R. v. Roussin (B.), 2011 MBCA 67

Citation: R. v. Roussin (B.), 2011 MBCA 67 Date: 20110824 Dockets: AR 10-30-07352; AR 10-30-07353 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) B. F. Bonney and ) D. M. Sawchuk Respondent ) for the Applicant ) ) H. S. Leonoff, Q.C. and ) E. A.

Thomson - and - ) for the Respondent ) ) Chambers motions heard: ) June 2, 2011 BJARNE ROUSSIN ) ) Decision pronounced: (Accused) Applicant ) August 24, 2011 MacINNES J.A. 1 The accused obtained an order under s. 684(1) of the Criminal Code (the Code ) appointing legal counsel to represent him on his pending appeals before this court. 2 He now moves under s. 684(3) of the Code for an order fixing an hourly rate for fees to be paid to such counsel. 3 In connection with the motions, the court was informed that Legal Aid Manitoba (LAM) was now prepared, pursuant to s. 684(2), to issue a certificate to allow the accused to obtain counsel to act for him on his appeals. 4 In light of that development, the Crown asserted that the court had no jurisdiction to hear the accused’s motions, legal aid now having been granted.

The accused disagreed. 5 The issue on the motions was thus transformed into an

interpretation of s. 684(2) and, in particular, the meaning of the words “and legal aid is not granted to the accused pursuant to a provincial legal aid program.” 6

Section 684 of the Code provides as follows: Legal assistance for appellant 684.

(1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance. Counsel fees and disbursements

(2) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal.

Taxation of fees and disbursements

(3) Where subsection (2) applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court of appeal and the registrar may tax the disputed fees and disbursements. BACKGROUND 7 On December 12, 2009, the accused was convicted by a jury of numerous offences. On March 12, 2010, he was sentenced to 12 years’ incarceration. He was given credit of eight years (2:1) for four years of pre-sentence custody, leaving four years of incarceration to be served.

LAM had provided the accused with legal aid counsel from the private bar (both senior counsel and junior counsel) in connection with these charges. 8 As well, on March 11, 2010, the accused was convicted of three additional offences. On March 12, 2010, he was sentenced to 12 months’ incarceration, to be served consecutive to the sentence referred to in the preceding paragraph. 9 On April 8, 2010, the accused appealed from both conviction and sentence pertaining to both indictments. 10 Before so doing he had applied for legal aid with respect to his intended appeals.

He was advised on April 14, 2010, of the denial of legal aid. 11 The accused appealed that refusal to the Appeal Committee of LAM. He was informed July 23, 2010, that the Appeal Committee had denied his appeals. 12 The accused then applied for an order assigning counsel to act on his behalf with respect to the appeals. On March 3, 2011, Beard J.A. granted an order under s. 684(1) of the Code appointing counsel.

It is apparent from the material that Beard J.A. was advised that if such an order were granted, senior counsel who represented the accused on the jury trial was prepared to act for the accused on the appeals. Beard J.A. so ordered, appointing Mr. Darren M. Sawchuk as counsel. 13 Shortly thereafter, the accused moved for an order setting fees in the amount of $225 per hour to be paid to Mr.

Sawchuk as senior counsel and in the amount of $150 to $175 per hour to be paid to junior counsel. (I note that junior counsel was not appointed by Beard J.A.) 14 In connection with that motion, the Crown filed the affidavit of Mario Santos sworn May 18, 2011. Mr. Santos is the chair of the Management Council of LAM and was the chair of the Appeal Committee which had confirmed the denial of legal aid to the accused in respect of the appeals. 15 In his affidavit, Mr. Santos swore that he was aware “that by decision dated March 3, 2011, Madam Justice Beard appointed counsel for Mr.

Roussin pursuant to s. 684(1) of the Criminal Code ,” and “[that] as a result of this decision and after discussions with Manitoba Justice, I have determined that it is appropriate for Legal Aid Manitoba to issue a certificate in this matter to allow Mr.

Roussin to obtain counsel to argue his appeal.” SUBMISSIONS OF COUNSEL 16 When the matter appeared before me on May 26, 2011, the Crown, relying upon s. 684(2) of the Code , argued that the court was without jurisdiction to determine the motions by reason of the fact that LAM was now prepared to issue a certificate for funding for a lawyer to represent the accused on the appeals. Defence counsel asked for an adjournment of the motion so as to consider the Crown’ s position. The motions were adjourned to June 2, 2011. 17 On June 2, 2011, defence counsel argued that the Crown’s

interpretation of s. 684(2) was incorrect. He asserted that LAM had dismissed the accused’s application for legal aid and his appeal from dismissal of the application, thus forcing the accused to make a motion to the court under s. 684(1) , which motion was successful. To now allow LAM to come back into the picture as it were and issue a certificate allowing the accused to obtain counsel to argue his appeals would make a mockery of the system and would cause unnecessary expense and delay in this and other proceedings where LAM might take a similar approach. 18 The Crown reiterated its position advanced on May 26.

ANALYSIS 19 There is not, in terms, a constitutional right for an accused to be provided with counsel funded by the state. 20 Although ss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms (the Charter ) constitutionally guarantee an accused a fair trial in accordance with the principles of fundamental justice, that is not the same as a constitutional right to be provided with counsel funded by the state. Moreover, it is something which is determined on a case-by-case basis. 21 Prior to the enactment of the Charter , there was provision in the Code permitting the Court of Appeal or any judge thereof to assign counsel for an accused in respect of an appeal where it appeared desirable in the interests of justice that the accused should have

legal assistance and did not have sufficient means to obtain that assistance. That provision first appeared in the Code in 1923 ass. 1021A(1). It has continued in the Code in essentially the same wording to the present day. 22 Its most recent iteration is the result of s. 9 of

An Act to amend the Supreme Court Act and to amend various other Acts inconsequence thereof, R.S.C. 1985, c. 34 (3rd Supp.), which repealed the former provision and substituted for it the current s. 684(1). Atthe same time, subss. (2) and (3) (as they read now) were added. 23 There was very little commentary on these provisions during that bill’s progress through Parliament. Beyond the language ofthe

section itself, nothing appears to have been said at any point in the recorded legislative process about the remuneration of appointedcounsel, or potential disputes between counsel, the Attorney General and provincial legal aid schemes concerning such remuneration. 24 There are, however, several judicial authorities which provide guidance as to the overall scheme of s. 684 and the properinterpretation of s. 684(2). 25 It is clear, in my opinion, that to obtain an order under s. 684(1) of the Code, one must first establish that he/she has beendenied legal aid. This was so stated in R. v.

Johal (1998), (BC CA), 127 C.C.C. (3d) 273 (B.C.C.A.), whereMcEachern C.J.B.C. (in chambers) wrote (at para. 24): This brings me back to s. 684. In my view, this

section must be read alongside the provisions for legal aid. The

section provides that ajudge of an appeal court may assign counsel if it appears desirable in the interests of justice that a party to the appeal should have legalassistance for which he or she does not have sufficient means. The scheme of the enactment, however, contemplates that the

section willonly operate when an accused is not granted legal aid and he or she cannot obtain legal assistance. …. See as well, similar statements in R. v. Robinson (1989), 1989 ABCA 267 , 51 C.C.C. (3d) 452 at 459 (Alta. C.A.); R. v. Bailey,2001 NSCA 113 at paras. 10-12, 156 C.C.C. (3d) 567; The Attorney General of Quebec v. R.C., (QC CA), [2003]Q.J. No. 7541 at para. 174 (C.A.) (QL) (sub nom Québec (Procureur général) c. C. (R.)) 13 C.R. (6th) 1; and R. v. Sharif (M.Y.), 2008BCCA 16 at para. 24, 250 B.C.A.C. 162. 26 And as regards s. 684(2), several cases likewise are helpful. In R. v. LeCompte, [1997] O.J.

No. 987 (C.A.) (QL), theaccused successfully applied for the appointment of counsel under s. 684(1). Laskin J.A. wrote (at para. 2): Accordingly, I assign Mr. Wilson to act on behalf of LeCompte on this appeal. I request that the Director issue a certificate to LeComptein accord with s. 16(11) of the Legal Aid Act, R.S.O. 1990, c. L.9. If the Director does not issue a certificate, counsel’s fees anddisbursements (which should include preparation for and attendance on this motion) shall be paid by the Attorney General under s.684(2) of the Criminal Code. 27 In R. v.

Bernardo (1997), (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.), Bernardo was refused legal aidfunding. Thus, he sought the appointment of counsel under s. 684(1). While the case is often cited for the factors to be considered inconnection with a s. 684(1) application, it also addresses s. 684(2). Doherty J.A., writing for the Ontario Court of Appeal, wrote (at para.31): Section 16(11) of the Legal Aid Act provides that the Director may issue a legal aid certificate where this court has exercised its powerunder s. 684(1) and assigned counsel.

These reasons should be brought to the Director’s attention so that he can decide whether to issue acertificate. If he declines to do so, s. 684(2) requires that the Attorney General pay counsel’s fees and disbursements. …. 28 R. v. Buckingham (M.J.), 2004 PESCAD 21, 241 Nfld. & P.E.I.R. 300, is another case which provides insight in respect ofthe issue before me on these motions. There, the accused appealed from his conviction and sentence. He sought legal aid, which wasdenied. Buckingham thus applied for the appointment of counsel under s. 684(1) of the Code.

In his decision, McQuaid J.A. (inchambers) wrote (at para. 11): This

section authorizes the court to appoint counsel where it appears in the interests of justice the appellant should have legal assistanceand where the appellant does not have sufficient resources or means to pay for such assistance. …. The purpose of s. 684 is to providefor the appointment of counsel where legal aid has been denied, the appellant is unable to obtain legal assistance and where it would bein the interests of justice that the appellant have counsel. See: R. v. Johal (B.) (1998), 110 B.C.A.C. 146; 178 W.A.C. 146; (1997), (BC CA), 127 C.C.C. (3d) 273, at para. 24 (B.C.C.A.).

After assigning counsel under s. 684(1), McQuaid J.A. wrote (at para. 19): …. I ask Crown Counsel to bring this decision to the attention of the Director of Legal Aid in the event legal aid might now fund counselfor the appellant. If legal aid refuses to do so, the Attorney General will be required to fund counsel in accordance with the provisions ofs. 684(2) & (3) of the Criminal Code.

29 And more recently, in Sharif , the accused obtained an order under s. 684(1) of the Code for a limited appointment of counsel. The accused refused to accept any counsel but one to act for him. The Legal Services Society of British Columbia had a contractual arrangement with the Province of British Columbia to provide counsel for those accused who were granted assistance under s. 684(1) of the Code . However, Legal Services would not appoint the particular counsel acceptable to the accused due to concerns about the competency of the individual and thus refused to grant the accused counsel.

Ryan J.A. (in chambers) wrote (at paras. 25-26): Ms. Martorana says that it follows from these principles that Mr. Sharif should not be permitted to refuse the assistance of counsel provided by legal aid and seek the appointment of Mr. [G.] under s. 684 . The difficulty with this argument is that Mr. Sharif has not been provided counsel under the provincial legal aid program. Counsel has been appointed by the court under s. 684 . The Legal Services Society has not changed its decision to deny Mr. Sharif counsel.

Thus the provisions of s. 684(2) are engaged and the Legal Services Society is only involved in finding a lawyer for Mr. Sharif on account of the Memorandum of Understanding. A plain reading of s. 684(2) is that where the court appoints counsel and legal aid denies funding the Attorney General must foot the bill. That is what happened in this case. …. 30 I note that the accused here relied upon the case of R. v. Innocente , 2003 NSCA 50 , 175 C.C.C. (3d) 131 , a decision of Glube C.J.N.S. in chambers. There the accused had been denied legal aid and so applied for the appointment of counsel pursuant to s. 684(1).

Glube C.J.N.S. granted the application and appointed counsel. With respect to the role to be played by Legal Aid, she opined as follows (at paras. 27-28): Although Counsel for the Crown submits that if I come to this conclusion, I should adjourn the matter to permit Legal Aid to review Mr. Innocente’s application suggesting that it is contemplated by s. 684(2) , I disagree that this would be a correct

interpretation. Also, Legal Aid is not a party to this application and there is nothing in the

section that would lead me to send the matter back to the Commission. I therefore grant the application to have counsel assigned to be paid for by the Attorney General of Canada in accordance with s. 684 . I do not disagree with her comments refusing an adjournment, but that is not the issue before me on these motions. 31 As for her comments in para. 28 of her decision, I note that she did not state that the Nova Scotia Legal Aid Commission could not consider afresh whether to grant legal aid.

Her decision is not supported by any authority or apparent analysis on the specific point before me; namely, whether following an order under s. 684(1) , the provincial legal aid authority is entitled to consider whether to grant legal aid, after which, if it refuses to do so, the legal costs of the accused must be paid by the Attorney General. If that were her intended conclusion, I respectfully disagree with it. I prefer the comments to which I have earlier referred made in LeCompte , Bernardo , Buckingham and Sharif . 32 In Manitoba, it is clear that legal aid may be provided in response to a court order.

Section 3(2) of The Legal Aid Manitoba Act , C.C.S.M., c. L105 , provides: Additional powers 3(2) Subject to the approval of the council, Legal Aid Manitoba may provide legal aid requested by the minister, a judge, or an officer of a court or tribunal, including providing representation as a friend of the court, and legal information or advice to an organization or agency, or to persons within a geographic area. 33 In addition, s. 11(4) of the Legal Aid Regulation , Man.

Reg. 225/91 , provides as follows: 11(4) If in the opinion of the executive director an appeal or application has merit or if the court appealed to or to which the application is made requests appointment of counsel on behalf of the appellant, the executive director may provide legal aid to a person who is eligible in respect of an application for leave to appeal or an appeal of a matter referred to in subsection (1), (2) or (3) or 10(1) [which deals with indictable criminal offences] to The Court of Appeal, the Federal Court of Canada or the Supreme Court of Canada. 34 In my opinion, the case law is clear that an accused must attempt to obtain counsel through legal aid before applying to the court for appointment of counsel under s. 684(1).

And common sense would confirm that, if counsel is appointed through legal aid, a s.

684(1) order would not be granted (at least not to the extent of the legal services to be provided under the legal aid certificate). Thus, it follows that any applicant who succeeds in obtaining an order under s. 684(1) will first have been denied legal aid. That indeed was the case here. 35 In my view, therefore, the failure to grant legal aid as referred to in s. 684(2) following the assignment of counsel under s. 684(1) must refer to a new denial, not to the denial(

s) which, of necessity, proceeded the granting of the s. 684(1) order. To conclude otherwise would result in the reference to legal aid in s. 684(2) having no meaning, an

interpretation that would be contrary to the presumption against tautology. 36 In my opinion, the language of s. 684(2) must mean that notwithstanding its earlier refusal, the provincial legal aid authority has a fresh opportunity to consider the granting of legal aid following the court’s decision to grant an order under s. 684(1) . It is only if legal aid is then denied that the obligation falls upon the Attorney General to provide the necessary funding, which, should that occur, might lead to the taxation referred to in s. 684(3) of the Code .

This conclusion is, in my view, consistent with the existing case law and the plain language of s. 684(2) of the Code . 37 In the present case, while defence counsel referred in his submission to some mischief that may be caused in circumstances where there is a denial of legal aid, followed by a successful s. 684(1) application and then a further consideration by LAM and a granting of a legal aid certificate, the circumstances here do not give rise to such a concern.

Both the decisions denying legal aid and denying the appeal therefrom were given promptly. 38 Although it then took the accused several months to bring forward his application under s. 684(1) , that application was heard promptly. At the hearing, the Crown agreed that the accused met the criteria for appointment of counsel under s. 684(1) and an order was thus granted the day of the hearing. Thereafter, LAM’s decision to grant a certificate for legal aid in light of the s. 684(1) order was likewise made without delay.

While the court would have great concern if there were evidence of game playing, resulting in undue delay and unnecessary cost, there is no evidence of that in this case. 39 In the result, I conclude that I need not, indeed should not, entertain the accused’s motions to fix an hourly rate for fees inasmuch as LAM has now confirmed that a certificate will be granted to provide the accused legal assistance in respect of his appeals. The motions are therefore dismissed. 40 Should Mr.

Sawchuk now wish to withdraw as counsel for the accused in light of this decision and the circumstances under which he previously agreed to act, he may seek leave to do so, which I understand will be consented to by the Crown. J.A.