means to engage legal counsel for his appeal. I refer to the following statements in Mr. Barry’s application and attached affidavit, respectively: 5.

I have no income other than Provincial Government Income Support through the Department of Advanced Education and Skills and Labor, I have no assets and I am unable to retain private counsel to represent me in this appeal. 2. That I have read and understand the within Application and the contents are true and correct to the best of my knowledge, information and belief.

[ 4 ] In the absence of evidence to the contrary, that information from Mr. Barry was sufficient to establish that he does not have the means to engage counsel for the appeal. Indeed, Mr. Barry was represented by legal aid for purposes of the trial and was represented at his

summary conviction appeal by counsel appointed pursuant to

section 684 of the Criminal Code . The same counsel is representing Mr. Barry pro bono for purposes of this application. [ 5 ] The question of whether Mr. Barry can adequately represent himself is related to the final criterion, whether there is a serious issue on appeal. Because this is an appeal from a

summary conviction matter, Mr. Barry must obtain leave to appeal and the appeal is restricted to a question of law. These criteria increase the level of difficulty in arguing the appeal, and reduce Mr. Barry’s ability to adequately represent himself. [ 6 ] Further, I was satisfied that the issues are such that the Court would benefit from the submissions of counsel. The focus of the appeal relates to whether Mr. Barry’s trial was fair and whether there was a miscarriage of justice based on the decision of the trial judge to proceed in Mr. Barry’s absence.

At this stage of the proceedings, I could not conclude that there is no serious issue in the appeal. [ 7 ] In the result, I granted Mr. Barry’s application for the appointment of counsel pursuant to

section 684 of the Criminal Code . Application allowed.