Case illustrates challenges faced by self-represented litigant in Appeal Court

Law360 Canada (April 16, 2025, 11:41 AM EDT) --

John L. Hill

We have all heard the claim of a disgruntled litigant seeking to reverse an undesired outcome: “I’ll take it to the Supreme Court!” However, it takes a great deal of money to appeal an adverse decision to that level. What if one lacks the funds to hire a lawyer? Should justice be denied if judicial error has been made? One could try to have the court appoint counsel to provide representation. Section 684 of the Criminal Code provides that a Court of Appeal judge may assign counsel to act on behalf of an accused party where, in that judge’s opinion, it appears to be in the interest of justice that the accused should have legal assistance but that person has insufficient means to obtain legal help.

That was the situation Charles Kennedy found himself in after he was convicted in December 2022 of unlawful confinement, assault causing bodily harm and sexual assault. He was self-represented and applied to the Ontario Court of Appeal for an order appointing counsel. The matter came on before Justice Patrick Monahan, who was tasked with determining if it was desirable in the interests of justice to appoint counsel and be satisfied that the appellant lacked sufficient means to hire counsel on his own. Justice Monahan delivered his reasons for denying Kennedy’s request on April 7, 2025 (R. v. Kennedy, 2025 ONCA 273).

The charges against Kennedy arose when the complainant (described in the judgment as Kennedy’s girlfriend “to some extent”) got together on Sept. 28, 2015. The following day, Kennedy received a text that his brother-in-law had been murdered, and Kennedy panicked that he might become a suspect. The judgment describes Kennedy’s unusual behaviour after hearing the news: “The appellant ‘freaked out’ and grabbed the complainant by her hair, throwing her across the kitchen, kicking her in the stomach, in her ribs and in the middle of her back, and punching her in her face. He did this over and over again. He then tied her hands behind the back of a kitchen chair and put duct tape across her mouth, saying he was going to kill her. Headlights of a car then came into the driveway, and the appellant removed the rope and duct tape. The appellant’s female friend from work came into the home, and the complainant behaved like nothing had happened.” The strange behaviour continued in that Kennedy forcibly had penetrative intercourse with his partner without consent.

The trial judge believed the complainant and found the intercourse was nonconsensual. There was no honest but mistaken belief that consent had been given.

In dismissing the s. 684 motion, Justice Monahan held that the term “interests of justice” infers that the grounds of appeal are arguable (R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.)). The court will then look to the complexities of the arguments to be advanced and the appellant’s ability to make such legal arguments on his own.

Here, Kennedy’s grounds included that there was an air of reality to the defence of an honest but mistaken belief that there was consent, and secondly, that the complainant’s delay in disclosing what had transpired lessened her credibility. It was undisputed that Kennedy lacked the financial means to hire counsel.

It was accepted that Kennedy’s response upon being told that the complainant felt unwell and did not want to engage in sex, Kennedy said, “It is not always about you — you could suck it up.” The fact that the complainant complied with his directions does not suggest that consent was freely given.

It is also now well established that delayed reporting of sexual assault does not diminish a complainant’s credibility (R. v. D.D., 2000 SCC 43).

When there was no air of reality to the grounds that Kennedy intended to argue, he had not met the “interests of justice” test, and his application must be dismissed.

It is not just money that allows an appeal to a higher court. There must be reasonable grounds as well.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.