R. v. Glasgow, 2023 NSSC 56

SUPREME COURT OF Nova Scotia Citation: R. v. Glasgow , 2023 NSSC 56 Date: 20230214 Docket: Halifax , No. 495911 Registry: Halifax Between: His Majesty the King v.

Devlin Tyson Glasgow DECISION ON FISHER /MODIFIED ROWBOTHAM APPLICATION Judge: The Honourable Justice Joshua Arnold Heard: January 19, 2023 in Halifax, Nova Scotia Counsel: Rick Woodburn and Sean McCarroll, for the Crown Sid Freeman, for Devlin Glasgow (Applicant) Glenn Anderson, counsel for the Attorney General of Nova Scotia (Respondent) Overview [ 1 ] Sid Freeman is private counsel from Toronto who is representing Devlin Glasgow on a charge of first-degree murder, scheduled to proceed to trial starting February 1, 2023. Ms. Freeman was retained to represent Mr.

Glasgow by Nova Scotia Legal Aid by way of a Certificate on May 17, 2021. [ 2 ] On January 5, 2023, more than a year-and-a-half after she was retained, and virtually on the eve of trial, Ms. Freeman filed a Notice of Application for what she describes as a Fisher /Modified Rowbotham application, requesting significantly increased state funding in order to proceed through trial, failing which, she says, Mr. Glasgow’s ss. 7 and 11(

d) Charter rights to a fair trial and to make full answer and defence will be infringed, necessitating a stay in accordance with s. 24(1) of the Charter . [ 3 ] Due to the lateness of the application, I provided counsel with a bottom-line decision on January 23, 2023, dismissing Ms. Freeman’s application, with reasons to follow. Whether on a standard of “high degree of probability”, or the lower and accepted Charter standard of “balance of probabilities”, I am satisfied the application should be dismissed. Facts [ 4 ] Matthew Sudds was killed on or around October 10, 2013. [ 5 ] Mr.

Glasgow was arrested and charged with first-degree murder October 1, 2019. [ 6 ] On May 17, 2021, Nova Scotia Legal Aid issued a Certificate to Ms. Freeman to represent Mr. Glasgow. The Certificate allowed for 150 hours of preparation time, in keeping with the usual number of preparation hours allowed for a murder charge, and is clearly noted on the Certificate. Similarly, the hourly rate of $95 allotted to Ms. Freeman, in keeping with the NSLA tariff for a lawyer of Ms.

Freeman’s years at the bar, was clearly noted on the Certificate. [ 7 ] If a lawyer accepting a Certificate wants to request an increase in funding, the NSLA Tariff Reference Manual allows them to submit a budget to NSLA explaining their position.

Section 4 of the Nova Scotia Legal Aid Commission Tariff of Fees states at page 6:

Extension of Terms of Certificate Approval for an extension of the terms of a Certificate should be sought by the lawyer providing services under the Certificate before the limits contained in the Certificate have been exceeded. The approval should be sought by the lawyer providing services under the Certificate by writing to the office of the Nova Scotia Legal Aid Commission that issued the Certificate to explain why an extension of the terms of the Certificate is being sought.

If approval to extend the terms of a Certificate is not granted, the Nova Scotia Legal Aid Commission is not responsible for the payment of any account that exceeds the limits imposed by the Certificate or the NSLA Tariff. In certain exceptional circumstances , the Nova Scotia Legal Aid Commission may approve an increase in preparation times allowed or in disbursement expenditures that exceed the strict maximums in the issued Certificate or in the NSLA Tariff.

If the Nova Scotia Legal Aid Commission approves a request for an increase in preparation times or in disbursement expenditures, then the Nova Scotia Legal Aid Commission must issue an amended Certificate in the matter, or a letter granting the increase in preparation times or disbursement expenditures that has been approved. [ 8 ] NSLA did not guarantee increased funding over and above 150 preparation hours. [ 9 ] On the basis of the anticipated NSLA Certificate retainer, Ms. Freeman first appeared on the record on April 29, 2021, identifying herself as Mr.

Glasgow’s lawyer, although she was not formally retained at that time and requested an adjournment. On May 20, 2021, Ms. Freeman confirmed on the record that she was fully retained. During that same appearance, the trial dates of February 1 – March 21, 2023, were offered by the court and accepted by Mr. Woodburn and Mr. McCarroll for the Crown and Ms. Freeman on behalf of Mr. Glasgow. [ 10 ] Additionally, a number of pre-trial motions were identified by Ms. Freeman and the Crown. Ms. Freeman indicated that she had very limited time available for pre-trial motions.

As a result, the Court and counsel re-arranged their summer vacation schedules to accommodate Ms. Freeman’s

schedule and set August 2 – 22, 2022, for pre-trial motions.

Virtual pre-trial hearings took place on the following dates: Date Reason for Appearance June 2, 2021 Virtual Conference Call June 7, 2021 Virtual Conference Call July 15, 2021 Virtual Conference Call July 22, 2021 Crownside August 6, 2021 Pre-Trial Conference August 12, 2021 Crownside August 26, 2021 Crownside September 2, 2021 Crownside October 8, 2021 Recorded Call April 6, 2022 Virtual Conference Call May 6, 2022 Pre-Trial Applications May 20, 2022 Virtual Conference Call July 14, 2022 Virtual Conference Call August 2, 2022 Pre-Trial Applications August 5, 2022 Virtual Conference Call [ 11 ] At no time over those 14 months did Ms.

Freeman indicate to the Court that there was any issue in relation to her retainer or her ability to represent Mr. Glasgow at trial. As noted by Barry Whynott, Deputy Executive Director of NSLA, in his affidavit of January 12, 2023: … 8. Attached and marked as Exhibit 3 is a copy of an email message to me from Karen Susara, Nova Scotia Legal Aid, dated July 4, 2022 and previous email messages exchanged between Karen Susara and Sid Freeman, including an email to Karen Susara from Sid Freeman, dated June 20, 2022 referencing attached form and associated documents. 9.

Attached hereto and marked as Exhibit 4 is a copy of a Big Case Management Criminal Certificate Budget and Work Plan prepared by Sid Freeman, dated July 20, 2022, which includes total preparation hours of 1193 for certificate lawyer. I have redacted privileged portion(s). 10. Attached hereto and marked as Exhibit 5 is a copy of an (Interim) Legal Aid Report and Account prepared by or on behalf of Sid Freeman dated August 31, 2022, for payment of 153.29 preparation hours and 6.92 court hours (between September 2021 and August 2022) at $95.00 per hour, and disbursements. 11.

In September 2022, Nova Scotia Legal Aid began efforts to secure a staff lawyer to act as second chair. Attached and marked as Exhibit 6 is a copy of an email message to Sid Freemen from me dated November 2, 2022 and previous email messages exchanged on October 24 and 31, 2022. Sid Freeman's email message of October 24, 2022 advised that Mr. Glasgow was open to having a junior member coming aboard counsel but did not consent to Matthew joining the defence team. My November 2, 2022 email message advised that Legal Aid was unable to find a staff lawyer to assist and that had I authorized 400 preparation hours. 12.

I did not receive a reply from Sid Freeman to my November 2, 2022 email message to her and did not have any communication

with her until I received an email message from her on January 5, 2023 attaching the Notice of Application for a Fisher-Modified Rowbotham Application. 13. Attached hereto and marked as Exhibit 7 is a copy of a Memo to Sid Freemen from Cameron MacKeen, Nova Scotia Legal Aid, dated 11/3/22 (November 3, 2022) enclosing the Amended Certificate, thanking her for accepting this Certificate and asking her to sign a copy and return it to the issuing office. I am advised by Natasha Pearl, Executive Coordinator, Nova Scotia Legal Aid, and do verily believe that this Memo was sent to Sid Freeman on November 22, 2022. 14.

Attached hereto and marked as Exhibit 8 is a copy of an Amended Certificate retaining Sid Freemen to represent Devlin Glasgow providing for the original maximum preparation time of 150 hours plus additional approved preparation time of 250 hours. 15.

Attached hereto and marked as Exhibit 9 is a copy of a letter to Sid Freemen from me, dated January 6, 2023, advising that she had a right to appeal the decision which provided for 400 hours preparation time and that this matter would require a special scheduling of the Legal Aid appeal committee which hopefully could be arranged for the next week. [As appears in original] [ 12 ] On January 5, 2023, Ms. Freeman filed her Notice of Motion. It states, in part: Fisher/Modified Rowbotham: Setting permitted preparation hours 2. Mr. Glasgow retained Ms.

Freeman pursuant to a Legal Aid Certificate issued by Nova Scotia Legal Aid (NSLA). A certificate was agreed to rather than staff counsel being assigned because of the number of conflicts Mr. Glasgow’s case presented. That certificate was granted with 150 hours of preparation time. Ms. Freeman was advised she could make application for a budget. 3. According to a chart prepared by Ms. Freeman’s staff, the total number of hard copy pages of disclosure in this case is 29,267 pages; the total length of video/audio tapes is 352 hours, 5 minutes and 8 seconds; and the total file size is 116 gigaBytes. 4.

A budget request was completed and submitted to NSLA in June of 2022. A total of 1193 preparation hours was requested. 5. On 2 November 2022, the budget was increased to 400 hours of preparation time, inclusive of the 150 hours already provided when the certificate was issued. 6. The pretrial motions consumed 153.29 hours of preparation time leaving Ms. Freeman only 246.71 hours to prepare for the trial proper. This amount of time is wholly inadequate to allow counsel for Mr.

Glasgow to make full answer and defence given the volume of disclosure, the number of witnesses to be called at trial, and the complexity of the evidence and issues the trial presents. 7. In the course of budget discussions in the fall of 2022, NSLA attempted to secure junior counsel from among the ranks of their staff counsel in order to provide litigation support to Ms. Freeman and decrease the number of preparation hours she would personally require. Despite their best efforts, those attempts were unsuccessful. 8.

After attempts to secure staff counsel proved unsuccessful, Barry Whynot, Deputy Executive Director of NSLA advised counsel of the increase in the budget to 400 hours and indicated it would be open to her to make a Fisher application. 9. Mr. Glasgow’s trial is scheduled to take six weeks to complete. … 15. Counsel for Mr. Glasgow practices and resides in Toronto. Toronto is the most expensive city in which to live in Canada. The cost of living for Mr. Glasgow’s counsel greatly exceeds the cost of living of counsel local to Nova Scotia.

Counsel will be required to continue to meet Toronto living and office costs while in Nova Scotia for the amount of time required to complete the trial. 16. The hourly rate paid by NSLA on a homicide case is $90 per hour. The comparable rate set by Legal Aid Ontario (LAO) in the home jurisdiction of Mr. Glasgow’s counsel is $161.05. Ms. Freeman’s private rate is $350 per hour. 17. In order to attend for trial Ms. Freeman must incur expenses related to animal care pursuant to her legal obligations under Ontario’s Provincial Animal Welfare Act as no one is available to perform these duties for free. Ms.

Freeman’s cat sitting service charges $40 per day ($280) exclusive of HST. This is consistent with the going rate for this service in Toronto. Ms. Freeman’s horse exercising service will cost $500 per week inclusive of HST. Total cost of animal care for a six week trial would be approximately $4900. These costs effectively decrease the fees paid by NSLA. Conclusion 18. Restricting the remunerated work defence counsel may do breaches Mr. Glasgow’s

section 7 Charter right to make full answer and defence as well as his

section 11(

d) Charter right to a fair trial. 19. The Supreme Court of Canada in Ontario v. CLA 2013 SCC 43 held that authority for Courts to order the government to make payments out of public funds does flow from a constitutional challenge and that a court could award a remedy fixing rates of remuneration of counsel where a Charter right was at stake (see paragraphs 20, 42 and 67). … [ 13 ] The Notice of Motion describes Ms. Freeman’s legal experience as follows: 11. Ms. Freeman has been a member of the Law Society of Ontario since 1994. She has been a member of the Nova Scotia Barristers’

Society since 1996. 12. Ms. Freeman has practiced criminal law exclusively since first being called to the bar twenty-nine years ago. She began conducting homicide cases in 2003. Her practice then evolved into one restricted to homicides and extremely serious criminal matters . 13. Ms. Freeman is the Vice President of the Criminal Lawyers Association. Ms. Freeman is also the President of Women in Canadian Criminal Defence. 14. Ms Freeman is a member of the following panels at Legal Aid Ontario: a. Complex Case Rate b. Extremely Serious Criminal Matters c. Gladue Counsel d.

Criminal Counsel [Emphasis added] [ 14 ] On January 13, 2023, Ms. Freeman was advised by NSLA that its Appeals Committee had rejected her request for more than 400 preparation hours. [ 15 ] On January 19, 2023, Ms. Freeman brought her Fisher /Modified Rowbotham Application. In her materials, Ms. Freemen requested the following remedy: 1.

An Order allowing this application and granting the Applicant funding for his trial thereby directing the Minister of Justice to pay for his legal defence as following: a. an unspecified number of hours to prepare his defence; b. counsel to be remunerated at a rate of $161.05 per hour for both preparation and attendance; c. a cap on fees and disbursements of $350,000; d. if fees and disbursements exceed $350,000, the Applicant may apply for review of this Order. 2. A finding that failure to fund the Applicant’s defence would result in a breach of his rights under sections 7 and 11(

d) of the Charter , and that the only appropriate remedy under s. 24(1) of the Charter is a stay of proceedings until the Minister of Justice provides funding. 3. Such further or other Order(

s) as the Court finds just and proper. [ 16 ] At the hearing, Ms. Freeman indicated that her main focus was having the court increase the number of preparation hours from 400 to an unlimited number. She said she was less concerned about her hourly rate. Her application requests remuneration that is multiple times more than what she agreed to by way of the Certificate. In relation to the preparation time, Ms. Freeman noted 16 points in support of her request: 1. This is a first-degree murder case. Mr. Glasgow`s life is literally [sic] on the line. 2. The investigation of this case was six years in duration. 3.

The volume of disclosure, which is unusual (more than 29,000 hard copy pages). There are more than 352 hours of audio and video evidence. The total file size is 116 GB. 4. The large volume of witnesses (there is evidence from approximately 66 civilian witnesses). 5. There are notes and reports from approximately 156 police officers 6. There is a separately charged co-accused (Mr. Whynder). This is not the norm. Typically, co-accused are charged together for reasons of efficiency (judicial and resource) and the prevention of inconsistent verdicts. 7. The separately charged co-accused is an alternate suspect. 8.

The separately charged co-accused is the Crown`s star witness (this makes his credibility and reliability a main issue, if not the main issue in the outcome and the determination of this case). 9. The Crown expects the separately charged co-accused to refuse to cooperate with the prosecution. The manner of his cooperation is unknown and is unknowable in advance. Should the Crown be proven correct, significant additional preparation will be required. 10.

There were multiple lengthy interactions between the state and the separately charged co-accused, which required reviewing to location and note internal and external inconsistencies. 11. There are months of intercepted communications for the separately charged co-accused, which required reviewing to locate and note material useful to challenging the credibility and reliability of this witness.

12. There is a documented history of both interaction and animus between the deceased and the separately charged co-accused. That history includes a prior criminal charge or set of criminal charges stemming from the co-accused`s prior involvement in the stabbing of the deceased while the two of them were in a correctional facility. 13. History of animus from many people in the community toward the deceased, which had to be investigated through social media and other means.

That history will be introduced into evidence through various witnesses, as it raises a reasonable doubt as to the identity of any potential accomplice that the separately charged co-accused may have had. 14. Because this is not a case in which the decision on whether the person charged should testify… this is not a case where that decision could be made in advance (due to the many unknowns in this case), because that decision is not clear-cut upfront, time will have to be spent preparing Mr. Glasgow to testify in case that necessity is realize. 15.

This is a matter where there was a direct indictment, there was no preliminary hearing. Therefore there was no prior budget to allow counsel to become familiar with the file, through both preparation and through the hearing itself. This trial budget is not in addition to the preliminary hearing budget, which is the norm. This is the entire budget for the case, not just a trial portion of the case. 16. There was a prior trial to completion for the separately charged co-accused, which added considerable volume to the disclosure. [ 17 ] Very generally, in her submissions, Ms.

Freeman expressed frustration at the NSLA Tariff, the number of preparation hours granted, the hourly rate, the failure of NSLA to provide her with a junior second counsel to assist her at trial, and the slowness of NSLA in responding to her request for increased funding after she provided a proposed budget. [ 18 ] Ms. Freeman advised quite candidly that she based some of her submissions on the Ontario Legal Aid model, as opposed to the Nova Scotia model. [ 19 ] In any event, Ms. Freeman says that no lawyer could fulfil their professional and ethical duties to Mr.

Glasgow if restricted to 150, or even 400, hours of preparation time. She says this issue is exacerbated by the fact that NSLA was not able to supply her with a junior lawyer to sit as a second chair on the trial. [ 20 ] The Department of Justice opposes the application and says that NSLA does not have unlimited resources. It also says that the judiciary has no jurisdiction, role or authority in these circumstances to fix fees, allocate government resources, or otherwise make orders relating to remuneration. It maintains that Mr. Glasgow has competent counsel in Ms.

Freeman, she accepted the NSLA retainer one- and-a- half years ago, that the second chair offered by NSLA was rejected by Mr. Glasgow, and that when NSLA could not find another lawyer they increased the preparation hours to 400. According to the Department, there is no evidence that Mr. Glasgow cannot or could not find representation with the retainer, hourly rate, and preparation hours offered by NSLA, and if Ms. Freeman’s application is allowed, this would bring chaos into the administration of justice.

Law [ 21 ] The leading authority on the issue of trial judges setting rates of compensation for state-funded counsel in criminal matters is Ontario v. Criminal Lawyers Association of Ontario , 2013 SCC 43 . In that case the majority discussed the ability of the courts to intervene to determine compensation for state-funded counsel.

Although the court’s inherent jurisdiction to intercede regarding lawyers’ remuneration in criminal matters was the main focus, Karakatsanis J., for the majority, confirmed that in rare cases the Charter would allow the courts to set fees for state-funded counsel: [5] … Absent statutory authority or a challenge on constitutional grounds, courts do not have the institutional jurisdiction to interfere with the allocation of public funds.

While the jurisdiction to control court processes and function as a court of law gives courts the power to appoint amici curiae , it does not, in itself, provide the power to determine what the Attorney General must pay them. The scope of a superior court’s inherent power, or of powers possessed by statutory courts by necessary implication, must respect the constitutional roles and institutional capacities of the legislature, the executive and the judiciary.

As the Chief Law Officers of the Crown, responsible for the administration of justice on behalf of the provinces, the Attorneys General of the provinces, and not the courts, determine the appropriate rate of compensation for amici curiae . … [ 7 ] These cases were not decided under the Canadian Charter of Rights and Freedoms . They did not proceed on the basis that the accused could not have fair trials without the assistance of counsel. Instead, the trial judges appointed counsel to assist the accused, who had in each case discharged counsel of their choice.

The judges did so in order to maintain the orderly conduct of the trials or to avoid delay in these complex, lengthy proceedings. However, in each of these cases, the role of the amici closely mirrored the role of defence counsel, except that they could not be dismissed by the accused. … [ 15 ] … The jurisdiction to appoint an amicus does not necessarily imply or require the authority to set a specific rate of compensation.

The ability to order the government to make payments out of public funds must be grounded in law and a court’s inherent or implied jurisdiction is limited by the separate roles established by our constitutional structure.

Absent authority flowing from a constitutional challenge or a statutory provision, exercising such power would not respect the institutional roles and capacities of the legislature, the executive (including the Attorney General), and the judiciary, or the principle that the legislature and the executive are accountable to the public for the spending of public funds. [ 22 ] Karakatsanis J. went on to discuss the scope of inherent jurisdiction: [20] In his 1970 article, “The Inherent Jurisdiction of the Court”, 23 Curr. Legal Probs. 23, which has been cited by this

Court on eight separate occasions, [1] I. H.

Jacob provided the following definition of inherent jurisdiction: . . . the inherent jurisdiction of the court may be defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them. [p. 51] … [ 28 ] Over several centuries of transformation and conflict, the English system evolved from one in which power was centralized in the Crown to one in which the powers of the state were exercised by way of distinct organs with separate functions.

The development of separate executive, legislative and judicial functions has allowed for the evolution of certain core competencies in the various institutions vested with these functions. The legislative branch makes policy choices, adopts laws and holds the purse strings of government, as only it can authorize the spending of public funds. The executive implements and administers those policy choices and laws with the assistance of a professional public service.

The judiciary maintains the rule of law, by interpreting and applying these laws through the independent and impartial adjudication of references and disputes, and protects the fundamental liberties and freedoms guaranteed under the Charter . … [30] Accordingly, the limits of the court’s inherent jurisdiction must be responsive to the proper function of the separate branches of government, lest it upset the balance of roles, responsibilities and capacities that has evolved in our system of governance over the course of centuries. [31] Indeed, even where courts have the jurisdiction to address matters that fall within the constitutional role of the other branches of government, they must give sufficient weight to the constitutional responsibilities of the legislative and executive branches, as in certain cases the other branch will be “better placed to make such decisions within a range of constitutional options” ( Canada (Prime Minister) v.

Khadr , 2010 SCC 3 , [2010] 1 S.C.R. 44, at para. 37 ). [ 23 ] The majority judgment expanded on the respective roles of the Attorney General and of

section 96 courts: [ 36 ] The Attorney General remunerates various participants in the criminal justice system — including provincial Crown counsel, court reporters, interpreters, registrars and law clerks. The Attorney discharges his obligation to provide counsel for indigent accused through the establishment of legal aid programs... Defence counsel appointed under s. 24(1) of the Charter …are funded directly by the Attorney General. This does not create an apprehension of bias or a conflict of interest. Instead, this role is consistent with the Attorney’s responsibilities and public accountability.

Indeed, even provincial court judges are paid by the provincial Attorneys General and are still seen as independent... … [38] It is vital that each branch of government respect its proper institutional role and capacity in the administration of justice, in accordance with the Constitution and public accountability. [39]

Section 96 judges possess inherent power to make orders necessary to protect the judicial process and the rule of law. The courts must of course safeguard their own constitutional independence to assure the fairness of the judicial process and to protect the rights and freedoms of Canadians that are entrusted to them under the Charter .

As the Canadian Judicial Council noted in its 2006 report, “[i]t is crucial to bear in mind that inherent powers, by definition, inhere in courts and their jurisdiction and so cannot be analysed independently of the role the judiciary is expected to play in the constitutional structure”… As such, these powers are exercised within the framework for the administration of justice that the province has established. … [41] The proper constitutional role of s. 96 courts does not permit judges to use their inherent jurisdiction to enter the field of political matters such as the allocation of public funds, absent a Charter challenge or concern for judicial independence.

For this reason, it is generally accepted that courts of inherent jurisdiction do not have the power to appoint court personnel.

Staffing the courts is the responsibility of the provincial government. [42] Of course, a complaint that inadequate funding risks undermining the justice system may be subject to court oversight, whether by way of a Charter application or a challenge based on the constitutional principle of judicial independence, as was the case in the Provincial Judges Reference , where the closure of the Manitoba courts by withdrawing court staff on a series of Fridays, as a part of a wider deficit-reduction effort, was found unconstitutional (paras. 269-76). [43] However, the allocation of resources between competing priorities remains a policy and economic question; it is a political decision and the legislature and the executive are accountable to the people for it. … [ 59 ] Obviously, court decisions can have ancillary financial consequences.

Moving to larger venues for jury selections involving a number of panels, or continuing a sitting of the court late into the day, incurring overtime expenses for court staff, implicate greater costs for the public purse. Yet, they are legitimate exercises of a court’s inherent jurisdiction to control its own process.

In much the same way, an order appointing an amicus does not take on the character of an appropriation, but rather is one of the countless decisions that may be taken by a court that will have incidental consequences for the public purse. [ 60 ] However, an order that the Attorney General must provide compensation at a particular rate goes beyond an order

with ancillary financial consequences, and becomes an order directing the Attorney General to pay specific monies out of public funds. Such orders must be grounded in law. [24] Mr. Glasgow’s motion relates to his fair trial rights under the Charter, so the court does have the ability to enter the discussionregarding remuneration for state-funded counsel.

In relation to when it would be appropriate for courts to direct the rate of compensationfor state-funded amici under their inherent jurisdiction and state-funded counsel in relation to a Charter application in criminal cases,Karakatsanis J. stated: [64] I agree that the courts have the jurisdiction to set terms to give effect to their authority to appoint amici.

However, Ido not accept the premise that the court’s ability to fix rates of compensation for an amicus is essential to the power to appoint amici, orthat its absence imperils the judiciary’s ability to administer justice according to law in a regular, orderly and effective manner. To thecontrary, the spectre of trial judges fixing and managing the fees of amici imperils the integrity of the judicial process. (

i) Necessity [65] Historically, courts have effectively appointed amici without the need to fix the rate of compensation. There is nodispute that a court has the ability to specify the general qualifications required for the task at hand.

The Attorney General has theobligation to pay what is constitutionally adequate to serve the needs of the courts. [66] As well, the experience with Rowbotham orders over the last two and a half decades has confirmed an attitude ofrestraint, as, even in those Charter cases, courts have not considered it necessary to direct the rates to be paid to state-funded lawyersappointed to represent the accused. A number of appellate courts have considered the issue and found it unnecessary to direct the rate ofcompensation (see R. v. Chan, 2002 ABCA 299, 317 A.R. 240 (sub nom. R. v. Cai), at para. 9; R. v.

Ho, 2003 BCCA 663, 190 B.C.A.C.187, at para. 73; Peterman, at para. 30). This is in line with the approach outlined by this Court in New Brunswick (Minister of Healthand Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46, at para. 104, where a rate of remuneration for state-funded counsel was not specified. [67] However, this is not to say that an order fixing rates of remuneration under the Charter is precluded, as s.24(1) “should be allowed to evolve to meet the challenges and circumstances of [the case]” (Doucet-Boudreau v.

Nova Scotia (Ministerof Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 59). It remains open to a court of competent jurisdiction to award such a remedywhere a Charter right is at stake and it is appropriate and just to do so. [68] Furthermore, this is not a case like R. v. White, 2010 SCC 59, [2010] 3 S.C.R. 374, where s. 694.1(3) of the CriminalCode, R.S.C. 1985, c.

C-46, provided statutory authority for the Registrar of this Court to fix the fair and reasonable fees anddisbursements of counsel appointed by the Court pursuant to s. 694.1(1), where counsel and the Attorney General could not agree,or Ontario v.

Figueroa (2003), (ON CA), 64 O.R. (3d) 321 (C.A.), where the Attorney General in effect delegated tothe court the task of finding an independent prosecutor for contempt proceedings that had been brought against Crown officials in orderto avoid the appearance of a conflict of interest (para. 18); counsel for the Attorney General conceded that the court had jurisdiction tofix compensation (para. 13).

Apart from these two cases and the cases at bar, I have not been directed to, nor have I been able to find,any appellate decision which has concluded that it was necessary to fix the rates of remuneration for state-funded counsel. (ii) Limitations Imposed by Our Constitutional Order [69] As I have explained, permitting judges to set rates and to order payment without authority based on a statute orderived from a constitutional challenge takes the judge out of the proper judicial role. A court’s inherent or implied jurisdiction cannotsurpass what the Constitution permits.

As we have seen, the inherent jurisdiction of the court must respect the constitutional frameworkand the allocation of responsibility this framework makes. It is for the duly elected members of the legislature to determine what fundsare expended on the administration of justice, not the judges. [70] In cases where the lawyer contemplated by the court opts not to accept the compensation offered by the AttorneyGeneral, the court does not, in my view, have the ability to specify a rate of remuneration in order to secure the amicus of its choice.

Theinability to have the amicus of its choice does not deprive the court of its nature as a court of law. Even the accused, whose right to a fairtrial is at stake, is not entitled to be provided with state-funded counsel of choice, provided he or she receives legal representation thatgives a fair opportunity to make full answer and defence… … [80] In

summary, the ability to fix rates of compensation is not necessary for the court to make its power to appoint amicicuriae effective, and the judicial process will not be weakened or imperilled if compensation cannot be ordered.

Indeed, even followinga Rowbotham application, when the courts have the jurisdiction to direct compensation for counsel appointed under s. 24(1) ofthe Charter, the courts have rarely found it necessary to direct the rates payable to defence counsel. [Emphasis added] [25] The majority highlighted the need for restraint on the part of trial judges entering the realm of state-funded counsel’sremuneration.

Karakatsanis J. reiterated that even in relation to a Charter motion, the courts will rarely find it necessary to direct ratespayable to state-funded defence counsel. [26] Although made in relation to the court’s inherent jurisdiction as opposed to under the Charter, the cautionary principlesespoused by Karakatsanis J. are instructive regarding the reasons for judicial restraint in this sphere. For example: [74] Of course, it remains the case that a failure to provide the appropriate support may compromise the judicial processin a specific case.

For instance, in a criminal case, the absence of a qualified court reporter or interpreter may mean that the court cannotproceed with the trial. However, a trial judge cannot use her inherent jurisdiction to insist that the Attorney General pay the higher rates

required to attract a particular court reporter or interpreter.

Sometimes a trial cannot proceed, and must be rescheduled, despite the trialjudge’s or the Crown’s best efforts. … [78] Decisions regarding rates of compensation for amici would put judges into the fray, requiring them to determine fairrates of compensation; to monitor the compensation claimed; or, as happened in Imona Russel #2, to appoint further counsel to monitorthe fees and the time claimed, at a further fixed fee. [79] Given the cost of lengthy trials, compensation orders for lawyers in a long, complex criminal trial can represent theexpenditure of hundreds of thousands of dollars of public funds, reviewable only by an appellate court.

There is a real risk that such adisregard of the separation of powers and the constitutional role and institutional capacity of the different branches of government couldundermine the legal aid system and cause a lack of public confidence in judges and the courts. Indeed, as the High Court of Australiafound in Grollo v.

Palmer (1995), 184 C.L.R. 348, at p. 365, courts may not exercise non-judicial functions that would diminish publicconfidence in the integrity of the judiciary as an institution. … [81] Allowing superior and statutory court judges to direct an Attorney General as to how to expend funds on theadministration of justice, in the absence of a constitutional challenge or statutory authority, is incompatible with the different roles,responsibilities and institutional capacities assigned to trial judges, legislators and the executive in our parliamentary democracy. [82] In the end, what concerned the Court of Appeal was the proper course to follow if the Attorney General isunreasonable and a particular lawyer is not prepared to accept the rates for service as amicus.

While trial judges have a number ofoptions regarding how to proceed in the face of such an impasse, they do not have the power to determine what a reasonable fee is or toorder the government to pay it. Such orders cross an impermissible line. The other pillars of government are accountable forestablishing spending priorities and, so long as their initiatives pass constitutional muster, have the institutional capacity to define publicpolicy and find program solutions.

The Court must allow provinces the flexibility they require to meet their constitutional obligation tofund amici, when essential. [83] While the rule of law requires an effective justice system with independent and impartial decision makers, it does notexist independently of financial constraints and the financial choices of the executive and legislature.

Furthermore, in our system ofparliamentary democracy, an inherent and inalienable right to fix a trial participant’s compensation oversteps the responsibilities of thejudiciary and blurs the roles and public accountability of the three separate branches of government. In my view, such a state of affairswould imperil the judicial process; judicial orders fixing the expenditures of public funds put public confidence in the judiciary at risk. [Emphasis added.] [27] Ms. Freeman has deemed this a Fisher/Modified Rowbotham Application. In R. v.

Rowbotham (1988), (ONCA), 25 O.A.C. 321, the Ontario Court of Appeal held that an accused person does not have an unqualified right to counsel at trial.Where the accused satisfies the court that he or she lacks the means to hire counsel, legal aid refuses to fund counsel, and the case issufficiently complex in the context of the accused person’s skills, ability or capacity to comprehend the issues and defend themself, thecourt will assess whether representation by legal counsel is essential to a fair trial in accordance with ss. 7 and 11(

b) of the Charter andmay grant a s. 24(1) Charter remedy staying proceedings until state-funded counsel is provided. This assessment requires adetermination as to whether the applicant can fund legal counsel. The applicant is required to satisfy an evidentiary burden on a balanceof probabilities. The applicant must satisfy rigorous criteria because, where a remedy is sought to prevent an anticipated breach ofa Charter right, the applicant must demonstrate a ‘high degree of probability’ that the Charter infringement will occur: Phillips v.

NovaScotia (Commission of Inquiry into the Westray Mine Tragedy), (SCC), [1995] 2 S.C.R. 97, at para. 108. In Mr.Glasgow’s case, NSLA has already provided him with state-funded counsel. [28] In R. v.

Chan, 2017 ABQB 270, Tilleman J. dealt with an application for state-funded counsel, and reviewed the caselawrespecting Fisher orders: [11] The general rule is that there is no positive obligation on the state to provide funds for counsel of choice: Cai at para 8.In Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43, a case dealing with the judicial appointment of an amicus, theSupreme Court of Canada stated (at para 70): Even the accused, whose right to a fair trial is at stake, is not entitled to be provided with state-funded counsel of choice, provided he orshe receives legal representation that gives a fair opportunity to make full answer and defence… [12] This rule is subject to two very narrow, and exceedingly rare, exceptions: first, where the accused person shows that he or shewill only receive a fair trial if a specific lawyer represents him, and second, where the accused cannot find competent counsel on theconditions imposed by Legal Aid: R v Peterman (2004), (ON CA), 70 OR (3d) 481 (CA) at paras 29-30.

Under thefirst exception, the appropriate remedy is a Fisher Order. The Alberta Court of Appeal addressed the second exception inthe Cai decision. A. Fisher Order [13] The Fisher Order originates in the case of the murder of Gail Miller, the murder for which David Milgaard was exonerated.In R v Fisher, [1997] SJ No 530 (QB) the accused applied for an order that a specific lawyer, Brian Beresh, be appointed as his defencecounsel in respect of charges of murder and rape.

Milliken J. held that the situation was unique: the murder occurred over 30 years ago,David Milgaard had been convicted for the murder, the Supreme Court of Canada held a reference into Milgaard’s conviction, theaccused was a witness at the reference, Mr. Beresh represented the accused at the reference and was paid $160 per hour by the FederalDepartment of Justice for that work, and complex evidence issues would arise at trial. Mr. Beresh stated that he would not act at legal aidrates. Given that Mr. Beresh had been involved at the reference and that the exact same facts at the reference would form the basis for

the accused’s trial, Milliken J. held that the accused would not get a fair trial unless Mr. Beresh was his counsel. The Court set an hourlyrate of $150 per hour for Mr.

Beresh. [14] Milliken J. recognized the exceptional circumstances before him when he concluded (at para 20): I don't think that the circumstances which have occurred in this case, namely a charge of murder and rape which took place over thirtyyears ago for which another person was convicted and now exonerated and the accused person having appeared at a reference with thesame counsel he wishes now to have represent him, will happen again in this province in another thirty years.

I am therefore of theopinion that my rulings on this application will not set a precedent which will affect the Legal Aid Tariff. [15] Since Fisher, courts have been reluctant to grant a similar order. The parties referred me to only one reported decisionsince Fisher where a court granted a so-called Fisher Order: R v Murphy, 2014 YKSC 62. In that case, the Court appointed theapplicant’s appellate lawyer to represent her at her new trial. The Court granted a Rowbotham Order, and only in the alternative did theCourt find that the case was sufficiently unusual to justify a Fisher Order.

Notably, the Court did not make any comment on whether theappointed lawyer ought to be paid at rates in excess of those authorized by Legal Aid.

On appeal, the Yukon Territory Court of Appealaffirmed the Rowbotham Order, but declined to address the Fisher Order: R v Murphy, 2015 YKCA 10at para 26. [16] The Ontario Court of Appeal has refused to grant Fisher Orders, twice overturning lower court decisions in Peterman and R vHafizi, 2015 ONCA 534. [17] In Peterman, the applicant, charged with four counts of arson, sought a Fisher Order requiring the state to pay rates in excessof the normal legal aid rates for his lawyer, Mr. Wrock – the lawyer who represented him at the preliminary inquiry.

The applicantargued that the legal aid rates were so low as to deny him adequate representation and therefore a fair trial. The trial judge refused tomake any order setting an hourly rate above the legal aid rates but did require that the state pay the fees for a junior lawyer as well as Mr.Wrock’s travel and meal expenses because he was an out-of-town lawyer. The Court of Appeal quashed the trial judge’s order and saidthe following with respect to the Fisher Order application (at paras 31-32): The respondent's case is not unique and it is not of the same order of complexity as the Fisher case.

It is an arson case expected to lastseven days in which there may be up to thirty Crown witnesses, one of whom was a former accomplice. If this is the level of complexitythat would justify a Fisher Order, virtually every accused facing a jury trial could claim an entitlement to state-funded counsel of choice.That is simply not the law. As to the respondent's relationship with his counsel, it is not unusual for accused to have prior professionalrelationships with a lawyer.

The fact that counsel had a prior relationship with the respondent and that the respondent had confidence inhim similarly did not demonstrate an entitlement to state-funded counsel of choice. See R. v. Bruha, 2002 NWTSC 58 , [2003] 1W.W.R. 339 (N.W.T.S.C.). I have set out earlier a paragraph from the affidavit of junior counsel where he attempts to explain the basisfor the application. There is nothing in that paragraph that could justify a conclusion that this case was so difficult, and that counsel'srelationship with the respondent was so special, that only Mr. Wrock could handle it.

This was also not a case where a Fisher-type order was required because the respondent could not otherwise obtain competent counsel.There was no evidence before the application judge that other competent counsel were not available to take the case and to do so on theconditions imposed by Legal Aid. [18] Again in Hafizi, Ontario Court of Appeal overturned a trial judge’s decision to conditionally stay the applicant’s first degreemurder charge until the state negotiated compensation in good faith with the applicant’s counsel of choice.

The applicant failed toestablish why it would not be possible for other competent counsel to protect his fair trial rights. Further, there was no evidence that ratesabove the authorized Legal Aid rates were necessary in order to ensure the applicant received competent counsel. It was insufficient thathe was facing serious charges in a complex case, that his family could or would not fund his legal fees, and that his counsel of choice hadtaken

part in the case for two years. [19] Various trial courts from other provinces have denied Fisher applications. In R v Robinson, 2014 ONSC 5005 the Court heldthat the lawyer was not “uniquely qualified” to conduct a defence to ensure the applicant’s Charter right to a fair trial for sexual assaultwas protected (at para 36, emphasis in original).

In that case, the Court held that with adequate preparation any counsel could step in andensure that the applicant obtained a fair trial. [20] In R v Dieckman, 2012 ONSC 6779 the Court held that in determining whether an applicant could receive a fair trial if notrepresented by their chosen counsel, there must be some objective evidence to that effect.

It is not sufficient for the applicant to say “Iwant lawyer X and she or he is the only lawyer in whom I have confidence”, otherwise every Fisher Order would be granted (at para 40).See also Hennessey v Canada, 2017 NLCA 23at paras 51-52 and 56-57. [21] In R v Bruha, 2002 NWTSC 58 the Court denied a Fisher Order application on the basis that the applicant qualified for LegalAid and experienced defence counsel were willing to take on the case at Legal Aid rates.

The Court held that it was not sufficient that theapplicant filed an affidavit stating that he only trusted his counsel of choice to be his counsel at trial; “[t]he issue is trial fairness, not thefeelings of the accused.” (at para 35). [22] Finally, in R v Grant, 2010 MBQB 258, a case not cited by either party, the Manitoba Court of Queen’s Bench extracted thefollowing guiding principles for Fisher applications (at para 55): ...there are indeed discernible rules that can be seen to define the scope and extent of the legal representation required so as to ensure afair trial pursuant to ss. 7 and 11(d).

They can be summarized as follows: • The Charter rights involved are fair trial rights, as developed in ss. 7 and 11(d). The issue is whether the applicant's right to a fairhearing is or will be breached. There is no free-standing "right to counsel" in the Charter; • The Charter right is that of the applicant accused person, not the right of defence counsel;

• Absent certain exceptions, the Charter right does not provide a basis for stipulating a specific level of funding for counsel. (See: R. v.Peterman, supra, at paras. 27 to 30); • The right to state-funded counsel, where it can be established, does not include the right to counsel of choice. (See: R. v.Peterman, supra, at paras. 27 to 30); • The right to state-funded counsel, where it can be established, does not mean the best lawyer possible, but rather, counsel who canprovide competent representation. [23] In that case, the Court rejected the Fisher application because the applicant’s counsel had entered into a Legal Aid retainer,and the Court held that the specific conditions of the Legal Aid retainer were not justiciable.

Notwithstanding a finding that Legal Aidpolicies were outside of the Court’s jurisdiction - a finding that is consistent with the Alberta Court of Appeal’s ruling in Cai - the Courtidentified a scenario where judicial intervention might be necessary (at para 64, emphasis in original): ...where an indigent accused is without counsel and where, given the seriousness and complexity of the prosecution, there is evidencethat experienced and competent counsel refuse to accept the certificate because of the conditions attaching to that retainer. In such a case,ss. 7 and 11(

d) of the Charter may be more clearly engaged as the alleged inadequacy of the conditions of the retainer would arguablyinhibit the accused's ability to obtain state-funded counsel and, by extension, imperil his right to a fair trial. B.

Competent Counsel at Legal Aid Rates [24] The second exception to the general rule that there is no right to counsel of choice is where Legal Aid conditions prevent theaccused from obtaining competent counsel. [25] Fifteen years ago, the Alberta Court of Appeal dealt with the issue of whether competent counsel were available at Legal AidAlberta rates in relation to charges of conspiracy, participating in a criminal organization, and related drug offences.

In Cai, the AlbertaCourt of Appeal overturned this Court’s decision in R v Chan, 2000 ABQB 728[1] where this Court established a rate of remunerationthat would apply to state-funded counsel at rates in excess of those authorized by Legal Aid. In that case, the 35 accused argued that inthe particular and unique circumstances of the case, the Legal Aid notional rate ($77 per hour) would undermine their right to a fair trialas that rate would not ensure competent representation.

The trial judge concluded that the applicants had met their burden of proof, andcame up with alternate state funding – raising the Legal Aid tariff to $150 per hour (for senior counsel) in order to provide for effectivecounsel. [26] On Appeal, the Alberta Court of Appeal clarified that the applicable test is whether there is a high degree of probability that atrial would be unfair even with Alberta Legal Aid certificates (at paras 12, 50). It also declared that “the hourly rates payable by LegalAid are not justiciable” (at para 111).

The trial judge’s order was held to be unfounded in law and evidence (at para 97). [29] Fisher pre-dates Ontario v. Criminal Lawyers Association of Ontario, is not a binding authority in Nova Scotia, has rarely beenfollowed anywhere in Canada, is considered somewhat of an anomaly due unusual facts that are unlikely to re-occur regularly, and isclearly distinguishable from Mr. Glasgow’s case. There is no evidence of an exceptional connection between Mr. Glasgow, Ms.Freeman, and Mr. Glasgow’s ability to have a fair trial. As noted by the Supreme Court of Canada in Ontario v.

Criminal LawyersAssociation of Ontario, no appellate court in Canada has supported an application similar to that in Fisher. [30] In R. v. Peterman, (ON CA), [2004] O.J. No. 1758, 70 O.R. (3d) 481 (Ont. C.A.), defence counsel soughtan order for increased remuneration including expenses: [9] In his application, the respondent sought an order for payment at rates in excess of the normal legal aid tariff for Mr. Wrock andjunior counsel retroactive to April 30, 2001.

He also sought payment of counsel's reasonable disbursements, payment of counsel for thefull amount of preparation time with no maximum limit on the number of hours of preparation, and payment for counsel's meals andaccommodation. [31] Rosenberg J.A., for the court, noted that there was no factual support for some of counsel’s arguments in relation to theirrequest: [12] There was no evidence that there was no competent lawyer in the Perth area able to take the respondent's case. In the course of oralsubmissions before the application judge, Mr.

Wrock stated the following: Our investigations indicate that there are only seven lawyers in Lanark County who practice criminal law, one in Perth, one in CarletonPlace and five in Smiths Falls.

Only one practices criminal law exclusively. [13] Counsel did not suggest that he or the respondent had approached any of these lawyers or that they were not competent to defend therespondent. [32] In overturning the application judge’s decision to increase the remuneration for state-funded counsel, Rosenberg J.A. stated,variously: [20] Defence counsel who undertake to defend indigent accused through the legal aid system perform an invaluable service to thecommunity and to the administration of justice in this province.

The state has a constitutional obligation to ensure that indigent accusedreceive a fair trial, and in many cases that means ensuring that the accused is represented by counsel. Under the Ontario legal aidcertificate system, it is because defence lawyers are willing to accept legal aid certificates and provide competent and effective counselto accused facing criminal charges that the state is able to fulfill its constitutional obligation. The importance of the work that defencecounsel perform for legal aid clients cannot be underestimated. Moreover, defence counsel agree to perform these services at rates, and

in accordance with conditions, that mean they will not always be fully reimbursed for all the work they do to ensure that clients caughtup in the criminal justice system receive fair treatment and an effective defence… [21] However, under our system the obligation for setting legal aid rates and policies relating to retention of out-of- town counsel and ofjunior or co-counsel lies with Legal Aid Ontario, not the court…A criminal trial court has no jurisdiction to review those policies and,having determined that they are unreasonable, impose other arrangements on Legal Aid Ontario.

A criminal trial court's jurisdiction restssolely on the obligation to ensure that an accused person receives a fair trial. In some cases, the court will be satisfied that if an accusedis not represented by counsel, his or her right to a fair trial as guaranteed by ss. 7 and 11(

d) of the Canadian Charter of Rights andFreedoms will be infringed. If such an accused lacks the means to employ counsel privately, but has nevertheless been refused legal aid,the court can make an order staying the proceedings until the necessary funding for counsel is provided by the state. The trial will thennot proceed until either the government or Legal Aid Ontario provides funding for counsel. This is a so-called Rowbotham order basedon this court's decision in R. v. Rowbotham (1988), (ON CA), 41 C.C.C. (3d) 1, 35 C.R.R. 207.

The court explained thelegal basis for this order at p. 66 C.C.C.: In our opinion, those who framed the Charter did not expressly constitutionalize the right of an indigent accused to be provided withcounsel, because they considered that, generally speaking, the provincial legal aid systems were adequate to provide counsel for personscharged with serious crimes who lacked the means to employ counsel. However, in cases not falling within provincial legal aid plans, ss.7 and 11(

d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, requirefunded counsel to be provided if the accused wishes counsel, but cannot pay a lawyer, and representation of the accused by counsel isessential to a fair trial. [Emphasis in original omitted] [22] In some cases, legal aid has been refused because in accordance with legal aid guidelines, the person does not qualify financially forlegal aid.

Where the accused seeks a Rowbotham order, the court, while giving appropriate deference to the decision of Legal Aid, mustreach its own decision about whether the accused can afford counsel. As was said in Rowbotham at p. 69 C.C.C., "there may be rarecircumstances in which legal aid is denied but the trial judge, after an examination of the means of the accused, is satisfied that theaccused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extentnecessary to ensure a fair trial".

However, when a court makes a Rowbotham order, it is not conducting some kind of judicial review ofdecisions made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial. [33] It was not disputed that the respondent required counsel for a fair trial or that he could not pay in full. As such, he had beengranted a Legal Aid Certificate (para. 23). Rosenberg J.A. continued: [24] On the application, the respondent raised two sets of issues.

First, he submitted that the legal aid rates were so low that he wasdenied adequate representation and therefore a fair trial. The application judge found against the respondent and it is no longer an issuein this appeal. The second set of issues concerned the reasonableness of the conditions attached to the legal aid certificate, namely thedenial of compensation for travel time and disbursements, the limit on preparation time and the requirement of prior approval for juniorcounsel.

This appeal concerns that second set of issues. [25] In considering these issues, the application judge was, again, not entitled to review the reasonableness of the decisions made byLegal Aid. Her focus had to be on whether the respondent's right to a fair trial was imperilled because of the conditions under which hewas being defended.

In my view, there was no evidence to support a finding that the respondent's right to a fair trial was at risk. [26] The Charter guarantees to a fair trial and fundamental justice mean that the state must provide funds so that an indigent accused canbe represented by counsel where counsel is required to ensure that the accused person has a fair trial. Further, within reason, the courtwill protect an accused's right to choose his or her counsel. As this court said in R. v.

Speid (1983), (ON CA), 43 O.R.(2d) 596, 7 C.R.R. 39 (C.A.) at p. 598 O.R.: The right of an accused to retain counsel of his choice has long been recognized at common law as a fundamental right. It has beencarried forth as a singular feature of the Legal Aid Plan in this province and has been inferentially entrenched in the Charter ofRights which guarantees everyone upon arrest or detention the right to retain and instruct counsel without delay.

However, although it isa fundamental right and one to be zealously protected by the court, it is not an absolute right and is subject to reasonable limitations. [27] Absent compelling reasons, such as a disqualifying conflict of interest or incompetence, the courts will not interfere with anaccused's choice of counsel.

Further, the courts will avoid actions that result in accused persons being improperly or unfairly denied theopportunity to be represented by their counsel of choice... [28] However, the right of an accused person to be free of unreasonable state or judicial interference in his or her choice of counsel doesnot impose a positive obligation on the state to provide funds for counsel of choice... [34] Rosenberg J.A. went on to discuss the exceptions to the general principle that the state is not obliged to ensure that the accusedhas counsel of choice, including the Fisher scenario: [29] There would appear to be two exceptions to this general proposition.

First, in some unique situations it may be that an accused canestablish that he or she can only obtain a fair trial if represented by a particular counsel. In those unusual circumstances, the court may beentitled to make an order to ensure that the accused is represented by that counsel. This was the case in R. v. Fisher and the genesis ofthe so-called Fisher order.

But in making the order, Milliken J. recognized that he was faced with a unique case, and he suggested atpara. 20 that the circumstances that led him to make the order might not occur in Saskatchewan "in another thirty years". [30] Second, in unusual circumstances, the court may find that the accused simply cannot find competent counsel to represent him or heron conditions imposed by Legal Aid. One would expect those cases to be exceedingly rare.

For example, if the accused was unable toretain local counsel, Legal Aid would inevitably grant authorization to retain out-of-town counsel. …Courts in Ontario have, with fewexceptions, rejected the proposition that enhanced rates above those authorized by Legal Aid are necessary to ensure that accused receive

competent counsel... [31] The respondent's case is not unique and it is not of the same order of complexity as the Fisher case. It is an arson case expected to last seven days in which there may be up to 30 Crown witnesses, one of whom was a former accomplice. If this is the level of complexity that would justify a Fisher order, virtually every accused facing a jury trial could claim an entitlement to state-funded counsel of choice. That is simply not the law. As to the respondent's relationship with his counsel, it is not unusual for accused to have prior professional relationships with a lawyer.

The fact that counsel had a prior relationship with the respondent and that the respondent had confidence in him similarly did not demonstrate an entitlement to state-funded counsel of choice…I have set out earlier a paragraph from the affidavit of junior counsel where he attempts to explain the basis for the application. There is nothing in that paragraph that could justify a conclusion that this case was so difficult, and that counsel's relationship with the respondent was so special, that only Mr.

Wrock could handle it. [32] This was also not a case where a Fisher -type order was required because the respondent could not otherwise obtain competent counsel. There was no evidence before the application judge that other competent counsel were not available to take the case and to do so on the conditions imposed by Legal Aid.

Oral submissions from counsel at the hearing about the number of lawyers in the county was no basis for finding that there were no other competent lawyers available to take the case. [33] Since there was nothing unique about this case and the respondent failed to show that local counsel were not available, the basis for the order would seem to turn on the timing of the application.

As I have said, the application judge framed the issue in these terms: The issue and the real concern that I have at this point, being April the 3rd, looking at a now fixed trial date of May the 5th, is about the fairness of the trial should these matters not be resolved and should the accused be forced to have to defend himself. [ 35 ] Here, Ms. Freeman has made her application a year-and-a-half after accepting the retainer, but only a few weeks prior to the commencement of the jury trial.

Justice Rosenberg confirmed that an imminent trial does not render an unsubstantiated application a substantiated one: [34] She then held that given the trial was to begin in one month, "no other person other than Mr. Wrock could do a fair representation of the accused at [that] stage." In my view, the imminent approach of a trial date could not justify the order made by the application judge . [35] Under the Ontario system, the respondent was entitled to seek out a lawyer willing to accept his legal aid certificate. He sought out Mr. Wrock and Mr. Wrock accepted the certificate. However, Mr.

Wrock would require authorization in advance from the area director for travel time, travel expenses and junior counsel. In the circumstances, counsel's professional obligation in December 2001 was either to proceed on Legal Aid's terms, or assist his client in finding other competent counsel who was prepared to defend his client. [ 36 ] The preliminary inquiry was held in June 2002. It was expected to last seven days. In fact, it lasted only one day because a former accomplice pleaded guilty and then testified for the Crown. The respondent says that it was at that point that the case took on added complexity.

Assuming that to be the case, the trial was still some time off. As it turned out, the trial date was almost one year later. At that point, Mr. Wrock and the respondent knew that Mr. Wrock was not going to be paid by Legal Aid for his travel time and expenses. They certainly had no reason to believe at that point that Legal Aid would pay for junior counsel, since Mr. Wrock had not sought prior authorization.

The respondent, however, did not seek out other counsel and in the result this application came on for hearing only one month before trial. [ 37 ] There was, in any event, no evidence that no other lawyer was available to proceed with the trial on the scheduled trial date. Even if there had been such evidence, it would not follow that the respondent was entitled to the order made by the application judge. The application judge could have adjourned the case to permit the respondent time to retain local counsel.

Subsequent events have demonstrated that the respondent is not concerned with or prejudiced by delay of his trial. At his request the trial has in fact now been adjourned for over a year pending the outcome of this appeal. [ 38 ] Alternatively, having regard to the circumstances, the application judge could have required Mr. Wrock to proceed with the case since he was on the record and had undertaken to defend the respondent.

Rule 2.09(5) of the Rules of Professional Conduct of the Law Society of Upper Canada is clear on this issue: 2.09(5) Where a lawyer has agreed to act in a criminal case and where the date set for trial is not far enough removed to enable the client to obtain another lawyer or to enable another lawyer to prepare adequately for trial and an adjournment of the trial date cannot be obtained without adversely affecting the client's interests, the lawyer who agreed to act may not withdraw because of non-payment of fees. [ 39 ] The order made by the application judge was not necessary to ensure that the respondent was properly represented and received a fair trial.

There was therefore no basis for making that order and it must be set aside. [Emphasis added] [36] Peterson pre-dates Ontario v. Criminal Lawyers Association of Ontario, which clarified that trial judges theoretically have the authority, on a Charter application where an accused’s right to a fair trial and right to make full answer and defence are jeopardized, to set rates for state-funded funded counsel. Nevertheless, many of Rosenberg J.A.’s comments are applicable to Mr. Glasgow’s situation. [37] Ms. Freeman has not presented any evidence that other lawyers would not represent Mr.

Glasgow for the remuneration offered by NSLA. She accepted the NSLA Certificate on May 17, 2021, at the rate of $95 per hour with 150 hours of preparation time. She was not guaranteed that even with the subsequent submission of a budget her remuneration would be increased. She submitted her request for increased remuneration on July 20, 2022. NSLA did not reject her request until November 2022. It is unfortunate that NSLA was so slow to respond and no explanation was provided as to why. However, there is no evidence that in the intervening four months Ms. Freeman followed up with NSLA about her funding request.

She knew the trial was scheduled to commence on February 1, 2023. She conducted pre-trial motions in the interim, and did not alert the court to any issues regarding her retainer or Mr. Glasgow’s fair trial rights. Once she was advised by NSLA on November 2, 2022, that her request had been rejected, Ms. Freeman did nothing until January

6, 2023, when NSLA alerted her to the option of appealing their decision. According to the Affidavit of Katrina Bright, Ms. Freemanrequested an appeal “immediately upon receipt of this new information”. In the meantime, on January 5, 2023, she filed this application,just under four weeks prior to the start of the six-week jury trial scheduled to commence on February 1, 2023. NSLA notified Ms.Freeman that her appeal was rejected on January 13, 2023. The hearing on this motion took place on January 19, 2023. During thathearing, Ms.

Freeman objected to my reference to her having made this application on the “doorstep” of the trial. I do not see any othermore accurate descriptor for the timing of this application. It is the eve of the trial, at the last minute. [38] Ms. Freeman says that Mr. Glasgow's disclosure is so voluminous, and the issues so complex, that there is no counsel whocould competently represent him on the murder charge if allowed 400 hours. However, despite her submissions, she has not presentedevidence that Mr.

Glasgow's case requires an inordinate amount of preparation time or is exceptionally complex in comparison withother murder cases. As the Supreme Court of Canada noted in R. v. Jordan, 2016 SCC 27, in the context of determining what is anexceptional circumstance when conducting a s. 11(

b) of the Charter delay analysis, most murder trials are at least somewhatcomplicated: [78] A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance.However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that thetime the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance. [39] The timing of the application does not carry the day, however. The substance of the application does. While Ms.

Freeman’sbudget shows potential preparation hours that exceed the 400 hours allotted, that is not the test. Mr. Glasgow has experienced andcompetent counsel in Ms. Freeman. She accepted a retainer for 150 hours of preparation time. There was no guarantee when she appliedfor an increase in preparation hours that she would be successful. She was partly successful and, instead of 150 hours, was granted 400hours of preparation time.

Nonetheless, she now asks the court to order essentially unlimited preparation hours, with a cap on fees anddisbursements of $350,000, and, if fees and disbursements exceed $350,000, the ability to apply for review and additionalcompensation. This is multiple times more than the amount Ms. Freeman agreed on when she accepted the Certificate. [40] While there are a limited number of cases across Canada dealing with state-funded counsel, Ms.

Freeman could offer noprecedent analogous to her specific request. [41] The courts and various bar societies have considered what competency is in the context of legal representation.

In Central &Eastern Trust Co v Rafuse, (SCC), [1986] 2 SCR 147, [1986] SCJ No 52, the court said: [66] A solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he hasundertaken […] The requisite standard of care has been variously referred to as that of the reasonably competent solicitor. [42] The Nova Scotia Barristers’ Society Code of Professional Conduct states: 3.1-1 In this rule “Competent lawyer” means a lawyer who has and applies relevant knowledge, skills and attributes in a mannerappropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s engagement, including […] (

e) performing all functions conscientiously, diligently and in a timely and cost-effective manner; […] (

g) complying in letter and spirit with all rules pertaining to the appropriate professional conduct of lawyers; […] (

i) managing one’s practice effectively; […] 3.1-2 A lawyer must perform all legal services undertaken on a client’s behalf to the standard of a competent lawyer. [5] A lawyer should not undertake a matter without honestly feeling competent to handle it, or being able to become competent withoutundue delay, risk or expense to the client. The lawyer who proceeds on any other basis is not being honest with the client.

This is anethical consideration and is distinct from the standard of care that a tribunal would invoke for purposes of determining negligence. [13] The lawyer should refrain from conduct that may interfere with or compromise his or her capacity or motivation to providecompetent legal services to the client and be aware of any factor or circumstance that may have that effect. [14] A lawyer who is incompetent does the client a disservice, brings discredit to the profession and may bring the administration ofjustice into disrepute.

In addition to damaging the lawyer’s own reputation and practice, incompetence may also injure the lawyer’spartners and associates. [43] Cases dealing with a request to increase a state-funded lawyer’s remuneration say, variously, that while an accused might beentitled to state-funded counsel under the Charter where necessary to protect fair trial rights, this does not equate to having the right tothe best possible lawyer or a perfect defence. [44] In R. v.

Rockwood (1989), (NS CA), 91 N.S.R. (2d) 305, 1989 CarswellNS 267 (S.C.A.D.), Chipman J.A.,said for the court, at paras 19-20: In making reference to funded counsel nothing is said in these authorities about the degree of expertise of counsel an indigent accused isentitled to expect. In order to render the Charter rights meaningful, I believe counsel provided must be sufficiently qualified to deal withthe matter at issue with a reasonable degree of skill.

Again, however, the case law on the Charter aspect of this appeal does not go so far as to give the indigent a right of choice beyond thosecounsel willing to serve within the constraints of the Legal Aid program. During the course of argument counsel for the appellantconceded that the authorities did not establish that "choice" extended to any counsel, but only to those reasonably competent to handlethe matter at hand. As MacDonald, J. recognized in his decision, to extend the Charter right to the point contended for by the appellant

could introduce chaos into the administration of justice. [45] In R. v. Chan, 2017 ABQB 270, the court stated: [49] The Applicant’s argument appears to be that he should be entitled to the “best possible” lawyer. I find no support in the caselaw that the only way to ensure a fair trial is to ensure the accused has the “best possible” lawyer. The Charter protects an accused’sright to competent counsel who can provide full answer and defence. [50] This is not a case where there are no competent defence lawyers willing to represent the Applicant under Legal Aidconditions.

Present at the hearing was a defence counsel who was willing to accept the Legal Aid certificate but who the Applicant hadrefused to retain. Noting his presence, Applicant’s counsel conceded that this particular lawyer may be capable. Applicant’s counselargued, however, that this particular lawyer does not have the benefit of Mr. Cairns’ experience with respect to these particular matters,nor does he have the special relationship with the Applicant.

But that is not the test; the test is whether other counsel can protect theApplicant’s fair trial rights. [46] In R v Howell (1995), (NS CA), 146 N.S.R. (2d) 1, [1995] N.S.J. No. 483 (C.A.), affirmed at (SCC), [1996] 3 S.C.R. 604, Chipman J.A. said, for the majority: [59] In general, an accused person has the constitutional right to the effective assistance of counsel under s. 7, s. 10(

b) and s. 11(

d) ofthe Charter…The appellant is not entitled to publicly funded counsel of his choice but at the highest, competent publicly fundedcounsel… [47] In R v Ho, 2003 BCCA 663, Low J.A. said, for the majority: [86] The respondent was not entitled to counsel of his choice. He was entitled to be represented by reasonably competent counsel. Inthe circumstances, before it could be said that no counsel was available to him at the Legal Aid tariff, it was incumbent upon him to seekcounsel within the large pool of criminal defence lawyers in Vancouver. Evidence that Mr.

Wilson was not prepared to represent therespondent is not evidence that the respondent could not obtain counsel... [48] In R v Cai, 2002 ABCA 299, the court said: [18] Paragraph 65 [of the reasons below] found that the $150 per hour which the court imposed on the Crown would be "bettersuited" to this prosecution than would something unstated. But that is not the test. One can always find resources, persons, or means ofhigher quality. The "best around" is emphatically not the test.

All that is required is a level of legal representation which ensures that theaccused's answer to the allegations of his guilt is made available to the adjudicating court. Certainly not matchless Nobel-level privatelyretained representation. [Emphasis added] [49] An accused having achieved state-funded counsel is entitled to a lawyer who is reasonably competent, not the best lawyer inexistence. Similarly, an accused whose counsel is funded through a Legal Aid Certificate, is entitled to a reasonably competent defence,not the most marvelous defence imaginable. According to the materials Ms.

Freeman filed in support of this application, she is aseasoned criminal defence lawyer with significant experience in homicide cases. Mr. Glasgow has more than reasonably competentcounsel. And that competent counsel agreed to the retainer terms set out by NSLA. After a year-and-a-half of representing Mr.Glasgow, only a few of weeks before the start of trial, Ms. Freeman requested increased remuneration. [50] Nothing before the court suggests that this matter is so complex or exceptional that Mr.

Glasgow’s right to a fair trial isendangered by his counsel being compensated on the scale approved to this point by Legal Aid. On the basis of all of the evidencepresented I do not believe that Ms. Freeman has proven on a balance of probabilities that Mr. Glasgow’s s. 7 right to a fair trial or his s.11(

d) right to make full answer and defence are infringed by the remuneration offered by NSLA in this case. Conclusion [51] Mr. Glasgow has not proven on a balance of probabilities that his s. 7 right to a fair trial or his s. 11(

d) right to make full answerand defence are infringed by the remuneration offered by NSLA in this case. This is not one of those rare cases where the court shouldintervene regarding the remuneration of state-funded counsel. Arnold, J.