Pardy v. Newfoundland and Labrador, 2014 NLCA 37

Date: 201410 10 Docket: 13/91 Citation: Pardy v. Newfoundland and Labrador , 2014 NLCA 37 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: TREVOR PARDY APPELLANT AND: HER MAJESTY THE QUEEN FIRST RESPONDENT AND: THE NEWFOUNDLAND AND LABRADOR LEGAL AID COMMISSION SECOND RESPONDENT Coram: Green C.J.N.L., Welsh, Rowe, White, and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division 201201G0944 (2013NLTD(G)148) Appeal Heard: June 5, 2014 Judgment Rendered: October 10, 2014 Reasons for Judgment by Green C.J.N.L.

Concurred in by White and Harrington JJ.A. Dissenting Reasons for Judgment by Welsh J.A. Dissenting Reasons for Judgment (in part) by Rowe J.A. Counsel for the Appellant: Ian Kelly Q.C. and Keir O’Flaherty Counsel for the First Respondent: Peter Ralph Q.C. and David Rodgers Counsel for the Second Respondent: No Appearance

Green C.J.N.L.: [ 1 ] This appeal engages the question of when, if ever, the law entitles an accused charged with murder to be provided with counsel of his choice from the private bar paid at rates not constrained by the rates established by the legal aid scheme of the province. [ 2 ] The appellant, Trevor Pardy, was charged with first degree murder as well as certain related firearms offences. [ 3 ] Mr. Pardy applied to the Newfoundland and Labrador Legal Aid Commission for funding to be represented by a specific member of the private bar.

A certificate for this purpose was issued to the chosen lawyer under the provisions of the Legal Aid Act, RSNL 1990, c. L-11, as amended. That lawyer represented Mr. Pardy at his preliminary inquiry and up to and including the jury selection process for his trial. On the evening before the start of calling evidence, Mr. Pardy dismissed his lawyer as counsel, citing irreconcilable differences. The trial was aborted. It was not suggested that Mr. Pardy was acting in bad faith or for an ulterior purpose in dismissing his lawyer. [ 4 ] Mr.

Pardy sought assistance from the Legal Aid Commission with respect to the retention of new counsel. At the Commission’s suggestion he interviewed a number of Commission staff solicitors but did not retain any of them, because he felt unable to form a solicitor-client relationship with any of them. [ 5 ] He then met with, or communicated or attempted to communicate with, a large number of lawyers in private practice but none was willing to represent him.

Those who spoke to him indicated that they could not represent him at the senior lawyer legal aid tariff of $60 per hour and that the time allowed by the Commission for trial preparation was insufficient [ 6 ] Relying, in part, on subsection 31(3.1), a 2008 amendment to the Legal Aid Act , which provided that a person charged with murder “may select a solicitor in private practice in the province”, Mr. Pardy applied to the Trial Division for an order that he was entitled to be provided with counsel of choice from the private bar to be paid for by the Attorney General at a rate to be negotiated.

He asserted that he would not be able to have a fair trial if he was not represented by counsel. [ 7 ] The applications judge essentially treated the application as an application at common law or under the Charter for state- funded counsel outside the legal aid scheme on the ground that Mr. Pardy’s right to a fair trial was allegedly in jeopardy. He concluded that Mr. Pardy’s fair trial rights were not in jeopardy and denied the application.

His approach to the issue and his reasoning is concisely summed up in the following paragraph in his judgment: [49] I am satisfied that there are a number of Legal Aid staff lawyers with sufficient experience and expertise who are available and willing to represent Mr. Pardy on the charges he is facing. He has not satisfied me on any objective basis either under the Court’s inherent jurisdiction, the Charter , or any statutory provision that on a balance of probabilities his right to a fair trial would be detrimentally affected by such representation.

An accused does not have to like a lawyer to be able to form a reasonable solicitor/client relationship. The charges against Mr. Pardy, while serious, are not unique and there is no evidence before me that they are complicated. I am satisfied that any competent, experienced criminal defence lawyer could ensure that Mr. Pardy receives a fair trial. Legal Aid has offered him a choice of such counsel employed by the Commission. This is all he entitled to in the circumstances unless he can find a lawyer in private practice who will represent him at the Legal Aid tariff. [ 8 ] Mr. Pardy now appeals from that ruling.

Issues [ 9 ] Five issues present themselves: 1. Whether this Court has jurisdiction, at this juncture in the proceedings, to entertain the appeal against the ruling denying Mr. Pardy’s application for counsel funding; 2. Whether the appellant is entitled to raise and argue Issue #3 on this appeal; 3. Whether the appeal ought to be allowed on the basis that subsection 31(3.1) of the Legal Aid Act entitles Mr. Pardy to counsel of choice from the private bar without having to establish that his fair trial rights are in jeopardy; 4. Whether the applications judge erred in concluding that Mr.

Pardy was not entitled to counsel either at common law or under the Charter because his fair trial rights were not in jeopardy; 5. If Mr. Pardy is entitled to counsel, what specific remedy should be granted? Jurisdiction

[10] The application was made prior to the commencement of Mr. Pardy’s trial. In that sense it could be said that it wasinterlocutory in nature.

Section 674 of the Criminal Code provides: No proceedings other than those authorized by this Part [Part XXI‒Appeals‒Indictable offences] and

Part XXVI [ExtraordinaryRemedies] shall be taken by way of appeal in proceedings in respect of indictable offences. [11] The Code does not provide for interlocutory appeals. The Supreme Court of Canada has been quite explicit, in various othercontexts, that interlocutory appeals in criminal matters are not authorized by the Code and that there is no inherent appeal jurisdiction incriminal cases: Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863; R. v. Meltzer, (SCC), [1989] 1 S.C.R.1764. [12] The issue here is whether a purported appeal of a decision denying counsel is “an appeal in proceedings in respect of indictableoffences” within the meaning of

section 674. [13] In three previous cases, this Court has entertained appeals from denial of counsel in analogous circumstances: R. v. Ryan (W.J.),2005 NLCA 44, 248 Nfld. & P.E.I.R. 162; R. v. Jesso, 2007 NLCA 28, 265 Nfld. & P.E.I.R. 181 and R. v. Ryan (D.), 2007 NLCA 6, 263Nfld. & P.E.I.R. 22. In none of these cases, however, was the question of jurisdiction raised by counsel and the Court did not expresslyaddress the issue whether the cases were to be regarded as interlocutory appeals in criminal matters, thereby disentitling them fromappellate consideration.

At most, therefore, the cases can be considered only as sub silentio precedent for assuming jurisdiction. [14] As a result, the Court asked counsel specifically to address the issue in the context of the current appeal. Counsel did so but bothof them took the position that the Court did, in fact, have jurisdiction. (The Second Respondent, the Newfoundland and Labrador LegalAid Commission, did not participate in the appeal).

Since counsel cannot by agreement confer jurisdiction on the Court where it doesnot otherwise have it, it is nevertheless necessary for the Court to conduct its own analysis. [15] The starting point must be the dissenting judgment of Cameron J.A. in this Court’s decision in R. v. Druken (1997), (NL CA), 157 Nfld. & P.E.I.R. 93 (Nfld. C.A.). That case dealt with a purported appeal of a Trial Division decisionprecluding defence counsel, on grounds of conflict of interest, from representing an accused on a trial for first degree murder.

CameronJ.A.’s decision was upheld by the Supreme Court of Canada with the Court stating it was “in substantial agreement” with her reasoningand adding: “The decision to remove counsel is to be reviewed after the trial through the normal appeal process set out by the CriminalCode”: (SCC), [1998] 1 S.C.R. 978 at paragraph 1. [16] Cameron J.A. rejected the submissions that an appeal lay to the Court of Appeal because it was not an appeal of a proceeding inrespect of an indictable offence; the appeal was not interlocutory because it was final in nature (as to the nature of the representation) andhad nothing to do with the trial of the charge against the accused; and that the proceeding could be characterized as a civil matter thatcould be appealed under

section 5 of the Judicature Act, RSNL 1990, c. J-4. She explained: [28] In the context of this application, it is true that the order removing [counsel for the accused] as counsel of record does not determinewhat evidence is put before the jury for their consideration. It is also true that a similar application may be made in the context of a civiltrial. Indeed, the seminal case in this area is that of MacDonald Estate v. Martin, (SCC), [1990] 3 S.C.R. 1235; 121 N.R.1; 70 Man. R. (2d) 241; 77 D.L.R. (4th) 249; [1991] 1 W.W.R. 705, a civil case. However, I agree with the analysis of Arbour J.A. in R.v.

Adamson (1991), (ON CA), 49 O.A.C. 26; 65 C.C.C. (3d) 159 (Ont. C.A.) at 160 [C.C.C.], “the order in issue isnot and could not be conceived as civil in nature” as in this case, Adamson was concerned with an order removing counsel as counsel ofrecord in the context of a first degree murder charge in which it was argued that the order violated s. 10(

b) of the Charter. [29] Further, with respect, I must disagree with my brother O’Neil’s finding that the order removing counsel is a final order. While thedecisions respecting what is an interlocutory order and what is a final order result in a morass of inconsistent opinion, there are coreprinciples. Here, the order does not determine the real issue but only a collateral matter.

It can certainly be said to be final in respect ofthat collateral matter but that is not determinative of the matter before the court and therefore, in my view, is interlocutory. [17] The question for consideration is whether the appeal in this case and in Jesso and the two Ryan cases – all of which concerneddenial of state-funded counsel in the context of a criminal charge of murder – fall within the principles enunciated in Druken. [18] The first point to be noticed is that Druken involved an application by the Crown prosecutor to remove defence counsel ongrounds of conflict of interest, not an application for state-funded counsel.

As noted by counsel for the Crown in its supplementaryfactum in this case: In Druken, it was the Crown, in its prosecutorial role, that brought the application in the context of a criminal trial.

The Crown wasconcerned about the substantive merits of the trial if it proceeded with [existing defence counsel] as counsel for the accused due to hisalleged conflict of interest. [19] By contrast, applications brought by an accused for state-funded counsel do not concern the Crown in its role as prosecutor;rather, they involve the Attorney General in his or her general capacity as the government officer responsible for the administration ofjustice and the dispensing of public funds.

That is why when issues respecting state-funded counsel arise in court it is not prosecutingcounsel who makes submissions on the issue but different counsel representing the Attorney General who is given separate notice of theapplication. As noted by counsel for the Attorney General on this appeal, “The Crown, in its capacity as prosecutor, has no interest andtakes no position in relation to Mr.

Pardy’s legal representation and how this is funded.” (Supplementary Factum, paragraph 10). [20] Again, in the words of Crown counsel’s Supplementary Factum (paragraph 11), with which I agree: In contrast, the issue of who pays for Mr. Pardy’s legal representation, be it Legal Aid, the Attorney General, Mr. Pardy himself or asolicitor working pro-bono, is entirely irrelevant to the Crown in its capacity as prosecutor; it has no bearing on the merits of Mr. Pardy’strial and does not engage any public interest concerns of the Crown related to the substance of Mr. Pardy’s criminal matter.

Indeed,unlike in Druken, in which the Crown initiated the application before the Court, it would be inappropriate for the Crown to take a

position on who should pay for Mr. Pardy’s legal representation. That is a matter for the Attorney General, in his civil capacity, todebate. An application for Attorney General funded counsel is civil in nature and should be properly qualified as an originatingApplication taken between, in this case, Mr. Pardy as applicant and the Attorney General as respondent.

Indeed, it is submitted that thisposition is the only logical conclusion to draw from the cases of Jesso and Ryan, so that they are seen as consistent with the existing caselaw from the Supreme Court of Canada ... [A] review of the transcript in this proceeding … confirms that it was counsel from the civildivision of justice, acting for the Attorney General in its capacity as administrator of public funds, who acted as respondent in this matter… [21] The Supreme Court of Canada cases dealing with the absence of jurisdiction to entertain an appeal in an interlocutory matter inan indictable criminal matter do not deal with appeals from orders denying state-funded counsel but, instead, deal with other issues thatdo relate to and impact on the criminal prosecution: Kourtessis (quashing a search warrant in an income tax evasion case); Meltzer(authorizing interception of private communications); Druken (removing defence counsel on grounds of conflict of interest).

See also R.v. Deschamps, 2003 MBCA 116 (appeal, mid-trial denying counsel leave to withdraw – a matter that would clearly affect thecontinuation of the criminal trial). All of these cases are factually distinguishable from the current situation on the basis that the issuesthere were connected with and would have had an impact on the substance of the criminal prosecution.

In that sense, they wereintimately part of the criminal proceeding. [22] This is not a case, such as in Meltzer, of an attempt to distinguish the case from a criminal proceeding and to characterize it,instead, as civil in nature simply on the basis that a procedural step derived from civil practice was employed (a position which theSupreme Court rejected). Here, it is the nature or substance of the proceeding that is in issue. In Ewaschuk’s Criminal Proceedings andPractice in Canada the distinction between criminal and civil appeals is described thus at page 23-4: An appeal is either civil or criminal in nature.

The nature and character of the appeal is not determined by the result of the proceedingsbeing appealed from but, rather, by the nature of the law upon which the proceedings are based. The test is whether the proceedingsbeing appealed are criminal or civil in nature and founded on the criminal law power, or whether the proceedings are civil in nature andfounded on provincial legislative powers. [23] In the instant case, the case turns in part on whether Mr.

Pardy is entitled to representation by counsel funded at state expense.This is an issue that relates to the administration of justice generally and whether public funds must be expended to ensure that theadministration of justice operates fairly and properly. Whether the issue arises in the context of a criminal matter or in the context of, say,a child protection matter (See G.J. v. New Brunswick) the fundamental values pertaining to the justice system that are at stake areessentially the same.

In all such cases, the interconnection with the adequacy of the legal aid scheme, a provincial responsibilityregulated by provincial statute, is essential to be considered. These are issues that do not affect the subject matter engaged in the case. [24] Druken is not controlling in the circumstances of this case. There is a qualitative difference between a ruling as to whether alitigant can be represented by a specific lawyer (the question in Druken) and whether he is entitled to representation at public expense(the question in the instant case).

In the former, the question of whether he will have the benefit of legal advice and representation is notengaged, only whether that advice and representation can be provided by a particular counsel. In Druken, there was no issue whether theaccused would have to go to trial on his own without legal help. [25] By contrast, the issue at play here involves just that question. The Supreme Court of Canada has emphasized on many occasionsthe importance of proper legal representation. In R. v.

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

Effective assistance by counsel also enhances theadjudicative fairness of the process in that it provides to an accused a champion who has the same skills as the prosecutor and who canuse those skills to ensure that the accused receives the full benefit of the panoply of procedural protections available to an accused. ... [26] Without representation by counsel, there will often be a greater risk that an accused will not be able to make full answer anddefence especially with respect to serious and potentially complex charges like murder. Reference need only be made to R. v.

Ryan, 2012NLCA 9, 318 Nfld. & P.E.I.R.15 for a demonstration of the difficulties and dangers that can result when an accused represents himself ata murder trial. [27] In such situations, there will be a greater possibility of a wrongful conviction. The history of cases of wrongful convictions inthis province – indeed, in this country – is testimony to the monumental efforts that have to be made, after the fact, to achieve whatshould have been done in the first place.

The setting aside of a conviction and the ordering of a new trial are not true substitutes forinitially getting the matter right. [28] It is true that the absence of a right of appeal in the Code with respect to interlocutory decisions relating to “proceedings inrespect of indictable offences” means that errors with respect to such interlocutory matters necessarily will have to be rectified after thefact (i.e. following the trial).

However, where the decision in question need not be characterized as part of “proceedings in respect ofindictable offences” there is no reason, given the importance of the issue to the fairness and proper functioning of the trial and theabsence of any connection of the issues at stake to the substantive issues in the trial, why they should be treated the same way, provided,of course, another basis of appeal is available. [29] In this case, the decision as to provision and funding of counsel need not be characterized as related to a proceeding in respect ofan indictable offence.

While it is true that it arose in this instance in the context of a criminal proceeding, the issues that have to beresolved do not relate, substantively or procedurally, to the criminal charge. [30] Although the respondent to the application for funding and the prosecutor in the criminal charge in this case are both styled as

“Her Majesty the Queen”, the Crown in fact wears many hats and performs differing functions. Prosecutions of criminal offences are conducted in this province by the Attorney General, represented by the Director of Public Prosecutions, who heads a separate division of the Department of Justice (now recently renamed the Department of Public Safety ): Executive Council Act , SNL 1995, c. E-16.1, para. 4(4)(a); Department of Justice Notice, 2003, NLR 85/03, para.3(2)(c). Civil actions commenced by a minister or government department must be undertaken in the name of the Attorney General: Executive Council Act ,

section 13. On the other hand, in actions of a civil nature taken against the Crown, the defendant is to be named “Her Majesty in right of Newfoundland and Labrador”: Proceedings Against the Crown Act, RSNL 1990, c. P-26,

section 10. Although the Attorney General is responsible for the litigation ( Executive Council Act, para.4(4)(c)), the Civil Division of the Department of Justice, a division separate from the division headed by the Director of Public Prosecutions, conducts the litigation: Department of Justice Notice, 2003 , para. 3(2)(b). [ 31 ] Thus, the respondent to an application such as this should, technically, be “Her Majesty in right of the Province of Newfoundland and Labrador”.

While the Attorney General is by law responsible for conducting both criminal and civil litigation on behalf of the Crown, he or she performs different functions and can and should be regarded as separate entities for such purposes. An analogous situation arose in R. v. Kimmie , 2006 SKCA 87 , 212 C.C.C. (3d) 127. The Saskatchewan Court of Appeal held that an order denying court-funded counsel in a

summary conviction matter was a final order within the meaning of

section 830 of the Criminal Code (which dealt with appeals in

summary conviction matters) and was therefore capable of appeal before trial by the Minister of Justice who was a “party to proceedings” within

section 830 .

In deciding that the order in question was a final order, Lane J.A. drew a distinction between the different prosecutorial and funding roles, noting at paragraph 6 that “[t]he appeal is taken by Court Services, as represented by the Minister of Justice and not the Attorney General representing the Director of Public Prosecutions.” He went on to rule that although the order for appointment of counsel was “undoubtedly a part of the larger criminal proceeding since it involved the appellant’s defence to the prosecution”, it “must nevertheless be viewed as a separate proceeding since it involves different parties, the appellant and the Minister of Justice, rather than the appellant and the Attorney General”.

He stated: [24] Since the order made applies only to the appellant and the Minister of Justice, the order is a final one and the only matter in existence between those parties, making it a final order within the meaning of s. 830(1) and subject to appeal. [ 32 ] While the statutory provision that applied in that case is different from

section 674 , and the internal departmental responsibilities for prosecution and other Crown litigation are somewhat different from those in this province, the distinction which the Court was prepared to make between differing Crown roles is relevant here. As well, by regarding the Crown representative in the funding application as different from the prosecutor, the Court was able to regard the funding order, as between the accused and the Crown, as a final order. Similarly, in this case the prosecutorial and funding roles are bifurcated and as between Mr.

Pardy and the Crown, so far as funding goes, the matter is final, not interlocutory. It should have been brought to court by a separate application in which “Her Majesty in right of the Province of Newfoundland and Labrador” was the named respondent, not just “Her Majesty the Queen” which is the traditional usage in the style of cause relating to criminal proceedings. That would have made the distinction clear. That said, substance, not form, should prevail. The application for funding should be treated as if it were a separate proceeding that finally decided the funding issue and is subject to appeal pursuant to

section 5 of the Judicature Act . [ 33 ] In Oliver v. Newfoundland & Labrador (Legal Aid Commission), 2007 NLCA 67 , 271 Nfld. & P.E.I.R. 121, an accused facing a murder charge applied to the Legal Aid Commission for a certificate appointing private counsel of his choice on the basis that staff solicitors could not represent him because the legal aid organization was in a conflict of interest.

When this application and a subsequent internal appeal were denied, he sought judicial review of the decision on the basis that the chair of the Appeal Board was in a conflict of interest and that there was a reasonable apprehension of bias on the part of the Board. He coupled that application with a further application that he be provided with counsel of choice from the private bar.

The judicial review resulted in the Appeal Board decision being set aside and the matter remitted to a differently constituted appeal board, which upheld the first decision. [ 34 ] The accused nevertheless proceeded with his Rowbotham application for private counsel at the expense of the Attorney General to defend him on the murder charge. When that application was heard, it was denied. The accused appealed that to this Court. The Court entertained the appeal and dealt with the merits. [ 35 ] What is significant for present purposes is that Mr.

Oliver named two respondents in his applications to the Trial Division, the Legal Aid Commission and the Attorney General. On the appeal in this Court, no one raised any question about the jurisdiction of this Court to hear the appeal on the ground that it was an interlocutory appeal in a criminal matter. Indeed, I would suggest, they could not have done so.

The procedure adopted (a separate application, not in the criminal proceeding file, naming the Legal Aid Commission and the Attorney General) made it clear that it was a separate application, essentially in a civil matter raising issues unconnected to the criminal proceeding, that was not an interlocutory “appeal in respect of indictable offences” within

section 672 of the Code. [ 36 ] In like manner, if the same procedure had been adopted here, by way of separate application, the distinction would have been much clearer. [ 37 ] These same distinctions cannot be made with respect to the issue that was engaged in Druken . There, the application to remove defence counsel on grounds of conflict of interest was made by the Crown in its prosecutorial role out of a concern that the continuing involvement of the existing counsel (not any counsel) would improperly impact the fair operation of the trial.

That issue was directly related to the proper continuation of the criminal proceedings. Here, on the other hand, the Crown in its prosecutorial role, as counsel stated on the appeal, remains neutral as to whether Mr.

Pardy is represented and by whom. [ 38 ] Because the matter at issue engages the Attorney General in his capacity relating to the administration of justice generally and the expenditure of public funds ‒ matters which can be characterized as engaging civil, administrative or constitutional law but not, substantively, criminal law – there is no impediment to entertaining and dealing with an appeal at the present time. The matter is not “an appeal in proceedings in respect of indictable offences” within

section 670 but is, instead, caught by

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

[39] Counsel referred to a limited number of appellate decisions in other jurisdictions which, in varying circumstances, held that thecourt had no jurisdiction to consider appeals relating to appointment of counsel in advance of an appeal following trial conclusion: R. v.Dunkers, 2010 BCCA 605, 298 B.C.A.C. 47; and R. v. Hales, 2009 SKCA 91, 331 Sask. R. 102. These cases can be distinguished on thebasis that they dealt with appeals from decisions of preliminary inquiry judges denying counsel at the stage of the preliminary inquiry,not the trial itself.

There was no real analysis of the issue as it was presented in this case. In any event, to the extent that they may haveapplication in the present circumstances, they are not binding on this Court and I would decline to follow them. [40] Accordingly, I conclude that this Court has the jurisdiction to entertain the current appeal. New Issue on Appeal? [41] One of the grounds of appeal advanced by Mr.

Pardy in his factum and in argument at the hearing is that the judge erred in notdetermining that subsection 31(3.1) of the Legal Aid Act gave to him a statutory right to counsel of choice irrespective of considerationsrelating to the more limited Charter guarantee of counsel when his right to a fair trial is put in jeopardy. [42] Counsel for the Crown submitted that appellant’s argument in this regard amounted to impermissibly raising a new issue onappeal that was not before the applications court on the original application. Counsel submitted that the focus of Mr.

Pardy’s applicationwas on whether he was entitled to counsel based on Charter principles and the inherent jurisdiction of the court related to ensuring trialfairness, not on whether pursuant to subsection 31(3.1) he had a separate statutory right that was reviewable on administrative lawprinciples. By focusing on a breach of a statutory right, as argued, unconnected with the idea of preserving the right to a fair trial,counsel argues that Mr.

Pardy is effectively turning the case into an application for a mandamus to compel the province to give effect tothe statutory right by enacting an appropriate regulatory scheme that, by its inaction, it decided not to do. In addition to not raising thematter in this way on the original application, counsel also says that the argument on this point is not subsumed within the grounds ofappeal included in the notice of appeal initiating the current appeal. [43] These submissions must be considered from two perspectives: (

i) whether the issue has been properly raised in the materialinitiating the appeal; and (ii) whether the matter was in issue at the applications level and, if not, whether it can nevertheless be raisednow. [44] As to the first question, a notice of appeal is not to be treated as a pleading in the normal sense. It is not meant to preciselydefine the issues to be argued on appeal in the same way that, say, a statement of claim defines the parameters of the claim being madeat trial.

It is usually drafted to meet short filing time limits and before the full record of the trial below can be reviewed and carefullyanalyzed. By the time the factum is prepared and filed the approach to the appeal may well be reshaped and refocused. There is nothingwrong with this, so long as the trial record can support the grounds of appeal being advanced and the opposing parties are not otherwise prejudiced in their ability to respond.

Usually, a respondent will have ample opportunity to address the issues as articulated in theappellant’s factum. [45] I would not be prepared, therefore, to refuse to allow the appellant to raise the issue under contention on the appeal just becauseit might not fall within a close reading of the grounds of appeal as originally filed. Here, the issue was squarely raised in the appellant’sfactum and was fully responded to by the respondent. It would be necessary for the respondent to go further and show that an appeal onsuch a ground would not be appropriate on the appeal record.

This is something that the respondent has not done. [46] As to the second question, the test for allowing a new issue to be raised on appeal that was not pleaded or argued at the originalhearing is whether all relevant evidence is on the record so that the issue can be properly disposed of. See Moakler v. Conception BaySouth (Town), 2006 NLCA 72, 262 Nfld. & P.E.I.R. 306 at paragraphs 112-12; Montreal Trust Company of Canada v. R M HoldingsLtd. (2000), 2000 NFCA 27 , 188 Nfld. & P.E.I.R. 93 (Nfld. C.A.) at paragraph 9; Perka v. The Queen., (SCC),[1984] 2 S.C.R. 232 at p. 240.

Subject to issues of prejudice to the other side, the appellate court has the discretion to entertain anyargument or issue that may reasonably be raised on the record. This is especially true where a new or different

interpretation of astatutory provision may be argued for, as is the case here. [47] In this appeal, counsel for the Crown argues that the record is incomplete to enable a response to be made to the issue. It wasput this way in Respondent’s factum: In raising this new administrative law issue on appeal, the Appellant is advancing a new issue in relation to which no evidence was led atthe Trial Division.

Had the Province been faced with an accusation that it had not properly enacted subordinate legislation, evidencecould have been led as to why such action was not taken or as to why such action was not required. … All the evidence submitted by theAttorney General at the hearing of this matter focused on establishing that the Appellant’s right to a fair trial was not in jeopardy. Thatwas the issue before the Trial Division. (Respondent’s Factum, paragraph 49) [48] This argument is not persuasive. In the first place, as I understand Mr.

Pardy’s argument on this issue, it is not that the provinceshould be required to enact appropriate regulations dealing with payment of private counsel of choice but that the failure to do soconstitutes a breach of Mr. Pardy’s statutory right to counsel of choice and now entitles him to a specific remedy to allow him toeffectively exercise his right. Secondly, and in any event, why regulations were not enacted or not required is not the issue. The issue iswhether the fact that regulations were not promulgated may have affected the ability of Mr. Pardy to exercise his statutory rights.

This isa matter of legal argument, not evidence. [49] I am satisfied that the issue of the impact of subsection 31(3.1) of the Legal Aid Act, though perhaps not presented in the sameway in which it was argued on appeal, was sufficiently engaged before the applications judge. In my view, Mr. Pardy’s argument merelyinvolves a new perspective on the facts and the law that were relied on in the court below. Nevertheless, even if it could be said to raisea completely new issue, I am satisfied that Mr.

Pardy has established, to the standard required, that the record is adequate for this Courtto entertain the arguments raised in the context of the third issue. Accordingly, I would not prevent him from making the argument. The Nature of the Statutory Right to Counsel

[ 50 ] The Legal Aid Act was amended in 2008 by the addition of subsection 31(3.1) in the following terms: Where the application is for legal aid with respect to an offence of murder, manslaughter or infanticide the appellant may select a solicitor employed by the commission or a solicitor in private practice in the province, except a solicitor whose name has been removed from the panel, other than upon his or her own request, however, this subsection does not place an obligation on that solicitor to act for the applicant. [ 51 ] As is the case with any statutory provision, its meaning and effect must be gathered by construing the words used in the context of the statute as a whole and harmoniously with the scheme and purpose of the legislation.

In giving meaning to the words used in an enactment, the Court must recognize that the inherent plasticity of language requires reference to context and inferred purpose to give them specific meaning.

Section 16 of the

Interpretation Act requires that every provision of

an Act shall be considered remedial and be given ‘the liberal construction and

interpretation that best ensures the attainment of the objects of the Act … according to its true meaning.” [ 52 ] In Archean Resources Ltd. v. Newfoundland (Minister of Justice) , 2002 NFCA 43 ; 215 Nfld. & P.E.I.R. 124 the process of

interpretation of statutes in this province was described this way: [22] Instead of mandating some fictionalized search for a collective “legislative intention”, s. 16 directs the court to consider every provision “remedial” and to interpret it so that it “best” ensures the attainment of its “objects” according to its “true” meaning.

This requires a consideration, as an integral part of the interpretive exercise, of the problem or “mischief” to which the legislature directed its legislative act as a remedy and then the drawing of an inference, based on the language of the whole enactment and the court’s general knowledge of the state of the pre-existing law and any information as to the broad social context in which the legislative act occurred, as to what, broadly speaking, the object or objects of the legislative act must have been. The end result is to arrive at a “true” meaning.

That inevitably requires an examination of more than the bare words of the legislative enactment that is in issue, no matter how clear or unambiguous they may at first blush appear.

The surrounding text, the interrelation of other related statutes, the social and legislative context in which the provision was enacted, and other extrinsic aids are all sources to be consulted in this exercise. … [t]rue meaning is not plain meaning; it is a conclusion arrived at by reconciling all the appropriate indicators of meaning that the court is directed to consider. [23] In truth, therefore, s. 16 enunciates a principle of harmonization in which the courts are directed, in cases of dispute, to adopt and apply an

interpretation that fairly reconciles the language used in the enactment with the broader objectives of the legislation so as to achieve the general goal, or to rectify the mischief, to which the legislative act appears to be directed. That exercise determines the general ambit of impact of the legislative act and provides the basis for the court to conclude whether the particular fact situation before it should fall inside or outside that ambit. [ 53 ] Where the statutory provision to be construed is an amendment to an existing statute, the same interpretative process must be applied.

However, it may be easier to infer the purpose of the amendment or the mischief to which it was directed in the case of an amendment that modifies an already existing statutory scheme by comparing the legal situation that existed before the amendment with the situation that would appear to obtain as a result of the insertion of the amending language. [ 54 ] The words of subsection 31(3.1), viewed in isolation, appear to contemplate the making of a choice, exercisable by a legal aid applicant facing a murder, manslaughter or infanticide charge, of being represented by either: (i) “a solicitor employed by the commission”; or (ii) “a solicitor in private practice in the province.” There are no factors listed that would in any way constrain or circumscribe the representational choice that can be made.

The applicant is simply given permission (“may”) to make the choice (“select”). The only limitation is that if a solicitor in private practice is to be selected the solicitor cannot be one “whose name has been removed” from a panel, “other than by his or her own request.” The significance of the reference to a “panel” must be gleaned from looking at the larger legislative legal aid scheme.

But it is worth noting at this point that subsection 31(3.1) does not require that the selected private practice solicitor be “on” a panel, only that he or she had never been put in the position of having previously been removed involuntarily from a panel.

That presumably ensures that solicitors whose prior misconduct or other actions that resulted in the Commission deciding that they were not appropriate to be on a legal aid panel, could not nevertheless act. [ 55 ] In concluding that “the lawyer must be on the appropriate panel” (Judgment, paragraph 17), the applications judge erred in his reading of the words of subsection 31(3.1) .

I would also add that the evidence given at the hearing by the newly-appointed Provincial Director of the Legal Aid Commission, which also appeared to assume that lawyers in private practice had to be on a panel before he or she could be appointed to represent an eligible legal aid recipient, is also inconsistent with the words of the subsection. [ 56 ] In order to appreciate the full meaning and effect of subsection 31(3.1) , which purported to modify the existing scheme for provision of legal aid, it is necessary to consider other statutory provisions in the Act and regulations made thereunder.

The following are relevant: The Act: 31.

(1) An applicant who is found eligible for legal aid may be provided with the professional services of a solicitor in the employ of the commission. …

(3) The commission may provide, in certain circumstances and taking into account the requirements of good management, that certain professional services for legal aid shall be exclusively rendered by solicitors employed full time or part time by the commission. …

(5) Where the commission has insufficient staff in a legal aid area to provide the applicant with legal aid through a solicitor employed by the commission, the applicant shall be assigned to another solicitor.

(6) Where the nature of the problem, dispute, case or proceeding requires specific competence that the commission is unable to provide through a solicitor in its employ, a member of a panel of solicitors shall be assigned to the client. (7)Where a person applying for legal aid is a party to a dispute or case which involves a client for whom a solicitor employed by the commission acts as counsel, the applicant, if found eligible, may be assigned either to another solicitor who is employed by the commission or to a solicitor who is a member of the appropriate panel in an area. 33. There may be established in accordance with the regulations (

a) Panels of solicitors who agree to provide professional services to eligible legal aid clients; (

b) Panels of solicitors who agree to provide professional services as duty counsel; and (

c) Panels of solicitors who agree to give legal advice only. 34.

(1) Except where otherwise authorized by this Act or the regulations, a solicitor not in the employ of the commission shall not act for a person under a legal aid certificate or provisional certificate unless his or her name is on an appropriate panel in relation to the services to be performed under that certificate. 60. The law society shall be consulted by the Minister or the commission with reference to the tariff of fees to be paid to solicitors under this Act and the regulations in respect of legal aid, the manner and form in which the fees shall be paid and changes in connection with them. 66.

(1) A solicitor who (

a) fails to comply with or otherwise contravenes this Act or the regulations; or (

b) in the opinion of the commission is abusing or has abused his or her right or privilege of obtaining, providing or charging for legal aid, may, in addition to a penalty provided in this Act, be suspended by the commission from providing legal aid for the period that the commission prescribes. 67. The Lieutenant-Governor in Council may make regulations … (

k) respecting panels referred to in

section 33, including the removal of solicitors from them; … (

s) respecting the fees to be paid to solicitors for professional services under this Act or the regulations; (

t) respecting the establishment and revision of a tariff of fees to be used in taxing a solicitor’s bill; The Regulations (CNLR 1010/96): 111. A solicitor who desires that his or her name be entered upon a panel established under

section 33 of the Act shall submit an application in a form prescribed by the minister to an area director or a provincial director. … 113. Each area director shall maintain lists of the names on the panels established under

section 33 of the Act and may divide a panel into criminal and civil divisions and may further divide the civil division into family law and general civil divisions. 114. The name of every solicitor who has applied under these regulations shall be entered on the appropriate panel lists. 115.

(2) Subject to

section 66 of the Act, and following a hearing to which the solicitor is entitled to appear, the commission may remove the name of a solicitor from a panel for cause or where considered by the commission to be proper.

(3) Where a notice of complaint is served upon a solicitor by the commission, or a criminal charge is laid against a solicitor and the offence set out in the notice of complaint or alleged in the criminal charge relates in whole or in part to the operation of the plan, the provincial director shall immediately remove the name of the solicitor from all panels.

Schedule A –

Schedule of Fees in Criminal, Quasi-Criminal and Civil Matters 1. This

Schedule is a legal aid tariff reflecting fees that are considered to be reasonable for the services provided taking into consideration the experience of counsel and the nature and complexity of the case. … 3. The fees contained in this

Schedule shall normally apply except in unusual circumstances when they may be increased by the taxing officer. 4.

(1) A solicitor may apply in writing to the provincial director for a preauthorized increase in the fees contained in this

Schedule and

the provincial director may preauthorize an increase having regard to the same considerations as if taxing a solicitor’s account.

(2) Failure by a solicitor to request a preauthorized increase may be taken into account on taxation. 5. A solicitor submitting an account in which the maximum number of allowable hours have been exceeded, whether or not doing so was preauthorized by the provincial director, shall justify the account having regard to the criteria in

section 2 of these notes. … 9. The 2 hourly rates contained in this tariff are divided into 2 categories, denoted (-5/+5), which indicates the rates to be paid solicitors who have been members of a recognized bar association for less than 5 years and greater than 5 years respectively.

Schedule B – Fees 2.

(1) The maximum hours of preparation or attendance in court, travel and accommodation are as follows: (

a) For preparation and attendance in court: (

i) For all offences within the exclusive jurisdiction of the Trial Division, jury trials, … 50/60 …

(2) The maximum hours of preparation for criminal and quasi-criminal matters are as follows: (

a) For all offences within the exclusive jurisdiction of the Supreme Court … 75 3. The maximum number of hours for appearances in court or appearances before another tribunal is 6 hours a day. [ 57 ] Viewed in the context of the legislative scheme as a whole, and the foregoing provisions in particular, it can be seen that the legal aid program in this province operates primarily on a “staff solicitor”, or public defender model. As a general rule an eligible applicant for legal aid will be provided with legal representation by a solicitor in the employ of the Commission (subsection 31(1), (2)).

He or she cannot insist on retaining a solicitor in private practice. Subsection 31(3.1) , which is limited to cases of murder, manslaughter and infanticide, must therefore be regarded as an exception to this rule. But it is not the only exception. [ 58 ] Three other exceptions also exist: (

i) where there is insufficient staff in a legal aid area to provide aid by means of a staff solicitor, “another solicitor” must be assigned: subsection 31(5). (Since by definition no staff solicitors are available and the definition of “solicitor” is simply “a member of the law society”: paragraph 2(t), it follows that the solicitor assigned must be a solicitor in private practice); (ii) where the nature of the case involves specific competence that a staff solicitor cannot provide, a member of a “panel” must be assigned: subsection 31(6); (iii) where one party is represented by a staff solicitor and another party is also eligible for legal aid, thereby creating a potential conflict of interest, the other party can be assigned to a member of “the appropriate panel” in an area: subsection 31(7). [ 59 ] A number of things should be noted about these provisions: (

i) two of them specifically provide that if a staff solicitor is not to be assigned, the solicitor in private practice is to come from a panel; (ii) in the other, the solicitor does not have to come from a panel; and (iii) the existence of more than one panel is contemplated. [ 60 ] The Commission is authorized to establish panels of solicitors who agree to provide professional services to eligible legal aid applicants (section 33; Regulations ,

section 113). The evidence of the Provincial Director at the hearing was that a solicitor applying to have his or her name placed on a panel had to agree to accept payment at the standard legal aid rates, i.e. at $60 or $50 per hour, depending on levels of seniority, and at fixed amounts of time for preparation, depending on the nature of the case. These limits did not apply to staff solicitors; in fact, the evidence was that a staff solicitor assigned to a murder case was freed up from some of his or her other responsibilities and was assigned a junior lawyer for assistance.

This effectively meant that the limits of preparation time applicable to solicitors in private practice did not apply to staff solicitors in the same way and limited hourly rates did not factor as financial restrictions for staff solicitors on the ability to fully represent a client. [ 61 ] I pause at this point to note that it appears an error was made when the Regulations , originally adopted in 1991, were amended in 1996.

Schedule B, which originally stipulated the $50 and $60 hourly rates , no longer contained a reference to “hourly rates” but instead contained the opening words, “The maximum hours of preparation or attendance in court, travel and accommodation are as follows…” (emphasis added). Read literally, there is thus no actual regulatory stipulation at all of hourly rates for solicitors in private practice, whether on a panel or not, at all, thus leaving it open for “reasonable” fees, within

Schedule A,

section 1 to be claimed in every case. Because this matter was not referred to in argument – and the case was argued on the basis that not only maximum hours but also hourly rates had been set by regulation ‒ I will for the purposes of this case proceed to deal with the matter on the basis that the Commission has, in some manner, validly exercised its power under paragraphs 67 (

s) and (

t) of the Legal Aid Act to set general rules for hourly rates and maximum hours. [ 62 ] Nevertheless, it is worth noting also that those rates, even if validly enacted, are not, according to the Regulations , written in stone. The Regulations specifically provide that on taxation of a solicitor’s account for provision of legal aid services, the taxing officer

may increase the stipulated fees “in unusual circumstances” taking into account a list of factors relating to such matters as the degree of difficulty, experience of the lawyer, complexity of the case, the importance of the matter to the client and the result obtained: Regulations

Schedule A, subsections 2 and 3. As well, a solicitor may apply for a pre-authorized increase in rates and preparation hours, but even if he or she does not get a pre-authorization, compensation for the increased hours and preparation time can be awarded on taxation:

Schedule A, subsections 4 and 5. It appears that none of the private counsel who had been approached by Mr. Pardy to represent him, including the counsel whom he now says he wishes to represent him, was prepared to take a chance on being able to persuade a taxing officer, after the fact, to award him or her more than the scheduled fees or hours for the purpose of calculating a fair and reasonable fee. Nor did they apply for pre-authorization. I will return to these matters later in these reasons. [ 63 ]

Section 34 provides that “except where otherwise authorized in this Act or the regulations” a solicitor who is not in the employ of the Commission shall not act for an eligible legal aid recipient unless his or her name is on a panel. This recognizes that there are certain cases where a solicitor in private practice may nevertheless act for a legal aid recipient without being on a panel. Certainly, the case of a solicitor acting in cases of murder, manslaughter and infanticide has to be regarded as one of those exceptional circumstances.

The selection of a solicitor in private practice for a murder, manslaughter or infanticide case and who is not necessarily on a panel is clearly “otherwise authorized” in the Act by subsection 31(3.1) . It enables the amendment in subsection 31(3.1) to integrate into the existing statutory scheme. This conclusion is also consistent with the words of subsection 31(3.1) where the only limitation on a solicitor acting is if he or she had previously had his or her name removed from a panel as a result of misconduct pursuant to

section 66 of the Act and section115 of the Regulations . A solicitor whose name is not or was not on a panel will therefore not be disqualified by this fact. [ 64 ] This conclusion is also buttressed by the principle that words should not be interpreted in a manner that would create a redundancy. If only a member of a panel is eligible to represent a legal aid recipient under subsection 31(3.1) , the words “except a solicitor who has been removed from a panel” would be redundant. The default position, stated in

section 34, is that only panel members can be appointed. The words in subsection 31(3.1) therefore only have meaning if they mean that any solicitor, including a solicitor who is not a member of a panel, can be appointed in murder, manslaughter or infanticide cases, so long as he or she has not previously been someone who had been on a panel in the past and had been removed. [ 65 ] The consequence of this

interpretation is that the legal aid scheme cannot be interpreted as a closed system where in all cases solicitors in private practice must apply to be on a panel and by so doing, agree to accept the standard legal aid rate. The amendment therefore recognizes that the process of panel-application and agreement to accept the legal aid tariff does not apply to murder, manslaughter and infanticide cases.

The provision of the right to select a solicitor in private practice in such cases seems therefore intended not to be limited by scheduled rates and hours. [ 66 ] The purpose of a legislative enactment may be ascertained by considering the “mischief” the legislation is intended to address or the problem which the legislature sought to remedy: R. v.

Boutcher , 2001 NFCA 33, 202 Nfld. & P.E.I.R. 243 per Cameron J.A. at paragraph 151. [ 67 ] In determining the mischief to which the amendment was directed, it is useful to consider the state of the law with respect to provision of state-funded counsel before the provision was enacted. [ 68 ] In Oliver , the situation was described thus: [40] The law relating to the right to counsel of choice should no longer be in doubt following the decisions in Jesso and R. v. Ryan. In R. v. Ryan , this Court noted that Ryan had presented no objectively valid reason for refusing the offer made by the Commission. Also in R. v.

Ryan , the Court found nothing had been put forward to indicate he would not receive a fair trial if he were represented by one of the staff solicitors offered by the Commission. The same is true here. As decided in R. v.

Ryan , in those circumstances, this Court will not make an order for counsel of choice to be funded by the Attorney General or the Commission. [ 69 ] What is clear from Oliver and the other cases to which it refers is that a decision to order appointment of private counsel funded by the Attorney General ‒ at least under the pre- subsection 31(3.1) law ‒ was interconnected with the availability of counsel that may be able to be provided by the Legal Aid Commission.

Before entertaining a Rowbotham application, the court would have to be satisfied that it was not feasible or appropriate for counsel to be provided through the legal aid scheme. Rowbotham was therefore a default position. This explains the focus on whether the accused’s reasons for not wanting legal aid representation are reasonable (an “objectively valid reason for refusing the offer made by the Commission”). [ 70 ] Underlying this analysis is the unspoken assumption that an accused must accept whatever staff solicitor is offered and no valid reason can be given for refusing it.

Sub-section 31(3.1) undercuts this assumption. It states that the accused has a right to select private counsel instead of being required to accept a staff solicitor and that counsel does not have to be on a legal aid panel, having agreed to act at legal aid rates. On its face, and read in the context of the whole statutory scheme, it appears that access to private counsel was intended to be provided without reference to the financial strictures of the existing scheme. [ 71 ] Furthermore, when this conclusion is viewed in the context of the existing scheme, which contemplates in

Schedule A of the Regulations that the standard rates and hours tariffs may in appropriate cases be exceeded anyway, the idea that the purpose of subsection 31(3.1) was that private lawyers engaged in murder, manslaughter and infanticide cases were not to be required to accept the standard rates and numbers of hours, is reinforced. [ 72 ] In this case, counsel advanced arguments based on what was said in the House of Assembly at the time of debate on the proposed amendment that became subsection 31(3.1) . In determining the purpose of an enactment, reference may be had to its legislative history.

Such history “may be adduced without restriction to interpret a statute, but it must be used with care, as a complement to other arguments, and subject to the clarity of the information it obtains”: Pierre-Andre Coté, The

Interpretation of Legislation in Canada (Toronto: Carswell, 2011), 4th ed., p. 465: Boutcher , paragraphs 70-71, 150 . However, as the Supreme Court of Canada has recently noted in Canada (Human Rights Commission v. Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471 at paragraph 44 and Canadian National Railway Co. v. Canada (Attorney General) , 2014 SCC 40 at paragraph 47 , while Hansard evidence is admitted as relevant to the background and purpose of legislation, and in some cases may give direct evidence of legislative intent, courts

must remain mindful of the limited credibility and weight of such evidence. [ 73 ] In my view, it is not necessary to resort to legislative history to ascertain the meaning and effect of subsection 31(3.1) since the words of the subsection considered in their legislative context and in relation to their apparent purpose when considered against the previous law, all point to the same conclusion.

Nevertheless, it is worth noting that a consideration of the amendment’s legislative history does not detract from the linguistic, contextual and purposive conclusions already reached. [ 74 ] On second reading of the Bill containing the amendment in question, Hansard records the Minister of Justice and Attorney General, the Honourable Jerome Kennedy, saying the following on May 20, 2008: … When I commenced practicing law in 1985 … the Legal Aid Act had certain requirements, and an individual or lawyer had to be on the panel of solicitors.

The legal aid lawyer had to be willing to work at the rate of pay which was at the time less than $50 an hour … and there were certain restrictions on the number of hours that could be utilized. … as we reached the mid-1990s the … government of the time amended the Legal Aid Act to remove this counsel of choice option, so that anyone charged with a murder case or a homicide case had to have a legal aid staff solicitor. … What this present amendment relates to would be to provide counsel of choice to individuals charged with first or second degree murder or manslaughter.

In these circumstances … it is important that there be an ability to develop a solicitor-client relationship. Solicitor-client privilege, Mr. Speaker, is one of the oldest privileges known to our law … The importance of the solicitor-client privilege leads to the solicitor-client relationship. One of the things that … this amendment makes , Mr.

Speaker, is that if an individual is going to face the most serious consequences known to our law then he or she, at a minimum, should be provided with counsel of his or her choosing. … [T]he relationship that develops between the lawyer and the client is crucial, both from the perspective of solicitor-client privilege and the individual having confidence, but also the public having confidence that we are all trying to obtain the just result. … …there is nowhere in Canadian law, despite the challenges across this country, is there the right to counsel of your choice.

In other words, although there is enshrined in the Canadian Charter of Rights and Freedoms a right to counsel, there is no right to counsel of choice. It started around 1999 that I was first aware of the cases that started challenging this. We have had, Mr. Speaker, a litany of cases come before both the provincial Court and the Supreme Court and the Supreme Court of Appeal challenging this and say, I want my own lawyer... … I know, Mr. Speaker, right now there are at least two individuals before our Court of Appeal with murder appeals pending who are unrepresented.

I know of a situation earlier this year where, with an unrepresented accused, it took four months to do a trial, but with represented accused from the same fact situation a trial took place in three weeks. We have the financial cost. We have individuals in a court room who should not be there representing themselves, but we also, Mr. Speaker, cannot force individuals to take lawyers. Up until this amendment, essentially, unless in exceptional circumstances … the line was drawn in the sand; either take legal aid counsel or no one. … What we looked at is: how can we alleviate this concern? … One obvious avenue, Mr.

Speaker, because the courts have continuously held that while you do not have the right to counsel of choice, one obvious way we looked at was to bring in an amendment to this Act … … When we started looking at this, … we said: How are we going to structure this in a way that it accomplishes the end? In other words the intent of the Legislature here is to ensure that individuals are represented, to avoid the undue delays that have resulted from these kinds of applications, to allow for legal aid lawyers to commit themselves to other work, but also that this is not going to be a windfall for private lawyers.

In other words, Mr. Speaker, one of the things we have asked here, just as I did this myself, are for lawyers who will agree to do these cases at $60 an hour … To put this into perspective … the same lawyer who will be doing this case at $60 an hour will be looking at charging – these lawyers who are downtown St. John’s – between $200 or $300 an hour. … So at $60 an hour it is certainly not an exhorbitant wage. … What we have is that we are going to restrict the number of hours.

One of the ways we can do that is, myself and the Director of Legal Aid have met on a number of occasions and essentially we have come up with what we think is a fair time frame or tariff for individuals to do the cases. In other words, you cannot go in there and the private lawyer says, well, I am going to run this out for the next three years and get unlimited funds. What will happen is, there will be a tariff – and it could be, for example, 300 hours could be the maximum. There will be discretion for the Director of Legal Aid, who is very experienced … The tariff is not in place yet.

We are still working on this and we are trying to come up with – we will seek input from the private bar, we

will seek input from legal aid, and we will finalize it in the form of a regulation, but that won’t affect, for example, if a lawyer wants to retain an extra witness in a homicide case. … … We did not open up the right to counsel of choice to individuals, as took place in the past, who are facing terms of imprisonment.

We opened it up in very restricted circumstances, to see how this will work. (Emphasis added) [ 75 ] Later, on May 22, 2008, the Minister reiterated his views but also expressed reluctance to consider increasing the hourly rates payable (“that is essentially non-negotiable at this point if they wish to take on a legal aid case”), it was otherwise, however, with respect to the number of compensable hours: How the tariff would work – they would be done by way of regulation … ‒ the number of hours that would be allowed under the tariff, but that would not be set in stone. … the preparation for a murder trial can generally be looked at, at around 300 hours. [ 76 ] This reference to 300 hours, which also was referenced in the Minister’s comments on May 20, is in marked contrast to the number of hours (75) allowable under the existing tariff.

It is clear that the overall compensation, limited as it was by the maximum number of compensable hours, was regarded by the Minister as inadequate and effectively limited a proper exercise of a right of counsel of choice. [ 77 ] One of the themes of the Minister’s remarks is that the absence of a right in Canadian law to a right to counsel of choice should, in this province, be rectified by the proposed amendment in respect of charges of murder, manslaughter and infanticide.

With respect to those offences, an accused should be given the right to choose his counsel from either the Commission or the private bar because, amongst other things, of the importance of being able to establish an effective solicitor-client relationship. It is also clear that the Minister did not consider that the counsel so chosen, if from the private bar, was to be limited by the existing tariff. But the Minister was nevertheless concerned about cost.

While the cheque book should not be open-ended, he was also very clear that the existing legal aid tariff was not intended to apply; rather, a new, more suitable, one was to be created, As he said, “there will be a tariff.” It was “not in place yet”.

While he did not expressly say so, it is a fair inference that he regarded the existing regime as inadequate at least with respect to regulation of the amount of hours for which a solicitor could claim reimbursement for preparation and court time. [ 78 ] Melding the foregoing analyses of the amendment language, the larger legislative context, the evident purpose of the legislation gleaned from the mischief to be remedied, and the parliamentary history, it can be seen that they all point to the same interpretative conclusion: that an accused facing a murder, manslaughter or infanticide charge is to have a right to select his or her counsel of choice so as to ensure the establishment of a properly functioning solicitor-client relationship and that, to the extent that the choice is of a solicitor in private practice, the solicitor is not to be constrained by the existing legal aid tariff. [ 79 ] It follows from the fact that, because a selected private solicitor does not have to be a member of an existing panel and because he or she therefore does not have to agree to accept the existing legal aid tariff as a condition of being on such a panel, he or she would be entitled to be paid such fees as may be fair and reasonable in accordance with

section 2 of

Schedule A of the Legal Aid Regulations until such time as the new murder/manslaughter/infanticide tariff is developed and made applicable. [ 80 ] Unless such a conclusion applies, it would mean that the right to select one’s counsel from the private bar would not be meaningful if private counsel are deterred from accepting legal aid briefs because of inadequate levels of the existing tariff, with respect to either hourly rates or allowable preparation time. Unless there is a pool of solicitors available and willing to represent a client at the existing rates, the accused would not have a real choice of counsel.

As such, the result would be inconsistent with the intent of the amendment. [ 81 ] Considered from another perspective, it can be said that the amendment was designed to allow a legal aid recipient to exercise his or her right to select either a staff lawyer or a member of the private bar unconstrained by factors that would unfairly affect making a balanced choice.

Since a staff solicitor assigned to a murder case is not constrained by the limited number of hours of preparation time that are imposed by the Regulations and is in fact freed up from other responsibilities in order to devote the time to the case that it requires, subsection 31(3.1) , interpreted as previously indicated, can be said to be directed towards ensuring that a solicitor selected from the private bar should be not deterred from making himself or herself available because of barriers that would work against being able to devote sufficient time to the case.

In that way, making the choice between staff solicitor and one from the private bar would be a meaningful one. [ 82 ] The applications judge was correct when he stated that the evidence showed: [9] Mr. Pardy also either met or communicated with a number of lawyers in private practice. None of them was willing to represent him on a Legal Aid certificate at the current tariff of $60 per hour for a senior lawyer.

They also expressed reservations that the preparation time allowed by Legal Aid in a murder trial is sufficient [ 83 ] However, when assessing the significance of this evidence, he concluded: [28] … No doubt there are some private practitioners who are not prepared to represent accused persons at the current tariff as is evidenced by the affidavits filed by several of them. However, Mr. Summers [the Executive Director of the Commission] testified that between 2007 and 2013 at least eight private practice solicitors represented persons charged with murder on the Legal Aid tariff. Indeed, Mr.

Brace, who represented Mr. Pardy until his services were terminated just a year ago did so on the Legal Aid tariff. [ 84 ] It was the judge’s perception of the fact that others had acted in other cases on the basis of the existing tariff since the

enactment of the amendment that led him to discount the affidavit evidence submitted by Mr. Pardy. In relying on his perceptions in thisregard, the judge fell into error. In the first place, it does not follow that just because some lawyers may have acted in the past that theywould necessarily do so again. It is future availability that is at issue. The Attorney General did not present any evidence from anycounsel who was prepared to do so.

One of the senior and experienced solicitors who testified made it clear that although he hadrepresented persons at the tariff in the past, neither he nor any member of his firm would do so again, as practice costs had increased“significantly”.

In fact, the last time a member of his firm took a murder case at the tariff, it “placed the firm in an economically perilousposition.” The remaining senior solicitors who filed affidavits essentially deposed to the same thing. [85] Secondly, the judge was incorrect in stating that “eight” private practice solicitors had acted in murder cases at the tariff sincethe amendment. In fact, of the eight cases, three of the accused were represented by the same counsel, who is now no longer in privatepractice. He is therefore no longer available.

Of the remaining five, one of them testified that he would not act again; another was amember of the firm of one of the other solicitors who had filed affidavits saying they could no longer act; and the solicitor who had actedfor Mr. Pardy but had been dismissed, though still apparently willing to act, is a sole practitioner who works out of his home and thusdoes not face ordinary practice overhead. That leaves one of the eight whose willingness to act could not be discounted.

In my view, theavailability of one solicitor is not what was in mind when it was contemplated by the amendment that an accused would have a choice ofcounsel in private practice. [86] If an accused is to be required to prove to a certainty that there is absolutely no lawyer available and willing to act at theexisting tariff before the court will conclude that his ability to choose private counsel does not exist, an accused will face an impossibletask in every case. Effectively, he would have to present evidence from every solicitor in practice confirmatory of unavailability orunwillingness.

That is not the standard expected. Here, Mr. Pardy presented evidence from a variety of senior solicitors in privatepractice who confirmed his assertions. This evidence was uncontradicted. No contrary evidence was presented. Further, Mr. Pardy alsogave uncontradicted evidence of a large number of other lawyers whom he contacted or attempted to contact, all to no avail. Many ofthose also would not act for the same reasons. [87] Given the absence of any evidence that counsel were in fact available and willing to represent Mr. Pardy at the prevailing tariffand considering the depth of the evidence supporting Mr.

Pardy’s position there was no basis for the judge not to draw the inference thatthere was no pool of lawyers available in private practice willing to act for Mr. Pardy at the standard legal aid tariff. In not doing so, thejudge made a palpable and overriding error in his appreciation of the evidence before him. [88] Mr. Pardy was not therefore given a real choice to exercise if he wanted to find a lawyer in private practice who would act atthe existing tariff.

The reason for this, based on the evidence presented, is that the government did not promulgate regulations, as theMinister intended to do, providing for levels of compensation that were more reasonable and realistic. [89] Counsel for Mr. Pardy submitted that as a result of the government’s failure to act, it was in breach of the legislation. CitingReference re Bill 30,

An Act to Amend the Education Act (Ont.), (SCC), [1987] 1 S.C.R. 1148, counsel submitted thatthe power to regulate cannot be exercised or fail to be exercised in a manner to frustrate the very legislative scheme under which thepower is conferred. That having happened here, counsel says, the Court could then fashion a remedy, similar to a Rowbotham order, thatrequires the Attorney General to negotiate a fair and reasonable rate of remuneration with Mr.

Pardy’s counsel of choice. [90] This argument is predicated on the idea that the legislation requires the adoption of a realistic tariff so that a panel of solicitorsin private practice can be created. However, I have concluded, as explained previously, that the legislation contemplates that theselection of counsel in subsection 31(3.1) can be exercised in regard to persons not on a panel and in respect of lawyers who have notagreed to act at legal aid rates. It follows from this that the engagement of the counsel of choice must be a result of negotiation with thecounsel concerned.

This is consistent with the existing regulatory scheme, which allows for compensation in excess of the existing tariff,determined by a pre-authorization application or after the fact through taxation. [91] In my view, therefore, it is not necessary, as a first step, to require the Attorney General to attempt to negotiate appropriatecompensation on pain of facing a stay of proceedings if something cannot be worked out.

Instead, it is the Commission itself, in exerciseof the existing authority it has to authorize variations in the tariff in particular cases, or in exercise of the authority to engage counselpursuant to subsection 31(3.1) without reference to the existing scheme, which should be required to negotiate an appropriate ratestructure. If the approach taken by the Commission is perceived to be too rigid, narrow, or inflexible when viewed in the context of aproper construction of the legislation, then that decision could be challenged on judicial review.

It is only if it can be said that theCommission was acting in an arbitrary and intransigent manner and thereby frustrating the intent of the legislation that, at a secondremedial stage, it would be necessary to involve the Attorney General. [92] Accordingly, the applications judge erred in dismissing Mr. Pardy’s application outright, insofar as it was based on theapplication of subsection 31(3.1). The application was premature. Instead, if he was not prepared to consider a Rowbotham order, heshould have adjourned the application pending an application to the Commission for engagement of Mr.

Pardy’s private counsel ofchoice at a level of compensation to be negotiated by the Commission in accordance with the authority in the existing Regulations andwhich is implicitly recognized by the enactment of the amendment. If that process failed, Mr.

Pardy should then have been permitted toproceed with the application with a view to seeking a stay of the prosecution unless and until the Attorney General reaches an agreementfor compensation with the counsel concerned. [93] To those who see this process as aggregating to the courts a power to allocate public funds that should best be left to thelegislature, I would answer as follows: first, the initial negotiation is conducted by the Commission and any money so spent would comefrom the Commission’s budget as already allocated by the legislature, just as any other amount so negotiated under the existingRegulations,

Schedule A,

section 4. If the budget becomes inadequate, that is a matter that would have to be dealt with by theCommission in normal global budget discussions with government. Secondly, the concept of effectively “forcing” government to spendmoney on pain of facing a stay of prosecution (assuming the negotiation with the Commission is unsuccessful) is a process that hasalready received judicial sanction with the Rowbotham application process.

Thirdly, because subsection 31(3.1), properly interpreted,does not require the solicitor in question to be on a panel and therefore not bound to accept the normal tariff, the subsection in any eventcontemplates the setting of compensation by negotiation within the existing scheme. The legislature has already spoken.

The Fair Trial Basis for Appointing Legal Counsel [94] Even if it cannot be said that subsection 31 (3.1) of the Legal Aid Act provides a stand-alone basis for Mr. Pardy’s entitlementto legal counsel in the circumstances of this case, it is necessary to consider whether the applications judge erred in his formulation orapplication of the fair trial basis for appointing counsel. [95] An accused who wishes to retain private counsel at his or her own expense is only limited in choice and extent by the size of hisor her pocketbook. Where the accused seeks to have the retainer of private counsel paid through

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