R. v. Bernardo (P.K.), (1997) 105 O.A.C. 244 (CA)

• Judge: Carthy, Doherty and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 19, 1997
• Jurisdiction: Ontario
• Citations: (1997), 105 O.A.C. 244 (CA)

R. v. Bernardo (P.K.) (1997), 105 O.A.C. 244 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. DE.052

Her Majesty The Queen (respondent) v. Paul Kenneth Bernardo (applicant/appellant)

(C22656; C23343)

Indexed As: R. v. Bernardo (P.K.)

Ontario Court of Appeal

Carthy, Doherty and Goudge, JJ.A.

December 19, 1997.

Summary:

The accused was convicted of, inter alia, two counts of first degree murder following the kidnapping, confinement, sexual assault, torture and murder of two young women. At trial, the accused admitted participating in the abduction, confinement and sexual assault, but submitted that his accomplice had mur­dered the women when he was not present. The accused filed a prisoner's ap­peal and applied for legal aid under s. 14 of the Legal Aid Act. Legal aid was denied. The accused then applied under s. 684(1) of the Criminal Code for the court to assign coun­sel to represent him on the appeal.

The Ontario Court of Appeal, per Mold­aver, J.A., dismissed the motion. The appeal was scheduled to go forward as an inmate appeal. The accused applied again under s. 684(1), this time to the full panel of the Court of Appeal, to have counsel assigned for his appeal. The accused also sought to have the appeal record expanded to include certain additional parts of the trial record.

The Ontario Court of Appeal ordered the assignment of counsel under s. 684(1) and allowed in part the application to expand the appeal record.

Criminal Law - Topic 4974

Appeals - Indictable offences - Powers of Court of Appeal - Power to appoint coun­sel for accused - The accused was con­victed of, inter alia, two counts of first degree murder following the horrific kid­napping, confinement, sexual assault, torture and murder of two young women - The accused appealed the convictions - Legal aid was denied the impecunious accused - The accused applied under s. 684(1) of the Criminal Code for the Court of Appeal to assign him counsel for the appeal - The Crown conceded that some of the accused's grounds of appeal were arguable - The Ontario Court of Appeal held that the interests of justice, from both the accused's and society's perspective, required that the accused have legal repre­sentation on appeal - Given the accused's personal circumstances and the complexity of the issues to be resolved, the accused could not effectively advance his grounds of appeal without counsel's assistance - The cost of providing legal representation, although a factor in the availability of legal aid, was irrelevant to the determina­tion under s. 684(1) - See paragraphs 11 to 32.

Cases Noticed:

R. v. Foster (1954), 110 C.C.C. 214 (Ont. C.A.), refd to. [para. 12].

R. v. Walker (1978), 46 C.C.C.(2d) 124 (Que. C.A.), refd to. [para. 12].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 18].

R. v. LeCompte (D.), [1997] O.A.C. Uned 156 (C.A.), refd to. [para. 21].

R. v. A.M. (1996), 92 O.A.C. 381; 30 O.R.(3d) 313 (C.A.), refd to. [para. 21].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 684(1) [para. 11].

Counsel:

Anthony G. Bryant, for the appellant;

J.A. Ramsay, for the respondent.

These motions were heard on November 26, 1997, before Carthy, Doherty and Goudge, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Doherty, J.A., and released on December 19, 1997.