R. v. Potts, 2011 ABQB 816

Court of Queen ’ s Bench of Alberta Citation: R. v. Potts, 2011 ABQB 816 Date: 20111230 Docket: 050272715S1 Registry: Lethbridge Between: Malcolm James Potts Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice L. D. Wilkins _______________________________________________________ Appeal from the Conviction by The Honourable Judge D. G.

Redman Convicted on the 28 th day of May, 2010 (Docket: 050272715P1) [ 1 ] Malcolm James Potts (“Potts”) was convicted after a lengthy and bifurcated trial on 11 charges pursuant to the provisions of the Wildlife Act , R.S.A. 2000 c. W-10 (the “ Wildlife Act ”). The trial established that Potts was a treaty aboriginal and that the activities

were conducted between October 2003 and January 2005 on reserve lands in southern Alberta. Potts was sentenced to pay fines on each of the convictions which totalled $14,000 plus additional surcharges totalling $2,100. [ 2 ] Potts filed a Notice of Appeal and a lengthy Notice of Constitutional Question, which was prepared on his behalf by Dr. John Murdoch (Dr.

Murdoch) as his agent. [ 3 ] After considerable delays and court appearances relating to the failure of Potts to file transcripts of the lengthy trial proceedings necessary to conduct his appeal, the Notice of Appeal was ultimately accepted and scheduled to be heard by this Court on November 7, 2011. [ 4 ] On October 17, 2011 the Crown applied for advice and directions from the Court hearing the appeal seeking a direction to preclude the ability of Dr.

Murdoch to appear and argue the appeal on behalf of Potts. [ 5 ] This Court assigned December 12, 2011 as the date for hearing that application and a cross-application by Potts for an amicus curiae in the event Dr. Murdoch was denied the right to represent Potts. [ 6 ] The application for appointment of an amicus curiae was dismissed on December 12, 2011 with oral reasons provided. Issue [ 7 ] The issue before this Court is whether Dr. Murdoch should be precluded from representing Potts at the hearing of the appeal.

Crown Argument [ 8 ] The argument of the Crown was submitted jointly by counsel for the Crown assigned to the appeal and counsel for Aboriginal Justice - Constitutional and Aboriginal Law. The Crown argued that Dr. Murdoch should be denied the ability to appear to argue the appeal on behalf of Potts. Dr. Murdoch is a resident of Quebec, has no training as a lawyer and is not a member of the bar of any province including Alberta. The representation of Potts if Dr.

Murdoch were allowed the opportunity to argue this appeal would be “the practice of law” and thereby it would be in contravention of the Legal Professions Act , R.S.A. 2000, c. L-8 (“ LPA ”). The Crown argued that the Court has no inherent jurisdiction to permit representation of a person other than a member of the Alberta bar except only as provided by the Rules of Court 2.23. Crown argues it is obvious the role sought for Dr. Murdoch and Potts would extend far beyond anything permitted by an agent in that rule. [ 9 ] The Crown argued that the allegation that the proposed actions of Dr.

Murdoch were not legal services because Potts was not paying money for those services was irrelevant to the categorization of the nature of the services. Crown argued that Potts had been represented throughout the trial process by three different lawyers, the last of whom was denied the right to withdraw during the second phase of the trial by the trial judge, who found that Potts continued to want that representation. [ 10 ] The Crown also argued that Dr. Murdoch had very recently filed a similar lengthy Notice of Constitutional Question in relation to another person facing charges under the Wildlife Act .

Argument of The Law Society of Alberta [ 11 ] The Law Society of Alberta (the “Law Society”) was notified of the application of the Crown and sought intervener status at this hearing. Intervener status was granted by order of November 29, 2011.

[ 12 ] The Law Society argues that the LPA and the inherent jurisdiction of the Court govern and define the right of audience before the Court. The Alberta Rules of Court govern and define the ability of a non-member to assist a litigant before the Court. The LPA prohibits a person who is not a member from acting as a barrister in any court of civil or criminal jurisdiction in Alberta. It would be inappropriate in this case for the Court to permit such representation. The Law Society argues that it is clear from the material on file and the argument advanced on behalf of Potts that he seeks permission for Dr.

Murdoch to address the Court and advocate for him and assume the duties of a lawyer on his appeal. [ 13 ] Such activity is prohibited by the LPA and similarly prohibited by the Rules of Court . [ 14 ] Rule 2.23(3) provides the following: Despite subrule (1), no assistance may be permitted (

a) that would contravene section 106(1) of the Legal Profession Act . [ 15 ] The Law Society argues that granting Dr. Murdoch the right of audience and representation for Potts in this case would not be a proper exercise of the Courts’ inherent jurisdiction because: (

a) It is expressly precluded by

section 106 of the LPA and Rule 2.23; (

b) Doing so would substitute for the Court for the Law Society in the assessment and monitoring of the qualifications and competence of Dr. Murdoch and other matters regulated by the Law Society; (

c) Dr. Murdoch cannot be an impartial advocate; (

d) Dr. Murdoch is unable to present concise and logical arguments on the constitutional issues raised; (

e) The Crown is not seeking imprisonment in relation to the convictions; and (

f) The Act is a matter of public policy directed to the protection of vulnerable interest. Argument of Potts [ 16 ] Potts confirmed that he would rely on Dr. Murdoch to advance his argument for the right of audience for Dr. Murdoch. The brief prepared by Dr. Murdoch outlined the difficulties encountered to date by Potts in having this appeal heard: (

a) He was unable to pay for transcripts and sought (unsuccessfully) to be exempted from that requirement; (

b) He sought (unsuccessfully) the appointment of a Case Management Judge; and (

c) He was obliged to obtain the assistance of Dr. Murdoch to avoid his arrest under warrant and to further extend the time for payment of fines. [ 17 ] Potts argued that he was entitled to a fair hearing which included the opportunity to adequately state his case. Potts argued

that the Court should exercise its inherent jurisdiction to permit Dr. Murdoch to present his appeal. The brief seeks to make an analogy tocases involving matters of exclusive federal jurisdiction and argues the Federal Crown has a similar obligation involving Indian matters. [18] Potts alleges he was denied a fair hearing at trial. Potts argues that this Court has the inherent jurisdiction to permit audienceto Dr. Murdoch on behalf of Potts citing R. v.

Caron, 2011 SCC 5, [2011] 1 S.C.R. 78 where provincial funding was directed by thelower court. [19] Potts argues that no statute or province can take away the jurisdiction of the superior court in the manner that the LPApurports to do. [20] Potts also argues that there is no connection between the legislative intention of the LPA to regulate the practice of law andthe activities of Dr. Murdoch which cost him no money and could not be deemed as any sort of practice at all.

He argues that monetarycompensation is a hallmark of the practice of law. [21] Potts argues that the standard of review for granting or denying a right of audience to an agent is as stated by Berger, J.A. inR. v. Crooks, 2011 ABCA 239 (“Crooks”) and that each application must be assessed on its own merit mindful of the need to strike abalance between the right to a fair hearing and the importance of preserving the integrity of the Court’s process.

Potts argues that thebalance is this case is markedly tipped in favour of granting the audience because many members of the Law Society that Pottsapproached to defend his aboriginal rights had refused to conduct the research and were unwilling to argue his right in court. Potts arguesthat at trial the Provincial Court Judge allowed Dr. Murdoch to present the arguments he had prepared for Potts. Only when it was clearthat a member of the Law Society would not likely ever present those arguments and evidence in court did Dr.

Murdoch expend his agentactivities for Potts and others to include his appearances in court. [22] Potts argued that the Court should recognize the difference between a right of audience and “right of an individual to representanother person in respect of legal matters generally, that is the right to practice law”: Professional Sign Crafters (1988) v. Wedekind(1994), (AB KB), 153 A.R. 358 (Q.B.). Potts brief expounds on the comparison of the American and Canadian legalsystems concerning the treatment of aboriginals. The brief also outlines at length the argument to be advanced by Dr.

Murdoch on appealby maintaining that existing Canadian legislation and jurisprudence concerning the protection by the Crown of aboriginal common lawrights is historically wrong. Decision [23] At the hearing Dr. Murdoch confirmed on behalf of Potts that the appellant was asserting one or more errors of law made bythe trial judge. A principal one of these errors was the determination by the trial judge that the Wildlife Act applied to aboriginals such asPotts who were hunting on reserve lands within Alberta.

A reading of the Notice of Appeal and Notice of Constitutional Question makesthat abundantly clear. [24] The Crown advised the Court that both the Supreme Court of Canada and the Alberta Court of Appeal had previouslydetermined in a number of decisions that the Alberta Wildlife Act did apply to hunting activities of aboriginal persons on reserve landwithin Alberta when those activities went beyond the permitted hunting rights.

The Law Society advised the Court that no barrister couldproperly argue before this Court that that Wildlife Act did not apply to Potts in this case. [25] The arguments advanced on behalf of Potts relating to a comparison of American and Canadian legislation dealing withaboriginals are simply not relevant to any issue in this appeal. [26] Similarly the lengthy historical treatise relating to the federal constitution legislation and the alleged failure of the British andCanadian parliaments to properly preserve aboriginal common law rights are similarly irrelevant. [27] The Supreme Court of Canada has conclusively determined the applicability of provisions of that Wildlife Act in its decision inR. v.

Horseman, (SCC), [1990] 1 S.C.R. 901 where the Court states at 936:

Section 42 of the Wildlife Act At the outset it must be recognized that the Wildlife Act is a provincial law of general application affecting Indians not qua Indians butrather as inhabitants of the Province. It follows that the Act can be applicable to Indians pursuant to the provisions of s. 88 of the IndianAct so long as it does not conflict with a treaty right. It has been seen that the Treaty No. 8 hunting rights have been limited by theprovisions of the 1930 Transfer Agreement to the right to hunt for food, that is to say, for sustenance for the individual Indian or theIndian’s family.

In the case at bar the sale of the bear hide was part of a “multi-stage process” whereby the product was sold to obtainfunds for purposes which might include purchasing food for nourishment. The courts below correctly found that the sale of the bear hideconstituted a hunting activity that had ceased to be that of hunting “for food” but rather was

an act of commerce. As a result it was nolonger a right protected by Treaty No. 8, as amended by the 1930 Transfer Agreement. Thus the application of s. 42 to Indians who arehunting for commercial purposes is not precluded by s. 88 of the Indian Act. And further states at 938:

Section 42 of the Wildlife Act is valid legislation enacted by the government with jurisdiction in the field. It reflects a bona fide concernfor the preservation of a species. It is a law of general application which does not infringe upon the Treaty 8 hunting rights of Indians aslimited by the 1930 Transfer Agreement. [28] In the face of this authority, this Court is incapable of giving effect to the constitutional thesis and argument advanced onbehalf of Potts by Dr. Murdoch on the Constitutional Question.

A thorough reading of this decision and the earlier decisions of the Courtreferred to also indicates that many of the arguments advanced by Dr. Murdoch had been considered and rejected by those courts. [29] The exercise of the inherent jurisdiction of this Court to permit a right of audience or right of representation to a person otherthan a member of the Law Society has very recently been considered by this Court. [30] The decision in Lameman v.

Alberta, 2011 ABQB 396 (“Lameman”) considered the effect of the LPA and Rules of Court asthey impact the right of a party to representation before the Court. [31] In that case, the Plaintiff sought permission to permit a firm of English barristers to argue their case concerning aboriginalhunting rights, albeit under the direction and approval of Alberta lawyers instructed by the Plaintiff. The Court found that the role soughtto be performed by the foreign lawyers in that case would form part of the practice of law.

Yamauchi, J. stated at para. 39: Further, New Rules r. 2.23 speaks not of “represent” and “representation,” but of “assist” and “assistance.” While the list of forms ofassistance set forth in New Rules r. 2.23(2) is not exhaustive, New Rules r. 2.23(3) is absolutely clear that, despite the apparent broadnessof New Rules r. 2.23(1), a court has no discretion to permit assistance where the court’s ruling would contravene LPA s. 106(1). ThisCourt has no inherent jurisdiction to make an order negating the unambiguous expression of the will of the Alberta Legislature: BaxterStudent Housing Ltd. v.

College Housing Co-Operative Ltd., (SCC), [1976] 2 S.C.R. 475 at 480. [32] The decision of Berger J.A. sitting alone in Crooks was released shortly after the Lameman decision which was not thereinconsidered. This was an application of the accused to restore to the list an application for leave to appeal a

summary conviction matterwhere the appeal had been dismissed by the Queen’s Bench and had been previously struck from the Court of Appeal list due to theexpiration of time. An agent of the appellant sought to represent him and claimed to have received instructions from the accused. Indeciding whether to permit the agent to argue this motion the Court reviewed the LPA and new rule 2.23. The Crown conceded that theCourt retained a discretion to permit representation by an agent notwithstanding the Act and the Rule.

The Court states at paras. 9 - 11: [9] As I see it, each application must be assessed on its merits, mindful of the need to strike a balance between the right to a fair hearingand the importance of preserving the integrity of the Court’s process. Of course, there is a difference between the “right of audience” andthe right to practice law. As O’Leary J. (as he then was) explained in Professional Sign Crafters

(1988) Ltd. v. Wedekind (1994), (AB KB), 19 Alta. L.R. (3d) 53 at para. 8:

“In order to place the issues in perspective it is important to distinguish between the inherent discretion of a superior Court to permit anon-lawyer to appear physically in Court or before a judge as a representative or advocate of another person (the ‘right of audience’), andthe right of an individual to represent another person in respect of legal matters generally, that is, the right to practice law.” [10] The statement in Pacer Enterprises Ltd. v. Cummings, 2004 ABCA 28, 346 A.R. 161 and Balogun v.

Pandher 2009 ABCA 409,469 A.R. 187 that the difference is one of degree and that the test is “whether it can be said that the act done by the non-lawyer is onethat should only be performed by members of the legal profession such that the public may be adequately protected from acts ofunqualified persons” remains applicable. (See para. 15 of Pacer and para. 18 of Balogun). [11] A careful and thoughtful evaluation of each application must be undertaken. I respectfully disagree that appellate courts shouldpermit agency only “rarely” (Vernrose Holdings Ltd. v.

Pacific Press Ltd. (1978), (BC CA), 88 D.L.R. (3d) 523 atpara. 14; R. v. Dick, 2002 BCCA 27 at para. 6; and “sparingly”, (Halifax (Regional Municipality) v. Ofume, 2003 NSCA 110 at para.41) (cf R. v. Gouchie, 2006 NSCA 109 at para. 17). With the greatest of respect, I see no advantage in quantifying in advance thoseoccasions where this Court would permit an agent to appear for an applicant or appellant. The adjectives “rarely” and “sparingly” do notassist, in my view, in the determination in any given case of the true merits of an application.

After all, the individual liberty interests atstake in future cases cannot be predicted nor can the potential impact upon the administration of justice generally. Moreover, theapplicant’s ability (or inability) to represent himself, and the relative ability of the agent to address the applicant’s interests, will varyfrom one case to another depending, in part, on the complexity of the issues that are said to be engaged. [33] When this Court undertakes the evaluation mandated by this authority I conclude that the application to permit Dr.

Murdochto represent Potts in the conduct of his appeal should be refused on due consideration of the following factors: (

a) There can be no question that Potts and Dr. Murdoch seek to obtain the right of audience and right of representation before thisCourt of Queen’s Bench that would normally be accorded to a barrister of the Law Society and is prohibited by the LPA; (

b) Apart from the very lengthy argument advanced by Dr. Murdoch in relation to the constitutionality of the Wildlife Act, thepresent appeal is not particularly complex; (

c) The importance of this case is diminished by the fact that the Crown does not seek a term of imprisonment from these

summaryconvictions. (

d) The inability of Potts to find legal representation is not as clear cut as Dr. Murdoch has asserted. Potts indicated at the hearingthat at least one of the three lawyers provided by Legal Aid that assisted him at trial quit or was terminated because he or they refused tomake the constitutional argument he sought. His ability to have a lawyer assist him to advance the other aspects of his appeal is notknown at present. (

e) The lack of understanding by Dr. Murdoch concerning the principles of stare decisis and the binding nature of prior higher courtdecisions would unnecessarily tie up the proceedings were these arguments to be permitted. [34] On balance it is my conclusion that Dr. Murdoch should not be permitted to appear for or represent Potts in the conduct of hisappeal. [35] I also wish to address the need for this Court to consider the written argument drafted by Dr. Murdoch which seeks todetermine that the Wildlife Act should not be found to be binding upon an aboriginal hunting on reserve lands.

There can be no questionthat this Court has the jurisdiction and the obligation to control its own process. That must necessarily include the power to refuse toentertain an argument which by virtue of binding decisions of superior courts is incapable of being successful.

[ 36 ] In conclusion the Crown application supported by the Law Society to deny Dr. Murdoch the right to an audience before this Court and to represent Potts in the hearing of his appeal is granted. Heard on the 12 th day of December, 2011. Dated at Calgary, Alberta this 22 nd day of December, 2011. L. D. Wilkins J.C.Q.B.A. Appearances: Malcolm James Potts - In Person Dr. John Murdoch - Attended by Teleconference for the Appellant Rose Marie Zanin for the Respondent (The Attorney General of Alberta - Aboriginal Law) Dawn Janecke for the Respondent (Crown) Molly Naber-Sykes - Attended by Teleconference for the Law Society of Alberta