KEITH BOUCHER Applicant - v. -, 2015 NBPC 6

R. v. Keith Boucher 2015 NBPC 06 PROVINCE OF NEW BRUNSWICK File no.: 04224811 PROVINCIAL COURT BETWEEN: KEITH BOUCHER Applicant - and - HER MAJESTY THE QUEEN Respondent Decision on application (No. 2) delivered by the Honourable Ronald LeBlanc, judge of the Provincial Court, at Bathurst, New Brunswick, on September 25, 2015. Appearances: Ms. Rebecca Butler, for the Applicant Mr. Brian Barnett, for the Respondent 1 . From the initial stages of criminal proceedings against him, the applicant, Mr. Keith Boucher, has been frustrated and dissatisfied.

He is of the opinion that the entire judicial process, from beginning to end, has been ineffective and unresponsive to his needs. What he seeks is, according to him, uncomplicated. He wants to be recognized as a non-status Indian, to be included as part of the group of aboriginal peoples of Canada under subsection 35(2) of the Constitution Act, 1982 , which include: the Indian, the Inuit and the Metis. The road he has taken so far in this quest has been, in his estimation, long, arduous and unfulfilling. 2 . He is part-way through the judicial process and now seeks remedial assistance.

These include the provision of what he would consider to be competent counsel in the field of aboriginal law, the payment of expenses to cover the costs of consulting various experts in the field and having them appear to testify on his behalf for his trial and reasonable costs for the research that would be necessary to give effect to his defence. All of this to be borne by the state as he is impecunious and cannot afford to mount such a defence without financial assistance. 3 . Some background is necessary to put the claims he advances in context. 4 . Mr.

Boucher is charged with possessing the carcass of a moose contrary to

section 58 of the New Brunswick Fish and Wildlife Act . He fully admits the facts supporting the charge. He posits that he did not require a licence to possess the moose meat in question since he is an aboriginal person, thereby being protected from such prosecutions. The offence is alleged to have occurred on October 26 th , 2010. He appeared in court on January 17 th , 2011 and entered a not guilty plea. It is now almost five years later and his trial still has not been concluded, notwithstanding in excess of 23 court appearances and several conference calls. 5 .

The prosecution has closed its case against him, relying exclusively for its evidence in chief on an Admission of Facts to support the charge. The defence has closed its case since April 16 th , 2013. Since that date, the prosecution has stated that it will present rebuttal evidence and the defence has stated that it intends to call surrebuttal evidence. Neither has yet occurred. Mr. Boucher’s first legal aid lawyer, who I will refer to as L.A.L. (for “Legal Aid Lawyer”), retired from the legal profession following the closing of the Crown’s case. (I will not name this lawyer as Mr.

Boucher is of the personal belief that he was not competent to mount and pursue his aboriginal defence. Since this matter was not pursued as an incompetent counsel case and the counsel in question was not given an opportunity to respond, I need not rule on this aspect and consequently will not name the individual in question).

6 . Following L.A.L.’s retirement on December 1 st , 2013, Mr. Jean Trahan, another legal aid lawyer, was assigned the file on May 9 th , 2014. The matter was set over by consent to December 2 nd , 2014, to allow Mr. Trahan time to review the file and determine whether he would be making an Okanagan application or similar claim for state-funded counsel. On the assigned date, Mr. Boucher appeared without representation, unable to explain the absence of his counsel stating that he had simply been told by Legal Aid that Mr. Trahan no longer worked for them. 7 . Mr.

Boucher’s current counsel, assigned the file from Legal Aid, made her first court appearance on March 9 th , 2015 and immediately requested an Okanagan hearing. 8 . This constitutes my ruling directed at that application. 9 . Mr. Boucher was the only person to testify at the hearing. He testified about the current state of his finances and of his inability to pay the fees and costs associated with mounting his defence.

He is requesting that the state (1) bear the costs of a competent lawyer of his choice with experience and knowledge in the field of aboriginal law; (2) pay all expenses associated with the costs and disbursements that would be incurred in researching his case, the law and the legal and evidentiary requirements of mounting a defence based on aboriginal heritage; and (3) pay the costs associated with hiring expert witnesses to prepare reports and attend court to testify on his behalf. 10 .

With respect to his choice of counsel, he provided the Court with the names of three experienced lawyers who could, in his opinion, adequately defend him. Two reside and practice in Ontario, the third in Nova Scotia. The Nova Scotia lawyer submitted to him, in the past, a quote for services which he believes was in the range of $130,000.00. This lawyer had successfully defended Reginald Lavigne who had been charged with a regulatory offence and who had presented a similar defence in Provincial Court in New Brunswick. Mr. Boucher presented no estimates for the costs of having either Ontario lawyer defend him. 11 .

He is thoroughly dissatisfied with the services he had received from L.A.L. This legal aid lawyer had told him that he was not experienced in the field of aboriginal law, having never defended such a case. He was also told he was not aware of the legalities of mounting such a defence before the courts. Furthermore, he felt that L.A.L. did not follow his instructions, such as, for example, closing his case without his authorisation. 12 . What he seeks is competent counsel of his choosing, since Legal Aid New Brunswick did not provide him one.

He expects that if he had knowledgeable, experienced counsel, the likely outcome would be a request to re-open his case in order to present further expert witnesses or re-call and re-question the same witnesses he called during the defence portion of his trial. 13 . As to the expenses associated with obtaining experts and the research required to be performed, he is of the opinion that these are necessary to provide better background to the Court. In his opinion, the Court has not heard everything that needed to be heard during this trial.

He alleges that this is a kind of test case which would have important ramifications “to everyone” because it would provide clarity to the law relating to all non-status Indians. He was not able to identify a particular group of individuals who would benefit from such an order, relying instead on the generic “everyone”. 14 . In his testimony Mr. Boucher was particularly vociferous in his condemnation of Legal Aid New Brunswick. Notwithstanding the importance of the matter, Legal Aid assigned to him a lawyer without any knowledge of aboriginal law.

Although the Court recommended that he apply for Legal Aid because it was, to use his words, “free”, it wasn’t. He had to sign a lien on his home to get the legal aid lawyer. His home is his only property of value. He estimates its value at approximately $50,000. It is without mortgage. He was unable to tell the Court what conditions, if any, attached to the lien. He has no savings, no car and no other assets of value. He is currently employed as an electric motor technician since June of 2015 and receives $16.00 per hour, working 40 hours a week.

Other than doing odd jobs, he was unemployed for the five years prior to obtaining this employment. 15 . He remains frustrated over past decisions made by Legal Aid, referring to the meeting he and L.A.L. attended with Mr. Peter Corey, then the Director of Legal Aid in Fredericton. The date of this meeting was not established. L.A.L. told him following that meeting that he was advised that Mr. Corey had told him that Legal Aid would provide “unlimited resources” for his defence. Of course, this didn’t materialize. Mr. Boucher feels betrayed by the Commission. 16 .

L.A.L. was clearly frustrated as well with his dealings with his employer, as evidenced by documentary exhibits filed with the Court at the hearing. In late 2013, L.A.L. wrote an e-mail to the Nova Scotia lawyer noted previously. In this letter, he states: “we both agree I am not in a position to do his case justice”, yet adds “there is no end to which I will not go to see the battle through”. He states that “Legal Aid NB has been less than cooperative in the matter with me and the witnesses”, noting that Legal Aid has agreed to pay him

$70.00 per hour plus allowable expenses to enable him to carry on with the case on an ad hoc basis. His reply to Legal Aid was to notetheir failings. He insisted on three minimum commitments: that his hours not be arbitrarily cut within the limit of two days research pertrial date, that hotel and meal allowances for as many as there are trial days be reimbursed and that Dr. Janet Chute be allowed to berecalled in surrebuttal. His request to the lawyer was to confirm that the Boucher matter “far exceeds the limitation of your day to daylegal aid lawyer”.

The Court was not provided any reply to this request from L.A.L. 17. On February 3rd, 2014, L.A.L. sent a letter to the then Acting Director of Criminal Law Services for the New Brunswick LegalAid Services Commission, Ms. Margaret Gallagher. He states that notwithstanding that the New Brunswick Legal Aid Commissionemploys two aboriginal rights experts, he was assigned the matter having never conducted an aboriginal rights based defence. He did notunderstand why. He complains that Mr.

Jean Trahan, (no doubt one of the two afore-mentioned expert lawyers in aboriginal rightscases) refused to assist him for one day during which he was to present civilian witnesses from an aboriginal community, and that thisdecision was endorsed by management at Legal Aid. He complained that Legal Aid refused to pay the expenses for his witnesses toattend court, which caused him personal financial loss and an audit of his accounts. As a consequence, this caused a delay in thepayment of $5,000.00 in expenses and a corresponding delay of 6 months for payment of the expert witnesses.

L.A.L. then states that hefeels that he is “not the best person to continue the representation of Keith Boucher”, that to do so “would bring Legal Aid in theuntenable position further advancing his argument at the cost of our own integrity”. He then adds that he will be requesting to beremoved as counsel of record, but will hold off until Legal Aid re-assigns the file. 18. It is therefore evident that both Mr. Boucher and L.A.L. were dissatisfied with the services offered and the funding advanced bythe New Brunswick Legal Aid Commission in relation to Mr. Boucher’s defence of aboriginal status.

Most unfortunately, norepresentative from that Commission testified at the hearing. Nor did L.A.L. testify. He could have given first-hand informationsurrounding his dealings with the Commission and the reasons why he felt Mr. Boucher’s fair trial interests were jeopardized. The Courtis left to ponder and muse about such failings based only on second and third hand information and scant correspondence written byL.A.L., without the benefit of reply. 19. Counsel for Mr.

Boucher filed a Notice of Motion in which she requests a hearing on a motion for advance costs pursuant to theOkanagan case British Columbia (Minister of Forests) v. Okanagan Indian Band 2003 SCC 71 , [2003] 3 S.C.R. 371. At thehearing, she essentially argued that Mr. Boucher is entitled to effective counsel so as to benefit from a fair and full defence of hisaboriginal claims, that L.A.L. was not sufficiently knowledgeable in the field of aboriginal law to put forward that defence and that thelimits placed by Legal Aid on the presentation of this defence contravenes his constitutional right to a fair trial.

She, in oral argument,requested that Mr. Boucher be allowed to choose his own lawyer to present his defence, and that any additional costs associated withpresenting his aboriginal defence be paid out of the public fund. She presented no estimates on the cost of these items. 20. It comes as no surprise to me that Mr. Boucher feels that the legal issues he had hoped to raise in this case have inadequately beenaddressed by his counsel. This, I believe, arises from the very nature of the proceedings themselves.

In this province, Provincial CourtJudges deal with criminal and quasi-criminal matters in adult and youth court. We have no civil law jurisdiction. Legal aid lawyersemployed on a full-time basis have little reason to develop an expertise in aboriginal law. Their exposure is limited for the most part tocriminal or quasi-criminal prosecutions and sentencing of aboriginal offenders.

Summary conviction proceedings in a Provincial Court,especially in a province where the Provincial Court Judges have no civil law jurisdiction, are not the most appropriate setting to litigateaboriginal claims. This truism was mentioned by Mr. Justice Robertson in R. v. Bernard (2003) 2003 NBCA 55 , 262 N.B.R.(2d) 1, at paragraphs 450-60 and also by Mr. Justice LeBel in R. v. Marshall; R. v. Bernard, 2005 SCC 43 at paragraphs 142-44. 21. Aboriginal claims are complex issues which are deserving of careful consideration. They should be litigated in civil courts, notcriminal courts. Mr.

Boucher’s defence has absolutely nothing to do with criminal or quasi-criminal law. He admitted from the outsetthe essential elements of the offence alleged against him. Furthermore, L.A.L.’s expertise in the field of criminal law, acquired by yearsof dedicated practice in the Provincial Court, was not of great assistance to him in this case. One can certainly feel sympathetic withL.A.L.’s predicament – he wanted to present Mr. Boucher’s case to the fullest extent of the law, but felt inadequate to do so based on hispast practice. 22. It would have been no doubt preferable for Mr.

Boucher to do exactly what was suggested by Mr. Justice LeBel in Marshall: seeka temporary stay of the charges so that his aboriginal claim could be properly litigated in the civil courts. He would then perhaps nothave to contend with the rigidity of proceedings, the rigour of evidentiary rulings and the thrust for a speedy resolution that are ingrainedin the criminal court process. 23. In any event, he has not done so and I must attend to his demands. I will address both issues separately as I draw a distinctionbetween the request for state-funded counsel of choice and the request for advance costs.

STATE-FUNDED COUNSEL OF CHOICE

24. With respect to Mr. Boucher’s request for state-funded counsel, it is to be remembered here that he has been and continues to berepresented by state-funded counsel. He has had a legal aid lawyer representing him since the outset of proceedings. His request is forthe state to pay counsel of his choosing. He testified that he would choose a lawyer other than L.A.L. because he had no experience inaboriginal law cases. Interestingly, counsel did not address, nor did Mr. Boucher at the hearing address the fact that he is nowrepresented by Ms. Rebecca Butler and not L.A.L. No evidence was proffered regarding Ms.

Butler’s knowledge or experience indealing with aboriginal law cases. Deciding the issue on the basis of L.A.L.’s lack of knowledge or experience has been rendered moot. 25. In any event, respecting the request for counsel of one’s choice, I refer to the New Brunswick Court of Appeal decision in R. v.Osborne

(2003) NBCA 86 which establishes the law on this point very clearly and concisely. At paragraph 17- 19, Mr. JusticeRobertson states the following: 17 The case law is consistent. Even if an accused is entitled to state-funded counsel, the accused is not entitled to counsel of hisor her choice. The New Brunswick case of R. v. Perreault (R.) et al. (2002), 2002 NBBR 213 , 252 N.B.R. (2d) 386 (Q.B.)is on point. In that case, the accused were residents of Quebec who had been charged in New Brunswick with conspiracy toimport controlled substances under s. 465(1) of the Criminal Code.

They sought an order transferring the case to the judicialdistrict of Montreal. Alternatively, they sought an order for state-funded counsel of their choice, a lawyer from Quebec. WhileLegal Aid New Brunswick was willing to issue a legal aid certificate, it was not willing to extend funding to a Quebec lawyer,notwithstanding the fact that the lawyer was willing to be paid according to the New Brunswick tariff. As noted earlier, legal aidfunding in this Province is available only if the accused is willing to choose a lawyer from a list of New Brunswick counsel whoparticipate in the legal aid program.

Justice Leger ruled against the accused on both issues. With respect to the right to state-funded counsel, he held, at para. 27: o [TRANSLATION] - In this case, the evidence shows that the accused do have access to counsel from Legal Aid NewBrunswick, but not to the counsel of their choice, namely Mr. Bisson, who cannot be paid by Legal Aid New Brunswick. Does thisfact, this situation, constitute an infringement of the fundamental rights of the accused as provided under the above-mentionedprovisions of the Charter? In my opinion, no.

The case law is clear: the accused have a right to counsel, but not to counsel of theirchoice. See R. v. Rockwood, (NS CA), [1989] N.S.J. No. 217; 91 N.S.R. (2d) 305; 233 A.P.R. 305 (C.A.); R. v.Rowbotham et al. (1988), (ON CA), 25 O.A.C. 321; 41 C.C.C. (3d) 1 (C.A.) 18 The Nova Scotia Court of Appeal reached the same conclusion in R. v. Rockwood (1989), (NS CA), 49C.C.C. (3d) 129 (N.S.C.A.). In that case, the Court held that the law does not go so far as to give the indigent accused a right tochoose counsel beyond those willing to serve within the constraints of the Nova Scotia legal aid programme. In Mireau v.

Canadaet al. (1991), (SK KB), 96 Sask. R. 197 (Q.B.), the court held that an accused had no constitutional right tocounsel of his choice. This ruling was made in the context of a refusal of Saskatchewan's Legal Aid Society to extend funding to aparticular Saskatchewan lawyer. In Panacui v. Legal Aid Society of Alberta (1987), (AB KB), 40 C.C.C. (3d) 459(Alta. Q.B.), legal aid was granted to the accused who was assigned a lawyer in accordance with the funding agency's policies.The accused then sought an order declaring that the refusal to appoint counsel of his choice violated his Charter rights.

TheCourt rejected the argument. Finally, in Spellacy v. Newfoundland (1991), (NL SC), 91 Nfld. & P.E.I.R. 74(Nfld. S.C.(T.D.)), the Court held that, while the principle of trial fairness may require the provision of state-funded legal counsel,there is no corollary right to counsel of one's choice: see also R. v. Munroe (1990), (NS CA), 59 C.C.C. (3d) 446(N.S.C.A.) and R. v. Robinson (1989), 1989 ABCA 267 , 51 C.C.C. (3d) 452 (Alta. C.A.). 19 The law is clear. An accused person possesses a constitutional right to a fair trial.

However, he or she does not possess aconstitutional right to state-funded counsel unless the absence of counsel would impact the fairness of the trial. This right doesnot extend to receiving state-funded counsel of his or her choice. In cases where the principle of trial fairness requires theprovision of counsel, and the accused can demonstrate that he or she lacks the financial resources, the Crown is obligated toprovide state-funded counsel.

The obligation, however, is discharged if legal representation is available under a provincial legalaid program, in which case, choice of counsel is restricted to participating lawyers. 26. Consequently, although Mr. Boucher benefits from a constitutionally protected right to a fair trial and the right to make fullanswer and defence, he does not benefit from the right to state-funded counsel of his choice. The state’s obligation to ensure he isprovided state-funded counsel has been discharged by the provision of counsel through the provincial legal aid program. 27.

To this, I add the comments of Mme Justice LaVigne in the Court of Queen’s Bench decision of R. v. Koumoutsidis [2006] N.B.J.No 74 at paragraphs 28, 29 and 34, comments which were adopted as correct by the New Brunswick Court of Appeal in R. v.Koumoutsidis, 2006 NBCA 32, at paragraph 9: 28 “It is not the task of the Court to interfere with the internal administration of legal aid services or to review the policies ofLegal Aid. I am not entitled to review the reasonableness of the decisions made by Legal Aid.

I have to focus on whether theaccused’s right to a fair trial is imperiled because of the conditions under which he is being defended…” 29 “Absent compelling reasons, such as a disqualifying conflict of interest or incompetence, the courts should not interferewith the choice of counsel assigned by Legal Aid.” 34 “There may be exceptions to this general proposition, such as, if the accused can establish that he can only obtain a fairtrial if represented by a particular counsel, or if the Court found that the accused simply cannot find competent counsel torepresent him on conditions imposed by Legal Aid.

One would expect these cases to be extremely rare. I have not beenconvinced that this is one of those cases. There is no evidence before this Court that the counsel appointed by Legal Aid cannot

adequately represent Mr. Koumoutsidis.” 28 . In this case, I have not been convinced that L.A.L. did not adequately represent Mr. Boucher. Nor did I receive any evidence that Ms. Butler, his current counsel, cannot adequately represent him. At best I have a few personal opinions and comments from Mr. Boucher that are unsupported by any evidence. They are no more than conclusory statements unsupported by facts or evidence. Mr.

L.A.L. may himself have felt inadequate to the degree that he made impassioned pleas to Legal Aid to assist him or to replace him, but that is a far cry from concluding that the representation he actually provided was inadequate or deficient, or that he was incompetent. There are no compelling reasons in this case to interfere with the choice of counsel made by Legal Aid. 29 . Finally on this point, I will address Mr. Boucher’s complaint that L.A.L. closed his defence without his authorization, leaving him without the ability to call further evidence.

It is not for me to decide whether L.A.L. made the right call or not in that regard. I am unfamiliar with the circumstances. It is entirely possible that L.A.L.’s decision to not call further evidence was the right one to make in the circumstances. He was not called as a witness and his judgment call should not be questioned without a compelling reason. I cannot speculate on the appropriateness or lack thereof of his tactical decisions. ADVANCE COSTS 30 . The second facet of Ms. Butler’s application, the one seeking advance authorization for expenses in advancing Mr.

Boucher’s aboriginal defence, is a more complex one. She in effect is asking for advance costs, that is, the payment of expenses to cover consultations with various experts in the field, the costs associated with having these experts appear in court to give testimony and reasonable costs for the research that would be necessary to give effect to his defence. This request is based on the Okanagan case. 31 . I am of the opinion that a Provincial Court Judge lacks jurisdiction to order advance costs such as those made in the Okanagan case. The Provincial Court is a statutorily created court.

It must, of necessity, derive its powers from those given to it by the legislature of the province. Unlike the Court of Queen’s Bench of New Brunswick, the Provincial Court does not possess equitable jurisdiction. My

interpretation of Okanagan would advocate that the power to order advanced costs as recognized in that case derives from equity. 32 . The Okanagan case dealt with four Indian bands who were logging on Crown land in British Columbia. The provincial Minister of Forests served these bands with stop-work orders issued under the Forests Practices Code of British Columbia Ac t. The province then commenced legal proceedings to enforce the stop-orders. The bands claimed that they had aboriginal title to the lands in question. They claimed that they were entitled to log them without provincial permit or permission.

They filed an action in civil court challenging the Forests Practices Code as conflicting with their constitutionally protected aboriginal rights. The matter was set over for trial. The bands requested that if the matter was to go to trial, that the Court should order the Crown to pay their legal fees and disbursements in advance. This request was refused by the chambers judge. 33 . At paragraph 19 of the Supreme Court of Canada decision, Mr. Justice LeBel states: 19 “The jurisdiction of courts to order costs of a proceeding is a venerable one.

The English common law courts did not have inherent jurisdiction over costs, but beginning in the late 13th century they were given the power by statute to order costs in favour of a successful party. Courts of equity had an entirely discretionary jurisdiction to order costs according to the dictates of conscience (see M. M. Orkin, The Law of Costs (2nd ed. (loose-leaf)), at p. 1-1).

In the modern Canadian legal system, this equitable and discretionary power survives, and is recognized by the various provincial statutes and rules of civil procedure which make costs a matter for the court's discretion.”(underlining mine) 34 . Rule 57(9) of The Supreme Court of British Columbia Rules of Court specified that “…costs of and incidental to a proceeding shall follow the event unless the court otherwise orders”. They did not specifically authorize an award of costs against a successful litigant.

At paragraph 30, Justice LeBel states: “… Although these principles are not spelled out in the Supreme Court of British Columbia Rules of Court , in my view they are generally relevant in guiding the exercise of a court's discretion as to costs. They form part of the background against which a British Columbia court exercises its inherent equitable jurisdiction , confirmed by Rule 57(9), to depart from the usual rule that costs follow the event.” (Underlining mine). 35 .

The learned Justice then refers to a decision dating back to 1742 in support of his position and quotes the “intirely discretionary” equitable jurisdiction to order costs: see paragraph 31, referring to Jones v. Coxeter (underlining mine). 36 . Finally, in paragraph 35, he concludes: 35 “Based on the foregoing overview of the case law, the following general observations can be made. The power to order

interim costs is inherent in the nature of the equitable jurisdiction as to costs , in the exercise of which the court may determine at its discretion when and by whom costs are to be paid…” (underlining mine). 37 . The Provincial Court of New Brunswick has no inherent equitable jurisdiction. It derives the entirety of its jurisdiction from statute. As such, the Provincial Court of New Brunswick, in my opinion, has no authority to order the type of advanced costs described in Okanagan because we lack the equitable jurisdiction to do so. 38 .

This lack of jurisdiction in the Provincial Court was addressed by Marceau, J. in the Court of Queen’s Bench of Alberta case of R. v. Caron [2007] A.J. No 449 . In that case, the Provincial Court Judge declined to order advance costs following an Okanagan hearing because he felt he lacked the jurisdiction to do so, basing his judgment on R. v. Yellowhorn [2006] A.J. No 491 , another decision from the Alberta Court of Queen’s Bench. Instead, the Provincial Court Judge ordered that the state fund his counsel, disbursements and expenses of research personnel and expert witnesses based on a prospective breach of

section 11(

d) of the Charter , the right to a fair trial. The remedy for the breach was granted under section 24(1) of the Charter . The Crown appealed. Mr. Caron ultimately applied to the Court of Queen’s Bench for funding by way of a new claim, seeking the exercise of its inherent jurisdiction as a superior court to make the order. 39 . Mr. Justice Marceau confirmed that the Provincial Court Judge did not have jurisdiction to order advance costs and set aside the order.

At paragraph 31, he states: “…I am of the view that the learned provincial court judge did not have jurisdiction to award Okanagan interim costs in any event, because of the limited jurisdiction of the provincial court with respect to costs”. 40 . At paragraph 138, he states: “…I have decided the Provincial Court even if it found all three criteria of those cases were met does not have jurisdiction to make an order for state funding of counsel and expert fees.” 41 .

Justice Caron instead determined that the Court of Queen’s Bench, exercising its inherent jurisdiction, in its supervisory capacity over inferior courts, should make the order that the Provincial Court could not make, and he did so. 42 . This decision eventually wound its way up to the Supreme Court of Canada. That Court held that the Alberta Court of Queen’s Bench possessed the inherent jurisdiction to make the funding order that it did because these courts possess inherent jurisdiction to render assistance to inferior courts to enable them to administer justice fully and effectively.

They also held that such proceedings should be exercised sparingly and with caution. So in cases where an inferior tribunal is powerless to act and it is essential to avoid an injustice that action be taken, a superior court has an inherent jurisdiction to render assistance in its supervisory capacity. 43 . Most unfortunately, the Court did not deal with the specific issue of the jurisdiction of the Provincial Court to deal with Okanagan type funding orders. That issue was not before them and so they did not deal with it. What is most interesting to note is Mme Justice Abella’s comments in that case.

Agreeing with the result, she nonetheless issued a cautionary note at paragraph 54: “…this Court’s evolutionary acknowledgement of the independence, integrity and expertise of statutory courts and tribunals may well be inconsistent with an approach that has the effect of expanding the reach of a superior court’s common law inherent jurisdiction into matters of which a statutory court or tribunal is seized…” 44 .

Recognizing that the question of whether or not a statutory court has jurisdiction to order Okanagan costs would have to be addressed at some later time, she referred to the need to reconcile the common law scope of inherent jurisdiction with “…the implied legislative mandate of a statutory court or tribunal to control its own process to the extent necessary to prevent an injustice and accomplish its statutory objectives” (paragraph 54). 45 . In any case, in the event that my conclusion that the Provincial Court lacks jurisdiction is in error, I will briefly deal with the request.

The Supreme Court of Canada in Okanagan established the criteria that would justify an award of interim costs at paragraph 40: 1. “The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial -- in short, the litigation would be unable to proceed if the order were not made. 2.

The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.

3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not beenresolved in previous cases.” 46. In this case, without the need to specifically deal with the first two criteria, I am not convinced that the prerequisites of the thirdcriterion have been met. I have not been persuaded that this constitutes a test case such as would allow me to conclude that the issuesraised transcend the individual interests of the applicant Mr. Boucher or are of public importance. 47.

In Okanagan the Court found that “the issues sought to be raised at trial are of profound importance to the people of BritishColumbia, both aboriginal and non-aboriginal, and their determination would be a major step towards settling the many unresolvedproblems in the Crown-aboriginal relationship in that province. In short, the circumstances of this case are indeed special, evenextreme” (see paragraph 46). 48. The New Brunswick Court of Appeal at paragraph 8 of their decision in Greene v. Blais [2013] N.B.J.

No 182 quoted theprerequisites for a finding of “special circumstances”, the third criterion in Okanagan as derived from Little Sisters Book and ArtEmporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2 as follows: 8 “In order to meet the third prerequisite, the case must fall within the ambit of those "rare and exceptional" ones, in thesense that (1) the failure to grant the advance costs would create an injustice that would relate both to Ms.

Greene and to thepublic at large, (2) it be in the interests of justice that the costs be awarded after all other possible funding options have beenexplored, (3) the matter not be otherwise resolvable, and, (4) the court can ensure that the award is workable: Little Sisters atparas. 38-42.” 49. In this case, Mr. Boucher seeks a ruling from the Court declaring him to be aboriginal. This is of extreme importance to him, but Icannot see how it would be of profound importance to the people of New Brunswick. He does not speak on behalf of a group of people.

He does not represent an Indian Band or speak on their behalf. The issues he raises, other than possibly establishing a precedent definingthe legal requirements for the legal recognition of non-status Indians, (which has seemingly already been determined by our Court ofAppeal in R. v. Acker (2004), 2004 NBPC 24 , 281 N.B.R. (2d) 275, and R. v. Hopper

(2008) NBCA 42), are primarily ofimportance to him. 50. I therefore find that this case does not fall within the ambit of those “rare and exceptional” ones which are of such publicimportance to the broader community that the public interest is served by a proper resolution of those issues by an order of advancedcosts. 51. Since I have not been called upon to rule on any award of costs under section 24(1) of the Charter for any alleged breach of aCharter right, I will not do so.

In any event, the Supreme Court of Canada in R. v. 974649 Ontario Inc. 2001 SCC 81 , [2001] 3S.C.R. 575, at paragraph 87 stated that such awards of costs, at a minimum, are limited to “circumstances of a marked and unacceptabledeparture from the reasonable standards expected of the prosecution”.

That case stands for the proposition that a statutorily created courtis empowered to award a remedy under section 24(1) of the Charter, and can award costs for the Charter breach of failing to discloseevidence in a timely fashion even if the enabling legislation, (in this case the Ontario Provincial Offences Act) does not specificallyprovide for awards of costs. It does not deal, however, with a situation involving advance costs, such as have been requested in this case. CONCLUSION 52. Mr. Boucher’s request for state-funded counsel of choice is denied. 53. Mr.

Boucher’s Okanagan-based request for advanced costs cannot be made because the Provincial Court of New Brunswick hasno jurisdiction to make such an order. Dated at Bathurst, NB, this 25th day of September, 2015.

_________________________ Ronald LeBlanc Provincial Court Judge