NOVA SCOTIA COURT OF APPEAL

How to complete the forms for a motion to appoint legal counsel pursuant to section 684 of the Criminal Code.

This guide provides general information only. It may not tell you all you need to know. It does not explain the law. If at all possible you should speak to a lawyer for legal advice about section 684 of the Criminal Code.

Attached to this guide are the following documents:

•         Notice of Motion

•         Supporting Affidavit

What you must do in advance of making your motion

•         You must have filed a Notice of Appeal with the Nova Scotia Court of Appeal involving a criminal matter.

•         As a general rule: You must have applied for and been refused legal aid through the Nova Scotia Legal Aid Commission.

•         As a general rule: You must have exhausted all your appeal remedies within the Nova Scotia Legal Aid Commission and still be refused the services of a legal aid lawyer.

•         As a general rule: You must have exhausted all your own personal financial resources and not have the money to retain your own lawyer to represent you on the appeal.

What is the basis for your motion?

Under section 684 of the Criminal Code of Canada you have the obligation to demonstrate to the judge that it appears desirable in the interests of justice that you should have legal assistance and it appears that you do not have sufficient means to obtain that assistance.

For these reasons, at the very least you must set out the following information in your Affidavit in support of your motion for the appointment of legal counsel:

•         Why your appeal is so complex that it requires a lawyer to advance the appeal on your behalf;

•         Why you cannot represent yourself on your appeal;

•         Why you believe your appeal should succeed;

•         That you have exhausted all your rights to legal counsel through the process established by the Nova Scotia Legal Aid Commission and that includes all appeal steps within the Nova Scotia Legal Aid Commission.

Do not attach any letters sent to you by the Nova Scotia Legal Aid Commission advising you that your appeal has no legal merit. You may request and the Commission will provide you with a letter that confirms you have been denied legal aid and that you have completed all appeal steps available to you through Nova Scotia Legal Aid. You should attach that letter to your affidavit.

Steps

Follow these steps to file your motion for the appointment of legal counsel:

1.       Read the attached forms and this information sheet and try to understand how to make the motion for the appointment of legal counsel.

2.       Complete and file with the court the Notice of Motion. The Notice of Motion is a fill in the blank form. It must also be served on the other parties. You will note that there are 3 parties that you must serve with your Motion - the reason for this is that Mr. Gores, Q.C. must get notice as it is the Department of Justice who will be required to pay for legal counsel if you are successful on your motion, Mr. Yeadon must get notice as he is with the Legal Aid Commission and may be required to provide information to the court on your application and finally, Mr. Fiske, Q.C. represents the Crown on provincial criminal appeals before the Court of Appeal. If the federal crown was involved in your case at the trial level, then a copy of your motion needs to be sent to James Martin with the federal Prosecution service.

3.       Complete and file with the court your supporting Affidavit at the same time as you file your Notice of Motion. The Affidavit must also be served on the other parties with the Notice of Motion, The attached Affidavit form is NOT a fill in the blank form. You must use your own sheet of paper and style it in the format provided.

Your Affidavit must be sworn before a Commissioner of Oaths or a lawyer. You must provide as much detail as possible in the Affidavit and include the information requested in the above section entitled: What is the basis for your motion?

Your motion will be heard in Court of Appeal Chambers which is held on Thursdays at 10:00 am. You must attend this Chambers hearing. You must choose the Thursday you wish to have your application heard that allows 4 days (not counting weekends or holidays) for both the court and the other parties involved to receive your documentation. For example your motion and supporting Affidavit would have to be filed with the Registrar of the Court of Appeal and received by the other parties to the application no later than 4:30 pm on a Thursday for the following Thursday. In this example the 4 clear days are the Friday, Monday, Tuesday and Wednesday.

4.       You must inform the Registrar of the Court of Appeal, Annette M. Boucher, Q.C. by telephone at 424-6187 if you are in custody at the time you make your application as arrangements must be made with the institution to have you brought to court for the hearing of the application.

Revised- January 5, 2009