Can Section 3 Counsel be appointed under s. 3 of the Criminal Code?

In Righter v. Righter, an unreported case, the court was asked to terminate the appointment of Section 3 Counsel because subsequent to the appointment, the allegedly incapable person had been determined to in fact be incapable. The argument advanced was that section 3 is no longer applicable because capacity was not “in issue”. Aston J. noted that, notwithstanding the assessment of incapacity, s. 3 deemed the person capable of instructing her lawyer, which she did in that case. Despite being incapable, the court found that Section 3 Counsel still had a role to play – testing the jurisdiction of the court, authority to make orders, and making submissions on the evidence.