CHWYL v LAW SOCIETY OF NUNAVUT, 2014 NUCJ 09

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: CHWYL v LAW SOCIETY OF NUNAVUT, 2014 NUCJ 09 Date of Judgment (YMD): 20140331 File Number: 23-12-220 CVC Registry: Iqaluit Applicants: Allan Chwyl, Andrea Niptanatiak and Kyle Chmelyk -and- Respondents: The Law Society of Nunavut and Nunavut (Attorney General) -and- Intervenors: The Law Society of the Northwest Territories and the Law Society of Yukon ________________________________________________________________________ Before: The Honourable Mr. Justice E.

Johnson Counsel (Applicants): Thomas Engel Counsel (Respondents): Jonathan P. Rossall (Law Society) and Adrienne E. Silk (Nunavut A.G.) Counsel (Intervenor NWT) Sheila MacPherson Counsel (intervenor Yukon) Jean P. Whittow Location Heard: Iqaluit, Nunavut Date Heard: December 10-11, 2013 Matters: Canadian Charter of Rights and Freedoms, ss. 2(d) 6, 7, 11(d) (e), 24 and 52; Legal Profession Act, R.S.N.W.T. 1988, c.L-2 as duplicated for Nunavut by

section 29 of the Nunavut Act, S.C. 1993, c. 28 , ss. 68 and 69 REASONS FOR JUDGEMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION

[ 1 ] On May 20, 2011 the Applicants Andrea Niptanatiak [Niptanatiak] and Kyle Chmelyk [Chmelyk] were charged with committing offences in Nunavut under the Controlled Drugs and Substances Act, SC 1996, c 19 [the CDSA]. On June 13, 2011 the Applicant, Allan Chwyl [Chwyl], was also charged with offences in Nunavut under the CDSA. [ 2 ] Chwyl retained Thomas Engel [Engel] to represent him and Engel obtained a Restricted Appearance Certificate [RAC] from the Law Society of Nunavut [the Respondent] that expired on July 20, 2012. On December 29, 2011 the RAC was extended to representing Niptanatiak and Chmelyk.

The prosecutions against Chmelyk and Niptanatiak concluded on April 16, 2012 but the prosecution against Chwyl continued beyond the expiration date of the RAC. [ 3 ] Chwyl could not afford to pay the cost of a new RAC and on January 10, 2012 the Applicants filed Notices of Constitutional Applications challenging the constitutional validity of sections 68 and 69 of the Legal Profession Act, R.S.N.W.T. 1988, c. L-2 as duplicated for Nunavut by

section 29 of the Nunavut Act, S.C. 1993, c. 28 [the Act] and Rules 49 (2) (b),(g), (3) , (4) and (5) and s. 5 to

Schedule “A” of the Rules of the Law Society of Nunavut, collectively called “the Requirements”. Chwyl requested declarations from this Court that the Requirements were of no force and effect because they breached s. 520 of the Criminal Code, RSC 1985, c. C-46 [Criminal Code], and ss. 6 , 7 and 11(3) of the Charter of Rights and Freedoms1 [Charter]. [ 4 ] On April 11, 2012 the Law Societies of the Northwest Territories and of Yukon were granted Intervenor status. [ 5 ] On May 13, 2013 Chwyl filed an Amended Notice of Constitutional Application adding a claim that his rights had also been breached under s. 11(

b) of the Charter because of unreasonable delay in the prosecution. [ 6 ] I heard oral argument on December 10 and 11, 2013 and reserved judgment. II. FACTS [ 7 ] In the course of oral argument counsel for the Respondent pointed out that about two months before I heard the application the Applicants filed a document entitled Written Argument- Other Materials that were outside the time limits imposed by Justice Cooper. It contained the following documents: (

a) Affidavits of Cheryl Gosché sworn on May 15 and September 20, 2013; (

b) Peter Harte’s Responses to Written Interrogatories arising out of his affidavit sworn on June 1, 2012; (

c) Coleen Harrington’s affidavit sworn on February 1, 2008 from R v Bishop, 2008 NUCJ 10 ; (

d) Letters from Justice Cooper dated December 13, 2012 and February 11, 2013; (

e) The documents required to make an application to be a member of the Respondent; (

f) A report dated March, 1991, entitled, Justice on Trial: Report of the Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta [Cawsey Report]; and (

g) Copies of Chwyl’s Notice and Amended Notice of Constitutional Application on court file 23-05-249 and 23-05-250 dated filed on January 26, 2006.

[ 8 ] Because of the late filing, the Respondent could not arrange for cross-examination on the affidavits and further case management without jeopardizing the court date. The Respondent decided not to jeopardize the court date and did not formally challenge the filing of the materials. However, the Respondent hoped the court would take this fact into account in deciding the weight that should be attached to this evidence. [ 9 ] The Applicants also rely on the evidence contained in the affidavit of Megan Moroz, filed on January 24, 2012 [Moroz Affidavit].

While the Respondent and Intervenors rely on the affidavits of Peter Harte, sworn on June 1, 2012 [Harte Affidavit]; Cayley Thomas sworn on June 8, 2012 [Thomas Affidavit]; Sarah A.E. Kay, sworn on June 8, 2012 [Kay Affidavit]; Jonathan Ellsworth, sworn June 8, 2012 [Ellsworth Affidavit]; and Lynn Daffe, sworn June 8, 2012 [Daffe Affidavit]. [ 10 ] Most of the facts deposed to in the affidavits and referred to in the Apprilcants’ Written Argument were not contentious and were accepted in the Respondent’s Written Submissions.

However, the Attorney General did identify some factual deficiencies that are addressed below. [ 11 ] The Applicant also filed transcripts of the court appearances of the Applicants that I have supplemented with other documents in the court file, such as the endorsements of the information. [ 12 ] Niptanatiak is an Inuk, while Chmelyk and Chwyl are non-aboriginal. All three were charged separately with possession of marijuana; Chwyl was also charged with simple possession of cocaine. [ 13 ] On June 13, 2011, Chwyl appeared before Justice of the Peace G. Bligh [JP Bligh] in Cambridge Bay on a bail application.

Sam Jomha [Jomha], a member of the Law Society of Alberta practicing out of the City of Edmonton, appeared by telephone as legal counsel for Chwyl. It is unclear if Jomha had obtained an RAC. Chwyl was denied bail and the charges were adjourned to June 20 in this court. When the charges came up before Justice Sharkey on June 23, legal aid duty counsel, Tamara Fairchild [Fairchild], informed the Court that Chwyl had terminated Jomha’s services and retained Engel. She informed Justice Sharkey that she had advised Engel about the Requirements and what he needed to do to obtain an RAC.

The charges were adjourned to the next circuit in Cambridge Bay on August 22. [ 14 ] On July 11, 2011, two days after Engel obtained his RAC, Chwyl appeared before Justice Cooper in Iqaluit and was released on an undertaking that included cash bail of $2,000. [ 15 ] Niptanatiak and Chmelyk were not detained in custody and on December 29, 2011, Engel’s RAC was extended to include their charges. About 11 months after the charges were filled, the prosecutions were finalized on April 16, 2012. Niptanatiak made a $500 donation to the Health Centre in Kugluktuk, and the charges against him were withdrawn.

Chmelyk entered a guilty plea to simple possession of marijuana and was fined $500. [ 16 ] After numerous court appearances the charges against Chwyl were adjourned to the circuit starting on October 29, 2012, presided over by Justice Sharkey. However, on July 20 the RAC expired. Engel was able to persuade the Respondent to extend the RAC to October 17, 2012, at no additional cost to Chwyl. On September 27, 2012, Engel and the Crown reached agreement on a plea bargain that was to be formalized in court in Cambridge Bay on October 29.

On October 23, Engel asked the Respondent to extend the RAC to permit him to finalize the plea bargain in court because Chwyl could not pay for a new RAC. The Respondent refused to grant a second extension, and Engel arranged for a pre-trial conference to try to obtain a court date before the RAC expired.

[ 17 ] Cooper J. presided on the conference call and indicated she would look into the request for an earlier court date, but there were no further communications with Engel. On October 29, Engel attempted to retain Les Moore [Moore], the legal aid lawyer assigned to the circuit, to speak to the matter. However, Moore refused to act because the RAC had expired and Chwyl had not retained him directly. The Crown informed the court that Engel represented Chwyl and that plea bargain negotiations were almost complete, however, there was a problem with proceeding because Engel’s RAC had expired.

Sharkey J. accepted Moore’s submission that he could not act as Engel’s agent until he obtained a new RAC. Sharkey J. then asked Chwyl if he wanted to conclude the charges. He replied in the affirmative and expressed frustration about the delay and additional costs he would have to incur for a new RAC. [ 18 ] The charges were again adjourned several times, until January 21, 2013, when Chwyl appeared before O’Connor J. without Engel. The Crown again informed the court that he thought there was still a problem regarding Engel’s RAC.

Chwyl told the court that Engel could obtain the RAC if he provided him with the money. However, he could not afford it at that time because he had just become a father. The Crown informed O’Connor J. that the previous negotiations with Engel had resulted in a joint submission and he was prepared to proceed. O’Connor J. told Chwyl that he was prepared to proceed in the absence of Engel and suggested he retain one of the five defence lawyers who were on the circuit. Chwyl refused to proceed without Engel and told the court that none of the defence lawyers in court would represent him. Ms.

Henderson, the salaried lawyer working for the legal aid clinic in Cambridge Bay, spoke up and told the court that she and other lawyers on the circuit were prepared to help Chwyl, but could not get involved until he terminated the services of Engel. The matters were then adjourned until March. [ 19 ] The charges were concluded on March 4, when Chwyl entered a guilty plea to possession of marijuana. The Crown dropped the possession of cocaine charges.

Chwyl was fined $3,000 and the court ordered that the little over $5,000 that was seized from Chwyl be returned to him. [ 20 ] The Legal Services Board of Nunavut [LSB] administers legal aid for Nunavut under the Legal Services Act, R.S.N.W.T. 1988 c. L- 4 , as duplicated for Nunavut by

section 29 of the Nunavut Act, S.C. 1993, c. 28 [LSA], in three regional clinics located in Iqaluit, Cambridge Bay, and Rankin Inlet. It is the policy of the LSB that anyone who is accused of a contravention of the Criminal Code and is required to attend a bail hearing is presumed to be eligible for legal assistance paid for by the LSB. Counsel may be contacted by phone directly by the accused or by the R.C.M.P. at the point of arrest.

In addition, LSB salaried lawyers or lawyers in private practice funded by LSB contract visit the R.C.M.P. offices daily in order to determine whether any individuals in custody require representation at a show cause hearing. [ 21 ] The affidavits filed by the Respondent and Intervenors provided a significant amount of factual information on the operations of the territorial Law Societies and National Mobility Agreement2 [NMA] that were not contested by the Applicants. Those facts are reviewed later in the analysis of the

section 7 Charter arguments. II.

ISSUES [ 22 ] Have the Applicants provided a sufficient evidential basis on which to ground a finding that their Charter rights have been violated? [ 23 ] Do the Applicants have standing to challenge an alleged violation of Engel’s mobility rights? [ 24 ] If the Applicants have standing, do the Requirements breach Engel’s mobility rights? [ 25 ] If the Requirements do effectively discriminate between lawyers based on residency and breach the Applicants mobility rights, are they laws of general application and, therefore, constitutionally valid pursuant to s. 6(3) of the Charter ? [ 26 ] Is there an absolute, constitutionally-protected right to choice of counsel under any combination of ss. 7 , 11(d) , and 11(

e) of the Charter that is violated by the Requirements? [ 27 ] If there is a constitutionally-protected right to choice of counsel, do the Requirements about membership in the bar of Nunavut under attack deprive the Applicants of that right in a manner that is not in accordance with the principles of natural justice? [ 28 ] Did the Requirements under attack breach Chwyl’s rights under s. 11(

b) of the Charter by causing unreasonable delay in his prosecution?

[29] Do the Requirements breach either of the positive or negative rights in relation to the freedom to associate under s. 2(

d) of theCharter? [30] Are the Requirements a justifiable infringement of the right to freedom of association or the right to be free from compelledassociation under s. 2(

d) of the Charter or in combination with s. 7 of the Charter? A. Have the Applicants provided a sufficient evidential basis on which to ground a finding that their Charter rights have been violated? A.1 Attorney General Arguments [31] The Respondent and Intervenors accepted the facts set out at paragraphs 14-29 of the Apprilcants’ Written Argument. [32] As required by

section 58 of the Judicature Act S.N.W.T. 1998, c. 34 s.1, as duplicated for Nunavut by

section 29 of the NunavutAct, S.C 1993, c. 28, the Applicants served the Attorney General of Nunavut [Attorney General] and the Attorney General of Canadawith the Notices of Constitutional Application. The Attorney General of Canada did not respond to the notice while the Attorney Generalfiled a Written Brief. [33] Relying on MacKay v Manitoba, (SCC), 61 DLR (4th) 385, [1989] 2 SCR 357 [MacKay], and R v Edwards, (SCC), [1996] 1 SCR 128, 132 DLR (4th) 31 [Edwards], the Attorney General noted that the Applicants have the burden ofproof that a Charter right was infringed.

In order for a court to determine if a Charter right has been breached the Applicants must presentcogent factual evidence regarding the prejudice they have suffered as a result of the impugned statute or provision. [34] The Attorney General points out that the Applicants did not file any evidence regarding the affect of the impugned provisions ontheir Charter rights. There is no evidence to indicate that the applicants attempted to retain Engel prior to December, 2011 but werethwarted by the Requirements.

The evidence indicates that all three Applicants were able to retain Engel, their counsel of choice. [35] The Attorney General also argues that the Applicants’ evidentiary base is deficient because they did not tender any evidenceregarding the length of time they were incarcerated or their attempts to obtain bail.

Although they asserted that their right to counsel wasrestricted or diminished, they did not provide any evidence to prove that they were thwarted in their efforts to retain counsel of choice.Neither Chmelyk nor Niptanatiak provided any evidence that there was any delay in their trial or the disposition of their charges. [36] Although the Applicants argue that the RAC fees create an unjust system that allows choice of counsel to persons of financial meansbut removes it for poor people, they did not provide any evidence about their financial circumstances.

As a result, there is no evidencebefore the court about whether the RAC fees were split among the Applicants and to what extent the imposition of the RAC feesimpacted the affordability of the legal services. [37] The evidence before the court indicates Engel viewed the RAC fees as a disbursement and would not renew his RAC until Chwylpaid him a retainer in trust, equal to the cost he would have to pay to the Respondent for a new RAC.

The Moroz Affidavit states that thecosts of the RAC would flow through to the Applicants. [38] The court transcripts prove Chwyl’s charges were delayed by approximately four months due to Engel’s failure to renew his RACwhen it expired in October, 2012. Chwyl did not file any direct evidence concerning his agreement with Engel about paying the RACfees and provided no evidence tending to show that the RAC fees were sufficiently prohibitive as to impede him from receiving legal

services from Engel. A.2 Analysis [ 39 ] MacKay and Edwards mandate that the applicant for a Charter remedy must prove on a balance of probabilities that a breach has occurred. To satisfy this burden an applicant must file cogent evidence that he or she has suffered prejudice from the impugned statute or provision. [ 40 ] The evidence from the court files, the Moroz Affidavit, and Goché’s Affidavits, sworn on May 15 and September 20, 2013, supports all of the facts stated above. Chmelyk and Niptanatiak were not held in custody. Chwyl applied for bail after he was arrested and charged on June 13, 2011.

When he appeared before JP Bligh on the same day he was represented by Jomha. After a contested bail hearing he was held in custody for a total of 28 days until released by Justice Cooper on July 11. [ 41 ] There is no direct evidence to support the facts alleged in paragraphs 25 and 28 of the Chwyl’s Written Argument. Paragraph 25 states that on February 26, 2013 Chwyl obtained the funds to pay for an RAC and that the costs of the time spent to obtain an RAC were passed on to Chwyl.

Paragraph 28 states that Chwyl was required to pay Engel another $1,837.50 RAC fee, as well as the $115.40 required for a Certificate of Good Standing from the Law Society of Alberta and Engel’s legal fees to represent him. [ 42 ] I am satisfied from Chwyl’s statements to Justice O’Connor that he did not have the money to pay for a new RAC on January 21, 2013.

I am also satisfied that I may infer that Engel would not have represented Chwyl on March 4 if he had not received sufficient funds from Chwyl to cover the full costs of obtaining a new RAC and the fees to finalize the charges. [ 43 ] There is no direct evidence that Chmelyk and Niptanatiak shared the costs of the initial RAC, issued on July 11, 2011 and the legal fees paid to Engel. I am satisfied that I may infer that Chwyl paid for the initial RAC because he was anxious to be released from custody and Chmelyk and Niptanatiak were not added to the RAC until December 29.

It is unclear whether some part of the RAC cost was passed down to them. However, I am satisfied that there was no undue delay in the handling of their charges. After their charges were finalized in April, 2012, they had no further involvement in this application. [ 44 ] Although Chwyl did not provide any evidence about his financial circumstances I am satisfied that he would not have delayed the finalization of the plea bargain if he were not under financial pressure. As he told Justice O’Connor, he had recently become a father and could not afford the RAC at that time.

I also infer from Chwyl’s responses to Justice Sharkey on October 29, and Justice Mahar on December 3, that he did not have the financial resources to pay for another RAC at the time of those appearances. [ 45 ] I find that Chwyl was able to obtain the funds to pay for the new RAC some time between January 21 and March 4, 2013. Because he had to obtain a second RAC, the resolution of his charges was delayed by 126 days. [ 46 ] Chwyl did not spend any time in jail because of the Requirements. He was arrested and charged on June 13, 2011, and had a bail hearing on the same day.

He was able to retain Jomha to represent him, but Jomha was not successful in securing Chwyl’s release. Chwyl terminated Jomha’s legal services by the time he appeared in court on June 23. At that time he had the choice of applying for legal aid or to retain Engel.

[ 47 ] If Chwyl had applied for legal aid it would have taken some time for the application to be processed because he was seeking a bail review rather than an initial bail hearing. The LSB has counsel available on a daily basis to handle an initial bail hearing and Chwyl would have been presumed to be eligible. However, an application for a bail review would be treated as a routine application for legal aid and would not receive the same priority as an initial bail hearing.

Chwyl would also have had to satisfy the financial threshold to be eligible for legal aid. [ 48 ] Fairchild appeared in court on June 23 as Engel’s agent and informed the court that she had advised Engel about the steps he would have to take to obtain an RAC. If Engel had been a member of the Respondent, or had an RAC on June 23, it is unlikely he could have secured a date earlier than the one he was able to obtain before Justice Cooper on July 11. At that time this court had four resident judges.

This court has for some time reserved dates in Iqaluit called Special Criminal Chambers to handle matters such as bail reviews. In June 2011, Special Criminal Chambers were scheduled for June 10 and 22. However, at that time no dates were reserved in July and August because of the shortage of judges in the summer months due to holidays and legal education.

When the request for a bail review was filed the Senior Judge would have set down the first date when a judge and prosecutor were available in Iqaluit. [ 49 ] In the final analysis, Chwyl was able to obtain his counsel of choice but was delayed by 126 days in finalizing the charges against him. The net result was that he had to spend an additional $1,952.90. [ 50 ] I am satisfied that this evidential base is sufficient to engage in a Charter analysis. B. Do the Applicants have standing to challenge an alleged violation of Engel’s mobility rights?

B.1 Respondent and Attorney General Argument [ 51 ] The Respondent argues that the Applicants lack standing to raise an argument concerning mobility rights under

section 6 of the Charter . The Applicants have suffered no violation of their mobility rights. Engel raises mobility rights within the context of this application in order to advance the interests of persons without standing in these proceedings. If Engel’s or another person’s mobility rights have been infringed this application is an inappropriate way to assert any claim to relief under the Charter. [ 52 ] At paragraph 118 of the Apprilcants’ Written Argument, the Applicants acknowledge that they do not have a direct right affected under

section 6 of the Charter . The Respondent submits that the allegations about mobility rights are merely a creative means for Engel to indirectly advance his personal interests, while avoiding the risk of costs that might arise if he applied for constitutional relief in his own name. As a result, Engel has not submitted evidence in his own capacity nor has any other individual lawyer who stands to benefit from the relief sought. [ 53 ] The Applicants request relief under either s. 24(1) or s. 52(1) of the Charter .

As noted in Constitutional Law of Canada,3 standing under s. 24(1) is more restrictive than other sections of the Charter. Section 24(1) focuses on the rights of the applicant to the exclusion of others, regardless of whether that other person’s rights have been violated. In Edwards , the Supreme Court of Canada interpreted s. 24(1) to mean that no relief for a Charter breach can be sought or obtained, except by a person properly before the court and whose own rights have been violated. [ 54 ] To the extent that Engel’s rights under s. 6(2)(

b) of the Charter are allegedly violated, the Applicants cannot obtain relief under s. 24(1) even if a violation is established. Section 24(1) can only be invoked by “anyone” whose rights have been “infringed or denied”. By the Applicants own submissions, it is clear that the violation referred to revolves around Engel’s inability to practice in Nunavut, unless

he complies with the Requirements. [55] As noted in Constitutional Law of Canada4, section 52(1) of the Charter is the supremacy clause that renders any law inconsistentwith the Charter “of no force or effect”. By comparison, s. 24(1) enables a court to provide a focused remedy, “as the court considers justand appropriate in the circumstances”. Furthermore, any remedy for an alleged breach of mobility rights must be granted under s. 52(1)by way of a declaration that the legislation establishing and empowering the Respondent is inconsistent with the Constitution.

Assummarized by Professor Hogg with reference to Schacter v Canada, [1992] 2 SCR 679, (SCC), there are six potentialtypes of remedial orders available to a court to rectify the infringement.5 [56] Relief under section 52(1) is potentially available to applicants whose personal rights have not been infringed6. Since the Applicantshave not been charged with an offence under the Act their standing to raise Engel’s mobility rights to attack the constitutional validity ofthe Requirements should be considered within the rubric of R v Big M Drug Mart Ltd., (SCC), [1985] 1 SCR 295, 18DLR (4th) 321 [Big M].

That case provides guidance on when a person charged with a criminal offence may seek to enforce the rights ofothers. [57] Big M stands for the proposition that a defendant to a criminal charge may raise any constitutional defect in the law under which thecharge was laid. The Applicants have not been charged with an offence under the Act and, as a result, do not have standing to allege thatan unconstitutional law infringed Engel’s mobility rights.7 [58] Furthermore, the Applicants do not meet the requirements for standing based on exceptional prejudice.

This rule negates the right tochallenge the validity of a statute where the individual affected by the statute is affected in the same manner as any member of thepublic. Standing will only be granted where the individual is “exceptionally prejudiced”.8 This means they must prove that the statuteapplies to them differently than it does to the general public. [59] The Attorney General notes that none of the Applicants seek to practice law in Nunavut.

Rather, they seem to allege that the effectof the impugned sections of the Act is to increase the cost of retaining non-resident counsel that in turn results in an infringement ofvarious other Charter rights. [60] Relying on Minister of Justice v Borowski, (SCC), [1981] 2 SCR 575, 130 DLR (3d) 588 [Borowski], and Canada(Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012], 2 SCR 524 [DowntownEastside], the Attorney General notes that the Supreme Court of Canada held that in order to establish status as a plaintiff in a suitseeking a declaration of the invalidity of legislation, the plaintiff must establish that he is directly affected by it or has a genuine interestin it as a citizen.

He must also demonstrate that there is no other reasonable and effective manner in which the issue may be broughtbefore the court. [61] The Applicants fail to meet the criteria set out in Borowski. Firstly, there is no serious issue about the invalidity of sections 68 and69 of the Act. The impugned provisions require membership in the Respondent as a prerequisite to the practice of law in Nunavut andmake it a contravention of the Act to falsely represent ones’ status as a lawyer.

These and similar provisions are commonplace in otherjurisdictions, and the Applicants have not advanced any arguments to link the impugned provisions to a breach of their Charter rights.Secondly, the Applicants are not lawyers and are not directly affected by these provisions. [62] Finally, while the Applicants may have a genuine interest as a citizen in the validity of the legislation, there is clearly anotherreasonable and effective manner in which the issue may be brought before the court and that is for Engel to raise it and defend his ownmobility rights.

B.2 Applicants Arguments [63] Chwyl argues that he is in court as a result being charged with offences under the CSDA. The Constitutional Application wassevered from the criminal charges by Justice Cooper and continued under case management as a civil matter.

However, if the chargeshad not been resolved the issues before this court would have been before a judge presiding over a criminal trial. [64] Although Chwyl was not charged under the Act he is in court because he was forced into that position by the criminal charges andwas directly affected by the Act in having spent money to pay for the RAC fees. [65] Chwyl argues that he does not have to be prosecuted under the Act to have standing to raise a constitutional argument about thevalidity of the legislation.

All he needs to prove is that there exists an obligation to do something under the Act that relates to the criminalproceeding. If any aspect of the challenged law or rules is unconstitutional, it does not matter that the unconstitutional aspect did notdirectly affect Chwyl rights. If the law is bad it should be struck down and the money Chwyl spent for RAC fees should be returned tohim. [66] The Respondent and the Attorney General have focused on whether the Act operated to actively infringe any of Chwyl’s rights andto cause him prejudice.

They argue that if he was not directly prejudiced in a particular way he does not have the foundation for aconstitutional attack. Relying on the comments of Doherty J.A. at paragraph 142 of the judgment of a five-member panel of the OntarioCourt of Appeal in R v Nur, 2013 ONCA 677, [2013] OJ No 5120, Chwyl argues that he can raise a constitutional issue based on theconcept of a reasonable hypothetical fact situation even if he was not in fact prejudiced.

Following this logic Chwyl is not required to callevidence in support of a reasonable hypothetical fact situation flowing from the facts in this case. [67] A reasonable hypothetical flowing from the facts of this case is that a person charged with a criminal offence in Nunavut has onelawyer and then bail is denied.

He decides he wants a different lawyer from another jurisdiction, but then has to wait in jail for the bailreview because of the time it takes for the lawyer to obtain an RAC. [68] Another reasonable hypothetical would be if the accused has a relationship with a lawyer in another jurisdiction, as Chwyl did withEngel, and wants that lawyer to do the initial bail application.

He then has to wait in jail until the lawyer obtains an RAC. [69] A third hypothetical would entail the situation where someone like Chwyl is charged with an offence, and is at the R.C.M.P.detachment in Cambridge Bay, and asserts his right to retain and instruct counsel under

section 10(

b) of the Charter. He wants to getadvice from a lawyer who is not a member of the Respondent. He cannot obtain that advice because the lawyer he wants is not a memberof the Respondent. [70] All of these reasonable hypotheticals can be considered by a court in deciding if the Requirements infringe on the

section 10(b)Charter rights of an accused person. B.3 Analysis [71] In Big M Dickson J. expressed the basic rules on standing and jurisdiction under the Charter to challenge the validity of legislation.McLachlin C.J. described the different remedial purposes of the two sections in R v Ferguson, [2008] 1 SCR 96, 2008 SCC 6. Section52(1) provides a remedy for laws that violate Charter rights in purpose or effect.

Section 24(1) provides a remedy for government actsthat violate Charter rights, and as held in Big M, provides a personal remedy that can only be invoked by the party alleging a violation ofthat party’s own constitutional rights. [72] As noted by Professor Hogg9, in Edwards the Supreme Court of Canada held that the accused could not complain about anunreasonable search of his girlfriend’s apartment, even though the police found drugs there and relied on the seized drugs as part of thecase against the accused.

Since the accused had no reasonable expectation of privacy in an apartment rented by someone else, the searchwas not a breach of his rights under

section 8 of the Charter and only the tenant could pursue a remedy under

section 24. Similarly, in Rv Belnavis, (SCC), [1997] 3 SCR 341, 34 OR (3d) 806, the Supreme Court held that a passenger in a vehicle could notpursue a remedy for an unlawful search of the vehicle.

[73] Counsel did not cite any cases where the same reasoning was applied to mobility rights. However, a mobility right is by its natureunique to the person alleging a denial of the right to pursue the gaining of a livelihood. The Applicants did not come to court becausethey were prosecuted under the Act. They were charged with offences under the CDSA. It is Engel, not the Applicants, who has the rightto pursue his profession in Nunavut. He is the only person who can pursue a remedy under

section 24 for an alleged violation of thatright. As Professor Hogg notes10, a person motivated by public interest may launch a Charter challenge to a statute that does not apply tothe challenger. However, it must be done under

section 52, rather than

section 24, where the availability of a declaration of invalidity isgoverned by the more generous standing requirements set out in Borowski and Downtown Eastside. [74] The parties were well aware of this procedural issue because it came up in the case management conferences. The Respondent andAttorney General did not dispute Engel’s comments, in the Reply Submissions and in oral argument, that this issue was canvassed in thecase management conferences.

It appears counsel could not agree on the party who should bring the application to add Engel as a party.Counsel for the Attorney General refused to bring the application and Engel indicated he would consider consenting to being added as aparty but was concerned about the potential conflict of interest. [75] Despite further discussions and case management conferences no party moved to add Engel as a party.

The issue was not raisedagain until the Respondent suggested, at paragraph 98 of its Written Submissions, that the Applicant’s arguments about mobility rightswere a creative means for Engel to advance his personal interests while avoiding the risk of costs if he applied for relief in his own name.That unfortunate suggestion is not borne out by the undisputed account of the discussions between the parties at the case managementconferences. It is compounded because the Respondent is seeking solicitor-client costs against Engel personally. I am satisfied that thereis no merit to these allegations.

Engel understandably took exception to the attack on his integrity and seeks enhanced costs that areaddressed later. [76] I am satisfied that the Applicants were indirectly affected by the Requirements because the they cost them more money and that theApplicants satisfy the standing requirements set out in Borowski and Downtown Eastside. They have the standing to raise the allegedbreach of Engel’s mobility rights and to pose the hypothetical fact situations noted above. C. If the Applicants have standing, do the Requirements breach Engel’s mobility rights?

C.1 Applicants Arguments [77] Relying on Black v Law Society of Alberta, (SCC), [1989] 1 SCR 591, 58 DLR (4th) 317 [Black], the Applicantssubmit that the Requirements breach the mobility rights granted by s. 6(2)(

b) of the Charter because they restrict the mobility of lawyersthat are not members of the Respondent.

[78] In Black the Supreme Court of Canada stated that s. 6 should be generously interpreted to achieve its purpose of securing to allCanadians and permanent residents the rights that flow from membership or permanent residency in a united country.

On the other handit is important to recall that the Charter was not enacted in a vacuum and must, as illustrated by Law Society of Upper Canada vSkapinker, (SCC), [1984] 1 SCR 357, 9 DLR (4th) 161, be placed in its proper linguistic, philosophic, and historicalcontexts. [79] The Supreme Court also held non-residents should be subject to the same conditions as residents when pursuing the livelihood oftheir choice. [80] The Requirements restrict a non-member lawyer’s ability to pursue the gaining of a livelihood by practicing in Nunavut.

As noted inBlack at page 618, “one need not be completely cut off from a particular livelihood for a violation to exist”. Although the Requirementsdo not completely cut off non-member lawyers from gaining a livelihood they place them at a disadvantage when compared to memberlawyers. This disadvantage against non-members lawyers constitutes a violation of the non-members lawyer’s mobility rights under s.6of the Charter.

Section 6 also protects those citizens that benefit from the services provided by the worker. [81] Although R v Allen, (AB KB), [1987] AJ No 250, 51 Alta LR (2d) 248 (ABQB) [Allen], held that a fee imposedon extra-provincial lawyers did not violate mobility rights, it is distinguishable. Firstly, Black effectively reversed Allen when itapproved the judgment in Re Mia and Medical Services Commission of British Columbia (1985), (BC SC), 17 DLR(4th) 385, 61 BCLR 273 (BCSC) [Mia].

Secondly, the evidence submitted in Allen that proved that the fees were spent on infrastructuresuch as law libraries, practice advisors, mentor programs, a disciplinary committee, and indirectly benefited Alberta residents is absent inthis case. Thirdly, the fee was optional because the applicant could instead pass a test. As Veit J. recognized in Allen the purpose of thefee was “cash grab” where a lawyer could buy his or her way out of taking the test. She found the link between the fee and anylegitimate object of the Law Society was “tenuous”.

In the case at bar even such a tenuous option is not available. [82] In oral argument the Applicants disputed the claim of the Respondents that The Requirements are nearly identical to the rulesapplicable to regular members of the Respondent. Using the figures provided in Table 5, at page 22 of the Respondent’s WrittenSubmissions, the Applicants noted that the total revenues from RAC fees doubled between 2006 and 2007 and again between 2009 and2010.

Although the fees currently charged to an RAC applicant are identical to those for full members, the RAC fees, as a portion ofoverall revenue, have increased from 5% in 2005 to 19% in 2011. By contrast in the Yukon and Northwest Territories it is only 10%.

Inother words there is a marked difference between Nunavut and the other territories when it comes to reliance on the revenue from RACfees. [83] The Applicants argue that the inflated numbers for Nunavut represent a tariff barrier that unduly impeded the mobility of lawyers.Paragraph 76 in Malartic that was quoted at page 40 of the Respondent’s Written Submissions opined that this type of barrier was likelycontrary to the Charter. [84] The Applicant argues that the fees paid for an RAC are not equal to those paid by a regular member because it may cost $2,000 fora single day in Nunavut under an RAC while a regular member pays the same amount for the whole year.

C.2 Respondent and Attorney General Arguments [85] Professor Hogg11 noted that s. 6(2)(

b) does not guarantee an unrestrained and absolute right for individuals to gain a livelihood.Variations in provincial laws will not be removed by s. 6(2)(

a) because s. 6(3) (

a) of the Charter exempts: any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basisof province of present or previous residence…

[86] The Requirements in question do not identify residency as a consideration in the application process. The sole distinction drawnbetween an RAC and regular applicants arises as a result of the lawyer’s own choice as to whether or not he or she chooses one type oflicence or another. Any non-resident lawyer who meets the requirements for regular membership or an RAC can apply and practice inNunavut.

The type of certification they desire is a matter of personal preference and no applicant is streamed based on residency. [87] Numerous cases have upheld professional regulatory requirements that restrict mobility rights.

In Allen, Veit J. determined that thedifferent types of licences under the Alberta legislation did not distinguish members based on residence but rather on the lawyer’s ownchoice of which law society the lawyer chooses to join and the type of licence preferred. [88] The jurisprudence clearly demonstrates that the majority of s. 6 Charter challenges to regulatory requirements for professionals havebeen unsuccessful. In cases where challenges have succeeded residency was pivotal in the operation of the impugned law.

One exampleis Black where the restrictions in question were struck down because the Law Society of Alberta’s restrictions primarily discriminatedagainst lawyers on the basis of the lawyer’s residency. [89] Since Black was decided, regulatory restrictions on inter-jurisdictional legal practice have been upheld in Taylor v Institute ofChartered Accountants (1989), (SK CA), 59 DLR (4th) 656 (SKCA) [Taylor], and Tapper v Law Society of UpperCanada (1998), (ON CA), 37 OR 414, 113 OAC 370 (ONCA) [Tapper]. [90] As deposed to at paragraphs 72-76 and 86-91 of the Harte Affidavit, the Requirements were not enacted for the primary purpose ofdiscriminating between lawyers’ on the basis of residency.

Rather, the Requirements are necessary to ensure effective oversight of thelegal profession by raising the funds required to achieve the mandate of the Law Society of Nunavut. It is unavoidable that fees must bereceived from lawyers who make the choice to practice in Nunavut to sustain the Law Society and enable efficacious regulation. [91] In Taylor, the Saskatchewan Court of Appeal upheld the restrictions even though they were more stringent than those in Ontario,because they did not discriminate primarily on the basis of residency.

The regulations setting the qualifications for obtaining a licenceapply to residents and non-residents alike, similar to the situation in Nunavut. [92] In Tapper, the Ontario Court of Appeal upheld the Law Society of Upper Canada’s rule that required lawyers to pay for basicmandatory liability insurance.

The court emphasized that the rationale for the rule had nothing to do with creating or eliminatingcompetitive advantages, and that the purpose of the rule was to spread professional liability risk across all lawyers practicing in theprovince. [93] The Respondent submits that its objective in collecting fees from all lawyers who practice in the Territory is similarlyconstitutionally valid.

As in Tapper, all lawyers who gain the benefit of collecting fees in the Territory should contribute to the cost ofregulating the profession. [94] In Allen, the applicant from outside the province paid the same fee as all lawyers in the province.

However, they also had to writean examination that could be waived on the payment of a fee that was identical to the fee charged in the applicant’s home province.While Veit J. found the variability of the fee objectionable, she supported the regulations because it was not compulsory and because allmembers of the law society paid the same basic fee as the applicant. [95] If there were dramatic differences in the Requirements between the fees paid by resident and non-resident lawyers they would likelybe unconstitutional.

In Prince Edward Island v Island Equine Clinic Ltd. (1991), (PE SCAD), 81 DLR (4th) 350,[1991] PEI J No 57 [Island Equine], the Court of Appeal held that a provincial subsidy payable only to veterinary clinics listed under aregulation violated s. 6(2) of the Charter because it failed to provide the criteria or procedure for any other clinics to become designated.

[ 96 ] The Requirements are nearly identical to the rules applicable to regular members of the Respondent. As noted at paragraph 59 of the Harte Affidavit, the only significant difference is that the RAC applications are processed more quickly because the Membership Advisory Committee does not screen them.

Since both types of applications are evaluated on similar criteria and the same fees are charged for both, unlike the scheme in Island Equine, the Requirements do infringe s. 6(2) of the Charter . [ 97 ] Similarly, in Marlartic the Quebec Superior Court upheld the validity of the conditions imposed on out-of-province lawyers who appeared occasionally in Quebec because they were not focused primarily on the province of residence.

The courts in both Allen and Marlartic specifically identified equivalent fees for different types of applicants as being constitutionally valid. [ 98 ] The Respondent disagreed with the Applicants calculations about the RAC portion of revenue in the Northwest Territories and Nunavut. In the Northwest Territories an RAC only allows an appearance on one matter, whereas in Nunavut the RAC permits the lawyer to appear on up to three matters. When this is taken into account the portion of fees in Nunavut from RAC’s is comparable to the other territories.

C.3 Analysis [ 99 ] In Allen , the legislation under attack provided that an out-of province practitioner had to become a member of the Law Society for an occasional appearance in a criminal matter. He or she also had to pass examinations dealing only with provincial statutes and civil procedure or pay a fee of $500 over and above the fees required of all Alberta practitioners. [ 100 ] In denying the application Veit J. relied on the fact that an out-of-province lawyer paid the same fee as a resident lawyer to become a member of the Law Society.

It did not matter that Alberta charged more than other provinces for an occasional appearance. She was also satisfied from the evidence presented that the money from these fees provided infrastructure that indirectly benefited the residents of Alberta. This consisted of a variety of programs and services, including law libraries, a practice advisor, a mentor program, and a discipline committee with full-time staff for the investigation of and conduct of hearings into complaints against members.

The assurance fund directly benefited Alberta residents and was available to clients of all Alberta practitioners including those that made only occasional appearances. She concluded that a general requirement that all practitioners contribute to the cost of maintaining the infrastructure and to the assurance fund did not derogate from s. 6(2)(

b) Charter rights. [ 101 ] Although Veit J. had more difficulty with the $500 fee because it could only be said to have the most tenuous link to any legitimate objective of the society, she ultimately found it was valid as well. Her conclusion was based on the equality of the treatment of resident and non-resident lawyers and the benefit to all Alberta residents regardless of the lack of an occasional appearance structure that was in place in other jurisdictions. [ 102 ] In Black , the Law Society of Alberta enacted two rules that were challenged as being in breach of s. 6(2)(

b) Charter rights. The first rule (Rule 154) prohibited members of the Law Society who ordinarily resided and practiced in Alberta from entering into partnership with anyone who was not an active member ordinarily resident in Alberta. The second rule (Rule 75B) prohibited the members of the Law Society from participating in dual or multiple partnerships. The Rules were the result of an attempt by McCarthy & McCarthy, a large Toronto based law firm, to open a branch office in Calgary as part of its broader objective of becoming a national law firm with offices across Canada.

[ 103 ] In concluding the Rules breached s. 6(2)(b), La Forest J. applied the same reasoning as Veit J. in Allen when he stated: The cases have raised a further issue, namely, whether a particular claim is protected by the phrase "to pursue the gaining of a livelihood." Arnup J.A., dissenting in the Court of Appeal in Skapinker, supra, made passing reference to this at pp. 514-15.

"The permanent resident who goes to another province," he stated, "has a right to pursue the gaining of a livelihood there, whether that person is a lawyer or a Class "A" mechanic, but must comply with the local laws concerning the qualifications of all lawyers or all mechanics (except laws discriminating on the basis of past or present province of residence)." I agree.

Section 6(2)(a), in my view, guarantees not simply the right to pursue a livelihood, but more specifically, the right to pursue the livelihood of choice to the extent and subject to the same conditions as residents. ( Black at para 55 ). [ 104 ] La Forest J. went on to state that denying non-residents access to some fields could not be condoned by the fact that some job positions are still left open to non-residents. The right to pursue a livelihood of choice must remain a viable right and could not be rendered practically ineffective as occurred in Mia .

In that case the Medical Services Commission of British Columbia refused to issue a billing number to a qualified medical doctor to practice as a general practitioner in the place chosen by her. The court held that the Commission had no jurisdiction to deny the petitioner a billing number. He went on to approve of the reasoning of McEachern J. that it was not necessary for a person to be completely cut off from a particular livelihood for a violation of

section 6 to exist. It was sufficient if a person was disadvantaged in the pursuit of that livelihood. This is what occurred when the Commission gave out billing numbers on the basis of residence and previous practice. [ 105 ] The same reasoning was applied in Taylor . In that case the appellant was a member of the Institute of Chartered Accountants of Ontario [Ontario Institute].

He applied for membership in the Institute of Chartered Accountants of Saskatchewan but was refused because he had never written and passed the national examination used across Canada as specified in the bylaws, called the Uniform Final Examination. He was admitted in Ontario on the basis of having passed the examination of the American Institute of Certified Public Accountants in the United States, and having passed some further limited examinations required by the Ontario Institute.

In upholding the validity of the bylaws, the Saskatchewan Court of Appeal held it was discrimination on account of place of residence that offended

section 6 . As long as there was no discrimination between residents and non-residents a province may pass laws regulating professions. [ 106 ] In Tapper , the Ontario Court of Appeal upheld the Law Society of Upper Canada rules that required lawyers to pay for basic mandatory liability insurance. Non-resident lawyers who only practiced in the province occasionally were provided an exemption, while non-resident lawyers who practiced more than occasionally were compelled to pay for insurance. The court adopted La Forest J.’s comments in Black and concluded that

section 6 was not violated because: Section 6(2)(a), in my view, guarantees not simply the right to pursue a livelihood, but more specifically, the right to pursue the livelihood of choice to the extent and subject to the same conditions as residents. ( Tapper at para 7 ).

[107] Table 4, at page 17 of the Respondent’s Written Submissions, sets out the conditions that must be satisfied to practice law inNunavut. An applicant has three choices. The applicant can become a regular member or apply for an RAC. The third way is to transferin from another jurisdiction under the Territorial Mobility Agreement12 [TMA].

My review of the Table satisfies me that theRespondent’s submission that the requirements of all three choices are virtually the same is correct. [108] In the case at bar the Applicants are arguing that the Respondent’s refusal to grant a further extension forced them to pay for a newRAC for one short matter making it more expensive for them. Although Chwyl had to pay the full cost of the second RAC for oneappearance in court, there was no discrimination against him in retaining a non-resident lawyer. It was Engel’s choice to apply for anRAC for one appearance.

He could have become a regular member of the Respondent, represented other clients for the following yearand perhaps not charged the cost of full membership to Chwyl. As noted at paragraph 28 of British Columbia (Attorney General) vChristie, 2007 SCC 21, [2007] 1 SCR 873 [Christie], the economics of legal services may be affected by an array of factors.

There is noevidence before me to prove that the cost associated with an RAC made it more expensive for Chwyl to retain Engel than to retain aresident lawyer in Nunavut. [109] The Respondent is also correct when it states its revenue is similar to the other territories in the percentage of revenue generated byRACs, because in Nunavut counsel can appear on up to three matters on the same RAC. [110] I, therefore, reject the Applicants’ argument that the Respondent has created a tariff barrier that unduly impedes the mobility ofnon-resident lawyers. [111] The Applicants are in substance advancing an argument similar to that rejected in Tapper.

In that case the applicant’s lawyerargued that the requirement to pay insurance in both jurisdictions made his practice untenable due to the economic burden.

The Courtrejected this argument because it had nothing to do with creating or eliminating competitive advantages but rather to spread theprofessional liability risk to all lawyers that practiced in the province. [112] The Respondent has also filed sufficient evidence to demonstrate that it provides the same types of services to the public that wereprovided by the Law Society of Alberta such as a referral service, sponsorship of continuing legal education, and the creation ofcompulsory professional development standards.

It has a fully functioning discipline committee that is funded from the revenue itreceives. [113] As a result, I am satisfied that this case falls within the reasoning of Allen, Tapper, and Taylor. There was no discrimination in theRequirements against Engel based on residency and he was treated fairly. It follows that I find there was no breach of Engel’s s. 6mobility rights. D.

If the Requirements do effectively discriminate between lawyers based on residency and breach the Applicants mobility rights, arethey laws of general application and, therefore, constitutionally valid pursuant to s. 6(3) of the Charter? [114] The Applicants did not address this argument, but in view of my finding that there was no breach of Engel’s mobility rights it isunnecessary to analyze this argument.

I will simply say that I am satisfied from the Written Arguments of the Respondent and AttorneyGeneral that the Requirements are laws of general application and are constitutionally valid pursuant to section 6(3) of the Charter, asinterpreted in Re Skapinker (1982), (ON SC), 137 DLR (3d) 666, 38 OR (2d) 116 (ONSC); Law Society of UpperCanada v Skapinker, (SCC), [1984] 1SCR 357, 9 DLR (4th) 161; and Tapper. E. Is there an absolute constitutionally-protected right to choice of counsel under any combination of s. 7 and 11 (

d) and 11(

e) of theCharter that is violated by the Requirements?

E.1 Applicants Arguments [115] As held in R v Chan, 2000 ABQB 728, 276 AR 1; R v S.A., 2012 ABQB 311, [2012] AJ No 528; Godbout v Longueuil (City), (SCC), [1997] 3 SCR 844, 152 DLR (4th) 577; and R v Bloom, 2006 BCSC 1823, 2006 BCSC 1823 ; whilethere is a constitutional right for an accused to have competent counsel, there is no absolute right to the counsel of an accused’s choice. [116] As held in Cunningham v Canada (SCC), [1993] 2 SCR 143, [1993] SCJ No 143, in determining whether asection 7 right has been violated a court must balance the interests of society and the interests of the individual.

At paragraphs 65-67 of Rv Mills, (SCC), [1999] 3 SCR 668, 244 AR 201 [Mills], and paragraph 118 of R v Parker (2000), (ON CA), 188 DLR (4th) 385, 49 OR (3d) 481 (ONCA) [Parker], the courts held that the governing principles in carrying out thisbalancing exercise were substantially similar to those applicable to an analysis under s. 1 of the Charter. [117] At paragraph 37 of R v Bishop, 2008 NUCJ 10, [2008] Nu J No 11 [Bishop], Browne J. also recognized the importance of the rightto choose counsel. [118] Despite the existence of this right, this court failed to enforce it because it supported the Requirements and prevented theApplicants from being represented by Engel.

The Requirements create an unjust system for those persons that wish to retain counsel whoare not members of the Respondent and cannot afford to pay for the costs of obtaining an RAC. [119] The Requirements act as a deterrent and a tax or tariff against those persons who wish to choose non-member counsel. Such asystem engages the deprivation of liberty component of s. 7 of the Charter and is not in accordance with principles of fundamentaljustice. [120] This court recognized, at paragraph 6 of Bishop, that the LSB rules were

an act of state interference with the individual’s right tochoose counsel. Browne J. characterized the process of assigning resident and non-resident counsel under s. 40 of the LSA as “politicalmachinations”. [121] By analogy the Requirements apply a similar restriction to that imposed by s. 40 of the LSA by forcing an accused person tochoose a member of the Respondent or a lawyer who has obtained an RAC. The RAC regime operates similar to s. 40 of the LSAbecause it causes similar delay problems.

Chwyl’s matters were unreasonably delayed because he could not afford to pay the RAC feesin the same way that Bishop was delayed because the LSB refused to fund non-resident counsel. [122] There are similar political machinations in the way the government institutions implement the Requirements in Nunavut. Theadministration of the Requirements is not objectively fair and is tainted by improper state interference.

These machinations occur in theadministration of both the Requirements and the LSA. [123] As held in Reference re section 94(2) of the Motor Vehicle Act (British Columbia), (SCC), [1985] 2 SCR 486,[1985] SCJ No 73, the Respondent’s deprivation of Chwyl’s s. 7 right to liberty in choosing his counsel also violates his s. 11 rights,unless it is done in accordance with the principles of fundamental justice.

Chwyl submits that his rights were not deprived in accordancewith the principles of fundamental justice. [124] Bloom recognized that it was important to protect an individual’s right to choice of counsel from state interference. [125] The Requirements are contrary to the principles of fundamental justice because they do not further “equal justice for all within anopen, ordered and impartial system” as set out in

Chapter XIII of the Canadian Bar Association’s Code of Professional Conduct13. Acitizen of Nunavut is restricted in their choice of counsel solely on the basis of whether or not they can afford to pay for an RAC. Thus,in Nunavut the RAC imposes a tiered system where those who can afford to pay for an RAC may freely choose their counsel, but thosewho are not as fortunate may not.

[ 126 ] Further, the Requirements serve the interests of the Respondent, not the public or the residents of Nunavut. As stated in the MacPherson Letter, the purpose of the temporary practice certificates is to fund the law societies. There is no evidence to support her assertion that the loss of funding would threaten the public interest and may harm the ability of resident lawyers to serve the public. [ 127 ] Erecting barriers such as the Requirements will deter non-members of the Respondent from practicing in Nunavut and will deter clients from hiring non-members.

It is intended to protect the local bar’s economic territory. [ 128 ] The Requirements do not serve the public or the client. Its sole purpose is to provide funding to the Respondent and protect the economic territory of the resident bar. They do not improve the administration of justice in any meaningful way. In this sense the Requirements are not rationally connected to the stated objective of the legislation, are unfair, and create an arbitrary system.

In this case the balancing of the societal interest against the individual’s right is seriously undermined in that the deprivation of the Applicants’ rights is not in accordance with the principles of fundamental justice because neither society’s nor the individual’s interest are served but rather the economic interest of the members of the Respondent are served. [ 129 ] Since 2006 the Respondent has tripled the cost of an RAC.

Since this far exceeds the cost of living increase it is further evidence that it is to benefit the members of the Respondent and not the public. [ 130 ] Relying on R v Bjelland, 2009 SCC 38 , [2009] 2 SCR 651 [Bjelland] , the Applicants argue that a system that impedes an individual who otherwise has the means to choose his or her counsel, affects trial fairness and the appearance of a fair trial. The Requirements prevent or impede individuals from choosing counsel in this manner and thus infringe the Applicants’ s. 11(

d) Charter rights. [ 131 ] Relying on R v Zarinchang, 2010 ONCA 286 , 99 OR (3d) 721 , the Applicants argue that the Requirements infringe an accused’s s. 11(

e) right to bail without unreasonable delay. If an accused is arrested and wishes to have his/her choice of counsel represent him/her at his/her bail hearing but his/her lawyer of choice is not a member of the Respondent, the accused will have to wait much longer than 24 hours to be brought before a Justice of the Peace because of the need for the lawyer to obtain an RAC. The net result is a breach of an accused’s, like Chwyl’s,

section 11(

e) Charter rights. [ 132 ] In conclusion, the deprivation of the Applicants’ s. 7 , 11(

d) and 11(

e) Charter rights was not done in accordance with principles of fundamental justice. E.2 Respondent’s Arguments [ 133 ] The Respondent acknowledged in oral argument that there was not a whole lot of evidence that the RAC regime was having an impact on the objective of supporting the resident bar, as fleshed out in Harte’s Responses to the Written Interrogatories. [ 134 ] As the Supreme Court of Canada recently confirmed, at paragraph 34 of R v Willier, 2010 SCC 37 , [2010] 2 SCR 429 [Willier] , the rights conferred by ss. 7 and 11(

d) and (

e) to retain and instruct counsel are not absolute. They must be exercised in way that is reconcilable with the needs of society. At paragraph 35, Willier focused on s. 10(

b) rights and the right to counsel at the investigative stage and upheld the principle that the right to choice of counsel is moderated by society’s interests in ensuring effective judicial processes. [ 135 ] Allen is directly on point. At paragraphs 29 and 30, Veit J. wrote that the right to retain and instruct counsel of one’s choice is subject to reasonable limits.

The limitation of a choice to those counsel who have been authorized by the law society to practice in Alberta, constitutes a reasonable limit on a right to counsel, provided that the substance and the process of authorization are reasonable. [ 136 ] Society has an interest in ensuring efficient judicial processes that must be considered when defining the substance of the right to counsel. There is a balance that must be struck.

To achieve that balance Allen suggests the unique circumstances of the case should be considered, including the complexity and the expertise required by the lawyer chosen to represent the accused. The facts in this application do not suggest that the issues were so complex that Engel was necessary to resolve the matter.

[137] The approach taken in Allen was approved in R v Hart, 2002 BCSC 1174, 2002 BCSC 1174 [Hart], and R v Becher andR v Huddleston, 2008 BCPC 479, 2008 BCPC 479 [Becher, Huddleston]. In paragraph 19 of Hart, Parrett J. approved of thecomment made by Legattt J. in R v McKay, [1990] BCJ No 1837, (BCSC) [McKay], that “the accused’s right tocounsel of choice was not absolute but existed where practical and feasible”. [138] Both Lofchik J. in R v Aziga, 2008 CarswellOnt 6008, [2008] OJ No 4034 [Aziga] and Eberle J. in R v Taylor, [1980] OJ No 1(February 11, 1980, Ont.

HC) [Taylor], held that the right to counsel of the accused’s choice does not carry with it the right to dictate thedate for trial. If counsel of choice is not available the accused will need to retain other counsel who is available on the trial date. [139] The Respondent submits that the Requirements do not infringe an accused’s right to choice of counsel more than is necessary topromote society’s interests in the proper administration of justice. If the Applicants succeed, the ability of the Respondent to fund theiroperations and effectively oversee the practice of law would be severely compromised.

Ultimately, the integrity and effectiveadministration of justice will be undermined resulting in a loss of public confidence. [140] The Requirements mirror legislation in the provinces before the NMA came into force. There are fundamental factual and policydifferences between the territorial and provincial law societies that support the constitutionality of the Requirements. The Applicants areseeking a judicial remedy that will effectively force the territorial law societies to join the NMA contrary to the will of the territoriallegislatures.

E.3 Attorney General Arguments [141] The right to counsel does not extend to imposing an obligation on the state not to enact laws that have the effect of rendering legalservices more expensive. As held in Christie, a person wishing to rely on socio-economic factors in order to argue that a tax or tariff onlegal services effectively impedes the right to counsel must present comprehensive evidence of the effect the tax or tariff has on theaffordability of such services.

There is no general right to counsel of the type that would ground a positive obligation on the governmentto take steps, statutory or otherwise, to create a socio-economic environment that enables a person to retain whomever they choose. [142] The Applicants rely almost exclusively on Bishop in support of their argument that ss. 68 and 69 of the Act violate their Charterright to choice of counsel. Bishop is of limited assistance in the analysis of the issues in this case because Bishop is not based on theCharter, but on the

interpretation of ss. 7 and 40 of the LSA. [143] Bishop does not stand for the proposition that the requirement that non-resident lawyers become resident members of theRespondent or purchase an RAC offends the Charter.

Further, neither the plain wording of s. 7 of the Charter nor the weight ofjurisprudence lends itself to the contention that government has a positive obligation to facilitate the retention of counsel of choiceoutside of the legal aid system. [144] The Applicants argue, at paragraphs 35 and 36 of their Written Submissions, that the RAC regime creates an unjust system wherethose who can afford to choose their counsel may do so, but those individuals who are not eligible for legal aid cannot.

They furtherargue that the RAC regime acts as a tax/tariff against those who wish to choose a lawyer outside the membership of the Respondent.

[ 145 ] There is no evidence before this Court that the imposition of membership/RAC requirements makes it more expensive to retain a non-resident lawyer. The Charter does not protect the right of an accused to select lawyers that are not members of their provincial or territorial law society. Further, the Applicants’ right to their choice of counsel does not oblige the Legislature to subsidize or otherwise facilitate access to an array of lawyers. As held at paragraph 28 of Christie, the choice of counsel in the Charter is limited by the ability of an accused to afford his or her counsel of choice.

The economics of legal services may be affected by a complex array of factors and it is understood that some lawyers will cost more than others to retain. [ 146 ] Sections 68 and 69 of the Act apply equally to any lawyer that seeks to practice law in Nunavut regardless of whether he or she is resident or non-resident. The Applicants have not tendered any evidence to show how the Requirements eliminated or even narrowed the legal counsel options of the Applicants.

The Applicants face a difficult evidentiary hurdle, as it is uncontested that Engel, who was their counsel of choice, represented each of them. [ 147 ] Chwyl was not delayed because Engel had to obtain an RAC, but because Engel failed to apply for one on a timely basis. There is no evidence that Engel applied for and was denied an RAC. There is evidence that Engel took steps to retain an agent to represent Chwyl.

However, it is apparent that, at the time of argument, any delay could have been avoided if Engel had applied for renewal of his RAC as soon as he realized that Chwyl’s charges would not be resolved before the expiration of the RAC. [ 148 ] The evidence indicates that Engel refused to apply to renew his RAC and instead engaged in multiple exchanges with the Respondent in an attempt to obtain an extension of the RAC free of charge. When it became apparent on October 29, 2012 that the Respondent would not extend the RAC, Engel emailed counsel for the Respondent that Chwyl would have to represent himself.

Engel did not provide any reasons for his refusal to renew his RAC so that he could continue to represent Chwyl when the Respondent would not extend the RAC as a courtesy. [ 149 ] Paying for membership in the Respondent or for the fees required to obtain an RAC is a cost of doing business in Nunavut. In some cases such costs may flow through to clients, presumably on a rateable basis. However, there is no evidence to show that the costs associated with an RAC made it more expensive to retain Engel instead of a lawyer resident in Nunavut.

In fact, a resident lawyer in Nunavut would have a much higher overhead, because of the higher cost of living. [ 150 ] The Applicants do not explicitly allege that the costs of the RAC made it more difficult for them to afford Engel’s services. However, practically speaking this seems a necessary inference in order for their argument to succeed. The difficulty is that there is no evidence before the Court that Engel’s services cost the Applicants any more than the services of any other lawyer, whether subject to the RAC regime or not.

In other words, the Applicants have failed to show that their right to choice of counsel was infringed, and failed to establish any causal connection between a diminishment of choices and the legislative provisions they seek to invalidate.

E.4 Analysis E.i.4 National Mobility Agreement [ 151 ] Paragraphs 22 to 71 of the Harte Affidavit describe the changes that have occurred in Canada in the past decade regarding the ability of lawyers called to a bar in one jurisdiction to practice in another jurisdiction. The regulation of professions comes within the constitutional authority of the provinces and territories.

Each jurisdiction has legislation delegating the regulation of the legal profession to a Law Society that has the authority to create regulations that govern the practice of law in the jurisdiction. [ 152 ] As noted in Allen , in 1987 all jurisdictions had some form of occasional appearance regulations that permitted a lawyer to appear on a matter upon payment of the prescribed fee that varied from $225 to $1,000.

Alberta required an out-of-province lawyer to pay fees totaling $1,350 and to pass a transfer examination that could be waived if the applicant was experienced and paid a $500 fee for each occasional appearance. [ 153 ] The emergence of national law firms after Allen created new challenges to the control exerted by a law society over the form of partnership that could practice in a province, and led to the decision in Black .

That case struck down two rules that limited the form of national partnership that could practice in Alberta on the basis of the breach of the mobility rights granted by s. 6 of the Charter . [ 154 ] In the ensuing years the national or regional partnership became widespread and led to a coordinated effort by the Federation of Law Societies to standardize the ability of lawyers to practice in any province in Canada. That initiative led to the NMA that first came into force in December, 2002.

At that time the signatories to the agreement were British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Newfoundland, and Nova Scotia. The remaining provinces joined in 2006. [ 155 ] The express purpose of the NMA is to facilitate temporary and permanent mobility of lawyers among Canadian jurisdictions.

However, only lawyers who are members of signatories that have implemented reciprocal provisions in their jurisdictions are entitled to take advantage of the NMA. [ 156 ] The temporary mobility provisions permit lawyers in the common law jurisdictions to provide legal services in any other common law jurisdiction on a temporary basis for up to 100 days per year without having a mobility permit, or without giving notice to the host law society.

However, to qualify to provide legal services on a temporary basis without a mobility permit or notice to the host law society, a lawyer must meet the criteria enumerated in s. 10 of the NMA, and must not have established an economic nexus with the host jurisdiction, as described in s. 16 of the NMA. [ 157 ] The criteria in s. 10 of the NMA require the lawyer to meet the following conditions: (

a) be entitled to practice law in a home jurisdiction; (

b) carry the requisite liability insurance and defalcation coverage; (

c) not be subject to conditions or to restrictions on his or her practice or membership in a any jurisdiction; not be the subject of any criminal or disciplinary proceedings in any jurisdiction, and; (

d) not have a disciplinary record in any jurisdiction. [ 158 ] Section16 of the NMA describes how a lawyer establishes an economic nexus that could disqualify the lawyer from providing legal services on a temporary basis, including exceeding the 100-day restriction. The

section also provides that a lawyer does not have to be physically present in the host jurisdiction to be considered to be practicing law.

[ 159 ] The NMA also contains provisions that permit lawyers in common law jurisdictions to transfer permanently to another jurisdiction with relative ease. The lawyer does not have to pass an examination but may be required to provide certificates of good standing from all Canadian and foreign jurisdictions where the lawyer is or had been a member.

The lawyer must also provide criminal and disciplinary records, consent to the host society accessing the lawyer’s regulatory records and certify that the lawyer has reviewed all materials reasonably required by the host law society. [ 160 ] While the Respondent and Intervenors did not sign the NMA, they did sign the TMA on November 3, 2006. The TMA permits them to participate in the permanent mobility provisions without participating in the temporary mobility provisions of the NMA. As noted earlier, there are three ways for a lawyer to practice in the territories.

They can be become a regular member, obtain an RAC, or transfer in from another Canadian jurisdiction. However, a lawyer may not practice law in the territories on a temporary basis without giving notice to the host law society, even if it is within the 100-day time limit. [ 161 ] Because of Engel’s inability to practice in Nunavut on a temporary basis under the NMA he was forced to obtain the second RAC previously discussed some time between January 21 and March 4, 2013.

Since Engel would not appear until he received the funds to pay for the second RAC and Chwyl could not come up with the money, the resolution of Chwyl’s charges was delayed by 126 days. [ 162 ] This delay forms the basis for the Applicants argument that the Requirements breach his right to counsel of choice under s. 7 and 11 (

d) and (e). If Chwyl had been charged in a province, Engel could have represented him from the time he first contacted him and his charges would have been finalized on October 29, 2012, at considerably less cost and delay. As counsel for the Respondent stated in oral argument, the Applicants are in effect trying to force the Respondent and Intervenors to sign on to the temporary mobility provisions of the NMA, even though it will have significant financial impact on their ability to meet their statutory obligations to the public.

E.ii.4 Limits on Rights to Choice of Counsel Practical and Feasible Limits [ 163 ] All parties agree that Chwyl has the right to counsel of choice under s. 7 of the Charter , but that it is not an absolute right. The importance of the right to counsel of choice was recognized by this Court in Bishop . That decision is helpful for the information it provides about the operation of the legal aid system in Nunavut. As Browne J. noted, there were not enough resident criminal lawyers to handle the heavy volume of criminal cases in Nunavut.

To remedy the problem the LSB appointed some non-resident lawyers to the legal aid panel under

section 34 of the LSA . However, the LSB refused to appoint non-resident lawyers to the choice of counsel panel because of its

interpretation of

section 40. Unlike

section 34,

section 40 specified that only resident lawyers could be appointed to the panel. Bishop challenged that

interpretation and argued he should be entitled to choose a non-resident lawyer from Toronto.

[ 164 ] Browne J. noted that it was unfortunate that the “political machinations” involved in the appointment of counsel by the LSB were aired in court. It is unclear what evidence was placed before her, but it is a reasonable assumption that it revolved around the LSB’s

interpretation of the term resident lawyer. As she noted: I was unable to find in the Legal Services Act or Regulations a definition of a resident Nunavut lawyer. There are many strongly held and contradictory opinions about who is a resident lawyer in Nunavut. ( Bishop at para 36 ). [ 165 ] Because the legislation did not define the word “resident” Browne J. focused on the purpose of the section.

She found the purpose was to provide the accused with a meaningful choice of counsel and concluded that the choice could include lawyers that did not reside in Nunavut. [ 166 ] However, Browne J. clearly recognized that this right to a meaningful choice of counsel had limits when she noted. There are some concerns that as a result of this decision accused persons in Nunavut will think they can hire any lawyer from across Canada to represent them in Nunavut. There are many advantages to having local Nunavut counsel appointed.

Local lawyers are familiar with the judges, the communities, local juries, cultural issues and local court processes. Lawyers from outside the North may not be aware of the local practices. Once the LSB establishes a proper protocol for choice of counsel with an appropriate number of lawyers on the list, accused persons in Nunavut will have no basis for complaint and will be required to choose from the list provided. ( Bishop at para 48 ). [ 167 ] While Bishop had nothing to do with the

interpretation of

section 7 of the Charter , it illustrates the type of balancing,

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