R. v. Rowbotham, 1988 CanLII 147 (ON CA)

In R. v. Rowbotham, ten Appellants challenged various convictions of conspiracy to import marijuana and hashish. Numerous grounds of appeal were argued, but what makes this a key case in Charter jurisprudence is the ground pursued by George and Laura Kononow, two unrepresented accused who argued that a lawyer should have been provided for them in order to protect their right to a fair trial.

The Court of Appeal ultimately ordered a new trial, and set out the test for when the State is under an obligation to fund legal counsel for an unrepresented accused. That test is threefold. Specifically, a person must prove that they lack the funds necessary to retain a lawyer, they must have been denied legal aid from the normal provincial legal services society, and they must demonstrate that the case at bar is sufficiently complex that counsel must be appointed in order for them to receive a fair trial.

Since 1988, this case has been used as a precedent for numerous Rowbotham applications, where accused persons submit a constitutional application and affidavit, demonstrating that the aforementioned standard has been made. If this can be demonstrated, a judge can order a temporary stay of proceedings under Section 24(1) of the Charter, pending appointment of government-funded lawyer to represent the accused.

Decided by the Ontario Court of Appeal on March 21, 1988
Click here for the full text of the decision

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Filed under Section 11: Legal Rights, Section 11(d): Presumption of Innocence, Section 7: Life, Liberty, & Security of the Person

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