2017 NLCA 31, 2017 NLCA 31

Jonathan Rowe (applicant/appellant) v. Her Majesty the Queen in Right of Newfoundland and Labrador (respondent) and Newfoundland and Labrador Legal Aid Commission (respondent) (16/108 and 16/109) Indexed As: Rowe v. Newfoundland and Labrador 2017 NLCA 31 1 C.A.N.L.R. 716 Court of Appeal of Newfoundland and Labrador Green C.J.N.L. May 4, 2017

Summary: The applicant applied, pursuant to rule 31(2) of the Court of Appeal Rules , NLR 38/16 , for leave of the Chief Justice to hold a re-hearing by a panel of three judges relating to a previous order of a single judge denying two applications for extension of time to appeal two orders of the Trial Division. In one application, he sought a Rowbotham order that, if granted, would have resulted in the appointed of private counsel being paid for by the Attorney General to act for him at his criminal trial. The application was refused on the basis that there was no objective evidence to support Mr.

Rowe’s assertion that he was unable to form a solicitor-client relationship with the lawyers from the Legal Aid Commission. In the other application, the applicant sought judicial review of the Commission decision to deny him counsel under section 31(3.1) of the Legal Aid Act, RSNL 1990, c. L-11 . The application was dismissed, the applications judge finding that section 31(3.1) did not cover the charge of accessory after the fact to murder. Held: Application allowed in part.

Application to hold a re-hearing of the application for an extension of time to appeal the decision of the Trial Division to deny the applicant’s Rowbotham application dismissed. Application to hold a re-hearing of the application for an extension of time to appeal the order of the Trial Division dismissing the application for judicial review of the Commission decision to deny the applicant counsel under section 31(3.1) of the Act allowed.

Green C.J.N.L.: The discretion which the Chief Justice may exercise to allow a re-hearing by a panel of three in relation to a matter already decided by a single judge under s. 10 of the Judicature Act , RSNL 1990, c. J-4 is not open-ended. It must be exercised on the basis of proper principle. The party seeking re-hearing has the burden of raising questions as to the correctness of the original decision or must point to some other good reason as justification for having the issue re-examined.

With respect to the second consideration that there be “some other good reason” to re-examine the issue, the importance or significance of the issue or the perceived need to resolve a question of uncertainty in the law or to give further or fuller consideration to a point may fall into that category. Regarding the application to extend time to appeal the denial of the Rowbotham application, the applicant submitted that many of the statements made by the applications judge relating to Mr.

Rowe’s explanation as to why, after expiration of the appeal period, he reversed his position with respect to his wish to appeal were based on speculation only. The comments of the application judge were not speculation but as part of her reasoning process. The applicant also argued that the applications judge did not consider or appreciate his evidence that his experience with Commission lawyers led to a loss of confidence in the legal aid system as a whole.

The applications judge dealt with this issue when she pointed out that the applicant did not challenge or allege palpable and overriding errors in the trial judge’s assessment of credibility and fact finding. The applicant argued that the applications judge inappropriately focused on the merits of the potential appeal rather on the different (but related) question of whether there are sufficient reasons, based on the interests of justice, why the merits should be examined in a full appeal.

While it is important to avoid the temptation to decide the appeal issues when considering an extension application, it must berecognized that the potential strength or weakness of the potential appeal is one of the factors that must be considered, which is what theapplications judge was doing when she referenced the merits of the appeal. In sum, the applicant has not raised a question as to the correctness of the decision refusing to grant the application to extend time toappeal the denial of the Rowbotham application.

With respect to the application to extend time for appealing the dismissal of his application for judicial review, the applicant submittedthat the applications judge erred in law in her conclusion that a different

interpretation of section 31(3.1) was not possible. The mainreason given by the applications judge for concluding that there was no apparent error in the trial judge’s

interpretation of section 31(3.1)was based on her rejection of the suggestion that just because the offence of accessory to murder carried the potential of a life sentencethat provided a stand-alone basis for including it within, the offences of murder, manslaughter or infanticide in section 31(3.1). Section 31(3.1) does not refer to an application for legal aid with respect to a “charge” of murder, only with respect to an “offence” ofmurder.

If, therefore, a person is seeking legal aid with respect of a charge of being an accessory to murder, it could be said on thelanguage of section 31(3.1) that his or her application is “with respect to” a matter that involves “an offence” of murder. One cannot saythat those arguments have no merit or are not arguable. Neither are they fanciful or just wishful thinking. There were questions raised as to whether the decision denying extension of time is correct that would justify a re-consideration of theextension issue by a panel of three.

The scope of section 31(3.1) was an important issue both with respect to access to justice generally and in respect of theadministration and application of the

section by the Commission in particular. Thus the application was allowed in part. A rehearing by a panel was ordered to reconsider whether an extension of time to appeal thedismissal of the judicial review should be granted. The application for a rehearing of the application to extend time to appeal the denialof a Rowbotham order was dismissed. Cases cited: Young v. Noble, 2016 NLCA 58 Fahey v. Newfoundland (The Law Society of), 2003 NLCA 8, 221 Nfld. & P.E.I.R. 79 Fahey v. Newfoundland (The Law Society of), 2000 NFCA 19 Hennessey v. Canada, 2017 NLCA 23 R. v. Pardy, 2014 NLCA 37, 357 Nfld. & P.E.I.R. 49 R. v.

Nowegijick, (SCC), [1983] 1 S.C.R. 29 Markevich v. Canada, 2003 SCC 9, [2003] 1 S.C.R. 94 Counsel: Robert W. Buckingham, for the appellant; David Rodgers, for the respondent (Her Majesty the Queen in Right of Newfoundland and Labrador); Derek Hogan, for the respondent (Newfoundland and Labrador Legal Aid Commission). This application was heard on March 10, 2017 before Green C.J.N.L. The following judgment was delivered on May 4, 2017 by Green C.J.N.L.

______________________________________________________________ Green C.J.N.L.: [ 1 ] The applicant, Jonathan Eugene Rowe, applied, pursuant to rule 31(2) of the Court of Appeal Rules , NLR 38/16, for leave of the Chief Justice to hold a re-hearing by a panel of three judges relating to a previous order of a single judge denying two applications for extension of time to appeal two orders of the Trial Division which dealt with failure to appoint counsel to represent Mr.

Rowe at his trial of a charge of being an accessory after the fact to murder. [ 2 ] The application is being dealt with, by consent of all parties, on the basis of written submissions without an oral hearing, pursuant to rule 30(8). Background [ 3 ] Mr. Rowe was charged with being an accessory after the fact to the murder of one Nicholas William Windsor. If he were to be convicted of that offence, he would be liable to life imprisonment (

section 240 , Criminal Code ). [ 4 ] He applied for legal aid and a staff solicitor employed by the Newfoundland and Labrador Legal Aid Commission was appointed for him. There were several changes of solicitors and ultimately Mr. Rowe refused the last solicitor that the Commission offered. He asked for appointment of counsel from the private bar. He argued that he was unable to form a solicitor-client relationship with Commission staff lawyers and that in any event he was entitled to an appointment of a lawyer from the private bar under section 31(3.1) of the Legal Aid Act, RSNL 1990, c.

L-11, which allows a person otherwise eligible for legal aid to choose a lawyer in private practice to represent him or her where the application is “with respect to an offence of murder, manslaughter or infanticide.” This application was refused. He appealed the decision within the internal appeal procedure in the Commission but the appeal was denied on the basis that section 31(3.1) did not apply to applicants facing a charge of accessory after the fact to murder, as opposed to a charge of murder itself. [ 5 ] Mr. Rowe made two applications to court seeking legal assistance with respect to his defence.

In one, before Justice Murphy (2016 NLTD(G) 88), he sought a Rowbotham order that, if granted, would have resulted in private counsel being paid for by the Attorney General. Murphy J. refused the application on the basis that there was no objective evidence to support Mr. Rowe’s assertion that he was unable to form a solicitor-client relationship with the lawyers from the Commission. [ 6 ] In the other application, heard by Justice Orsborn (2016 NLTD(G) 155), Mr. Rowe sought judicial review of the Commission decision to deny him counsel under section 31(3.1) .

Orsborn J. dismissed this application, holding that section 31(3.1) did not cover the charge of accessory after the fact to murder. [ 7 ] Mr. Rowe did not appeal either of these decisions within the applicable time periods; however, he subsequently applied for extensions of time to appeal both orders. The application was heard by Hoegg J.A. who denied the applications ( 2017 NLCA 17 ). Re-hearing: Principles [ 8 ] Mr. Rowe now seeks leave from me to have the applications for extension of time re-heard by a panel of three judges. In Young v.

Noble , 2016 NLCA 58 , I summarized the approach to the exercise of my discretion in these circumstances as follows: [3] … The discretion which the Chief Justice may exercise to allow a re-hearing by a panel of three in relation to a matter already decided by a single judge under s. 10 of the Judicature Act , RSNL 1990, c. J-4 is not open-ended. It must be exercised on the basis of proper principle. There must be “some good reason for requiring the parties to suffer the delay and expense that would inevitably be associated with re-arguing a matter that has already been decided” ( Stacey v.

Stacey , 2009 NLCA 50 , 289 Nfld. & P.E.I.R. 180 at paragraph 21 ). There is a rebuttable presumption that the original decision was correct. The party seeking re-hearing has the burden of raising questions as to the correctness of the original decision or must point to some other good reason as justification for having the issue re-examined ( White v. Conception Bay South (Town), 2013 NLCA 10 , 334 Nfld. & P.E.I.R 325 at paragraph 4 ). (Underlining added.) [ 9 ] This is the approach I propose to take in this case.

I would add, however, that with respect to the second consideration that there be “some other good reason” to re-examine the issue, the importance or significance of the issue or the perceived need to resolve a question of uncertainty in the law or to give further or fuller consideration to a point may fall into that category.

The Original Extension Decision [ 10 ] Because the first question to be addressed in an application for re-hearing is whether there is some question as to the correctness of the original decision, it is necessary to briefly review the approach taken by Hoegg J.A. to determining that extensions of time should not be granted. [ 11 ] Justice Hoegg purported to apply what are known as the “ Fahey factors” as the “analytical framework” for determining whether an extension application ought to be granted. She quoted from Fahey v.

Newfoundland (The Law Society of), 2003 NLCA 8 , 221 Nfld. & P.E.I.R. 79 at paragraph 10 which suggests that the court should consider four factors on an application for extension of time to file a notice of appeal: (

i) whether the appellant had a bona fide intention to appeal within the appeal period; (ii) whether there is a reasonable excuse for the failure to comply with the rule; (iii) the potential merits of the appeal; and (iv) the presence of any exceptional or special circumstance justifying or working against the fairness of an extension. [ 12 ] Counsel for Mr. Rowe points out that the Fahey decision did not in fact deal with an extension of time but with the related issue

of whether an appeal that has been deemed abandoned should be re-instated. He points to the fact that, later in the case, the Court enunciated five factors as being those that were applicable to a determination in that case. He says that if Fahey were to be relied on, then additional considerations- the timeliness of the application for relief and a lower standard for assessing the potential merits of the appeal (not “frivolous or vexations” or an “arguable case”) - would have to have been considered. [ 13 ] This submission has no merit.

While Hoegg J.A. did refer to the Fahey decision, which did deal with deemed abandonment rather than extension of time to file an appeal, her quote was from another Fahey decision ( 2000 NFCA 19 ) which did deal with extensions of time and which was referred to in the later case. The earlier case enunciated the four factors mentioned above, the very ones Hoegg J.A. purported to apply. I reject the suggestion that she did not consider or purport to apply the relevant factors. [ 14 ] In applying the Fahey factors, Hoegg J.A. addressed Mr. Rowe’s offered excuse for failing to appeal in time.

Although he conceded he did not have an intention to appeal within the appeal period, Mr. Rowe had submitted that he subsequently became aware of certain communications between one Philip Pynn (who was convicted of manslaughter in respect of the same incident) and Mr. Pynn’s lawyer which might, so Mr. Rowe asserted, be relevant to the “innocence at stake” exception to solicitor-client privilege. He argued that he needed counsel to help him address this complex issue. Hoegg J.A. rejected this excuse. She concluded, after hearing evidence from Mr.

Rowe, that he could not demonstrate “any connection between his seeking the communications between Mr. Pynn and his lawyer and why he ought to be granted counsel of choice” (paragraph 15). She further concluded that in any event counsel appointed by the Commission (who are still available to Mr.

Rowe) could equally assist him in gaining access to the communications, even if they were relevant, as could a member of the private bar. [ 15 ] She also used the same reasoning in concluding that exceptional or special circumstances did not exist: [15] … I am therefore not persuaded that the circumstances and/or timing of Mr. Rowe’s change of mind to appeal the Trial Division decisions constitute an exceptional or special circumstance which would justify granting Mr. Rowe his counsel of choice. [ 16 ] As to the potential merits of the proposed appeals, she concluded they had little or no merit.

With respect to the decision of Murphy J., she noted that Mr. Rowe did not challenge in his proposed notice of appeal any of the factual or credibility findings of Murphy J. – who had heard evidence from Mr. Rowe and three of his former lawyers – in concluding there was no objective evidence supporting Mr. Rowe’s contention that he could not form a solicitor-client relationship with any of them. She further noted that he did not allege any palpable or overriding error on the part of the judge, only that he failed to put the evidence into proper context.

On that basis, she concluded that an appeal of the decision had “little to no merit” (paragraph 20). [ 17 ] With respect to Orsborn J.’s decision, Hoegg J.A. observed that it was “comprehensive and well-reasoned” and that she could not see “any point or reasonable basis” on which it could be argued that the judge made an error in his

interpretation of section 31(3.1) of the Act . She rejected the argument that because a conviction for being an accessory after the fact to murder carried the same potential sentence as sentences for murder, manslaughter and infanticide, section 31(3.1) should be interpreted to include the accessory offence. She stated that the similarity of sentences “cannot constitute a stand-alone basis for extending the right to counsel of choice to those charged with accessory to murder” (paragraph 21). [ 18 ] Considering all of the Fahey factors, each of which individually did not support Mr.

Rowe’s position, Hoegg J.A. exercised her discretion to deny the applications. Considerations [ 19 ] The primary basis for exercising the discretion to order a re-hearing by a panel of judges is whether there are “questions as to the correctness of the original decision” ( Young v. Noble , paragraph 3 ). Mr. Rowe bears the burden of raising such questions. They must not be fanciful or amount merely to wishful thinking. They have to be something that raises at least an arguable issue. (

a) The Decision of Murphy J. [ 20 ] Mr. Rowe submits that many of the statements made by Hoegg J.A. relating to Mr. Rowe’s explanation as to why, after expiration of the appeal period, he reversed his position with respect to his wish to appeal were based on “speculation” only and made without considering Mr. Rowe’s oral evidence. In fact, Hoegg J.A. specifically adverts to Mr. Rowe giving evidence on the hearing. Further, I do not regard her comments as speculation but as part of her reasoning process leading to the conclusion that there was no connection between Mr.

Rowe’s claimed need to have access to the communications between Mr. Pynn and his lawyer and Mr. Rowe’s claim to require a lawyer of choice from the private bar. [ 21 ] Mr. Rowe also argued that Hoegg J.A. did not consider or appreciate his evidence as to why his unsuccessful efforts to obtain the privileged communications using Commission counsel now necessitated appointment of private counsel, namely, that his experience with Commission lawyers led to a breakdown in his relationship with them resulting in loss of confidence in the legal aid system as a whole.

Hoegg J.A dealt with this issue when she pointed out that Mr. Rowe did not challenge or allege palpable and overriding errors in Murphy J.’s assessment of credibility and fact finding which led to his conclusion that there was no objective evidence supporting the assertion that the solicitor-client relationships had broken down to the point that an appointment from the private bar was justified. [ 22 ] Mr.

Rowe also submitted that Hoegg J.A. “misapprehended and misapplied” the appropriate factors when she stated, in the quotation reproduced above at paragraph 15, that the circumstances did not “justify granting Mr. Rowe his counsel of choice.” Mr.

Rowe argues: The test does not ask whether the exceptional or special circumstances warrant the Applicant receiving the relief he is seeking, but rather: whether the circumstances warrant an extension of time to file a Notice of Appeal (Written submission dated April 28, 2017). [ 23 ] I take this submission to mean that Hoegg J.A. inappropriately focused on the merits of the potential appeal rather on the different (but related) question of whether there are sufficient reasons, based on the interests of justice, why the merits should be examined in a full appeal. By jumping to the final result, Mr.

Rowe, argues, she was in effect deciding the appeal itself.

[24] While it is important to avoid the temptation to decide the appeal issues when considering an extension application, it must berecognized that the potential strength or weakness of the potential appeal is one of the Fahey factors that must be considered. Hoegg J.A.was clearly of the view that the merits of the proposed appeal against the decision of Murphy J. in this case were weak and that no doubtinfluenced her decision not to grant the applications. In any event, I do not believe that the quoted statement was directed to whether Mr.Rowe was entitled to the relief he was seeking on the appeal.

When read in context, especially in relation to the preceding sentences inparagraph 15 of her judgment, it is clear that Hoegg J.A. was, instead, addressing – and rejecting – the submission that Mr. Rowe’sclaimed “special circumstances” of needing access to the privileged communications had a connection to and justified the granting ofcounsel of choice from the private bar (which was the basis of Mr. Rowe’s application to Murphy J.), as opposed to counsel from theCommission. [25] Mr.

Rowe has not satisfied me that he has raised a question as to the correctness of Hoegg J.A.’s decision with respect to refusingto grant the application to extend time to appeal the decision of Murphy J. [26] I would also note that Hoegg J.A.’s decision was released before, and therefore did not have the benefit of, this Court’s decisionin Hennessey v. Canada, 2017 NLCA 23. In the course of commenting on and clarifying the scope of this Court’s previous decision inR. v. Pardy, 2014 NLCA 37, 357 Nfld. & P.E.I.R. 49, Hennessey discussed principles applicable to the granting of Rowbotham orders.

However, there is nothing in Hennessey that could constitute a “good reason” to justify a re-examination of any of the Pardy principlesby allowing a re-hearing of Hoegg J.A.’s decision relative to a possible appeal of Murphy J.’s decision. (

b) The Decision of Orsborn J. [27] With respect to the application to extend time for appealing Orsborn J.’s decision, Mr. Rowe’s submission is that Hoegg J.A.erred in law in her conclusion that it could not be argued that Orsborn J. was in error in his

interpretation of section 31(3.1). Mr. Rowealso submits that in not concluding that the prepared appeal involved an arguable point, Hoegg J.A. applied too high a threshold inassessing the potential merits of the proposed appeal. [28] The main reason given by Hoegg J.A. for concluding that there was no apparent error in Orsborn J.’s

interpretation of section31(3.1) was based on her rejection of the suggestion that just because the offence of accessory to murder carried the potential of a lifesentence that did not equate it to, and provide a “stand-alone basis” for including it within, the offences of murder, manslaughter orinfanticide in section 31(3.1). She noted that other offences unrelated to murder, manslaughter or infanticide also carry a potential forlife imprisonment. [29] In his decision, Orsborn J. dealt with other submissions as well. In particular, he addressed the meaning and effect of the phrase“with respect to” in section 31(3.1). For convenience, I will set out the provision in relevant part: 31.

(3.1) Where the application is for legal aid with respect to an offence of murder, manslaughter or infanticide, the applicant may selecta solicitor … (Emphasis added.) [30] Mr. Rowe’s counsel submitted to Orsborn J., relying on R. v. Nowegijick, (SCC), [1983] 1 S.C.R. 29 andMarkevich v. Canada, 2003 SCC 9, [2003] 1 S.C.R. 94, that the underlined words were of, and should be interpreted as having, a wideimport and that, accordingly, in the context of section 31(3.1), they could include the offence of accessory after the fact to murderbecause the accessory offence is “with respect to” the offence of murder.

Orsborn J. rejected this submission on the basis that the phrasereferred only to the connection between two matters, not to the

interpretation and scope of the words being connected. [31] It is to be noted, however, that section 31(3.1) does not refer to an application for legal aid with respect to a “charge” of murder,only with respect to an “offence” of murder. If, therefore, a person is seeking legal aid with respect of a charge of being an accessory tomurder, it could be said on the language of section 31(3.1) that his or her application is “with respect to” a matter that involves “anoffence” (committed by someone) of murder.

It is to be noted that one of the meanings of “with respect to” is, simply, “with referenceto” (Canadian Oxford Dictionary, 2nd ed. (Toronto: Oxford University Press, 2004), p. 1316). [32] Orsborn J. alluded to this issue by referencing the submission of the Commission that the absence of the reference to “charge” isexplained by the fact that a person may apply for legal aid before being charged with an offence. Orsborn J. appears to have acceptedthis reasoning. [33] While there can be no doubt that this may be a plausible explanation for giving the phrase a meaning narrower than argued forby Mr.

Rowe’s counsel, it does not make alternative submissions, as made on behalf of Mr. Rowe, implausible or without any reasonablemerit. This is especially so when, as pointed out by counsel for Mr. Rowe in the hearing before Orsborn J., in all accessory cases, theCrown still has to prove the commission of the principal offence thereby making the accessory case just as complex as the trial of theprincipal offence.

The rationales for granting legal aid in such circumstances, based on the nature of the issues engaged, could equallyapply. [34] It seems to me that whatever one’s personal opinions as to the strength of those arguments, one cannot say that they have nomerit or are not arguable. Neither are they fanciful or just wishful thinking. A reasonable argument can be made in their favour.

Whetherit would be sufficient to carry the day on an appeal is, of course, not the issue at this stage. [35] These aspects of Orsborn J.’s decision were not dealt with by Hoegg J.A. except in the sense that she made the compendiousstatement that his judgment was comprehensive and well-reasoned and that she could not see “any point or reasonable basis” for sayingthat he was in error. [36] It is also arguable that in expressing herself in this way, she was in fact basing her decision on her agreement with theinterpretation advanced by Orsborn J. instead of merely addressing the lower standard of whether there were potential merits in a contrarysubmission.

Accordingly, I consider that there are questions raised as to whether the decision denying extension of time is correct that

would justify a re-consideration of the extension issue by a panel of three. [ 37 ] I would further add that the scope of section 31(3.1) is an important issue both with respect to access to justice generally and in respect of the administration and application of the

section by the Commission in particular. An opinion of the Court of Appeal thereon might be of assistance. Accordingly, that is a question that should also be taken into consideration on the application to extend time and be balanced against other relevant factors. It in my opinion qualifies as a “good reason” justifying having the issue of extension, so that the appeal could possibly be heard, re-examined. Conclusion and Disposition [ 38 ] I have decided to exercise my discretion to order a re-hearing, by a panel of three judges, of Mr.

Rowe’s application for extension of time to appeal the decision of Orsborn J.

It is appropriate to give a panel of three judges a further opportunity to consider anew whether the appeal ought to proceed, by taking into account, amongst other relevant considerations, the proposition that the proposed appeal is not completely without merit and that the opportunity to determine, at the appellate level, the scope of section 31(3.1) of the Legal Aid Act may constitute a special circumstance that would justify an extension of time to appeal. [ 39 ] Counsel may contact the Registry to obtain an appropriate date for the re-hearing. [ 40 ] I would not, however, order a re-hearing of the extension application respecting the proposed appeal of the decision of Murphy J.

Application allowed in part .