R v Pastuch, 2022 SKCA 109

Court of Appeal for Saskatchewan Docket: CACR3286 Citation: R v Pastuch, 2022 SKCA 109Date: 2022-10-05 Between:Alena Marie PastuchAppellantAndHis Majesty the KingRespondentBefore: Richards C.J.S., Whitmore and Barrington-Foote JJ.A.Disposition: Appeal allowedWritten reasons by: The Honourable Mr. Justice Barrington-FooteIn concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice WhitmoreOn appeal from: 2019 SKQB 156 and 2019 SKQB 196, ReginaAppeal heard: November 8, 2021Counsel: Christopher Murphy for the Appellant Grace Hession David for the Respondent Barrington-Foote J.A. I. INTRODUCTION [1] On June 3, 2014, Alena Pastuch was charged with fraud pursuant to s. 380(1)(

a) of the Criminal Code, theft pursuant to s.334, and money laundering pursuant to s. 462.31, all in amounts over $5,000. These charges related to Ms. Pastuch’s role as the centralplayer in an investment scheme during an approximately seven-year period beginning in 2006. The trial, which was initially scheduled forNovember of 2017, then for September 10, 2018, would finally commence on October 15, 2018. [2] On June 27, 2019, a judge of the Court of Queen’s Bench [trial judge], sitting alone, found Ms.

Pastuch guilty on all threecounts, but directed a stay of the theft and money laundering charges pursuant to R v Kienapple, (SCC), [1975] 1 SCR729: 2019 SKQB 156 [Conviction decision]. On August 16, 2019, the trial judge sentenced Ms. Pastuch to 7 years and 3 months’imprisonment and ordered that she pay restitution in the amount of $5,523,507. He also ordered that she pay a fine in the same amount –less any payments made in satisfaction of the restitution order – within 12 years of her release from prison, and to serve a further term of 5years’ imprisonment consecutively in default. [3] Ms.

Pastuch has appealed both her conviction and her sentence. She identifies three grounds for her conviction appeal. First,she contends that her trial was in fact unfair or appeared unfair, resulting in a miscarriage of justice pursuant to s. 686(1)(a)(iii) of theCriminal Code. More specifically, she alleges that the trial judge erred by denying her application for court-appointed counsel to replace alawyer who, having advised the trial judge on the morning of September 10, 2018, that he could not continue to represent Ms. Pastuch forethical reasons, was permitted to withdraw.

The decision denying that application was delivered on September 17, 2018 [Ruling]. As aresult of that denial, Ms. Pastuch was obliged to represent herself in a complex trial that took 87 juridical days and in which the Crowncalled 78 witnesses. [4] Second, Ms. Pastuch submits that the trial judge erred by denying her application pursuant to s. 11(

b) of the CanadianCharter of Rights and Freedoms for a stay of proceedings as a result of unreasonable delay. Third, she submits that the verdict wasunreasonable. I am not persuaded that the trial judge erred as alleged in either of these grounds of appeal. [5] I have concluded that only the first of these three grounds of appeal has merit. Ms. Pastuch should not have been required toproceed without the assistance of a lawyer. Although the trial judge did his level best to assist Ms.

Pastuch to the extent he was permittedto do so in the course of this lengthy and difficult trial, there was an appearance of unfairness and a miscarriage of justice. In thesecircumstances, the law requires that this Court order a new trial. [6] I am deeply troubled by the impact of this decision on the many investors who suffered losses and will now continue to awaitan answer from the courts as to Ms. Pastuch’s criminal liability. However, Ms. Pastuch’s right to a fair trial in accordance with the law,like that of every person accused of having committed a crime in Canada, must be vindicated. II.

COURT-APPOINTED COUNSEL A. Background 1. Introduction [7] To begin, I note that in the Conviction decision, the trial judge summarized the charges against Ms. Pastuch as follows: [1] The accused, Alena Marie Pastuch, stands charged with three counts in the indictment before the court. Counts 1 and 2respectively allege that, between April 1, 2006 and January 1, 2013, at or near Regina, Saskatchewan, the accused did:

1. By deceit, falsehood or other fraudulent means, defraud corporate and/or private investors of money, of a value exceeding $5,000,contrary to s. 380(1)(

a) of the Criminal Code, RSC 1985, c C-46; and 2. Steal money, the property of corporate or other private investors of a value exceeding $5,000 contrary to s. 334 of the Criminal Code. [2] Count 3 in the indictment pertains to a different time period. It alleges that between January 5, 2007 and January 1, 2013, at ornear Regina, Saskatchewan, the accused used or otherwise dealt with investor money, knowingly obtained directly or indirectly by fraud,with intent to conceal or convert that property or those proceeds.

More directly stated, this count alleges that the accused engaged inmoney laundering with respect to the proceeds alleged to have been obtained by the fraud alleged in Count 1, contrary to s. 462.31(1)(

a) ofthe Criminal Code. [3] The three allegations in the indictment centre on the investment of more than $5.5 million by individuals, or their closely heldcompanies, over a 33-month period from January 25, 2007 to October 20, 2009. The Crown contends that the investors understood thefunds would be devoted to projects for the development of computer software to serve certain purposes, including computer security andtechnology-based child protection.

The Crown says that the accused was the moving force behind the projects. [4] The evidence presented at trial demonstrates that none of the investors received any income based return on their investments andall but ten investors lost the entire principal of their investments. The Crown alleges that the accused induced the investors to participate inthe project through deceit and falsehood. It further alleges that the accused expended the invested funds in ways not authorized by theinvestors. [8] The evidence relating to these allegations was voluminous.

There were many investors, some of whom made multipleinvestments over an extended period of time. There was a large number of deposits, transfers and payments for a wide variety of purposesto and from 27 bank and credit card accounts. Some of those accounts directly received deposits of investor funds, while others were in thenames of Ms. Pastuch or other persons or corporations that were alleged to have a connection to her.

There was evidence that the fundswere used for a wide variety of purposes, including investments in computer software development, a rock band, and sports, motion pictureand music memorabilia. There was also evidence of the expenditure of funds from certain accounts for casino gambling, to purchase ahouse in Regina, and for other personal benefits. There were, as noted above, 78 witnesses, and thousands of documents finally presentedat trial. [9] It is common ground between the parties that, as the trial judge found in the Ruling, Ms.

Pastuch satisfied the three criteriawhich must be established by an accused on a balance of probabilities for a court to appoint counsel at public expense. Those criteria,which were specified in R v Rowbotham (1988), (ON CA), 41 CCC (3d) 1 (Ont CA) [Rowbotham], are: (

a) the accused must have been denied legal aid and exhausted all rights to appeal that decision; (

b) the accused must lack the means to employ private counsel; and (

c) representation for the accused is “essential to a fair trial”. [10] The seriousness of the charge has occasionally been described as a separate criterion: see, for example, Mackay (Re), 2017SKQB 19 at para 18, 381 CRR (2d) 188; R v Nowazek, 2015 YKSC 64 at para 2.

However, seriousness is generally and properly treatedas a factor to be taken into account when considering whether the appointment of counsel is necessary for a fair trial: see, for example: R vRushlow, 2009 ONCA 461 at paras 19–20, 245 CCC (3d) 505 [Rushlow]; R v Imona-Russel, 2019 ONCA 252 at para 40, 145 OR (3d)197 [Imona-Russel]; R v LeBlanc, 2005 NBCA 6 at para 8, 193 CCC (3d) 387, leave to appeal to SCC refused, ; R vCrichton, 2015 BCCA 138 at para 35, 319 CCC (3d) 504 [Crichton]. [11] Ms.

Pastuch had been previously found to meet those criteria by a judge of the Provincial Court of Saskatchewan who grantedher first application for court-appointed counsel, and by the trial judge when he granted her second application for court-appointedcounsel.

The issue, accordingly, is whether the trial judge was nonetheless entitled to deny her third application for court-appointedcounsel [third application], based on his findings of fact as to the reasons her two other court-appointed counsel had withdrawn. [12] With that question in mind, I will summarize the retention and appointment of, and the withdrawal by, defence counsel for Ms.Pastuch, and review certain aspects of the hearing of the application that resulted in the Ruling that are relevant to this aspect of theappeal. 2. Private counsel and Legal Aid counsel [13] Ms.

Pastuch first appeared in Provincial Court in relation to these charges on June 5, 2014. She was represented by WilliamSmart, K.C., who remained counsel of record until May 6, 2015, when he sought and received leave to withdraw. In his July 11, 2017,judgment that denied Ms. Pastuch’s s. 11(

b) delay application, the trial judge summarized Mr. Smart’s explanation for his application towithdraw: 2017 SKQB 211 [Delay decision]. He wrote as follows: [9] At the attendance of May 6, 2015, Mr. Smart appeared by telephone at which time he sought, and received, leave to withdraw. Inhis appearance, Mr. Smart explained some of the background that culminated in his request. In particular, he advised the Court that thenature of the allegations against the accused were such that the matter is a “complicated case to defend”. Mr.

Smart went on to explain thatthere were over 40 alleged victims and that the conduct was said to have occurred over a near seven year period. The court was furtheradvised that the accused had done everything she could to raise sufficient money to retain Mr. Smart’s services but that it had becomeobvious she was not able to do so. As a final service for the accused, Mr. Smart requested an adjournment on her behalf and waived delay.The transcript indicates that the accused was present in court on that date and signified her agreement to the waiver. [14] After the May 6, 2015, appearance, Ms.

Pastuch applied and qualified for legal aid. She was represented by Legal AidSaskatchewan beginning not later than July 29, 2015, when a Legal Aid staff lawyer appeared on her behalf in the Provincial Court. Herequested and was granted an adjournment to review disclosure. On November 4, 2015, following two further adjournments, he advised

the court that his office was attempting to make new arrangements for Ms. Pastuch’s defence. In the Delay decision, the trial judge summarized Legal Aid’s actions at that November 4 appearance and in a January 26, 2016, appearance: [13] Three adjournments later, on January 26, 2016, the same staff counsel appeared and provided the court with a more fulsome explanation of the predicament he faced.

He pointed out to the court that, from the disclosure he had reviewed, there were approximately 36 complainants and a greater number of witnesses, including experts, who would give evidence at a preliminary inquiry that was expected to last nine weeks. Against this backdrop, staff counsel identified a very specific concern, related to the need for his superiors at Legal Aid Saskatchewan to address the accused’s case and to do so in a timely way.

His remarks to the court, as drawn from the transcript, were as follows: More importantly now, the reason I’m asking for the adjournment, is as far back as October 2015, I made the Legal Aid Central Office, the commission, aware that I did not feel that I could provide reasonably competent ethical service to this woman without significant assistance on some of these specialized issues, as well as a reduction in my general case load. To date, I have not received a response from the CEO of Legal Aid. I’ve been informed by my Director that he’s meeting with him tomorrow to bring my concerns to him once again.

If Legal Aid can -- this is very difficult for me to say in court, but if the commission does not respond by the next court date, I will have no choice, in my view, to withdraw. I believe the Code of Conduct requires me to do so. … [ 15 ] The matter was adjourned to February 10, 2016, and on two more occasions, before it returned to Provincial Court on March 22, 2016.

The trial judge summarized the March 22 appearance in the Delay decision, as follows: [ 16 ] … At that time, senior counsel from the Regina City Area Office appeared and advised the court that Legal Aid Saskatchewan had determined that it could not represent the accused because of “the nature of the representation that she requires”. She also advised the court that a notice of denial had been served on the accused and that the accused had been exempted from her having to appeal the decision to deny her representation. Counsel then asked for leave to withdraw, which the presiding judge granted.

Following this decision, the presiding judge scheduled a court appointed counsel hearing on April 7, 2016 … 3. The first court-appointed counsel [16] Legal Aid having withdrawn, Ms. Pastuch made her first Rowbotham application on April 7, 2016. The Provincial Court judge who heard the application concluded that Ms. Pastuch’s case met the criteria for court-appointed counsel and adjourned the matter pending that appointment. On May 12, 2016, Christopher Funt appeared as court-appointed counsel for Ms. Pastuch. Mr.

Funt requested a four-week adjournment to obtain and review disclosure, indicating that he understood it would be voluminous and related to what he called “complex fraud allegations”. Mr. Funt would apply for further adjournments on the next five scheduled appearances in Provincial Court, the last being on August 31, 2016, when the file was sent to case management. [ 17 ] Case management was conducted on September 15, 2016, and again on October 6, 2016, when a preliminary inquiry was set for April of 2017.

However, the preliminary inquiry would be short-circuited on December 1, 2016, when the Deputy Attorney General preferred a direct indictment. After the indictment was filed in the Court of Queen’s Bench, there were pre-trial conferences held on December 16, 2016, and on January 20, February 17, March 24 and April 28, 2017. [ 18 ] It was during this period that Ms. Pastuch brought a s. 11(

b) Charter application to stay the proceedings as a result of unreasonable delay. That application was heard by the trial judge on May 8, 2017, and, as noted above, was denied in the Delay decision issued on July 11, 2017. In that decision, the trial judge made the following comments as to the complexity of the case in the context of his Jordan analysis: [78] Turning first to the indictment in this case, it is notable that the allegations set out therein purport to cover periods of six or seven years.

In the context of these allegations, the Provincial Court transcript reveals multiple instances where various counsel remarked on the complexity of the case against the accused. None of the remarks were challenged in any way. While this Court, quite appropriately, did not receive or review any part of the Crown disclosure, these unchallenged remarks are revealing. They have allowed me to surmise certain features of this case that speaks to its complexity. These features include the following: (

a) there are at least 36 complainants; (

b) there is at least one expert witness; (

c) the Crown disclosure has repeate dly been described as “voluminous” or “enormous”, and required two or three months for defence counsel to review before they considered themselves sufficiently prepared to proceed further; (

d) the preliminary inquiry, had it taken place, was expected to take nine weeks; and (

e) the trial, already scheduled, is expected to take three months (less time off between Christmas and the New Year). [79] In my view, these features closely resemble the “hallmark” features described in Jordan . I also find that they indicate a case with a significant degree of complexity, requiring considerably more preparation time by counsel than would be required in a more straightforward case.

As such, if I am wrong in my assessment of discrete exceptional circumstances, such that the remaining delay would be greater than the 30 month presumptive ceiling, I would find that the complexity of this case is such that a 34-36 month delay would not be unreasonable. [ 19 ] Before the delay application was heard, a trial date had been set for what was anticipated to be a three-month trial before a judge and jury, commencing on November 6, 2017. However, on June 16, 2017, Mr. Funt applied for and was granted leave to withdraw as counsel. In the Ruling, the trial judge summarized Mr.

Funt’s explanation for that request as follows:

… At that time, Mr. Funt advised the Court that there had been a breakdown in the relationship between him and the accused. He was understandably careful not to elaborate. The accused, who was personally present at that time, advised the Court that she did not oppose Mr. Funt’s request. The Crown took no position. 4. The second court-appointed counsel [ 20 ] Following the issuance of the Delay decision on July 11, 2017, the trial judge adjourned the file to an August 3, 2017, pre-trial, having advised Ms. Pastuch that if she did not find counsel willing to act, she may have to represent herself.

On August 3, the Court was advised that Calgary lawyer Cory Wilson would accept an appointment. Mr. Wilson was appointed on August 10, 2017, and the trial was adjourned to a new tentative start date of September 10, 2018. [ 21 ] Following his appointment, Mr. Wilson essentially shut down his practice for a year to prepare for the Pastuch trial. He was paid by Legal Aid not on an hourly rate, but by way of 13 monthly installments. In the period from August 10, 2017, to September 10, 2018, there were seven additional pre-trial conferences, all but one of which addressed trial management issues.

That last such conference occurred on August 31, 2018. In the Ruling, the trial judge noted that he “came away from these conferences with the view that both counsel were prepared and fully ready for trial”. [ 22 ] As it happened, however, Mr. Wilson would attend on the morning of September 10, 2018, and make the following submission to the trial judge: Now, Sir, I’m in the very unfortunate position of having to make an application to be removed as counsel of record as a result of a complete breakdown of the solicitor, client relationship.

While there were significant ongoing issues with the relationship, the complete breakdown was crystalized on September 6th, just this last Thursday, which is why I’m bringing this application at such a late date. I informed my friend on Friday of my application. I cannot and will not, of course, disclose the nature of the breakdown other than telling the Court that there is no scenario in which I could ethically proceed as counsel.

This, My Lord, is a situation where is not so much that I’m applying to withdraw, I am, in fact, required to withdraw in accordance with my professional obligations. [ 23 ] In response, the trial judge noted that he could not enquire into the reasons for a request to withdraw on ethical grounds, but did ask Mr. Wilson if he could carry on as amicus curiae : THE COURT: … All that having been said, let me ask this question, are you satisfied that based on the breakdown, there is no role for you?

And what I’m specifically thinking of, is the prospect of you remaining involved in this trial as a form of amicus or as a form of advisor to Ms. Pastuch in the event Ms. Pastuch represents herself in this trial. Is the ethical -- or the breakdown of such a nature that you, as a matter of your ethical obligations, would be unable to provide any service in that respect? MR. WILSON: I am unable as a result of my ethical obligations to provide any service to Ms. Pastuch, and I’ve spoken with Ms. Olson from Court Services.

We discussed that very scenario in which I would remain on as a friend of the Court just this morning, and there is no scenario based on my ethical obligations and my concerns that I could proceed, unfortunately, My Lord. [ 24 ] The trial judge then enquired of Mr. Wilson if his relationship with Ms. Pastuch could be repaired to enable the trial to proceed by the following week. Mr. Wilson said it could not. The trial judge asked Ms.

Pastuch how soon she could make a further application for court-appointed counsel, commenting as follows: … I’m prepared to hear it, and I’m prepared to hear it this week, and if push comes to shove, I’m prepared to hear next week, but this is a matter that has gone on, quite frankly, long enough. This matter should proceed to trial. We’ve set the time. There are a huge number of witnesses that have been subpoenaed in this matter according to the witness list on the indictment.

This is a very extraordinary situation. … [ 25 ] Audrey Olson, counsel for Court Services, confirmed that her client would resist the application, and advised that “the main thrust of our argument from Court Services, would be whether or not Ms. Pastuch has disentitled herself of Court Services as a result of her actions”. She noted that it would also be necessary for the Court to decide whether it would grant a stay for the purpose of counsel being appointed and becoming apprised of the matter. Crown counsel was also asked for comment and advised that the Crown would not consent to any adjournment.

He suggested that there had been a “revolving door of counsel” which was not the fault of counsel and that it was “becoming readily apparent where the fault lies”. As he put the matter, “[i]t would be the Crown’s expectation that [Ms. Pastuch] be required to proceed with or without counsel. I think she was, in fact, warned by the Court of that fact when she discharged her first court- appointed counsel”. [ 26 ] In the result, the trial judge granted Mr. Wilson’s request to withdraw. He also decided that he would hear Ms.

Pastuch’s third court-appointed counsel application in one week, hence, on September 17, 2018. [ 27 ] On September 12, 2018, the trial judge heard and denied an application by Ms. Pastuch that those aspects of the court- appointed counsel hearing relating to her health and personal financial information be held in camera. 5. The third application for court-appointed counsel a. The hearing of the third application [ 28 ] The hearing of the third court-appointed counsel application by Ms. Pastuch proceeded as scheduled on September 17, 2018. The trial judge noted that it had been conceded that Ms.

Pastuch was not eligible for legal aid, as Legal Aid Saskatchewan did not have the ability to represent her. He stated that there was a question as to whether the two other Rowbotham criteria had been met and said to Ms. Pastuch that “even if all three criteria have been met, there is the overarching question as to whether or not you should have a third court- appointed counsel given your history with the previous two court-appointed counsel”. [ 29 ] The trial judge first directed Ms. Pastuch to the withdrawal of Mr. Funt, noting that he now had copies of correspondence

authored by Ms. Pastuch, Mr. Funt and Court Services – which he did not have when Mr. Funt withdrew – that suggested she had lost confidence in and might terminate Mr. Funt prior to his withdrawal. Having heard Ms. Pastuch’s explanation for her concerns with Mr. Funt, the trial judge commented that he “did not see anything that suggested a lack of competence on the part of either Mr. Funt or Ms. Jasper”. Ms. Jasper was a lawyer in Mr. Funt’s firm who also had some involvement with this file. [ 30 ] The trial judge then directed Ms. Pastuch to the issue of Mr. Wilson’s withdrawal.

He suggested that once counsel has been appointed, “[t]here is an expectation that that client will cooperate with that counsel and do his or her best to maintain a good working relationship with that counsel”. He then asked this question: The suggestion is that in light of the -- of Mr. Wilson saying that he had to withdraw as a result of an event that crystalized on September the 6th, which for all intent and purposes, was the eve of trial.

For him to do that, the suggestion is that you were responsible for how that relationship broke down, and because of that responsibility, the suggestion is that you ought not to be appointed a third court-appointed counsel. What’s your view of it? What’s your response to that? [ 31 ] The following exchange ensued as to what had occurred with Mr. Wilson: [MS. PASTUCH]: Again, with all due respect to former counsel, I believe the ethical violation was not from me but something he had done. I do have a witness who interacted directly with Mr.

Wilson, and it was after a witness -- THE COURT: Now, you don’t have to disclose privilege, but if you choose to, you may. [MS. PASTUCH]: He’s -- I wanted to, and my advocate was with me when I said, Cory, I’m willing to waive everything. Well, first of all, I first met him 15 minutes before court. I’ve never seen him. And when I found out how much money he got paid, and he’s never come down here, it was just shocking. He wanted me to go to Calgary for a month. He knows I’m in pecunias [ sic ]. There’s no way. I’d have to live on the street, but then when I found out how much he was getting, why couldn’t he? Mr.

Funt and Ms. Jasper, to their credit, did come. You can -- I -- I -- it’s hard to build a relationship just on a phone or through e-mail. But I only met him, and I have witness to that, 15 minutes before September 7th. And at that point, is when he threw on us, he was just -- he said he was going to recuse, and I gave him the benefit of the doubt because I didn’t want to cause harm. And he said to myself and my advocate, we’re not lawyers. He said, I have to cite it as an ethical breach, otherwise the judge could force me to stay on. And I’m, like, well that -- to me that wasn’t bad.

And so -- but he says, Well, if you do it -- if we do it this way -- He -- he was trying to explain to me. I don’t understand. I guess, if you say it that way, it means the judge has no choice, it forces the judge to dismiss him. And then I said, Well, I don’t want that, let’s waive privilege and come and talk openly, like, you know, maybe in an in-camera hearing in front of just the judge. I -- that’s what I wanted. [ 32 ] Following further discussion of the nature of her difficulties with Mr. Wilson, Ms. Pastuch advised that she had a witness who could provide evidence on the point.

The witness – Brian Pederson – was sworn and was asked by Ms. Pastuch if he had had direct communications with Mr. Wilson. He confirmed that he did. Asked when that had occurred, he referred to a document he had in his possession. Ms. Olson objected, noting that the issue was whether Ms. Pastuch was entitled to further counsel, that she did not know if Mr. Pederson’s communication with Mr. Wilson was relevant, and that “that would require Mr. Wilson to respond to that”. She submitted that the issue was the relationship between Mr. Wilson and Ms. Pastuch and argued that Mr.

Pederson should only be permitted to provide evidence of communications between Ms. Pastuch and Mr. Wilson that he had witnessed. [ 33 ] The trial judge agreed and instructed Mr. Pederson to restrict his testimony accordingly, rather than giving evidence as to what the judge described as Mr. Pederson’s role as a “go between” for Mr. Wilson and Ms. Pastuch. Ms. Olson then suggested that Ms. Pastuch should testify first, with Mr. Pederson to follow, if necessary. That resulted in the following exchange between the trial judge and Ms. Pastuch: THE COURT: … Ms. Olson is suggesting that maybe Mr.

Pederson should testify after you testify. In other words, that you should testify as to your communication with Mr. Wilson. [MS. PASTUCH]: Okay. THE COURT: And in the event there is a need to supplement that, now, that having been said, if that’s the way the drill is going to be, Mr. Pederson, I’d ask you to step into the hallway because I don’t think you should be present when Ms. Pastuch takes the stand because I don’t want your testimony to be impacted by what you heard of Ms. Pastuch. A All right. I understand. THE COURT: So Mr.

Pederson, your sworn, you will remain sworn, but I’m going to excuse you to the hallway, and I think Ms. Pastuch has to take the stand and has to describe what happened. [ 34 ] It appears Mr. Pederson did not immediately step down. After additional discussion with Ms. Pastuch of the potential disclosure of her emails to and from Mr. Wilson, the trial judge raised the issue of privilege. He advised Ms. Pastuch that her communications with Mr. Wilson were privileged, but her communications with Mr. Pederson were not, and that she may have waived privilege if Mr. Pederson was present when she spoke to Mr. Wilson.

She denied that he was present and offered the following explanation of her concerns with Mr. Wilson: [MS. PASTUCH]: Okay. The issue with Mr. Wilson is that he was -- if I would tell him this was a -- if I had presented him with a fact of something, it would get very misconstrued. He spoke to -- Mr. Wilson spoke to a lot of my -- I mean, my doctors. They e-mailed me too. They felt he was -- and -- and as well as that university professor here in Regina, it just -- they felt it was just -- I was being -- I -- I don’t know the word, like -- it’s not that I was trying to control where the defence was going.

That is not the issue at all. But I was trying to present, Mr. Wilson, accurate facts so that he could present the defence strategy. And he would -- when I would present these facts, they

weren’t being -- they were then taken out of context or being re-presented in a way that would’ve been misleading and not truthful. So I experienced that, and I know that if I said it, people would be, Well, you know, you’re the accused. But it happened to others, were there - - oh. THE COURT: I’m -- I’m getting more and more confused and also concerned about where this is going. Mr. Pederson, would you step down from the stand for a moment. [ 35 ] Having instructed Mr.

Pederson to step down, the trial judge pointed out that he was also the trial judge and expressed concern that “if we’re going to get down into discussing the specifics of applicable defences, some of which have been rejected, I’m getting really concerned as to whether or not I can continue to sit on this matter”. In response, Ms. Olson noted that she did not have information about the relationship between Ms. Pastuch and Mr. Wilson, and that Court Services’ opposition to the appointment of counsel was based on what she described as Ms. Pastuch’s “clear complicated history, not only with Mr.

Wilson, but with every other counsel that she’s encountered”. She submitted that it was “highly probable given our past history on this file” that a further appointment would result in failure. [ 36 ] In response, the trial judge commented that the cause of the breakdown in the relationship between Ms. Pastuch and Mr. Wilson was relevant not only to the Rowbotham application, but to the question of whether and for how long he should grant an adjournment if he denied the application. He expressed concern that Ms.

Pastuch might “compromise her privilege in such a way that it compromises her ability to present full answer and defence”. He also indicated he was surprised at “the kind of evidence that is being contemplated here”, including “three-cornered communication and what was said and what wasn’t said”. [ 37 ] Shortly thereafter, the following exchange occurred between the trial judge and Ms. Olson as to the propriety of considering allegations of improper conduct by Mr.

Wilson: THE COURT: So if I can hear -- if I understand you correctly, then you’re saying that all I need to do is assess whether or not there was any contribution on the part of the accused to the breakdown of the relationship with Mr. Wilson. MS. OLSON: Yes. I -- I think it would be unreasonable, unless the Court wants to go so far as to call -- for me to call Mr. Wilson as a witness. I -- I think it would [be] unreasonable to determine that two subsequent counsel have acted unethically in their representation of an individual. I -- I’m merely that’s not a reasonable inference. THE COURT: And you’re right.

I’m concerned that in the event there is a suggestion in the evidence that Mr. Wilson acted unethically, he’s not here to respond to that. [ 38 ] Following a brief discussion in which Ms. Pastuch denied that she had alleged that Mr. Wilson had asked her to present false testimony, Ms. Pastuch suggested that it was Mr. Wilson, not her, that “if he continued, he would have been unethical”. She referred to a plea bargain that had been provided to her for consideration, but was cut short by the following intervention by the trial judge: THE COURT: But I’m concerned, Ms. -- Ms.

Pastuch, this is the reason that I turned to Ms. Olson. I’m getting very concerned that I don’t need to hear the details of the defences either that you wanted Mr. Wilson to present or the defences that Mr. Wilson was suggesting ought to be presented or suggesting the strategy that should be taken in meeting the Crown’s place [ sic ]. [MS. PASTUCH]: Right. THE COURT: That’s not something that should be disclosed to me. I’m sensitive to the fact that I am the trial judge. You have rights here, and those rights cannot be prejudiced.

So I don’t want to go too far down that road. … [ 39 ] The trial judge then asked Ms. Pastuch “if the Court appointed a third counsel at public expense, what confidence should the Court have that the case will proceed with that counsel?” Ms. Pastuch’s response included the following comments that referred to both Mr. Funt and Mr. Wilson: … I’m saying, they had asked me to do something that was unethical and that could get me into a lot of trouble, in one instance. And in the other instance, he couldn’t go on -- he would need to speak. I -- I mean, I -- I just want to put words for him.

I -- I was willing to waive the privilege with Mr. Wilson. And I just want to finish my story. So when -- when they asked -- we -- they got this plea deal. I would think that -- I would hope that a lawyer is like, well, here’s your options and pros and cons, just to, you know. But she said to me – [ 40 ] At this point, the trial judge again interrupted Ms. Pastuch, stating that she was “getting into the defence”. Ms.

Pastuch explained that she had to do so, commenting as follows: I have to go into details of defence strategy in order to properly fully answer my conduct in these matters and in order for the justice to know full and accurate story. I would -- now that I understand this a bit better, I would file, I guess, an affidavit. I didn’t -- I thought because I was my lawyer, I couldn’t. But I have no other way. If I can’t get into details, then it’s just not -- then I can’t fully explain the situation, and I believe in both instances -- I’m not perfect, and there’s times I get emotional.

But in both instances, I did not -- I’ve never sworn, yelled, threatened lawyer, like, I have a -- a bit of an emotional burst, and then I’m, with that, okay. With Mr. Wilson, I didn’t. I was very respectful. I followed all his instructions because I didn’t want to be here again. But then, when misinformation was going to be presented and a certain -- certain defence strategies, I just -- I just want the accurate facts presented at trial with my witnesses and the prosecution have accurate facts and their witnesses, and then everyone has everything, and then we can determine it.

And in those two instances, I -- I have not had that situation. [ 41 ] She would later reiterate this theme:

[MS. PASTUCH]: Okay. I have to go into defence strategies because it -- it -- it speaks to, in detail and accurately, where the real issues were. THE COURT: All right. [MS. PASTUCH]: I might not -- I might not win. I understand that. But I -- I would like to have -- if they want to call Mr. Wilson, I have no problem. [ 42 ] Following further submissions by Ms. Pastuch, the trial judge asked that Mr. Pederson re-enter the courtroom. He was not directed to return to the stand and Ms. Pastuch was not asked whether she wished to take the stand. The trial judge then asked Ms.

Olson to comment, referring in particular to the fact that there were allegations of unethical conduct by Mr. Wilson. Ms. Olson suggested, among other things, that Mr. Wilson should have a full right of answer and defence to such allegations. She also contended that it would be appropriate to ask whether Mr. Wilson asked Ms. Pastuch to lie or to act unethically, but that there should be no further questions about defence strategy. In the course of the extended discussion of this issue with Ms.

Olson that followed, the trial judge posed this question: THE COURT: But again, I then have to worry about, am I making a finding -- I -- I mean, I did not in my wildest dreams -- MS. OLSON: Yes. THE COURT: -- imagine that there was going to be a suggestion that Mr. Wilson gave advice to be deceptive in any way. Certainly, that’s not his reputation and that was not the manner in which he conducted himself in the pre-trial management conferences before me, granted, it was my [ sic ] telephone. I -- I -- I guess that’s -- that’s a very significant allegation.

And are you suggesting that I simply ignore that allegation or that I ignore that assertion on Ms. Pastuch’s part? [ 43 ] Ms. Olson did not respond directly. She replied that it would be an “extraordinary inference to suggest that two subsequent counsel have acted inappropriately”. [ 44 ] After hearing further argument from Ms. Olson, the trial judge asked Ms. Pastuch how he would know that a third court- appointed counsel “is not going to end in the type of failure that Court Services fears?” Ms. Pastuch responded that she could not guarantee a future relationship.

The trial judge responded as follows: But this trial has to go ahead. … This has taken a long, long time to get to trial. You’ve already had one witness pass away, and there was extraordinary arrangements that had to be made for that witness’ testimony before the FCAA to be presented, and that was somewhat extraordinary because it wasn’t evidence given at a preliminary inquiry, which the Criminal Code provides for. I thought Mr. Wilson was -- was quite, frankly, very good in agreeing to that evidence going in.

But we -- that just underscores the point, that this has gone on for quite a while. [ 45 ] The discussion turned next to the length of adjournment that might be granted if the application was refused. Ms. Pastuch stressed her lack of legal training, mental and physical health issues, and the need to prepare not only for trial, but for an O’Connor application to obtain documents from third parties. She noted the assistance she had from friends in prior proceedings and that she would need help going forward. When pressed as to when she might be ready to start if the Rowbotham application was refused, Ms.

Pastuch said this: THE COURT: That’s the question. You would not be ready to go if the trial started tomorrow, if it started next week, or if it started next month. [MS. PASTUCH]: If you deny it, I believe I would have to comply with the law. I would have to show up whether I was prepared or not. I wouldn’t just not show up. Having said that, if I’m denied Rowbotham , I would ask for at least a four-week adjournment, and I would ask if I could have a lawyer to help me prepare without him, like, being, or she, being on the record and to help me -- [ 46 ] Following an adjournment, Ms.

Olson pointed out what she called a “procedural matter”, stating that she did not know whether the issue of Mr. Pederson being called “or how that would be dealt with” had been “officially wrapped up”. The trial judge did not ask for further submissions as to what should occur, responding as follows: I -- I -- I’m just -- I’m just -- what I’ve done is, in here, I’ve simply said when it became apparent that he was going to be giving evidence that related to specific details of the defence, it was agreed that he should be stood down. [ 47 ] The trial judge then asked Ms.

Pastuch if she intended to call further evidence, “bearing in mind that what we’ve received thus far isn’t really evidence, but I am going to refer to some of the things that you said”. Ms. Pastuch advised that a representative of the Canadian Mental Health Association who had some comments to offer was present. The trial judge decided that he would hear from that representative and determine if she should give evidence under oath after doing so. The representative was a social worker, Rebecca Rackow. She advised that she had reviewed material that had been filed with the court and sealed.

She was asked by the trial judge as to her qualifications and advised that it was the Association’s position that Ms. Pastuch should have a lawyer representing her to preserve her mental health. b. The Ruling: denial of the third application [ 48 ] The Ruling was an oral decision, delivered on the day the third application was heard. The trial judge began with a brief chronology of the initial stages of the prosecution, noting the withdrawal by Legal Aid on March 22, 2016. He described the appointment of Mr. Funt and summarized the events that occurred prior to his withdrawal. He noted that Mr.

Funt had advised the Court that there had been a breakdown in his relationship with Ms. Pastuch, and that he, the trial judge, had now been provided with further background information relating to the problems between Mr. Funt and Ms. Pastuch.

[ 49 ] That background information, in the form of correspondence involving Ms. Pastuch, Court Services and Mr. Funt, included an email from Ms. Pastuch expressing displeasure about the performance of her legal counsel which might lead to their dismissal. There was also an email from Mr. Funt advising Court Services that they considered their firm as having been dismissed, as Ms. Pastuch had requested that Mr. Funt not speak in court on any contentious matter and as they had been unable to get instructions from her on material matters. There was an email from Ms. Pastuch denying that she had discharged Mr.

Funt’s firm but confirming that she had asked Mr. Funt to step aside in favour of another member of the firm as she had “completely lost trust and faith in him”. [ 50 ] Having referred to this evidence, the trial judge noted that Ms. Pastuch had advised the court at the hearing of the third application that she thought Ms. Jasper, rather than Mr. Funt, was her court-appointed counsel. He also referred to Ms. Pastuch’s evidence that Mr.

Funt “had discussed with her the prospect of her giving evidence or presenting a defence that relied on untrue or inaccurate information”. [ 51 ] The trial judge then gave a brief chronology of Mr. Wilson’s involvement, including evidence that he was one of three lawyers Ms. Pastuch had identified to Court Services as potential appointments, and the one who had the most experience in large fraud trial cases. He referred to the pre-trial conferences that took place after Mr. Wilson’s appointment and noted his explanation for having withdrawn – that is, a complete breakdown of the solicitor-client relationship.

He noted Mr. Wilson’s statement that “there was no scenario in which he could ethically proceed either as counsel or as amicus curiae”, that he “took particular care to point out that he was not applying for leave to withdraw…[and]…was advising the Court that he was required to withdraw in accordance with his professional obligations”. For that reason, he concluded that he was obliged by R v Cunningham , 2010 SCC 10 , [2010] 1 SCR 331, to respect Mr. Wilson’s request, and not ask about the details. [ 52 ] The trial judge then summarized Ms. Pastuch’s evidence as to the nature of her differences with Mr.

Wilson: Outside of Mr. Wilson’s comments in Court, no affidavit evidence was presented to address the circumstances of the breakdown in the relationship between the accused and Mr. Wilson. That said, given the specific representation Mr. Wilson gave to the Court, it left inference that responsibility for the withdrawal lay with the accused. Again, the accused did not address this point in any sworn evidence. She did say, as in the case of Mr. Funt’s withdrawal, that the withdrawal was not her fault. She said that she did not have the opportunity to meet in person with Mr.

Wilson until the week before the scheduled trial date. She further said that in communication with Mr. Wilson, he had asked her to do something that she said was neither accurate nor right. At one point, her colleague was prepared to take the stand to testify to this communication. However, when it became apparent that he would be disclosing specific details of defence strategy in doing so, the Court did not proceed with hearing his evidence, and he stood down from the witness stand. … I noted that the accused’s representations were not presented under oath.

That said, they raised serious issues about the professional conduct of her two, previous, court-appointed counsel. When asked if she had considered the prospect of complaining to the applicable law societies, she advised the Court that she could not largely because of a lack of energy to do so. This afternoon, just before my ruling, the Court also heard from…the Director of Advocacy Research and Public Policy Development at the Canadian Mental Health Institute (sic), Saskatchewan Division…[that]…she has concluded that the accused requires counsel for the benefit of her mental health. [ 53 ] Having completed his

summary of the facts, the trial judge s et out his understanding of the law, referring first to the foundational decision in Rowbotham . He noted that the accused must establish that they are ineligible for or had been refused legal aid and exhausted all rights of appeal on that account; that they are financially unable to retain counsel; and that legal representation is essential to a fair trial.

He then offered the following opinion, citing R v Umpherville , 2005 SKQB 402 at para 22 , 271 Sask R 98; and R v Drury , 2000 MBCA 100 at para 52 , [2001] 1 WWR 442, as authority: Even where those criteria are met, there are certain overarching considerations at play, some of which may militate against court appointment of counsel.

In this respect, an indigent accused person, even one who faces complex and serious charges, does not have a constitutional right to state-funded counsel of choice…They should fairly expect that the public-funded counsel, whether assigned by Legal Aid or court appointment, would be reasonably competent to provide this service required. [ 54 ] The trial judge next commented that “[t]he circumstances in which trial counsel are professionally and ethically obliged to withdraw…are generally well known”.

He stated that the codes of professional conduct adopted by the law societies of Saskatchewan and Alberta identified three such circumstances; that is, where the lawyer is discharged by the client, where the client persists in instructing the lawyer to act contrary to professional ethics, or where the lawyer is not competent to continue.

He noted that a leading text identified five circumstances in which a lawyer has a duty to withdraw, commenting as follows: To my mind, these circumstances, to a certain extent, reflect sub-categories of the criteria spelled out in the aforementioned codes of professional conduct.

They are, one, where the client has discharged counsel, two, where the lawyers are instructed by the client to do something that is inconsistent with their duty to the court and despite explanation, their client persists in giving such instructions, three, where the client is guilty of dishonourable conduct in the proceedings or is taking a position solely to harass to maliciously injury another, four, where it becomes clear that the lawyers continued employment will lead to a breach of one or more rules of professional conduct, and then, five, if the lawyers are not competent to handle the matter.

Except for the matter of lawyers’ competence, the circumstances that compel withdrawal will arise from advertent conduct or behaviour by the client, stated another way, except for the client inadvertently placing lawyers in conflicts of interest, most of the above circumstances arise when the client has, without any inadvertence, acted or failed to act in such a way that places counsel in an untenable position such that there is no alternative but to withdraw. [ 55 ] The trial judge then turned to his analysis. He confirmed that there was no issue as to whether the three Rowbotham criteria had been met.

He noted that Court Services did not challenge that conclusion, and that it was its position that the “real focus of this application” related to the fact that it was made necessary by the breakdown of the relationships between Ms. Pastuch and her two previous court-appointed counsel. On this point, the trial judge commented as follows:

While the Court cannot explore the specific details of these breakdowns, I am satisfied that both the interests of justice and the publicinterest obliged the Court to assess the circumstances it does know and draw inferences from them. In my view, the circumstances of thebreakdown and the accused’s relationship with her two previous counsel are questionable to say the least. (Emphasis added) [56] As to Mr. Funt’s withdrawal, the trial judge pointed out that he was the judge who heard the Delay application, and that he hadseen nothing to suggest Ms. Pastuch was poorly represented.

In his view, there was “no obvious merit in the evidence that is disclosed tome in the accused’s suggestion that Mr. Funt made errors or lacked competence in his representation of her”. Further, he found that, inlight of the lack of confidence in Mr. Funt expressed by Ms. Pastuch, “it would not be unfair to say that if Mr. Funt was not directlydischarged, he was certainly constructively discharged”. [57] Turning to Mr.

Wilson’s participation, the trial judge first noted that he had been recommended to Court Services by Ms.Pastuch as the best qualified of the three lawyers she had identified as potential appointees, and that Court Services had gone toconsiderable lengths to respect her choice. He then made the following key findings: I cannot deny that I am concerned about the accused’s allegations against Mr. Wilson.

That said, as he was not present at the applicationand no disciplinary complaint is contemplated, I am not comfortable in saying anything more about the conduct alleged against him.Outwardly, there is no reason for the Court to disregard his advice that he was required to withdraw thereby signifying that he was under aduty to do so. There was also no reason to disregard his advice that while the relationship was deteriorating for a period of time, it has crystallized to thepoint of no return on September 6th, just four days before trial. Up to that, the Court had been given every indication that Mr.

Wilson wasprepared, ready, and fully engaged to represent the accused at trial. I am satisfied, at least on the balance of probabilities, that but for the crystalizing event of September 6th, 2018, whatever that event was,the trial would have proceeded as scheduled and with Mr. Wilson at the counsel table. Without a full hearing, such as the kind that wouldoccur in a professional conduct disciplinary hearing, the intimate details of the discussions and communications between the accused andMr. Wilson will not be fully -- or cannot be fully determined.

That said, counsel for Court Services has persuaded me that in the context of a third Rowbotham application, such an inquiry is notnecessary. The simple question is whether or not the Court can comfortably expect that a third appointment will not fail for similar or nearsimilar reasons as the two previous failures. As Justice McKinnon of the British Columbia Supreme Court observed in R. v. McCotter2006, BCSC 301 at paragraph 25, the public interest requires criminal prosecutions of this kind to proceed as quickly as possibleconsistent with the rights and obligations owed to an accused person.

Justice McKinnon observed that such a case, which contained repetitive appearances of state-funded counsel, had dragged on for fouryears and that the trial should proceed at the earliest practicable time. Applying that analysis to this case, I agree.

As a consequence, and knowing the appointment of another court-appointed counsel will delay this application -- or this trial well beyondreasonable limits, the accused’s application is dismissed. … (Emphasis added) [58] Having disposed of the application for court-appointed counsel, the trial judge turned to the question of whether anadjournment should be granted, where, as here, counsel has been discharged or withdraws during or on the eve of trial. He referred to thenine factors described in R v Beals (1993), (NS CA), 126 NSR (2d) 130 (WL) (CA) at para 30 [Beals].

Having doneso, the trial judge stated that he had reconsidered his decision that the trial should proceed the next day, and advised that he had found asfollows: … I think that the accused, with the assistance of her friends, and notably, perhaps, with the assistance of Mr. Pedersen, will be able to getherself ready for a trial. I am satisfied that she has some concerns, some mental concerns as Ms. Rackow identified and that she is going torequire some support in order to represent herself at trial.

I am satisfied that it may take some time, not only to review the disclosure and to understand what it means relative to the elements of thethree offences, which I have disclosed to her in separate communication, but I’m also satisfied that she is going to require some time toenlist the support that she needs. … With some reluctance but recognizing that it is important that there be some fairness accorded to the accused, I am going to adjourn thistrial to Monday, October 15, 2018. … So I am satisfied that an adjournment should be granted.

It is not a lengthy adjournment, but it is a four-week adjournment, which was theadjournment time that when I pressed the accused, she had requested. I believe that I am being generous in that respect, but in the interestof fairness, I think that the generosity was called for. [59] In the result, the trial was adjourned for four weeks to October 15, 2018. 6. The trial: counsel and amicus curiae issues [60] The trial commenced as scheduled on October 15, 2018. On October 17, Ms. Pastuch advised the court that she had receivedthe disclosure but had not received any notes or “defence strategies” from Mr. Funt or Mr.

Wilson. She asked the trial judge for assistancein obtaining those materials. He indicated he could not make such an order. However, the trial judge did permit Mr. Pederson to be a“McKenzie friend” (see McKenzie v McKenzie, [1970] 3 All ER 1034 (UK CA)) and to sit at the counsel table with Ms. Pastuch onoccasion. Mr. Pederson was also permitted to make submissions on behalf of Ms. Pastuch during an O’Connor application.

[ 61 ] The Crown closed its case on February 27, 2019, having led evidence from 78 witnesses in the course of 19 weeks of testimony. Ms. Pastuch advised the trial judge that she would not call evidence but was not sure what went into a closing argument. She requested that the Crown present its closing through written submissions, as she did not “fare well orally” and was “not able to take appropriate notes”.

The trial judge did not accede to that request but offered to adjourn following the Crown’s submissions to enable her to prepare her response, ultimately directing that the Crown would present its closing argument the Monday following and that Ms. Pastuch would close on Thursday. [ 62 ] As it happened, however, court was reconvened on February 28, 2019, to address a request by Ms. Pastuch that amicus curiae be appointed to assist her with her closing argument.

The trial judge commented that it was late in the trial to make such an appointment, but that in light of the role she wanted amicus to play, “the timing of the appointment of the amicus may not be as significant as it would be otherwise”. When asked what role that was, Ms. Pastuch confirmed that she was suggesting “that the person would act as [her] counsel in everything” but would not be “named as counsel of record”.

She identified Daniel LeBlanc as a lawyer who could accept the appointment and said he would need to be paid. [ 63 ] The trial judge advised that it was his view that Ontario v Criminal Lawyers’ Association of Ontario , 2013 SCC 43 , [2013] 3 SCR 3 [ Imona-Russel SCC ], stood for the proposition that while he had inherent jurisdiction to appoint amicus , he could not order that the Attorney General pay. Ms. Olson indicated that amicus might be paid on the legal aid tariff.

The trial judge expressed concern that the appointment of amicus might result in delays, given that there had been 19 weeks of evidence. [ 64 ] In the course of the discussion of this issue, the following exchange occurred between the trial judge and Ms. Pastuch: [THE COURT]: I certainly did not believe at any time during this trial, that I felt it was necessary, even with the problems you’ve identified, Ms. Pastuch, I did not believe it was necessary for me to intervene and appoint an amicus curiae, that was not even top of mind to be quite frank.

I knew I could do it, but I did not believe that the circumstances were such that it was absolutely necessary. But more directly to your point, Mr. Brûlé, I sensed from the things that Ms. Pastuch has said this afternoon, as well as the things she said yesterday and the questions she asked of me as to how she went about presenting her closing, I got the sense that there was just general discomfort. She seems much more unsure of herself in the presenting of a closing than she felt in the conduct of a cross-examination, for example. And, am I right in that regard, Ms.

Pastuch, that that’s -- you -- you’re finding it difficult to be specific identifying a problem for which you believe the amicus would be necessary, other than a general discomfort with the whole process of presenting a closing? [MS. PASTUCH]: Yes, My Lord, especially like the money laundering, I don’t understand that at all.

And I would hope, in order to present relevant evidence in argument to the Court, I would just have to have sort of an understanding, and maybe they could ensure that what I’m presenting is -- helps the Court and -- and make it’s -- make as best a decision as I can. [ 65 ] After again expressing concerns as to potential delay, the trial judge had the court clerk place a call to Mr. LeBlanc. Mr. LeBlanc questioned whether he would be useful as a friend of the court, as he had not heard any of the evidence. The trial judge advised Mr.

LeBlanc that the role contemplated for amicus was to listen to the Crown’s closing submissions and provide advice to Ms. Pastuch, particularly as to the elements of the three offences, to assist her with her closing. Mr. LeBlanc indicated he would be willing to act on that basis. Ms. Olson advised the Court that she was confident an acceptable fee arrangement could be made by Court Services with Mr. LeBlanc. [ 66 ] In the result, the trial judge set over the Crown’s closing submission for one further day, to March 5, 2019, as Mr. LeBlanc was not available on March 4. Court Services and Mr.

LeBlanc were left with the task of confirming their arrangement as to what role Mr. LeBlanc would play as amicus and how he would be paid. [ 67 ] At the commencement of the proceedings on March 5, the trial judge made the following order, which reflected the agreement that had been reached between Court Services and Mr. LeBlanc: … It is agreed by this order, Mr. Daniel LeBlanc is appointed as amicus curiae in this case. The scope of services to be provided by Mr. LeBlanc will include the following: 1) Mr.

LeBlanc will conduct legal search in advance of closing argument to avail himself of the general law regarding the charges at issue. 2) Mr. LeBlanc will review any closing materials filed by the defence or the Crown. 3) Mr. LeBlanc will be present for the Crown’s closing argument, and for the record, it is noted that he is present today. 4) Mr. LeBlanc will review draft -- review a draft of Ms. Pastuch’s written submissions to assess readability and to ensure that it addresses the key points from the Crown’s argument. And, 5) Mr. LeBlanc will also be present for Ms.

Pastuch’s closing argument, and I am adding this to that term, and he may be permitted by the Court to make any remarks as he sees fit. Mr. LeBlanc, on that basis, you are appointed as amicus curiae in this matter. It is to be noted that as amicus curiae by definition, Mr. LeBlanc serves as a friend of the court. As such, he cannot remove himself from this role without the Court’s permission, nor can he be dismissed by the accused. That authority rests with the Court. … [ 68 ] The Crown then made its closing argument. On March 8, Ms. Pastuch presented her closing submissions. Following the Crown’s reply, Ms.

Pastuch was permitted to make a brief additional submission. The matter was then adjourned to June 7, 2019, for judgment. [ 69 ] On May 31, 2019, court was reconvened to consider applications by Ms. Pastuch to extend the role of amicus and to adjourn the date set for the pronouncement of judgment. These applications were the result of an application to stay the prosecution that had been filed by Ms. Pastuch after the close of trial. Ms.

Pastuch asked that the Court extend the scope of service to be performed by amicus to include making legal arguments on her behalf and providing her with legal advice and guidance with respect to certain matters she sought to present to the Court. [ 70 ] The trial judge heard submissions the morning of May 31 and, later that day, denied the application for the appointment of amicus and set down the application to stay the prosecution for June 7, 2019. On June 27, 2019, the trial judge dismissed that application.

He also delivered the Conviction decision, in which he briefly reviewed the history of the appointments of and withdrawals by court- appointed counsel. That review included the following explanation relating to Mr. Wilson’s withdrawal and the refusal of the third

application: [7] … On September 10, 2018, the scheduled first day of trial, the accused’s then counsel rose before the arraignment and advised thecourt that he could no longer represent the accused, and requested leave to withdraw. In making this request, counsel advised that therewas a complete breakdown of the lawyer-client relationship. He went on to say that, while there had been significant and ongoing issues inthe relationship before this date, the complete breakdown occurred on September 6, 2018.

Counsel took the position that there was nobasis in which he could ethically remain involved, either as counsel of record or as amicus curiae. Given the direction and guidance fromthe Supreme Court of Canada in R v Cunningham, 2010 SCC 10, [2010] 1 SCR 331, I was satisfied that the court had no alternative but toallow counsel’s request to withdraw. [8] The removal of counsel of record prompted the accused to make an application for a third court-appointed counsel.

Counsel forCourt Services, who had been forewarned of this development, advised that the accused’s application would be vigorously opposed.Accordingly, a hearing for the application took place on September 17, 2018. [9] As mentioned, the court denied the accused’s application. Relying, in part, on the decision of this Court in R v Umpherville, 2005SKQB 402, 271 Sask R 98, and R v Drury, 2000 MBCA 100, [2001] 1 WWR 442, I concluded that a client is expected to maintain areasonable and meaningful relationship with counsel. This expectation applies irrespective of the means by which the counsel’s fees arepaid.

I also concluded that where the client causes the relationship to break down, he/she may face consequences that the court cannotreasonably repair. While I was satisfied that the three criteria in R v Rowbotham (1988), (ON CA), 41 CCC (3d) 1 (OntCA), had been met, there was an overarching question in this case. That question related to whether a third appointment would fail forsimilar, or near similar, reasons as the two previous failures. Having regard to the accused’s previous experiences with her court-appointedcounsel, I was not comfortable in making a third appointment.

Accordingly, the application was denied and the trial date was rescheduledto commence on October 15, 2018. The extra time was given in order to permit the accused preparation time to represent herself. B. ANALYSIS: COURT-APPOINTED COUNSEL 1. Standard of review [71] The standard of review on an appeal of a refusal to grant a Rowbotham application was summarized by Doherty J.A. in R vTeng, 2021 ONCA 785, 158 OR (3d) 193: [29] The decision to grant or refuse a Rowbotham application turns on the application of legal principles laid down in Rowbotham tothe facts of the particular case.

The ultimate decision to grant or refuse the application raises a question of law reviewable on a correctnessstandard. However, findings of fact upon which the Rowbotham decision is made are reviewable on a more deferential standard: R. v.Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20. … The errors alleged by Ms. Pastuch as to this ground of appeal relate to both the identification and the application of the principles specifiedin Rowbotham.

Errors of both kinds engage the correctness standard, while errors of fact are reviewable on the palpable and overridingerror standard: R v Santos, 2022 SKCA 50 at para 19, 413 CCC (3d) 229; R v Le, 2019 SCC 34 at para 23, [2019] 2 SCR 692; R vKossick, 2018 SKCA 55 at para 19, 365 CCC (3d) 186. 2. Law: Rowbotham, amicus curiae and the conduct of the applicant [72] I would first note that the trial judge correctly identified the three Rowbotham criteria. Further, he confirmed that there was noissue between the parties as to whether those criteria had been met.

That being so, it follows that there was no dispute as to whether theappointment of counsel for Ms. Pastuch was essential to a fair trial. The issue on this appeal is whether the trial judge erred in finding thatMs. Pastuch was nonetheless, as a result of her own actions, not entitled to the appointment of a third counsel at the expense of the public.In these circumstances, the legal test is not simply whether her actions might be said to have caused the adjournment. Rather, it is whethershe was at fault for the withdrawal of her counsel. Further, having decided that Ms.

Pastuch had forfeited her right to counsel, the trialjudge should have considered the appointment of amicus. I note the following authorities bearing on these issues. [73] There is no doubt that an accused person who has demonstrated that they meet the Rowbotham criteria may act in a fashion thatjustifies the denial of their Rowbotham application. That principle was discussed and applied in R v Bitternose, 2009 SKCA 54, 244 CCC(3d) 218 [Bitternose]. There, the trial judge had denied a last-minute application by the appellant to adjourn his first-degree murder trial toenable him to again retain his former counsel.

The appellant had discharged both that counsel and his prior counsel, each of whom hadbeen paid for by Legal Aid. He claimed that he had lost confidence in each of them as a result of their advice relating to a potential pleabargain, which was an approach the appellant was not prepared to consider. He had refused to re-engage the first of those two counseleven after it became clear that counsel was prepared to take the matter to trial. The appellant had also rejected an offer of representationby Legal Aid.

He then re-engaged the second counsel three days before the trial, but only on the condition that the trial be adjourned. [74] In her reasons in Bitternose (at para 28), Wilkinson J.A. referred with approval to the following principles listed in Beals atparagraph 30 relevant to an application for an adjournment to obtain counsel: 1. The decision whether to grant or refuse a request for adjournment because an accused is not represented by counsel in a criminaltrial is a discretionary one but one that must be based on reasons well-founded in the law. (R. v. Barrette, (SCC), [1977]2 S.C.R. 121, 10 N.R. 321). 2.

An accused has a constitutional right to a fair trial. Representation by counsel at trial is generally essential to a fair trial if anaccused is charged with a serious offence and a complex trial can be anticipated. (R. v. Rowbotham (1988), (ON CA), 25O.A.C. 321, 41 C.C.C. (3d) 1). 3. The right to counsel at trial is not absolute. (R. v. Richard and Sassano (1992), 55 O.A.C. 43); there is no constitutional right to berepresented by a state funded counsel at trial. (R. v. Rowbotham, supra, and R. v. Prosper (1992), (NS CA), 113 N.S.R.

(2d) 156, 309 A.P.R. 156 (C.A.)). 4. The right of an accused to retain counsel to represent the accused at trial must be exercised honestly and diligently so as not todelay a scheduled trial. (R. v. Richard and Sassano, supra). 5. Each application for an adjournment on the ground that the accused will not have counsel at trial must be decided on its facts.Relevant facts to be taken into account by the trial judge are: (

a) whether or not there have been prior adjournments due to theunavailability of counsel and the accused was warned well in advance of trial that the trial would be proceeding on the scheduled datewith or without counsel. (R. v. McGibbon (1988), (ON CA), 31 O.A.C. 10, 45 C.C.C. (3d) 334); (

b) the accused’scriminal record which reflects on the accused’s degree of familiarity with the criminal justice system and legal aid programmes R. v.Richard and Sassano, supra; (

c) whether the charge against the accused is simple or complex which fact impacts on the critical questionwhether or not the accused can get a fair trial without counsel R. v. Barrette, supra; (

d) the public interest in the orderly and expeditiousadministration of justice. (R. v. J.E.B. (1989), (NS CA), 94 N.S.R. (2d) 312, 247 A.P.R. 312, 52 C.C.C. (3d) 224 and R.v. Richard and Sassano, supra); (

e) if the accused has been refused legal aid and when the refusal was communicated to the accused. 6. As a general rule an accused should not be refused an adjournment if the fact that he is without counsel on the scheduled trial datesis not his fault but that of his counsel and he had no complicity in the matter (R. v. Barrette, supra). 7.

As a general rule an accused should be refused an adjournment if he has not acted diligently and honestly in attempting to obtaincounsel and it can be inferred from the circumstances that he failed to avail himself of the opportunity to do so for the purpose of delayingthe proceedings. (R. v. Manhas, (SCC), [1980] 1 S.C.R. 591, 32 N.R. 8, 17 C.R. (3d) 331). 8.

On an appeal from a refusal it would appear that a Court of Appeal will not find the learned trial judge erred notwithstanding hisreasons may not be fully articulated if the record discloses evidence from which it can be inferred that the absence of counsel was broughtabout by the accused for the purpose of delaying the proceedings. (R. v. Barrette, supra; R. v. Manhas, supra; R. v. Richard andSassano, supra). 9.

The scope of review by an Appeal Court of a refusal, notwithstanding it involves the review of the exercise of a discretionarypower, is wide as the consequences of a refusal are to deprive an accused of his right to be represented by counsel. On appeal theappellant must show that in refusing the adjournment the trial judge deprived the appellant of his right to make full answer and defenceand thus made an error in principle which constituted a miscarriage of justice. (R. v. Barrette and R. v.

Manhas, supra). (Emphasis added) [75] This list was also endorsed in R v Hayter, 2018 SKCA 65 at para 27, 365 CCC (3d) 413 [Hayter], and as was there noted, in Rv White, 2010 ABCA 66, 252 CCC (3d) 248; R v Tortora, 2010 BCCA 547, 265 CCC (3d) 264; and R v Le (T.D.), 2011 MBCA 83, 275CCC (3d) 427.

The fourth, sixth and seventh items on the list are of particular importance here, emphasizing as they do honesty anddiligence. [76] In Bitternose, Wilkinson J.A. also commented – after having quoted this passage from Beals – that “[a]n accused cannotcomplain if he has, by his own conduct, forfeited his right to counsel and become the author of his own misfortune” (at para 29). [77] Applying these principles to the facts, Wilkinson J.A. found that the record disclosed that there was “a manifest concern thatthe appellant was engaged in a course of deliberate and tactical delay” (at para 30).

As she said: [37] The trial judge…was not persuaded that the request for an adjournment was part of a sincere, honest, and reasonable effort on theappellant’s part to secure legal representation. To the contrary, it had every appearance of a delaying tactic on the appellant’s part. Theappellant had been given every reasonable opportunity to make the necessary arrangements in the months leading up to trial, and hadspurned all those efforts.

In accepting the Crown’s submissions, the trial judge was understandably acceding to the argument that a last-minute adjournment would be prejudicial to the Crown, the Crown witnesses, and the public’s interest in the orderly and expeditiousadministration of justice. [78] In the result, Mr. Bitternose’s appeal on this ground was denied. [79] In R v Ryan (D.), 2012 NLCA 9, 281 CCC (3d) 352 [Ryan], the appellant had discharged his legal aid counsel and chose torepresent himself despite being advised not to do so.

He appealed his conviction for second-degree murder on grounds relating to theimpact of his self-representation on his fair trial rights. A majority of the Court concluded that he had been denied a fair trial despite theefforts of the trial judge to assist him, as his advocacy had been grossly deficient.

In the result, they ordered a new trial. [80] In his majority reasons, Green C.J. made the following observations as to the impact of the accused’s actions on the right tocounsel, and, in particular, as to the “author of his own misfortune” comment in Bitternose: [148] Comments made in the case law such as “an accused cannot complain if he has, by his own conduct, forfeited his right to counseland become the author of his own misfortune” (R. v. Bitternose, 2009 SKCA 54 at para. 29) are often made in the context of allegations ofobstruction of the process by the accused.

The references to the accused forfeiting his right to counsel “by his own conduct” and by being“the author of his own misfortune” are references to obstructive or other abuse of process behavior, not simply the choice not to engage alawyer. … [149] The situation may be otherwise, however, where the accused proceeds, perhaps unwisely but in good faith, to represent himself andgets in “over his head” to the point where — perhaps not even appreciated by him — his handling of the trial is so poor that it jeopardizeshis ability to make full answer and defence and raises the spectre of a possible wrongful conviction. [150] There is a difference between making unwise choices in good faith relative to one’s defence and deliberately making obstructiveones in bad faith.

[151] It must be remembered that an accused who in good faith faces his accusers in court is entitled to a fair trial. Trial fairness involvessomething more than rote compliance with a procedural checklist. A fair trial is provided so that the accused will have a reasonableprospect of being able to make full answer and defence and thereby avoid the prospect of a wrongful conviction.

It is also provided sothat, by an appearance of fairness to the accused, the community at large can have confidence in the administration of justice. [152] The common theme running through the principles relating to appellate review of cases governing the right to counsel, the right toa minimum standard of counsel competency, the duty of the court to provide assistance to an unrepresented accused, the appointment ofamicus and the duty to declare a mistrial is the notion of ensuring a fair trial and thereby preventing a miscarriage of justice. These areprinciples which are fundamental to our system of justice.

One would think that they cannot be compromised, at least in situations wherethe accused acts in good faith and in accordance with acceptable court processes. [81] The reasoning in Ryan was referred to with approval in R v Hennessey, 2017 NLCA 23, 347 CCC (3d) 412, a unanimousdecision of a five-judge panel, including Rowe J.A. (as he then was), who had dissented in Ryan.

That reasoning reflects the fact that thequestion is not whether the accused might be said to have been responsible for the withdrawal or lack of counsel, but whether there wasblameworthy conduct. [82] I do not say, and do not take Green C.J. to have suggested, that an accused can choose to have a go at self-representation, and, ifthey fall short of the minimum standard of competent counsel, can invariably demand a do-over as long as they did not act in bad faith.Justice Richards (as he then was) nicely made that point in R v Harris, 2009 SKCA 96, [2010] 2 WWR 477 [Harris]: [27] …a decision to appear without counsel is not without consequence.

An accused who decides to proceed absent the assistance of alawyer cannot, after the fact, attack a conviction on the basis that he or she did not have representation as effective as what might havebeen provided by counsel. See: R. v. Peepeetch, supra, at para. 66; R. v. Romanowicz (1999), (ON CA), 138 C.C.C.(3d) 225 (Ont. C.A.) at para. 29. In other words, individuals who decide to represent themselves cannot have their cake and eat it too. See, to the same effect, Crichton at para 26. [83] It can reasonably be suggested that there is some tension between the principles affirmed in Harris and in Ryan.

However, it isnot necessary to explore that issue further in this case. Unlike Mr. Ryan, Ms. Pastuch did not choose to be self-represented. Each of hercounsel applied and were permitted to withdraw. Nor did the trial judge find that she had acted in bad faith, or for that matter,unreasonably. I have cited Ryan because it is a striking example of the principle that the issue is whether there has been blameworthyconduct by the accused, and to emphasize that every accused has the right to a fair trial – even those who are unrepresented because theyare difficult or misguided.

As Richards J.A. affirmed in Harris at paragraph 28, that is so because “regardless of an accused person’sdecision to proceed without a lawyer, a trial judge has an obligation to ensure the trial is fair and there is no miscarriage of justice. Theright to a fair trial is not diminished by a person’s decision to act on his or her own behalf” or, for that matter, because they have acted inbad faith in relation to the retention of counsel. This rig

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