R. v. Farnsworth, 2012 ABQB 101

Court of Queen ’ s Bench of Alberta Citation: R. v. Farnsworth, 2012 ABQB 101 Date: 20120214 Docket: 110519691U1, 110423076U1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Shane Douglas Farnsworth and Donald Dale Faulkner Applicants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ I. Facts and Circumstances [ 1 ] Donald Dale Faulkner and Shane Douglas Farnsworth each face a total of 91 counts.

Each is charged on informations with 50 counts and each faces 41 counts jointly with Jonathan Wayne Melnick. All informations arise out of an extensive investigation involving searches, wire taps and other investigative measures. Estimates are that there are over 10,000 tapped communications. I understand that approximately 800 of those will be relied upon by the Crown in the prosecution of the accused. [ 2 ] The accused, being indigent, have been provided with legal aid coverage which includes an allocation of up to 1,000 additional hours for briefing by counsel.

That additional allocation is in 250 hour segments. I understand that means that counsel will have to justify each prospective expenditure before being allowed to bill Alberta Legal Aid for the service. Counsel for Mr. Melnick has

accepted Legal Aid’s offer for coverage on identical terms. Counsel for Mr. Faulkner and Mr. Farnsworth objected to the offered coverage and asked Legal Aid to fund the case on the basis of 50 hours per week extra briefing time until the case is completed. Apparently, that was the arrangement between the defence bar and Legal Aid for the last few years in complex cases sometimes referred to as mega trials.

Whether this case is in fact a complex case, remains to be seen. [ 3 ] In response to this position, Legal Aid’s Vice President of Client Services denied the request but indicated that the door was not necessarily closed on funding beyond 1000 hours. However, no promise was made for additional funding and any additional funding would depend upon Legal Aid’s assessment of the nature and scope of the need. [ 4 ] Counsel for Mr. Faulkner and Mr.

Farnsworth have refused Legal Aid’s offered coverage and appear before me to obtain an Order compelling the Government of Alberta to fund their services on behalf of their clients on an hourly rate basis. To be clear, the accused intend to seek additional disclosure from the Crown and they want to be paid to bring that application. They also want an order for payment for their efforts to bring this application. [ 5 ] I am advised, that depending on what they learn from the additional disclosure, they may seek a further order for additional funding or accept the Legal Aid offered retainer agreement.

Time will tell. [ 6 ] When this matter first came before me, I suggested that counsel inquire of Legal Aid as to whether or not Legal Aid was prepared to fund the disclosure application, separately. Those inquiries were made and I am advised that Legal Aid’s offer stands, unaltered. [ 7 ] This application is premised on the principle that where an accused person cannot have a fair trial without counsel and cannot afford counsel it would be unconstitutional to try him.

The constitutional remedy is to direct that the prosecution be stayed unless the state provides the accused with counsel. [ 8 ] In this day and age, providing counsel as a constitutional imperative generally means that counsel will be appointed and paid by Legal Aid. Legal Aid involves a form of charity by appointed counsel. Legal Aid is not strictly charity to the accused, because the accused must repay whatever Legal Aid pays on his behalf. However, it is charity because at least some of the lawyers accepting Legal Aid assignments would command a much higher fee from an accused paying from his own resources.

At the end of the day, an accused charged with a serious enough offense to qualify for Legal Aid, who cannot pay counsel from his own resources, may look to the state to pay for his counsel as a loan which he must repay. In exchange for this facility, counsel assigned to the accused may be the very best available or the barely competent, always subject to the accused right to ask Legal Aid to provide someone else. That is all an Albertan of modest means can command.

Save in circumstances of demonstrated incompetence, or constitutional necessity, the Court has no legal right to pick one lawyer over another, nor force the funding agency to provide particular counsel or to set a particular fee to encourage a particular counsel. [ 9 ] The Court’s constitutional concern is in ensuring that an accused person receives a fair trial. If that cannot occur without counsel then the Court can refuse to proceed in the absence of counsel. If a fair trial depends on the accused having a particular counsel, then the Court may refuse to proceed in the absence of that particular counsel.

Beyond that, however, the Court must not go. The Court has no mandate to tax and or spend. That is the exclusive domain of our elected representatives. The Charter of Rights and Freedoms does not provide that authority rather it provides the blunt tool of refusing to endorse an unfair process. [ 10 ] At the end of the day, as long as the accused has licenced counsel where that is a necessity for a fair trial, then the Court’s concern is satisfied. The rate of remuneration for that counsel and the skill level of that counsel is not within the Court’s purview.

In this case, Legal Aid has offered coverage, but it is not acceptable to the accused’s present choice of counsel. [ 11 ] As a result, the accused argue that they have been denied coverage for the disclosure application. Alternatively, the accused argue that the offered coverage is woefully inadequate to pay for a full and proper defence. The Respondents, Legal Aid and the Attorney General argue that the accused have not been denied funding for the disclosure application. They argue that while that the proferred coverage is for the entire defence, it would also include the need to pursue additional disclosure.

The Respondents argue that the adequacy of that coverage cannot be determined at this stage as not enough is known about how the case will play out. Therefore the alleged inadequacy is at best speculative.

[12] In my view, the Respondents are right. Legal Aid extended coverage to the accused for the case and left open the possibilityof further enhancement of that coverage. The refusal of Legal Aid to provide coverage piecemeal for discreet events such as the pendingdisclosure application is not a denial of coverage it is rather a decision to extend coverage on terms. The terms of the coverage are thatwhat is offered for briefing is for the entire case. Therefore, what the accused really complain about is the terms of coverage.

The realcomplaint is that the proferred certificate offers too few hours to properly conduct the entirety of the defence, especially given the effortthat would be required to properly litigate the pending disclosure application. Of course the evidence as to adequacy of the coverage doesnot establish that fact, nor could it, because the complexity and scope of the case is not yet known and likely won’t be until after thedisclosure application is heard and, the additional disclosure that is ordered in that application, is in fact provided.

Additionally, we can’tknow whether, even if the case is more complex than foreseen, Legal Aid will refuse to enhance coverage. [13] In short, this application is premature. The accused cannot establish at this point that they are unable to obtain counselthrough Legal Aid: R. v. Rowbotham

(1988) CarswellOnt 58, (Ont. C.A.) Furthermore, although it appears that theirpresent counsel may not accept the proferred retainer, there is no evidence that those particular lawyers are essential to the accusedability to fairly defend: R v. Fisher

(1997) CarswellSask 821 (Sask. Q.B) [14] Therefore, there is no demonstrated constitutional inadequacy and, as a result the application must be dismissed. [15] In the course of argument, I suggested that Legal Aid could be seen as having granted a certificate offering the potential offuture enhancement if necessary. If that is accurate, then should Legal Aid refuse what appears to be needed, counsel should be free towithdraw at that point.

I did hear some argument on that matter but given my decision, it is not necessary for me to offer a final opinionon that topic and the thorny issue of counsel’s ability to withdraw, when on a Legal Aid retainer. Heard on the 18th day of January, 2012. Dated at the City of Edmonton, Alberta this 14th day of February, 2012. T.D. Clackson J.C.Q.B.A. Appearances: Gregory C. Lazin Gregory C. Lazin Prof. Corp. for the Applicant, Shane Douglas Farnsworth A. Clayton Rice Ouellette Rice

for the Applicant, Donald Dale Faulkner F. Kirk MacDonald Pringle, MacDonald & Bottos for the Respondent, Legal Aid Alberta Peter G. Barber Alberta Justice Agent of the Attorney General of Alberta