The Alberta Court of Appeal has refused to appoint a publicly funded lawyer for a man seeking more credit for time spent in custody before sentencing. The judges accepted that Donald Earl Burnett could not afford a lawyer, but concluded that he could present his argument himself and that it lacked sufficient merit to justify public funding.
In R v Burnett, 2026 ABCA 352, Justices Jo’Anne Strekaf, Anne Kirker and Jane Fagnan dealt with the application for counsel. Their November 2 decision leaves the sentence appeal itself undecided.
Credit for time spent in custody
Burnett pleaded guilty to multiple offences with the assistance of counsel. The Crown withdrew several charges under a plea agreement. The parties jointly recommended a sentence but left the amount of credit for pre-sentence custody outside their joint submission.
Burnett received a day and a half of credit for each day in remand. He sought more credit because of what he alleged was physical and mental abuse in custody. Apart from the credit calculation, he did not argue that his sentence was demonstrably unfit.
Why the panel declined to appoint counsel
Under section 684 of the Criminal Code, the court may appoint counsel for someone who lacks the means to obtain legal assistance if doing so would serve the interests of justice. The panel considered the merits of the proposed appeal, whether it raised a broader societal issue and whether Burnett could present it without a lawyer.
The judges explained that an appeal court can intervene in a sentence where an error in principle affected the result or the sentence is demonstrably unfit. At the hearing, Burnett also alleged that his lawyer had failed to follow his instructions. The panel observed that this allegation appeared in neither his notice of appeal nor his supporting affidavit.
The judges found that the issues were specific to Burnett’s case. He had said that his English skills were very limited, but the panel noted that he explained his position at the hearing and responded to the Crown’s written and oral arguments. The judges concluded that the issues were within his ability to argue and dismissed the application.
Source: R v Burnett, 2026 ABCA 352 · Read on CanLII.
