Gambin v. Crockwell, 2015 NLCA 38

Date: 20150831 Docket: 13/93 Citation: Gambin v. Crockwell , 2015 NLCA 38 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : DEAN GAMBIN, Director of Adult Corrections in and for the Province of Newfoundland and Labrador FIRST APPELLANT AND : GRAHAM ROGERSON, Superintendent of Prisons in and for the Province of Newfoundland and Labrador SECOND APPELLANT AND : LEO CROCKWELL RESPONDENT Coram: Rowe, J.A. Application Heard: August 31, 2015 Decision Rendered: August 31, 2015 (Orally) Oral Reasons for Decision Filed: September 3, 2015 Oral Reasons for Decision by Rowe J.A. Counsel for the Appellants: Philip Osborne and Mark P. Sheppard The Respondent: Leo Crockwell

The Applicant: Nicholas P.A. Westera ORAL REASONS FOR DECISION Rowe J.A.: [ 1 ] The application before the Court is by Mr. Westera to be permitted under Rule 23.06 to withdraw as solicitor of record. Mr. Crockwell has indicated he no longer wishes for Mr. Westera to represent him. I raised the question of whether amicus curiae should be appointed and, if so, whether it would be appropriate to appoint Mr. Westera. He indicated he would be willing to do so, subject to suitable arrangements for remuneration.

Counsel for the Appellants did not oppose to the appointment of amicus curiae , but strongly questioned whether Mr. Westera could properly serve as amicus given that until now he has represented Mr. Crockwell. I understand Mr. Crockwell not to object to the appointment of Mr. Westera as amicus . Rather, he is concerned that he have the opportunity to raise “preliminary issues” (that he has outlined) before the Court. As well, he wishes to be represented by counsel of his choice. The former is clearly his right. The latter is a matter for Mr.

Crockwell to pursue with Legal Aid. [ 2 ] In my view, it is in the interests of justice to appoint amicus in this case to ensure that there is a full and fair hearing of the issue in this appeal, that being the proper calculation of statutory remission. I say this having regard to the impact of the decision both on Mr. Crockwell and on the many other persons in a similar position to Mr. Crockwell. In the circumstances of this case, it is appropriate to appoint Mr. Westera as amicus . He has indicated in his affidavit that he has completed “80%” of the work on a factum in reply to that filed by the Appellants.

A further significant factor is that the arguments raised by the Appellants are “technical” in nature, relating as they do to the

interpretation of statutory provisions. Thus, Mr. Westera can reply without drawing upon confidences imparted to him by Mr. Crockwell. [ 3 ] In making this appointment I have had regard to relevant case law. The leading case in this jurisdiction is R. v. Hart , a decision of former Chief Justice Clyde Wells, 2009 NLCA 10 . I also have regard to a subsequent decision of the Supreme Court of Canada, Ontario v. Crown Criminal Lawyers Association 2013 SCC 43 , as well as two cases that have applied the Supreme Court decision in Ontario and Criminal Lawyers Association , those being R. v.

Mastronardi , 2015 BCCA 338 and R. v. Chemama , 2014 ONCA 171 . [ 4 ] I would order as follows: Mr. Westera is no longer solicitor of record for Mr. Crockwell. Mr. Westera is appointed as amicus curiae . His role will be to ensure that the appeal proceeds expeditiously and that arguments are advanced in reply to those set out by the Appellants in their factum, the goal being to ensure that the issue is argued fully. The fees and expenses of Mr. Westera as amicus curiae shall be as agreed by him and the Attorney General, or failing such agreement, the fees and expenses will be taxed as if Mr.

Westera were counsel who had been appointed pursuant to

section 684 of the Criminal Code . ________________________________ M. H. Rowe J.A.