R. v. Sutherland Date:, 2016 BCPC 45

Citation: R. v. Sutherland Date: 20160224 2016 BCPC 0045 File No: FC72059 Registry: Ucluelet IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL ROSS SUTHERLAND REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: R. Roberts and T.I. McFadgen Appearing in person: Mr. Sutherland Place of Hearing: Nanaimo , B.C. Date of Hearing: October 21, 2015, February 12, 2016 Date of Judgment: February 24, 2016

Issues [1] Mr. Sutherland is charged with the offence of camping in a national park without a permit, contrary to section 3(1)(

a) of theNational Parks of Canada Camping Regulations SOR/80-127. Mr. Sutherland admits that he camped in a national park on June 6, 2014,and that he did not have a valid camping permit. He asserts that the prohibition against camping without a permit infringes his rightsunder

section 7 of the Canadian Charter of Rights & Freedoms. He relies on Victoria (City) v. Adams 2009 BCCA 563 , [2009]BCJ No. 2451; 2009 BCCA 563. [2] Ms. Roberts, for the Crown, asserts that the facts alleged by Mr. Sutherland are insufficient to support his assertion of aninfringement of his Charter rights, and submits that the court should rule on that question before hearing evidence which may berelevant to the Charter issues. She relies on R v. Vukelich (BC CA), [1996] BCJ No. 1535; 108 CCC (3d) 193. [3] Mr.

Sutherland is an intelligent and articulate person, now enrolled in post-secondary education, but he has no legal training,and he is clearly ill-equipped to deal with the procedural and substantive issues which will arise if I accede to Ms. Roberts’ submissionthat a Vukelich hearing is required. He is similarly ill-equipped to present his case if the Charter issue is to be argued on its merits. Mr.Sutherland has been refused legal aid because he is not at risk of imprisonment.

The British Columbia Civil Liberties Association hasdeclined to assist him in this court, but has indicated that it might be prepared to assist him if the matter proceeds to a higher court. I amconcerned about Mr. Sutherland’s ability to effectively: a. respond to Ms. Roberts’ submission that a Vukelich hearing is required (see, for example, R v. Tsai [2002] OJ No. 4516 @paragraph 13); b. understand the legal issues on the Vukelich hearing sufficiently to allow him to respond to Ms.

Roberts’ submissions; c. gather and present the evidence necessary to support his position on the Charter issue if it is to be heard on its merits. For that reason, I asked for submissions as to whether I have jurisdiction to appoint amicus curiae, and whether, if I have thatjurisdiction, I should do so. In response: d. Ms. Roberts agreed that I have jurisdiction to appoint amicus curiae, but submits that I should not do so. e. Mr. Sutherland asked me to appoint amicus curiae. Jurisdiction [4] In Ontario v.

Ontario Criminal Lawyers’ Association 2013 SCC 43 , [2013] 3 SCR 3, Justice Karakatsanis said atparagraph 46: A court’s inherent jurisdiction to appoint an amicus in criminal trials is grounded in its authority to control its own process and functionas a court of law. In that case, the court was concerned with an appointment of amicus by the Ontario Superior Court of Justice, a superior court possessedof general inherent jurisdiction. A statutory court, like the Provincial Court of British Columbia, is possessed of a more limitedjurisdiction, which might be best described as “implied” jurisdiction.

It was defined in the following terms by Justice Rothstein in R v.Cunningham 2010 SCC 10 , [2010] 1 SCR 331 at paragraphs 18 - 19. Superior courts possess inherent jurisdiction to ensure they can function as courts of law and fulfil their mandate to administer justice ….Inherent jurisdiction includes the authority to control the process of the court, prevent abuses of process, and ensure the machinery of thecourt functions in an orderly and effective manner.

As counsel are key actors in the administration of justice, the court has authority toexercise some control over counsel when necessary to protect its process. In MacDonald Estate v. Martin, (SCC), [1990]3 S.C.R. 1235, this Court confirmed that inherent jurisdiction includes the authority to remove counsel from a case when required toensure a fair trial: The courts, which have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, are not bound to apply acode of ethics.

Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings whichmay affect the administration of justice is subject to this supervisory jurisdiction. It would seem to follow that just as the court, in the exercise of its inherent jurisdiction, may remove counsel from the record, it also mayrefuse to grant counsel's application for withdrawal. Likewise in the case of statutory courts, the authority to control the court's process and oversee the conduct of counsel is necessarilyimplied in the grant of power to function as a court of law.

This Court has affirmed that courts can apply a "doctrine of jurisdiction bynecessary implication" when determining the powers of a statutory tribunal: ... the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, allpowers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime ... . (ATCO Gas and Pipelines Ltd. v.

Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51) Although Bastarache J. was referring to an administrative tribunal, the same rule of jurisdiction, by necessary implication, would apply tostatutory courts.

[5] I think that a judge of this court has implied jurisdiction to appoint amicus curiae if and only if such an appointment is“practically necessary” to enable the court to carry out its statutory mandate. In this case, the statutory mandate is to ensure that Mr.Sutherland receives a fair trial of the Charter issue which he has raised in defence of the charge against him: Canadian Charter of Rights& Freedoms, s. 11(d). Principles Governing the Appointment of Amici Curiae [6] In Ontario v.

Ontario Criminal Lawyers’ Association, Justice Karakatsanis said at paragraph 47 that “… the authority toappoint amici should be used sparingly and with caution, in response to specific and exceptional circumstances …”. At paragraphs 49 -54, Justice Karakatsanis emphasized the difference between amici curiae and state-funded defence counsel, as follows. The client of anamicus is the court. The client of state-funded defence counsel is the accused. As a result: a. Communications between the accused and state-funded defence counsel are privileged, but communications between theaccused and amici curiae are not. b.

State-funded defence counsel are obliged to act upon the instructions of the accused, but amici curiae are not. So, for example,the decision about which issues to raise or what position to take in respect of them, or which witnesses are to be called, is to be made bythe accused if state-funded defence counsel is appointed, but not if an amicus is appointed. It may be the duty of an amicus to presentsubmissions or to call witnesses who may be unfavourable to the accused. c. A judge must never become an advocate for a position or an outcome. As counsel for the court, amicus is bound by the sameconstraint.

So, it is not the proper role of amici curiae to present the case for the defence in the way that defence counsel wouldnormally do. [7] At paragraph 55, Justice Karakatsanis pointed out that every legal aid program faces limited funding, and must allocate itsavailable funding among various competing demands in a principled way. Courts ought not to circumvent that allocation process byappointing amici curiae at public expense. [8] Ms.

Roberts very properly brought to my attention that, despite the issues referred to in paragraphs 6 – 7, amici curiae havebeen appointed to perform the role of defence counsel in some cases. [9] In R v. Jaser 2014 ONSC 2277; [2014] OJ No. 6426, Mr. Jaser was charged with conspiracy to engage in terrorism. He wishedto be defended by counsel, but only if counsel would accept his instructions to defend him on the ground that the governing law was theHoly Qur’an rather than the Criminal Code.

At paragraphs 35 - 37, Justice Code discussed the difficulty of reconciling the observationsof Justice Karakatsanis with the right of the accused to a fair trial and the duty of the trial judge to ensure trial fairness. He concludedthat amicus curiae may be appointed to carry out the normal functions of defence counsel where the absence of counsel would otherwiselead to a miscarriage of justice. [10] Jaser was quoted with approval, and followed, in R v. Mastronardi 2015 BCCA 338; [2015] BCJ No. 1570. Mr. Mastronardifaced an allegation that he was a dangerous sexual offender.

He had cunningly manipulated the trial and appellate process by alternatelyretaining and discharging counsel on various pretexts. It was apparent, and the court found, that his case could not be effectively heardunless counsel was appointed to present his defence. The Court of Appeal upheld the decision of the trial judge to appoint amici curiaewith the following mandate: … to act for the benefit of the accused and to defend the case by, inter alia, cross examining witnesses, raising objections, making legalarguments and, when the accused cooperates, taking instructions from the accused. [11] Neither Mr.

Jaser nor Mr. Mastronardi sought or supported the appointment of amicus. Mr. Jaser asked for the appointment ofa lawyer to defend him, but only if the lawyer would present his defence under Islamic, rather than Canadian, law. Mr. Mastronardiwanted to represent himself. It would not have been appropriate to appoint counsel for Mr. Jaser because no member of the bar couldproperly accept his instructions. It would not have been appropriate to appoint counsel for Mr. Mastronardi because of his constitutionalright (affirmed by Justice Karakatsanis in Ontario v.

Ontario Criminal Lawyers’ Association at paragraph 51) to conduct his owndefence without the assistance of counsel. In each case, the court was of the opinion that the trial process would be frustrated unlesscounsel were appointed to raise points which would have been raised by defence counsel if such had been retained. Application of the Principles to This Case [12] In this case, Mr. Sutherland seeks the appointment of counsel to defend him, and is both able and willing to give sensible andresponsible instructions to counsel. In such a circumstance, the factors discussed by Justice Karakatsanis in Ontario v.

Ontario CriminalLawyers’ Association preclude the appointment of amicus. [13] That leaves Mr. Sutherland with a continuing difficulty. The legal issue which he raises is complex. The boundaries of theCharter right which he asserts have not yet been determined, and the existing jurisprudence is not easily understood by those who lacklegal training. See, for example, Abbotsford (City) v. Shantz 2015 BCSC 1909 , [2015] BCJ No. 2266; 2015 BCSC 1909. Successful Charter defences rarely depend on the law alone. The thoughtful preparation and skilful presentation of relevant evidence isoften a decisive factor.

It is apparent from the course of the proceedings to date that Mr. Sutherland is not able, without professionalassistance, to assemble and present the evidence necessary to make his case. [14] In that circumstance, the appropriate application for Mr. Sutherland to make is for a judicial stay of this proceeding, on theground that he cannot have a fair trial without the assistance of state-funded counsel: R v. Rowbotham (ON CA),[1988] OJ No. 271; 41 CCC (3d) 1; R v.

D.A.D. 1999 BCPC 17 , [1999] BCJ No. 3156; 1999 BCPC 17; British Columbia v.T(L) [2009] BCJ No. 1851; 2009 BCPC 293; affirmed @ 2010 BCSC 105 , [2010] BCJ No. 131; 2010 BCSC 105. Becausethat application has not yet been made, I offer no further comment respecting it.

[ 15 ] If Mr. Sutherland wishes to make that application, he should deliver notice of the application to Crown counsel. That notice should set out the facts upon which he relies in support of the application and a list of any authorities upon which he relies. He may then

schedule a date for hearing of the application with the judicial case manager. February 24, 2016 _______________________________ T. Gouge, PCJ