R. v. Pardy, 2017 NLCA 23

Gary Hennessey (appellant) v. Her Majesty the Queen (first respondent) and Legal Aid Commission (second respondent) (15/46) Indexed As: Hennessey v. Canada 2017 NLCA 23 1 C.A.N.L.R. 586 Court of Appeal of Newfoundland and Labrador Green C.J.N.L., Welsh, Rowe, White and Hoegg JJ.A. April 13, 2017

Summary: The appellant appealed a decision of a judge of the Supreme Court Trial Division who refused to make an order providing the appellant with state-funded legal counsel. The appellant faced charges relating to fraud and violations of the Income Tax Act . He rejected the offer of representation from a staff solicitor from the Legal Aid Commission on the financial terms specified by the Commission and sought a Rowbotham order arguing (

i) he could not comply with the Commission’s financial requirements because he now has no income; and (ii) the staff lawyer assigned to his case had insufficient experience to ensure he would be properly represented and receive a fair trial. The applications judge found that the appellant had not placed sufficient updated financial information before the court to give a sufficiently comprehensive picture of his current financial status and, in any event, his rejection of the legal aid staff solicitor was unreasonable. On appeal, the appellant relied primarily on the decision of the Court in R. v.

Pardy , 2014 NLCA 37 , 357 Nfld. & P.E.I.R. 49 which held that an accused charged with murder was entitled under the Legal Aid Act, RSNL 1990, c. L-11 , to counsel of choice from the private bar at public expense. The appellant argued that the principles enunciated and analysis undertaken in Pardy inform the approach to be taken by the Court whenever it considers an application for a Rowbotham order. Held: Appeal dismissed (Welsh J.A. concurring). Green C.J.N.L. (Rowe, White and Hoegg JJ.A. concurring): The value of having counsel in our adversarial system of criminal justice is well-recognized.

Failure to level the playing field – or at least failure to lower the rate of incline – when the resources of the state are arrayed against the accused in a criminal prosecution, risks wrongful convictions.

Nonetheless, given that the allocation of social and financial resources is the province of the executive, in the first instance, and ultimately, the legislature, subject, of course, to the requirements of the Charter , the Court will generally not entertain an application for appointment of counsel at public expense until the legal aid process has been first complied with and it is demonstrated that services under that system are not available or are otherwise inappropriate. The Court has jurisdiction to hear the appeal.

An application for state-funded counsel is civil in nature and should not be characterized as an interlocutory criminal proceeding, an appeal of which is prohibited by the Criminal Code . Certain fair trial issues may well be so bound up with the actual process in the course of a criminal trial that they of necessity have to be regarded as incidental or ancillary to the criminal trial. But other fair trial issues may be of a more general nature.

The necessity for and appropriateness of appointment of counsel to ensure that a litigant is properly represented so as to receive a fair trial is one of those more general issues. With respect to the overarching inquiry as to what may be necessary to ensure the accused’s right to a fair trial, the court hearing a Rowbotham application should address, in consecutive order: (

i) whether the accused has been accepted for legal aid; (ii) if so, whether the reasons offered for rejecting such representation are reasonable; and (iii) only if so, whether it is necessary to appoint other counsel at public expense in order to vindicate the fair trial right. This Court held in Pardy that an accused is entitled at common law or under the Canadian Charter of Rights and Freedoms to a stay of proceedings pending appointment of counsel paid for by the Attorney General outside the legal aid scheme, even though he had been offered staff counsel by the Legal Aid Commission, if he has given an objectively reasonable justification for rejecting the counsel so

offered and if his right to a fair trial and to make full answer and defence would be in jeopardy if he was not represented by counsel. Theseparate conclusions as to the applicability of (i) section 31(3.1) of the Legal Aid Act and (ii) Rowbotham principles were both ratios ofthe decision.

Pardy did not modify the law with respect to the application of Rowbotham principles in circumstances where the issue is whether a legalaid applicant is justified in refusing to enter into a solicitor-client relationship with a staff solicitor offered by the Commission and isinsisting, instead, that legal representation outside of the legal aid scheme be provided by the Attorney General outside of casesinvolving murder, manslaughter and infanticide. In fact, the decision of the majority in Pardy reiterated the long-standing Rowbothamprinciples.

Pardy makes it clear that an accused who is seeking representation paid for out of public funds must act reasonably andpresent a justifiable reason for the rejection supported by objective evidence.

The assessment of the reasonableness of the accused’s rejection of a legal aid staff solicitor, is a factual assessment and the judge mustconsider all the information presented to determine whether some factually supportable explanation has been established on a balance ofprobabilities that it is a reasonable explanation for not being able to establish a working solicitor-client relationship and that the ability tohave a fair trial is at risk. The resulting decision will usually be one of fact or mixed law and fact to which appellate deference will begiven according to the palpable and overriding standard.

The applications judge concluded that Mr. Hennessey’s belief was unreasonable because it was not supported by sufficient objectiveevidence. That finding is entitled to deference unless Mr. Hennessey can point to some error of law or palpable and overriding error onthe part of the judge in his assessment of the evidence or in his application of the law to the facts. Pardy does not stand for theproposition that the judge must, as a matter of law, address specifically and on an individual basis, each of the submissions made by theaccused.

So long as it is apparent that the judge addressed the nature of the accused’s concerns and considered the evidentiary record as awhole, that is sufficient. The applications judge made no palpable or overriding error or error of law in reaching his conclusions as to theCommission lawyer’s competence, skill set and ability to deal with a trial of the complexity and duration identified in this case, or thatMr. Hennessey’s fair trial rights would not be at risk if he were represented by the offered Commission lawyer. The appeal was thereforedismissed.

Welsh J.A., concurring: The result, analysis and reasons set out by Green C.J.N.L. at paragraphs 11 to 72 were agreed with. Cases cited: Green C.J.N.L.: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520 Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 R. v. Druken, 2003 NLSCTD 150, 231 Nfld. & P.E.I.R. 271 R. v. Ryan (W.J.), 2005 NLCA 44, 248 Nfld. & P.E.I.R. 162 British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 S.C.R. 873 R. v. Rowbotham (1988), (ON CA), 25 O.A.C. 321, 41 C.C.C. (3d) 1 R. v. Pardy, 2014 NLCA 37, 357 Nfld. & P.E.I.R. 49 R. v.

Jesso, 2007 NLCA 28, 265 Nfld. & P.E.I.R. 187 R. v. Ryan (D.), 2007 NLCA 6, 263 Nfld. & P.E.I.R. 22 Oliver v. Newfoundland and Labrador (Legal Aid Commission), 2007 NLCA 67, 271 Nfld. & P.E.I.R. 121. R. v. Dobson, 2016 NBCA 18, 129 W.C.B. (2d) 420 R. v. Branch (2011), 374 N.B.R. (2d) 199, 94 W.C.B (2d) 557 (C.A.) R. v. Dunkers, 2010 BCCA 605, 298 B.C.A.C. 47 R. v. Hales, 2009 SKCA 91, 331 Sask. R. 102 R. v. Ciancio, 2006 BCCA 311, 232 B.C.A.C. 1 R. v. Mercer (2001), (NL SC), 197 Nfld. & P.E.I.R. 311 (Nfld. T.D.) R. v. Ryan, 2012 NLCA 9, 318 Nfld. & P.E.I.R. 15

Counsel: Ken Mahoney, for the appellant; Maeve Baird, for the first respondent; Derek Hogan, for the second respondent. This appeal was heard on June 14, 2016 before Green C.J.N.L., Welsh, Rowe, White and Hoegg JJ.A.

The following judgment was delivered on April 13, 2017 by Green C.J.N.L. with separate concurring reasons by Welsh J.A. ______________________________________________________________ Green C.J.N.L.: [1] Sir James Fitzjames Stephen observed in 1883 that “when a prisoner is undefended, his position is often pitiable, even if he hasa good case.” (History of the Criminal Law of England, Vol. 1 (London: MacMillan, 1883)). The value of having counsel in ouradversarial system of criminal justice is well-recognized. In R. v.

G.D.B. 2000 SCC 22, [2000] 1 S.C.R. 520, Major J. observed: [25] The value of effective assistance of counsel is apparent, but was fully explained by Doherty J.A. in R. v. Joanisse (1995), (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.) at p. 57: … Effective representation by counsel makes the product of the adversarial process more reliable by providing an accused with theassistance of a professional trained in the skills needed during the combat of trial.

The skilled advocate can test the case advanced by theprosecution, as well as marshall and advance the case on behalf of the defence. … Effective assistance by counsel also enhances theadjudicative fairness of the process in that it provides to an accused a champion who has the same skills as the prosecutor and who canuse those skills to ensure that the accused receives the full benefit of the panoply of procedural protections available to the accused. … [2] Failure to level the playing field – or at least failure to lower the rate of incline – risks wrongful convictions.

This is especially sowhen the resources of the state are arrayed against the accused in a criminal prosecution. Canadian society has responded to theseconcerns by providing state-funded legal aid plans that provide in certain well-defined and circumscribed circumstances either publicdefender services or mechanisms whereby members of the private bar can be engaged at public expense.

But these plans have theirshortcomings as to the adequacy of their coverage and in the means whereby members of the private bar are incentivized to participate. [3] There is an irony in the fact that governments have been prepared in some cases to allocate resources to level the playing field inother social areas but for some reason there has been a reluctance to do so enthusiastically when it comes to the justice system.

Cut backsin federal funding and reluctance by cash-strapped provincial governments to expand legal aid program coverage are examples of this. [4] In any discussion about provision of greater or more effective provision of legal services, the elephant in the room is, of course,money and the unwillingness or inability to commit more of it. The allocation of social and financial resources is the province of theexecutive, in the first instance, and ultimately, the legislature, subject, of course, to the requirements of the Charter.

It is a policy choiceif they choose not to allocate resources to level the playing field in the justice system in a Charter-compliant way. [5] The Courts have also been influenced to some extent by their perceptions of the financial impact of their decisions on allocationof social resources with respect to appointment of counsel at public expense: Ontario v. Criminal Lawyers’ Association of Ontario, 2013SCC 43, [2013] 3 S.C.R. 3.

In turn, this is influenced by reluctance, in the constitutional context, to impose positive obligations ongovernment relating to expenditure of public funds. [6] This explains to some extent as well, the principle adopted by this Court in asserting that, even though the provincial legal aidlegislation does not state expressly that the system is to be regarded as the exclusive mechanism for provision of counsel at publicexpense within its sphere of operation, the Court will generally not entertain an application for appointment of counsel at public expenseuntil the legal aid process has been first complied with and it is demonstrated that services under that system are not available or areotherwise inappropriate: R. v.

Druken, 2003 NLSCTD 150, 231 Nfld. & P.E.I.R. 271, affirmed in R. v. Ryan (W.J.), 2005 NLCA 44, 248Nfld. & P.E.I.R. 162. [7] The Supreme Court of Canada has not, to date, accepted the notion of a systemic right to counsel as a means of ensuring accessto justice, not simply procedural access in the sense of affording access to the court system, but also substantive access in the sense ofensuring a just and equitable outcome.

Cases advanced, particularly on the civil side, on the basis of concern about equality of access tojustice (in the sense of having access not only to the system but also to the resources necessary to prepare and present one’s case) havelargely failed since they usually involve imposing positive obligations on governments to expend scarce resources. See British Columbia(Attorney General) v.

Christie, 2007 SCC 21, [2007] 1 S.C.R. 873 at paragraphs 21 and 27. [8] Cases addressing the claim to legal representation in the criminal sphere based on the so-called Rowbotham principles (after theOntario Court of Appeal decision in R. v. Rowbotham (1988), (ON CA), 25 O.A.C. 321, 41 C.C.C. (3d) 1) haveproceeded on a case-by-case basis with a focus on whether, in the particular case, a lawyer is needed to ensure a fair trial. (See Ontariov. Criminal Lawyers’ Association of Ontario, per Karakatsanis J. at paragraph 70: “Even the accused, whose right to a fair trial is at

stake, is not entitled to be provided with state-funded counsel of choice provided he or she receives legal representation that gives a fair opportunity to make full answer and defence.”) If a lawyer is provided it is assumed that the accused will have a better opportunity to have a fair trial without further inquiry as to whether the resources that lawyer will have at his or her disposal, when compared to the resources available to the state, will be sufficient to produce, substantively, a just outcome. [ 9 ] That is the framework within which this Court, as an intermediate appellate court, is constrained to operate.

That has led this Court to stipulate that, with respect to the overarching inquiry as to what may be necessary to ensure the accused’s right to a fair trial, the court hearing a Rowbotham application should address, in consecutive order: (

i) whether the accused has been accepted for legal aid; (ii) if so, whether the reasons offered for rejecting such representation are reasonable; and (iii) only if so, whether it is necessary to appoint other counsel at public expense in order to vindicate the fair trial right. [ 10 ] It is in this state of the law that the appellant appeals a decision of the Trial Division ( 2015 NLTD(G) 70 , 367 Nfld. & P.E.I.R. 122 ) which refused to make a Rowbotham order providing him with state-funded legal counsel. The appellant relies primarily on the decision of this Court in R. v.

Pardy , 2014 NLCA 37 , 357 Nfld. & P.E.I.R. 49 which, among other things, held that an accused charged with murder was entitled under the Legal Aid Act, RSNL 1990, c.

L-11, as amended, to counsel of choice from the private bar at public expense. [ 11 ] The current case, however, is different from Pardy in that it does not fall within section 31(3.1) of the Legal Aid Act , which is expressly limited to applications for legal aid “with respect to an offence of murder, manslaughter or infanticide.” The charges faced by the appellant in this case relate to fraud and violations of the Income Tax Act . [ 12 ] The appellant nevertheless says that the principles enunciated and analysis undertaken in Pardy extend beyond the murder, manslaughter and infanticide group of cases and in fact inform the approach to be taken by the Court whenever it considers an application for a Rowbotham order.

This is because, so the appellant argues, the majority of the Court in Pardy engaged in an alternative Rowbotham analysis that did not rely on the special provision of section 31(3.1) of the Legal Aid Act for the conclusions it reached. The Result in Pardy [ 13 ] This Court held in Pardy that: 1. By a 4:1 majority 1 : the Court had jurisdiction to entertain, in advance of completion of the trial, an appeal against a ruling denying an accused a remedy that would provide him with state-funded counsel; 2.

By a 3:2 majority 2 : an accused who has applied for legal aid with respect to a charge of murder, manslaughter or infanticide is entitled under section 31 (3.1) of the Legal Aid Act , and without having to establish that his fair trial rights were in jeopardy, to retain counsel of choice from the private bar at a level of compensation to be negotiated with the Legal Aid Commission in accordance with the authority in the existing Legal Aid Regulations or, on failure of such negotiations, with the Attorney General; 3.

Unanimously 3 : an accused is entitled at common law or under the Canadian Charter of Rights and Freedoms to a stay of proceedings pending appointment of counsel paid for by the Attorney General outside the legal aid scheme, even though he had been offered staff counsel by the Legal Aid Commission, if he has given an objectively reasonable justification for rejecting the counsel so offered and if his right to a fair trial and to make full answer and defence would be in jeopardy if he was not represented by counsel; 4.

By a 3:1 majority 4 : the applications judge had made palpable and overriding errors in his assessment of the evidence and that, on that evidence, the accused had given an objectively reasonable justification for rejecting the Legal Aid counsel who had been offered by the Commission, thereby entitling him to a Rowbotham order. [ 14 ] The second ruling is not directly engaged on this appeal. The other rulings, on the other hand, must be considered in further detail.

Jurisdiction [ 15 ] The Court asked counsel to make supplementary submissions on the issue of whether the appeal of the order denying a Rowbotham order could be made at this time or should be required to await the outcome of the trial on the merits. [ 16 ] In Pardy , the Court considered in detail whether it had any jurisdiction to consider an appeal from a decision denying state- funded counsel before the trial had concluded.

On at least four previous occasions, this Court had entertained appeals relating to funding of counsel in such circumstances but on each such occasion no analysis of the jurisdictional question was undertaken: R. v. Ryan (W.J.) ; R. v. Jesso , 2007 NLCA 28 , 265 Nfld. & P.E.I.R. 187 ; R. v. Ryan (D.) , 2007 NLCA 6 , 263 Nfld. & P.E.I.R. 22 ; and Oliver v.

Newfoundland and Labrador (Legal Aid Commission) , 2007 NLCA 67 , 271 Nfld. & P.E.I.R. 121 . [ 17 ] The majority in Pardy held that an application for state funded counsel engaged the Attorney General in his capacity as the government officer responsible for the administration of justice generally and for the dispensing of public funds relating thereto and not with respect to the substance of the specific prosecution of a criminal offence. As such, the application was civil in nature and should not be characterized as an interlocutory criminal proceeding.

Accordingly, the prohibition against allowing appeals in interlocutory criminal matters was not engaged. I wrote, for myself and two other justices in the majority: [23] In the instant case, the case turns in part on whether Mr. Pardy is entitled to representation by counsel funded at state expense. This is an issue that relates to the administration of justice generally and whether public funds must be expended to ensure that the administration of justice operates fairly and properly. Whether the issue arises in the context of a criminal matter or in the context of, say, a child protection matter (see G.J. v.

New Brunswick) the fundamental values pertaining to the justice system that are at stake are essentially the same. In all such cases, the interconnection with the adequacy of the legal aid scheme, a provincial responsibility regulated by provincial statute, is essential to be considered. These are issues that do not affect the subject matter engaged in the case.

… [29] In this case, the decision as to provision and funding of counsel need not be characterized as related to a proceeding in respect of an indictable offence. While it is true that it arose in this instance in the context of a criminal proceeding, the issues that have to be resolved do not relate, substantively or procedurally, to the criminal charge. [38] … The matter is not “an appeal in proceedings in respect of indictable offences” within

section 670 [sic; should read “674”] [of the Criminal Code ] but is, instead, caught by

section 5 of the Judicature Act . As a matter of policy, this is the appropriate position to take, because of the importance of fully resolving the entitlement to state-funded counsel before the trial starts, rather than forcing an accused into a Hobson’s choice of either accepting a counsel with whom he claims he cannot form a proper solicitor-client relationship or proceeding to trial without counsel with all the attendant risks that entails.

Dealing with the issue now makes eminent practical sense. [ 18 ] Rowe J.A. agreed with the foregoing reasoning but also added: [196] In my view, there is no binding authority regarding jurisdiction, nor do I find the jurisprudence from other provinces persuasive. As such, in interpreting and applying

section 674 of the Criminal Code this Court should be guided by: (

a) the overarching principle of fairness, and (

b) the practical use of resources. [197] … It is unfair to deny an accused the opportunity to seek leave to appeal a denial of counsel of choice before trial. [198] Regarding economical use of resources, if a right of counsel of choice can only be reviewed after trial, there is a clear prospect of trials that are utterly futile. My concern here is directed to the accused, the complainant (if any) and witnesses. For them, a trial is stressful and wearying.

To repeat a trial simply because a question of representation that could have been settled before trial is only resolved after trial is wasteful, even irrational. [199] I would add a further perspective. The jurisdictional issue is really a question of characterization. Is a right to counsel of choice part of the criminal proceeding (in which case, no appeal is available before trial)? Or, is it ancillary to but distinct from the criminal proceeding (in which case, an appeal is available before trial)? It can be seen either way, each with some validity.

In such an instance, we should choose the characterization that gives rise to the better result, which is settling the question of right to counsel of choice definitely, before trial, rather than after it. [ 19 ] Counsel for Mr. Hennessey relied on the majority reasoning in Pardy in support of his submissions that the Court had jurisdiction.

Counsel for the Legal Aid Commission also submitted the Court had jurisdiction, relying primarily of the comments of Rowe J.A. [ 20 ] Counsel for the Attorney General of Canada argued that the Court had no jurisdiction because, contrary to the reasoning in Pardy , the matter in issue should essentially be characterized as criminal in nature and therefore precluded by

section 674 of the Criminal Code . She relied on decisions in other appellate jurisdictions which had held in varying circumstances that an application for a court appointed counsel is an interlocutory matter made in the course of a criminal prosecution: R. v. Dobson , 2016 NBCA 18 , 129 W.C.B. (2d) 420 ; R. v. Branch (2011), 374 N.B.R. (2d) 199 , 94 W.C.B (2d) 557 (N.B.C.A.) ; R. v. Dunkers , 2010 BCCA 605 , 298 B.C.A.C. 47 ; and R. v. Hales , 2009 SKCA 91 , 331 Sask. R. 102 . [ 21 ] Dunkers and Hales were discussed and distinguished by the majority in Pardy and the majority declined in any event to follow them.

Dobson and Branch do not address at all the issue that is central to the discussion on this appeal, namely the proper characterization, as criminal or civil, of the application relating to state-funded counsel.

For that reason, I do not regard them as helpful in the present context and in any event would decline to follow them. [ 22 ] Counsel for the Attorney General also submitted that because the issue of entitlement to state-funded counsel depends on the notion of the protection of an accused’s right to trial fairness and trial fairness is integral to a criminal proceeding, the application must be characterized as criminal in nature. She cited R. v.

Ciancio , 2006 BCCA 311 , 232 B.C.A.C. 1 , where Ryan J.A. in another context (whether an order could be made in the course of a criminal trial relating to access to facilities and equipment in a detention facility in order to ensure that the accused could properly prepare for, and thus receive, a fair trial) asserted that an order made to ensure that the accused had a fair trial “must be characterized as criminal in nature” (paragraph 31).

I do not regard this general statement, made in another context, as a proposition that whenever issues of fair trial are engaged, the matter must be characterized as a criminal proceeding. Certain fair trial issues may well be so bound up with the actual process in the course of a criminal trial that they of necessity have to be regarded as incidental or ancillary to the criminal trial. But other fair trial issues may be of a more general nature.

The necessity for and appropriateness of appointment of counsel to ensure that a litigant is properly represented so as to receive a fair trial is one of those more general issues. [ 23 ] I am satisfied that it is not necessary or appropriate to revisit the conclusion of the majority in Pardy on the issue of jurisdiction. Accordingly, I conclude, on the authority of Pardy , that this Court has jurisdiction to hear and determine the merits of this appeal.

Factual Context [ 24 ] The applications judge described the factual background to the application for appointment of counsel as follows: [4] After the Applicant's lawyer (from the private bar) withdrew from the file, the Applicant applied for a new lawyer through the Legal Aid Commission. On October 16, 2014, the Appeal Board of the Legal Aid Commission approved the application conditional upon the Applicant contributing toward the legal costs in amount of $734 per month for 24 months. The Applicant has not accepted the arrangement offered by the Legal Aid Commission.

He says that he is unable to contribute toward the cost of retaining a lawyer and he is not convinced that the staff lawyer assigned to him has the requisite expertise to handle the matter. Barbara Barker is the staff lawyer

assigned to the Applicant. She has seven years' experience at the bar and five years' experience in criminal matters. [5] The Applicant attempted, through the Appeal Board, to have the payment agreement varied, and to have the right to choose a lawyer from the private bar. On December 17, 2014, the Appeal Board decided that: (1) the required contribution toward legal costs would not be varied; and (2) the Applicant would be permitted the right to retain a lawyer from the private bar subject to compliance with the Legal Aid Tariff (Schedule A of the Legal Aid Regulations , C.N.L.R. 1010/96).

At that time, the tariff provided for hourly rates at $50 and $60. These rates are well below market rates, even for the most junior lawyer in the private bar. [6] The Applicant filed five rejection letters from private bar lawyers to illustrate his inability to find counsel willing to accept a retainer on this matter. One of the five letters noted concern about the low hourly rates available under the tariff. [7] When the legal aid application was initially submitted (July 15, 2014), the Applicant was receiving gross monthly income of $1,625 from Employment Insurance.

That income ended May 9, 2015 and, at present, the Applicant has no income. The Provincial Director of the Legal Aid Commission, Nicholas Summers, in his May 11, 2015 affidavit, indicates that the new financial information may allow reduction or elimination of the monthly contribution from the Applicant toward legal costs. [8] Compounding the Applicant's financial situation, he is currently suffering symptoms associated with a severe concussion suffered a year ago in a car accident.

Until those symptoms improve or resolve, the Applicant will have limited capacity for employment, and doubtful capacity to defend himself on these charges without legal counsel. The Application and the Decision [ 25 ] Mr. Hennessey rejected the offer of a staff solicitor on the financial terms specified by the Commission and sought a Rowbotham order arguing (

i) he could not comply with the Commission’s financial requirements because he now has no income (his employment insurance benefits having ceased); and (ii) the staff lawyer assigned to his case had insufficient experience to ensure he would be properly represented and receive a fair trial. [ 26 ] The applications judge rejected both submissions. As to the first submission, while recognizing that Mr. Hennessey’s financial circumstances had changed since he made his application for legal aid by the cessation of his employment insurance benefits, he concluded that Mr.

Hennessey had not placed sufficient updated financial information before the court to give a sufficiently comprehensive picture of his current financial status. He concluded that the better course to deal with this issue was to leave it to Mr. Hennessey to provide updated financial information to the Commission so that a reassessment of the necessity, under the Legal Aid Regulations , of requiring him to contribute to the cost of his representation could be made.

In an affidavit filed with the Court, the Executive Director of the Commission had indicated that it would be appropriate for the Commission to reconsider the financial contribution requirement based on updated information. [ 27 ] Counsel for the Commission on this appeal reiterated the Commission’s willingness to reconsider the financial issue on the basis of Mr. Hennessey’s current finances. In the circumstances, I do not see any error on the part of the applications judge in declining to make a Rowbotham order on this basis.

I will say nothing further on this subject. [ 28 ] Of more significance, however, is Mr. Hennessey’s main submission that the applications judge erred in his application of the law, as enunciated in Pardy , when he declined to make an order for counsel because Mr. Hennessey’s reason for rejecting the offered legal aid staff solicitor was not based on objective grounds and therefore was “unreasonable”. [ 29 ] The reasoning of the applications judge is captured in the following excerpts from his judgment: [17] I find that the Applicant's concern, or his lack of comfort with Ms.

Barker, is purely subjective and is without foundation in the evidence. As stated by Green, C.J.N.L. in Pardy at para. 99 , the subjective beliefs of the accused are not enough. There must be an objective basis supporting the assertions. [18] I do not agree that Ms. Barker's five years' experience as a criminal lawyer is inadequate or creates a threat to trial fairness. The Applicant's rationales for not establishing a solicitor-client relationship with Ms. Barker are unreasonable.

I find that there is no objective basis supporting the assertions that trial fairness cannot be achieved without more experienced counsel. Trial fairness is managed on many levels and ultimately by the trial judge. A competent lawyer is an important variable in managing and achieving trial fairness. Ms. Barker's affidavit satisfies me that she is a competent lawyer, qualified and adequately experienced to serve as counsel to the Applicant on this matter. Ms.

Barker has seven years at the bar, five in the area of criminal law, including experience with a jury trial and experience defending persons accused of fraud. The fact that she has not defended anyone accused of tax evasion does not, in my view, compromise trial fairness. If one extends that logic, then trial fairness is compromised every time a lawyer takes on a charge or defence for the first time. [19] The Applicant's preference to retain one of the most experienced criminal lawyers in the province … is understandable. Who in the Applicant's position would not have such a preference?

But that preference cannot translate to the receipt of public funding from the Attorney General, in the context of these particular charges, and in the context of a legal aid system which is prepared to provide competent (but less experienced) counsel. The Supreme Court of Canada's decision in R. v. Imona-Russell , 2013 SCC 43 (also referred to as Ontario v.

Criminal Lawyers' Association of Ontario ) stresses the importance of the need for restraint by courts with respect to the circumstances involving expenditure of public funds in relation to the appointment of counsel. … [27] The Applicant's reasons for failing to form a solicitor-client relationship with Ms. Barker are unreasonable. His concerns that trial fairness is in jeopardy due to her limited experience are unfounded.

There is no objective basis supporting the assertions that trial fairness cannot be achieved without more experienced counsel. [ 30 ] The findings of the applications judge on this issue can be summarized as follows:

1. The provision of legal counsel to Mr. Hennessey was “necessary to ensure a fair trial” (paragraph 29); 2. The counsel offered by the Commission was competent and available to provide proper representation to Mr. Hennessey and that the arrangement offered by the Commission was “adequate to provide proper representation and not jeopardize trial fairness” (paragraph 26); 3. Mr. Hennessey’s reasons for failing to form a solicitor-client relationship with the counsel offered by the Commission were “unreasonable” (paragraph 27); 4.

It was “feasible and appropriate” for legal counsel to be provided through the Legal Aid Commission (paragraph 25); 5. The legal aid arrangement will comply with the fair trial requirements at common law and under the Charter (paragraph 28). Argument on Appeal [ 31 ] Mr.

Hennessey’s primary submission is that the applications judge erred in his conclusion that his reason for declining counsel from the Legal Aid Commission was “purely subjective” and therefore “unreasonable.” He submits that the error resulted from failing to engage in an individualized assessment of each of the concerns he had raised and instead engaging in a “general competence” analysis.

He says, based on letters he had received from a number of lawyers in private practice who he had approached to represent him, there was a general concern about the volume, duration and complexity of the case and that therefore it could not be said that his concerns about the ability of the offered staff lawyer were unreasonably based on only subjective concerns. [ 32 ] Mr. Hennessey also submits that this Court’s decision in Pardy now calls for a greater emphasis to be placed on the ability of a legal aid applicant to form a solicitor-client relationship with the offered staff solicitor.

He says, quoting Pardy at paragraph 105 , that “Provided the accused acts in good faith and has a defensible reason for not retaining a particular lawyer funded by the public purse, he or she should be entitled to take the position that a solicitor-client relationship was unable to be established.” [ 33 ] In response, the Attorney General submits that the applications judge made no palpable and overriding errors in his assessment of the evidence submitted in support of Mr. Hennessey’s contentions that he had a defensible reason for refusing the offered staff solicitor.

He further submits that Pardy does not change the law with respect to Rowbotham applications outside of the category of cases relating to murder, manslaughter and infanticide, the special group of charges covered by section 31 (3.1) of the Legal Aid Act , with which Pardy was concerned. [ 34 ] The Legal Aid Commission also made submissions on the appeal. Its submission was directed mainly to the effect of the Pardy decision.

The essence of the submission was that Pardy was limited to the small category of cases involving murder, manslaughter and infanticide and had no effect, and should not have any effect, on the law respecting Rowbotham applications outside of this narrow category. Counsel for the Commission also went further and argued that if in fact the effect of Pardy was as contended for by Mr.

Hennessey, it would invite accused persons to “game the system” and for this reason, if for no other, it should be revisited and either overturned or restricted in its operation. [ 35 ] At the hearing, much of the argument focused on what Pardy actually decided and whether, beyond its actual ratio , its underlying analytical approach extended to offences outside of the categories of murder, manslaughter and infanticide. It is therefore appropriate to first address the scope of the Pardy decision.

The Scope and Import of the Pardy Decision [ 36 ] The issue in Pardy was whether the accused, facing a charge of murder, was entitled to reject counsel offered by the Commission and insist on being provided with a lawyer from the private bar at public expense.

A majority of the Court held that the accused had a statutory right, pursuant to section 31 (3.1) of the Legal Aid Act (a recent amendment which gave an applicant for legal aid with respect to an offence of murder, manslaughter or infanticide a right to select a solicitor in private practice to represent him or her at public expense) to select counsel of his choice. [ 37 ] In addition, a majority also held that the accused was entitled, on the application of Rowbotham principles, to a stay of the murder charge pending appointment of counsel outside of the legal aid scheme because the accused, whose fair trial rights would otherwise be in jeopardy, could not afford to pay for counsel and he had a justifiable reason for not availing of a staff solicitor offered by the Legal Aid Commission for his trial. [ 38 ] In terms of the remedy flowing from these two rulings, the majority chose a Rowbotham stay as its primary remedy but also stated that if a Rowbotham order had not been made, the accused would have been entitled under section 31 (3.1) to have a solicitor nominated by him negotiate a financial arrangement with the Commission for his representation. [ 39 ] The separate conclusions as to the applicability of (i) section 31 (3.1) of the Legal Aid Act and (ii) Rowbotham principles were both ratios of the decision.

Thus, although the current case does not engage section 31 (3.1) 5 because it does not relate to an application “with respect to an offence of murder, manslaughter or infanticide”, what it decided in relation to Rowbotham orders is directly applicable to this case. [ 40 ] As noted previously, it was argued on behalf of Mr.

Hennessey that Pardy modified the law with respect to the application of Rowbotham principles in circumstances where the issue is whether a legal aid applicant is justified in refusing to enter into a solicitor- client relationship with a staff solicitor offered by the Commission and is insisting, instead, that legal representation outside of the legal aid scheme be provided by the Attorney General.

I do not agree that Pardy achieved any modification of the law in this respect outside of cases involving murder, manslaughter and infanticide. [ 41 ] The decision of the majority in Pardy reiterated the long-standing Rowbotham principles, as developed in this Court, that:

1. The test for determining whether a court should stay a prosecution pending the Attorney General agreeing to pay for the provisionof counsel is whether it is necessary to enable the accused to receive a fair trial (paragraph 96); 2. The fair trial right will generally be vindicated by the provision of legal assistance through Commission staff solicitors appointedunder the legal aid scheme (paragraphs 97 and 98); 3.

Exceptionally, the court may be justified in departing from insisting that the accused be provided with a legal aid-appointed solicitorand ordering payment for counsel by the Attorney General (paragraph 97); 4. As a first step, the court must consider whether solicitors appointed by the Commission are available to provide, and are capable ofproviding, the type of representation for the accused’s case that is necessary to ensure a fair trial (paragraphs 98 and 100); 5.

In deciding the question whether Commission-appointed solicitors are available and capable of providing appropriaterepresentation, the mere assertion by the accused that representation through the Legal Aid Commission is unavailable or unobtainableis not sufficient.

There must be an objective basis supporting the accused’s assertions, not merely his or her subjective beliefs (paragraph99). [42] It was nevertheless argued that the emphasis by the majority in Pardy on the importance of establishing a solicitor-clientrelationship between the accused and his or her lawyer – with the absence of such a relationship being a justifiable reason for rejectingrepresentation by the Commission - introduced a new test for determining whether representation through the Commission was availableor appropriate.

I do not agree with this submission. [43] In the first place, Pardy is not the first case where the reference to the need to establish a solicitor-client relationship has arisen.In R. v. Mercer (2001), (NL SC), 197 Nfld. & P.E.I.R. 311 (Nfld. T.D.), the applications judge focused on how theinitial solicitor-client relationship between the accused and the Commission-offered solicitor had been positive but as time passed theaccused became less satisfied to the point where he had terminated the relationship, arguing he was justified in doing so on grounds oflack of availability, commitment and competence.

The applications judge examined the assertions made by the accused in support of hisclaim that he could not form a solicitor-client relationship, in the light of the explanations given by the Commission and the lawyerconcerned, and concluded that, on the evidence, the accused’s assertions were ill-founded. [44] In Druken, the applications judge concluded that there was nothing on the record in that case that would indicate that the accusedwould not receive a fair trial if he were to continue to be represented by the staff solicitor appointed by the Commission and stated: [40] Having said that, I do not want to diminish the importance of the confidence and trust that must exist between counsel and client; itis an important part of the solicitor-client relationship and, at some point, its absence may well affect the ability of counsel to provideeffective representation and thereby jeopardize a fair trial.

However, there is nothing on the record to indicate that the relationshipbetween [the accused] and [the staff solicitor] is so impaired that this should be a factor that would justify an order on the facts aspresented. [45] The unremarkable point from Druken is that the basis for a solicitor-client relationship (trust and confidence) must be present butthat if the accused seeks to reject a Commission-offered lawyer on the basis of an inability to forge a solicitor-client relationship he mustprovide a basis for his assertion and the court is entitled to reject his explanation if no proper explanation for the rejection, supportableby evidence, is given.

This notion of justification received its modern iteration in Ryan (D.) at paragraph 7 and Jesso at paragraph 9which both expressed the idea in terms of having an “objectively valid reason” or “evidence supporting objective findings.” [46] In the cases subsequent to Druken and before Pardy, the emphasis in the discussion was on whether any objectively valid reasonwas given for the accused’s refusal to accept a Commission-offered solicitor without any express reference to the importance of beingable to forge a solicitor-client relationship (except for Ryan (W.J.) where Rowe J.A. did refer to “the poisoning of the solicitor-clientrelationship”).

However, at bottom, underlying the issue of whether there is a proper supportable reason for not wanting a particularlawyer is the argument that a working solicitor-client relationship cannot be established. The possible presence of a conflict of interest, aswas alleged in Jesso, or the unavailability of the lawyer to provide the required services, as was alleged in Ryan (D.), or difficulties indealing with the assigned lawyer, as in Ryan (W.J.), were just specific types of justifications for not being able to establish a propersolicitor-client relationship.

In each of those cases, the Court concluded that the reasons given were not supported by the record.

In sodoing they did not reject the notion that an accused is entitled to have an opportunity to establish a working solicitor-client relationshipwith the lawyer he is offered and, if that is not possible (for some objective supportable reason), he is entitled to refuse to accept thatlawyer and, if no alternative is offered, to seek a Rowbotham order. [47] While no doubt the issue of being able to establish a working solicitor-client relationship is, in some respects, tied up withsubjective impressions of the lawyer by the client and personal “comfort zone” issues, Pardy makes it clear that an accused who isseeking representation paid for out of public funds does not have the luxury of rejecting an offered lawyer simply because he does notlike “the cut of his jib.” He must act reasonably and present a justifiable reason for the rejection supported by objective evidence: [105] An accused who has the resources to retain private counsel has the luxury of being able to be arbitrary or unreasonable in decidingto retain or refuse to retain a particular lawyer.

It is not so where the accused’s representation is being financed from the public purse.The accused must act reasonably and rationally. That is not to say, however, that an accused must accept anyone who is offered.Provided the accused acts in good faith and has a defensible reason for not retaining a particular lawyer funded from the public purse, heor she should be entitled to take the position that a solicitor-client relationship was unable to be established. As noted in the cases,however, it is not enough simply to assert that fact.

There must be a basis for drawing the inference that the accused has a rational reasonfor declining the offered representation. (Emphasis added.) [48] As noted earlier, the reason for declining offered representation must not be based on subjective belief. There must be, in thewords of this Court in Ryan (D.), an “objectively valid reason for refusing the offer.” In Pardy itself, the majority similarly stated that

the “limitation” on the ability of a legal aid applicant to claim he or she could not establish a solicitor-client relationship is that “the accused cannot be unreasonable or irrational in how he or she reaches the decision and there must be evidence, not just a bald assertion, to support the position.” (paragraph 107; emphasis added). [ 49 ] Pardy builds upon, but does not alter this analytical structure.

It is true that there is greater reference in the case than in some previous cases to the importance of being able to establish a solicitor-client relationship but that was because of the way in which the arguments, and the nature of the justifications for refusing to accept the offered solicitors, were presented in that case. At the level of principle, however, Pardy does not say anything different from other earlier cases that fall outside the category of murder, manslaughter and infanticide.

It is true that the reasons of the majority did state: [111] The analysis in the Ryan cases and Jesso must now be read in the light of the statutory amendment [i.e. s. 31(3.1) ]. The assumption that so long as the accused cannot put forth an objective evidence-based reason for rejecting the lawyer offered, he or she must accept whoever is offered no longer is the controlling question. The analysis must be more nuanced. However, this statement cannot be read out of context.

It must be remembered that the accused in Pardy was facing a murder charge and that section 31 (3.1) , with its enhanced right to select counsel, applied.

It was in that context that it was being said that the approach in the Ryan and Jesso cases had to become “more nuanced.” The paragraph preceding the above quotation makes this clear: [110] This right to select [from a number of lawyers pursuant to s. 31(3.1) ] reinforces the notion that the type of solicitor-client relationship to which an accused is entitled, at least since the amendment , is not one where he or she must accept any available and competent lawyer who may be offered by the Commission regardless of the perceived quality of the relationship but, instead, is one where the accused has the right to establish a meaningful and (for him) workable solicitor-client relationship. (Emphasis added.) [ 50 ] The comments relating to the modified applicability of the Ryan and Jesso cases related to cases involving murder, manslaughter and infanticide only.

Those were the only cases affected by section 31 (3.1) . Outside of that small box, the cases still have currency. [ 51 ] In conclusion on this point it can be said that Pardy simply reiterates the truism that the notion of a relationship based on trust and confidence is the foundation of any solicitor-client relationship and that any prospective client, whether reimbursed from the public purse or having to pay from his or her own pocket, has to be given the opportunity of forging such a relationship.

That is the basis of legal representation and is what underscores the opportunity for a fair trial. [ 52 ] That said, it is not enough for the applicant for legal aid to assert, on the basis of “a gut feeling” or some other subjective reason, that he or she cannot establish a solicitor-client relationship and that he or she will not thereby have an opportunity for a fair trial. The asserted reason must be assessed by the court hearing the Rowbotham application to determine whether it is reasonable based on the evidentiary record.

In conducting that factual assessment, the judge must consider all the information presented to determine whether some factually supportable explanation has been established on a balance of probabilities, that it is a reasonable explanation for not being able to establish a working solicitor-client relationship and that the ability to have a fair trial is at risk.

The resulting decision will be one of fact or mixed law and fact to which appellate deference will be given according to the palpable and overriding standard (except of course where there is an extricable legal principle, in which case, a correctness standard is applicable). [ 53 ] Counsel for the Legal Aid Commission also argued that by its (in his view, wrong) application to the facts, Pardy nevertheless effectively made the test for rejecting a staff solicitor on the ground of inability to establish a solicitor-client relationship a subjective one.

Counsel submits that the reasons given by the accused in that case were clearly of a subjective nature. He accordingly argues that Pardy needs to be reconsidered and modified. [ 54 ] I disagree with this characterization. The majority (paragraphs 103 and 104) found that the applications judge made palpable and overriding errors and an error of law in his assessment of the evidence and his characterization of the position that the accused was taking (Rowe J.A., on the other hand, concluded that the judge had not erred in his assessment of the evidence).

The majority disagreed with the applications judge that the reasons given by the accused for objecting to the offered staff lawyers were subjective in nature. The accused had given individualized explanations for why he formed the belief that he could not form a solicitor-client relationship with each of the offered lawyers. Those explanations were based on specific interactions that occurred between him and each of the lawyers involved, each of which he described as unsatisfactory for various reasons (paragraphs 114-116).

The evidence he gave was not contradicted by cross-examination or, unlike Mercer, by any contrary evidence from the lawyers concerned which might have shown why the impressions and conclusions reached by the accused as to the counsel’s availability, interest or experience was either wrong or susceptible of another

interpretation. [ 55 ] In those circumstances, the accused’s reasons (it having been found they were advanced in good faith and not for an ulterior motive) for rejecting the lawyers were regarded by the majority as reasonable and constituted an objective basis for the belief formed by the accused.

While it is not inevitable that uncontradicted evidence such as was advanced in Pardy would necessarily have to be accepted by the trier of fact as a sufficient justification (it always being subject to assessment in terms of its substance, weight, reasonableness and rationality – and, indeed, Rowe J.A., dissenting, disagreed and held that the applications judge had not erred in his assessment of the evidence), it was a basis for doing so and, in that case, the majority accepted it. [ 56 ] In fact, far from supporting the notion that reasons based on subjective impressions could justify rejection of offered counsel, the majority in Pardy specifically identified objective uncontradicted evidence supporting those beliefs.

In advancing his argument, counsel for the Commission confuses subjectively formed belief with the subjective basis for that belief. The belief held by an accused that he cannot form a workable solicitor-client relationship will, of course, necessarily be a belief subjectively held. But that is not the issue. The question is whether there is sufficient evidence to support that belief as a reasonable and rational exercise.

If, for example, the belief is based on unfavourable general impressions or assumptions regarding the competence level of legal aid counsel compared with members of the private bar, or an irrational belief that because one legal aid lawyer may have a conflict, the whole of the Commission is thereby necessarily conflicted, the basis of the belief will be subjective and not sufficient to meet the “evidence supporting objective findings” standard in, say, Jesso.

[ 57 ] It is true that in some types of cases the evidence supporting the belief that a solicitor-client relationship cannot be established can more easily be characterized as objective than in others. For example, if the reason given is that the offered lawyer is in a conflict of interest, the lawyer will, as a matter of law, either be in conflict or not, depending on the circumstances. A reason based on, say, lack of availability or competence, will not be as easily established. But the exercise in each case is the same.

The trier of fact will have to determine, on the basis of all the evidence, whether the accused’s belief is solidly grounded and is not unreasonable or irrational in light of that evidence. In the absence of a legal error or a palpable or overriding error of fact, that conclusion should be given deference on appeal. [ 58 ] I conclude, therefore, that outside of the area of murder, manslaughter and infanticide – an area with which this case is not concerned – Pardy does not modify the pre-existing law relating to how Rowbotham applications should be approached and decided in this jurisdiction.

Pardy is simply an example of how uncontradicted evidence explaining an accused’s good faith belief that he could not form a workable solicitor-client relationship with Commission staff lawyers, which involved objective evidence of interactions between the accused and the lawyers involved, not just subjective musings based on unsupported assumptions, can lead to findings of fact that a sufficient reason for rejecting the lawyers was given and that that reason was not irrational or unreasonable.

Application to this Case [ 59 ] The applications judge concluded, after considering the evidence submitted in support of and in opposition to Mr. Hennessey’s belief that he could not forge a workable solicitor-client relationship with any of the counsel offered by the Commission, that Mr. Hennessey’s belief was unreasonable because it was not supported by sufficient objective evidence. [ 60 ] That finding is entitled to deference unless Mr.

Hennessey can point to some error of law or palpable and overriding error on the part of the judge in his assessment of the evidence or in his application of the law to the facts. [ 61 ] Mr. Hennessey gave as his primary reason for claiming not to have been able to form a solicitor-client relationship with the staff lawyer who was offered by the Commission, her “limited experience” as a criminal lawyer and the fact that she had never represented anyone charged under the Income Tax Act . [ 62 ] The applications judge concluded, applying the majority decision in Pardy , that Mr.

Hennessey’s lack of comfort with the lawyer was “purely subjective and is without foundation in the evidence” (paragraph 17). His reasons, quoted above in paragraph 29, stressed that the evidence given by the lawyer as to her background and experience, including five years’ practice in criminal law in both jury cases and fraud trials, satisfied him that “she is a competent lawyer, qualified and adequately experienced to serve as counsel for [Mr.

Hennessey] on this matter.” He specifically considered the fact that she had not represented clients in income tax evasion cases and discounted the significance of that fact in the context of the current case. [ 63 ] In response to Mr. Hennessey’s submission that the complexity of this proposed jury trial required more senior counsel to represent him, the judge stated: [22] The Applicant perceives this matter to be complex, and argues that this is a factor when assessing the need for more senior counsel to represent the applicant and ensure trial fairness.

I agree that, on the broad spectrum of all criminal trials, this one is more complex than average . This is because pre-trial applications are expected, because trial by jury requires knowledge of additional procedures, because the evidence is voluminous, and because trial by jury requires higher vigilance by counsel on evidentiary issues. It may be a lengthy trial if the Applicant requires the Crown to prove and enter tax records one document at a time through witnesses on the stand. But the trial duration does not correlate with trial complexity.

Despite the above average complexity, I find that this matter is within the skill set of [the lawyer], considering her seven years at the bar and her five years’ experience in criminal law . (Emphasis added.) [ 64 ] I do not agree with Mr. Hennessey’s counsel’s submissions that the judge “summarily” dismissed, and did not place enough emphasis on, Mr. Hennessey’s evidence as to why the nature and complexity of the case required more senior counsel. The judge in fact addressed Mr. Hennessey’s concerns and concluded that, considering the lawyer’s skill set and the nature of the case, Mr.

Hennessey’s concerns were unfounded. They were not supported by the objective circumstances. Accordingly, it followed that Mr. Hennessey’s reasons for rejecting the offered lawyer were subjective and not based on any rational evidentiary foundation. In other words, the underlying premise for Mr.

Hennessey’s objections (the lawyer was not sufficiently skilled and experienced to deal with the complexity of the case) was not supported. [ 65 ] Contrary to counsel’s submissions, this case is unlike the situation in Pardy , where one of the applications judge’s errors was that he did not consider the individualized and differing reasons given for the accused’s rejection of each offered counsel . Pardy does not stand for the proposition that the judge must, as a matter of law, address specifically and on an individual basis, each of the submissions made by the accused.

So long as it is apparent that the judge addressed the nature of the accused’s concerns and considered the evidentiary record as a whole, that is sufficient. The applications judge clearly did that in this case. [ 66 ] The applications judge made no palpable or overriding error or error of law in reaching his conclusions as to the Commission lawyer’s competence, skill set and ability to deal with a trial of the complexity and duration identified in this case. It therefore further follows, applying the approach in Ryan (W.J.) , Mercer, Jesso and Pardy , that the judge made no error in concluding that Mr.

Hennessey’s fair trial rights would not be at risk if he were represented by the offered Commission lawyer and that Mr. Hennessey’s application should have been dismissed. An Additional Observation [ 67 ] The foregoing conclusions are sufficient to dispose of this case. However, I do note the further observation of the applications judge that Mr. Hennessey’s right to a fair trial would be placed in jeopardy if he were to try to conduct the trial himself. He stated: [29] However, I add that legal counsel is necessary in this case to ensure a fair trial. This factual finding is not based on the detailed

contextual inquiry as outlined in Rowbotham , rather, it is based on the March 13, 2015 medical report of Dr. David Hart. That report discloses that the Applicant is experiencing post-concussion symptoms arising from a car accident that occurred on April 28, 2014. The symptoms cause problems on a daily basis and include "headaches with memory loss, confusion, can't find appropriate words in conversation". Based on his medical condition at present, it is obvious to me that legal counsel will be necessary. [ 68 ] I refer to this because of the possibility that, in reaction to this decision, Mr.

Hennessey may still refuse to accept the lawyer offered by the Commission as his counsel despite the assurances from the applications judge – and now this Court – that the lawyer is capable of protecting his fair trial rights, and instead attempt to represent himself. [ 69 ] Based on the applications judge’s conclusion quoted above, that would be a mistake. I encourage Mr. Hennessey not to follow that route. The comment made by Sir James Fitzjames Stephen quoted at the beginning of this judgment bears careful consideration.

Such an ill-advised choice was made by the accused in the Ryan (D.) case, with the result that it was ultimately found that his fair trial rights were in fact jeopardized and a new trial, after a very lengthy trial and further appeal, had to be declared. See R. v. Ryan , 2012 NLCA 9 , 318 Nfld. & P.E.I.R. 15 (Rowe J.A., dissenting) . [ 70 ] If, notwithstanding this caution, Mr. Hennessey decides to proceed with self-representation, then the principles enunciated in the Ryan case as to how such a situation should be handled, should be applied.

Conclusion and Disposition [ 71 ] The applications judge made no errors in his application of the cases in this jurisdiction, including, Ryan (W.J.) , Mercer, Druken, Ryan (D.) and Pardy, to the circumstances faced by Mr. Hennessey in this case. Nor did he make any reversible errors in his assessment of the evidence. [ 72 ] Accordingly, I would dismiss the appeal. Separate Concurring Reasons by Welsh J.A.: [ 73 ] I concur with the result, analysis and reasons set out by Green C.J.N.L. at paragraphs 11 to 72. Appeal dismissed, Welsh J.A. concurring.