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These matenals were prepared by Barry Morgan, QQ, of Morgan Theberge law firm, Saskatoori, Saskatchewan for the Saskatchewan Legal Education Society Inc seminar, Criminal Law Update, May2005







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FUNDiNG THE DEFENCE APPLICATIONS FOR COURT APPOINTED COUNSEL This paper deals with applications for court appointed counsel on behalf of persons who are ineligible for legal aid (Rowbotham Applications) and applications for court appointed counsel of choice at a rate higher than the Legal Aid tariff (Fisher Applications). I would like to acknowledge with thanks the assistance of Wade McBride of Department of Justice Canada for very generously sharing the research he has done on these applications, which has been relied on extensively in preparation ofthis paper. I. A. THE ROWBOTHAM APPLICATION GENERAL OVERVIEW

In March of 1988, the Ontario Court ofAppeal in R. v. Rowbotham at af. (l988),41 C.C.C. (3d) 1 dealt with numerous issues arising out of a trial of twelve individuals on an indictment containing four counts of conspiracy to either import or traffic in hashish or marihuana. One of the accused who was convicted at trial, Laura Kononow, argued before the Court ofAppeal that she had a constitutional right at trial to be provided with state funded counsel, as she lacked the means to hire a lawyer. The issue had been argued at a hearing before the trial judge, where it became known that Mrs. Kononow had been denied legal aid, apparently due to her income level. The trial was expected to last four months, and the argument ofthe lawyer who brought the application before the trial judge was that it was unrealistic to think that anyone could pay counsel for a four-month trial on a net income ofS 1,400.00 per month. After considering a number of competing arguments, the Court ofAppeal summarized the legal test for court appointed counsel as follows: To sum up: where the trial judge finds that representation of an accused by counsel is essential to a fair trial, the accused, as previously indicated, has a constitutional right to be provided with counsel at the expense ofthe state ifhe or she lacks the means to employ one. Where the trial judge is satisfied that an accused lacks the means to employ counsel, and that counsel is necessary to ensure a fair trial for the accused, a stay ofthe proceedings until funded counsel is provided is an appropriate remedy under s. 24(1) of the Charter where the

2 prosecution insists on proceeding with the trial in breach of the accuseds Charter right to a fair trial. (at page 70)

The test as enunciated in Rowbotham, and elaborated on in numerous subsequent decisions, requires the court to make a two-stage inquiry, namely:

(i) (ii)

Has the accused exhausted all possible routes to employ counsel? Is representation ofthe accused by counsel essential to ensure a fair trial?

The basis for such an application is grounded in an individuals Charter rights, primarily s. 7 or s. 11(d) ofthe Charter. That being the case, there is an onus upon the applicant to provide evidence that will satisfy the court, on a balance of probabilities, that his or her Charter rights will be infringed: Collins v. The Queen (1987), 33 C.C.C. (3d) 1 (S.C.C.), at page 13.

The application should be brought by way ofNotice at least 14 days before the hearing pursuant to s. 8 of The Constitutional Questions Act (copy ofs. 8 is appended to this paper). It should be accompanied by supporting documentation, as the applicant must have sufficient evidence to satisfy the court on the civil standard that his or her Charter rights will be infringed. Additionally, all efforts made by the applicant to obtain legal services through the Legal Aid Commission and otherwise should be documented. In the event an individuals eligibility is

denied, he or she must appeal to the executive director of the Legal Aid Commission, again by way of demonstrating that he or she has explored and exhausted all possibilities for obtaining representation through Legal Aid. In conjunction with that, it will be absolutely essential to file sufficient fmancial information, usually by way of a sworn Financial Statement which details income and property, to enable the court to properly inquire into the issue as to whether the accused lacks the means to employ counsel.



Rowbotham and subsequent decisions contemplate that appointment ofstate funded counsel will be confined to cases where the court is satisfied that the accused lacks the means to employ a

3 lawyer, and, that representation by counsel is essential to a fair trial. As noted by the Court in R. v. Hopjner (1996), 146 Sask. R. 35 (Q.B.): Every indigent person who is charged with a criminal offence is not automatically entitled to have counsel appointed by the court. Rather, such an appointment should be made only where it is necessary to ensure that the person will obtain a fair trial and be able to make full answer and defence. (at page 36)

In Rowbotham, the Court stated that as a matter of common sense, an accused who had the ability to pay for his or her defence was not entitled to take the position that personal funds would not be accessed, and indeed, that A person who has the means to pay the costs of his or her defence but refuses to retain counsel may properly be considered to have chosen to defend himself or herself (at page 64). Tn brief, Rowbotham contemplates that court appointed counsel is reserved for those who simply have no realistic prospect of funding the defence, not for those who have funds (even though their resources may be quite limited), and simply do not want to expend them.

It cannot be overemphasized that the court must be satisfied that the applicant lacks the fmancial resources to retain a lawyer and that the applicant has explored and exhausted all possibilities for obtaining counsel. This includes consideration of the applicants efforts to obtain services

through Legal Aid, whether efforts have been made to hire counsel who might conduct the case at reduced rates, what steps were taken by the accused from the time of the charge being laid to the time ofthe application to secure counsellresources to hire counsel, and all resources that may be available to an applicant. The court is not in the position in such applications of second guessing Legal Aids decision to deny coverage, since an individual may simply not meet Legal Aids eligibility requirements and yet still be unable to realistically fund a defence. Rather, the court is to assess whether the applicant has any possible means of funding the defence, or contributing to the costs ofstate funded counsel.

Certainly the approach appears to be that far more than a cursory review offmancial information will be undertaken by the court, see for example the Hopjner case, supra, where the Court reviewed in detail the fmancial resources ofthe applicant, and concluded that he was not indigent as he had resources, albeit quite limited, that could be accessed to fund his defence, including the

4 equity in his home, his earned income, and a forthcoming annuity. Having arrived at that

conclusion, the Court noted that was the end of the inquiry and it was not necessary to go on to consider whether counsel was required in order to ensure a fair trial.

The nature and breadth ofthe inquiry to be undertaken by the court in considering whether the applicant has discharged the onus of establishing that no means are available to employ a lawyer was underscored by the Nova Scotia Court of Appeal in R. v. Keating, [1997] N.SJ. 250. The Courts summarization of the inadequacies of the inquiry undertaken by the trial judge, as follows (at paragraph 28), may be instructive to counsel as to the degree of detail of financial information that it may necessary to put before the court in such cases: In my view, the inquiry, given the extreme consequences should reliefbe ordered, was not sufficiently detailed to enable the judge to arrive at a just result. The onus was upon Mr. Keating to establish that he lacked the financial resources to retain a lawyer. In his enquiry the judge asked for no confirmation about the terms ofMr. Keatings employment how long it could last, whether it might be extended and the availability of overtime; he made no specific inquiry about Mr. whether Mr. Keating had been refused Keatings efforts to obtain legal aid and what income he had actually other than income reasons assistance for reported to legal aid; he did not require Mr. Keating to satisfy the court that he had exhausted the legal aid appeal process; he did not request a copy of the documentation submitted by Mr. Keating in support of his legal aid application; he did not inquire into the possibility that legal aid might alter the usual income test in the event of a complex matter; he did not ask for proof of the amount of support, if any, that Mr. Keating was legally obliged to pay for his wife and children, nor for confirmation of the amount that Mr. Keating had actually been paying and for how long; he required no estimate from Mr. Keating nor [counsel] as to the possible cost ofan expert witness; he did not consider the fee that would be allowed for such a case by the legal aid tariff (which is $1,350) and compare it to the quotes received by Mr. Keating to determine whether such fees were within a reasonable range; he did not consider whether Mr. Keating had made a reasonable effort to contact counsel who might be prepared to conduct the defence there are a number of for a more modest fee than that quoted by [counsel] lawyers who agree to work on certificate for the legal aid tariff, from which one could infer that lawyers are available who would conduct the defence for a fee within thatrange or even somewhat above it, but not at the $5,000 level; the judge did not enquire into what, if any, financial arrangements Mr. Keating had made for his defence between the time of the charge in August of 1995 and the date of trial, and, assuming none, why he hadnt done so; he did not explore with Mr. Keating any sources ofcredit or other financial assistance that he might have.


One ofthe areas that must be canvassed by the court in making the determination as to whether representation by counsel is essential for a fair trial is the likely complexity of the case. In

Keating, supra, the Court noted the preliminary inquiry only took one-half of a day, and that the
Crown intended to call the same two witnesses at trial, anticipating half a day of Crown evidence. The Court declined to appoint counsel, holding
. . .

there was not clear evidence before

the judge that this was one of those rare circumstances where, due to the complexity of the proceeding, the accused required funded counsel to ensure a fair trial, particularly in light ofthe Crowns request that counsel be appointed pursuant to s. 486 (2.3) [for the limited purpose of cross-examination ofthe minor complainant] (at paragraph 24). The court may also consider the ability ofthe accused to defend himself and the duty ofthe trial judge to assist an unrepresented accused. In Keating, the Court noted that the applicant had a grade 11 education, and had completed two years ofschooling toward a mechanical course. The Court also made the further observation: In addition, the trial judge should have considered the courts obligation to assist an unrepresented accused during trial and whether, in fulfilment of that obligation, his assistance would be adequate to address Mr. Keatings needs. In R. v. Kennie (1993), 121 N.S.R. 2(d) 91 at p. 97, this Court approved the following comment by Griffiths, J.A. in R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont.C.A.) at p. 347: Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct ofhis defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must ofnecessity be a matter ofdiscretion. The length ofthe trial is also a relevant consideration in such applications. In Rowbotham, the Court referred in particular to the fact that the trial was initially estimated to take 4 months, and ultimately took 12 months to conclude. It was also stated, however, that it would not have been necessary for counsel for the accused to have been present in court every day during that very

6 long trial to provide her with adequate legal representation, and that rather, counsel need only have been present in court during those parts ofthe trial that were critical to her. In conjunction with considering the complexity of the case, the court will consider the seriousness of the consequences to the defendant should there be a conviction. In R. v. Rain (1998), 130 C.C.C. (3d) 167 (Alta. C.A.), at paragraph 89, the Court stated: Had the Learned Provincial Court Judge correctly approached the assessment of whether the charges faced by Ms. Rain were serious and complex thus rendering probable an unfair trial in the absence of counsel he could not have come to the conclusion that he did, at least on the issue of seriousness. As the learned Provincial Court Judge found, there was no reasonable probability that Ms. Rain would be incarcerated upon conviction. In Hopfrer, supra, at page 37, the Court summarized the following as relevant, but not exhaustive, considerations in ascertaining whether a fair trial requires the appointment of counsel: (1) (2) The education and language skills ofthe accused; The complexity ofthe case in terms of raising any question of law or fact which would put the accused at a significant disadvantage if unrepresented; Whether the case raises any question of law or fact which would pose difficulties to an unrepresented accused in terms of marshalling relevant evidence; Whether the accused could face imprisonment ifconvicted.



II. A.


In R. v. Fisher, [1997] S.J. No. 530 (Q.Bj, Milliken J. was faced with an application by the accused to have out-of-province counsel appointed for him, at a rate of pay higher than the provincial Legal Aid tariff. In response to the floodgate argument being advanced by counsel on behalfofthe Minister ofJustice, his Lordship held:

I dont think that the circumstances which have occurred in this case, namely a charge of murder and rape which took place over thirty years ago for which another person was convicted and now exonerated and the accused person having appeared at a reference with the same counsel he wishes now to have represent him, will happen again in this province in another thirty years. I am therefore of the opinion that my rulings on this application will not set a precedent which will affect the Legal Aid Tariff. (at paragraph 20) The Court decided that lead counsel should be paid $150.00 an hour, his co-counsel should receive $75.00 per hour, and that there would be no limit on the hours ofeither counsel (although the order could be reviewed iffees exceeded a specified total).

The Law Society of Saskatchewan has posted a suggested procedure for making this type of application on their website, and two pages dealing with this are appended to this paper with kind permission ofthe Law Society.



Mr. Fisher was eligible for legal aid, however, Legal Aids initial position was that they would not fund Mr. Fishers counsel of choice, as his lawyer was from out of province. In deciding whether he should appoint that lawyer, Milliken 3. considered the following:

(1) The fact Mr. Fisher was accused of a murder which had occurred over 30 years previously; (2) That another individual had previously been convicted ofthat murder;

(3) That the Supreme Court of Canada had held a reference into the murder and the conviction ofDavid Milgaard; (4) That Mr. Fisher was a witness at the Supreme Court reference;

(5) That Mr. Beresh had represented Mr. Fisher at the reference, for which he was paid a fee of$ 160.00 an hour for his work by the federal Department ofJustice; (6) That there were complex issues concerning the admission of evidence which would arise in Mr. Fishers trial.

8 On that basis, the Court decided that Mr. Beresh should be appointed, and that as the Crown was going to have two lawyers involved in the prosecution, Mr. Fisher was also entitled to second counsel.

Also in issue in Fisher was the appropriate rate to be paid to counsel. Mr. Beresh indicated he would not be able to accept the appointment at the Legal Aid hourly rate. In making the

appointment, the Court stressed the unique facts ofthe case, and its view that there would not be a fair trial ifMr. Beresh did not conduct the defence. As counsel for the Minister of Justice and Mr. Beresh could not negotiate an agreed rate, the Court reviewed hourly rates paid to outside counsel retained by the Department ofJustice, and arrived at the hourly rates above referred to.

In R. v. Schafer (1999), 178 Sask. R. 105 (Q.B.), the accused brought application to have the court appoint counsel to act for him on the basis that he was indigent. The Court felt that the appointment was necessary in order to ensure a fair trial, and considered in particular that the case was extremely complex both factually and legally. Counsel for the Crown accepted, with some qualifications, that the applicant was indigent, however, a number of issues remained to be resolved, namely, whether the appointment should be in general terms or should specify the appointment of the applicants counsel of choice, whether the Legal Aid tariff should govern payment of counsel, and whether the order should recognize an obligation on the part of the applicant to contribute to payment of some of the Crowns expenses for legal counsel from any interest the applicant might have in a matrimonial home.

On the issue ofwhether counsel of choice should be appointed, the Court considered the Fisher decision, and R. v. Wingjield (1998), 174 Sask. R. 304. In Wingfield, the unique circumstance was that the accused insisted upon the appointment of French speaking counsel, and counsel of choice was granted in that case. However, in Schafer, the Court determined that compelling

circumstances such as were present in Fisher and Wing/leld did not exist in this application. Accordingly, the Court made a general appointment of counsel to represent the applicant, with the fees and expenses to be paid by the Crown.

In dealing with the issue of counsels fee in Schafer, the Court considered that the nature and complexity ofthe facts and law in this case would require extensive preparation in excess ofthe maximum preparation hours permitted under the Legal Aid tariff, and the fact that the length of trial was anticipated to be two months. On that basis, the Court did not feel that it was appropriate to impose as part of the appointment the Legal Aid tariff as being the basis for the counsel fee. The Court directed the parties to try to negotiate an agreed fee, and reserved

jurisdiction to determine the matter in the event the parties could not agree.

On the issue of whether the accused should be required to contribute to the cost of his defence, the Court noted that the applicant and his spouse were living in a home registered solely in the wifes name valued at approximately $350,000 to $375,000. The Court conservatively estimated that there was equity exceeding $200,000 in the home after deducting the mortgage balance and tax arrears. The Court stated that even ifthe applicant were to undergo banlcruptcy, he would be in a position to claim a $32,000 exemption of his interests in that homestead on a worst case scenario, and indicated it was appropriate that the Crown could expect Mr. Schafer to bring at least that amount into contribution towards the costs incurred for his legal representation. In R. v. Cai, Vu and Dang (2002), 170 C.C.C. (3d) 1 (Alta.C.A.), the federal Crown agreed to fund 30 of 33 co-accused, but would not agree to pay for the remaining three individuals. The trial judge permanently stayed the prosecution against those three accused, and the Crown appealed that stay. The Court reviewed a number of factors and, ofparticular note, made the point that A court granting money creates a grave constitutional problem (at page 17), pointing out that neither Parliament nor any Legislature had approved an expenditure that in this case could range between $4 million and $7 million, depending on a number offactors. In any event, the case is instructive as it clearly recognizes that there are dangers inherent in, in effect, setting up a parallel legal aid system, and/or in making appointments which provide unlimited counsel hours at an enhanced rate. In R. v. Peterman, 20040430 C39930 & C39935 (Ont.C.A.), the Court noted that the right ofan accused person to be free of unreasonable state or judicial interference in his or her choice of counsel does not impose a positive obligation on the state to provide funds for counsel o fchoice,


subject to two exceptions. The first ofthese exceptions is where an accused can establish that he or she can only obtain a fair trial if represented by a particular counsel, such as occurred in

The second exception is where the court finds that an accused simply cannot find

competent counsel to represent him or her on the conditions imposed by Legal Aid. The Court noted in Peterman that the expectation would be that such cases would be exceedingly rare, and held that the circumstances of this case were not unique and were not of the same order of complexity as the Fisher case. This was an arson case expected to last seven days with approximately thirty witnesses. The Court went on to note that ifthat level of complexity were determined to justify a Fisher order, virtually every accused facing a jury trial could claim entitlement to state funded counsel of choice, and the Court of Appeal held that was simply not the law. Nor was there any 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. As to the level ofproficiency of counsel to be appointed in such cases, the Court noted in Cai,

The best around is emphatically not the test. All that is required is a level of legal representation which ensures that the accuseds answer to the allegations of his guilt is made available to the adjudicating court. Certainly not matchless Nobel-level privately retained representation. (at page 7)



In summary, and although there may be an evolving expectation that that counsel should be appointed as of right when legal aid coverage has been denied, the cases certainly underscore that the tests for entitlement to court appointed counsel are to be stringently applied, and that entitlement is to be restricted to the comparatively few applicants who meet those criteria. As for the Fisher type of application, certainly all indications to date are that success in such matters will be very much limited to rare cases where extremely unique circumstances warrant the relief.



7 The opinion ofthe court shall be deemed a judgment ofthe court and an appeal shall lie therefrom as in the case ofa judgment in an action.
R.S.S. 1978, c.C29, s.7. Notice to Attorneys General required


In this section: (a) law includes: (i) all or any portion ofan Act or a regulation, order, rule, rule ofcourt, form, tariff of costs or fees, proclamation, letter patent, bylaw or resolution enacted in the execution of a power conferred by or pursuant to the authority of an Act; (ii) all or any portion of an Act ofthe Parliament ofCanada or an order, regulation, rule, rule of court, form, tariff of costs or fees, letter patent, commission, warrant, bylaw, resolution or other instrument issued, made or established: (A) in the execution of a power conferred by or pursuant to the authority of an Act ofthe Parliament of Canada; or (B) by or under the authority ofthe Governor in Council; (b) remedy means a remedy provided pursuant to section 24 of the Canadian Charter ofRights and Freedoms but does not include a remedy of exclusion of evidence or a remedy consequential on exclusion of evidence.


When, in a court of Saskatchewan: (a) the constitutional validity or constitutional applicability of any law is brought into question; or (b) an application is made to obtain a remedy;

the court shall not adjudge the law to be invalid or inapplicable nor shall it grant the remedy until after notice is served on the Attorney General ofCanada and on the Attorney General for Saskatchewan in accordance with this section. (3) When, in a court ofSaskatchewan, the validity or applicability ofa proclamation, regulation or Order in Council made or purportedly made in the execution of a power given by an Act ofthe Legislature is brought into question on grounds other than those mentioned in subsection (2), the court shall not adjudge the proclamation, regulation or Order in Council to be invalid until after notice is served on the Attorney General for Saskatchewan in accordance with this.section. (4) Subject to subsection (5), a notice mentioned in subsection (2) or(3) is required to be served at least 14 days before the day of argument. (5) The court may, on an exparte application made for the purpose, order an abridgement of the time for service of a notice mentioned in subsection (2) or (3).





A notice mentioned in subsection (2) or (3) is required: (a) to be headed in the action, cause, matter or proceeding in which the question arises or application is made; (b) to state: (i) (c) (d) the law or provision thereof in question; or (ii) the right or freedom alleged to be infringed or denied; to state the day and place for the argument of the question; and to give the particulars that are necessary to show the point to be argued.

(7) The Attorney General for Saskatchewan is entitled as ofright to appear and be heard either in person or through counsel in any action, cause, matter or proceeding to which subsection (2) or (3) applies. (8) The Attorney General of Canada is entitled as ofright to appear and be heard either in person or through counsel in any action, cause, matter or proceeding to which subsection (2) applies. (9) Where the Attorney General of Canada or the Attorney General for Saskatchewan appears in an action, cause, matter or proceeding to which subsection (2) or (3) applies, he is a party for the purposes of appeal from an adjudication therein respecting the validity or applicability of a law or respecting entitlement to a remedy.
198384, c.31, s.2; 198990, c.54, sA; 1999, cA, s.2.

Reference pursuant to taxation agreement

9(1) Where pursuant to an agreement with the Government of Canada entered into under The Taxation Agreement Act, 1952, The Taxation Agreement Act, chapter 58 of The Revised Statutes of Saskatchewan, 1953, The Tax Rental Agreement Act, 1957, The Income Tax Act, chapter 62 of The Revised Statutes of Saskatchewan, 1965, The Income Tax Act, chapter 1-2 of these Revised Statutes or The Income Tax Act, 2000, or an agreement of a like nature and having like purposes, a matter is to be referred to the Court ofAppeal, it shall be referred to the court and the form and terms ofthe reference shall be such as may be agreed upon by the parties to the agreement or ifthey cannot agree the form and terms shall be determined by the Chief Justice of Saskatchewan upon the application of either party. (2) The Attorney General of Canada and the Attorney General of any other province that after the first day ofJanuary, 1952, entered or hereafter enters into an agreement with the Government of Canada of a like nature and having like purposes to an agreement mentioned in subsection (1) may appear before the court and be heard as a party in respect ofany matter referred under this Act pursuant to that agreement.
R.S.S. 1978, c.C29, s.9; 2000, c.I.2.0l, s.142.






LAW SOCIETY MEMBERS SECTION Suggested Procedure in Applications for Court Appointed Counsel at a Rate Higher than the Legal Aid Tariff

There have been an increasing number of applications within criminal proceedings for the appointment of counsel at a rate higher than the Legal Aid Tariff. A need has been expressed for a protocol that will ensure appropriate material before the court, adequate notice to the Department of Justice and timely resolution of applications. The following is the procedure that should be followed when an application of this type is being made.

Application made by counsel on behalf of an accused:

2. The application shall be by notice of motion in accordance with Rule 447. The application shall be served by fax upon the Executive Director of Court Services at (306) 787-8737. 3. Included in the material filed in support of the application should be: (a) a Financial Statement of the Applicant (Form 67), or, a Waiver

of Financial Statement (Form 68) executed by the Department of Justice and the Respondent (printed forms are also available at the Local Registrars Office); (b) written confirmation from the Saskatchewan Legal Aid

Commission that it will not be representing the accused; and (c) written assurance of application having been faxed to the

Executive Director.

Application made by an unrepresented accused:

1. If it appears to the judge in any criminal proceeding that the accused may be entitled to the assistance of court appointed counsel and the accused has not yet applied for Legal Aid, the judge may adjourn the matterwhile ,the accused applies for Legal Aid. 2. If in any criminal proceeding the accused advises the court that Legal Aid will not be representing him, and it appears to the judge hearing the matter that the accused may require the assistance of court appointed counsel at a rate higher that the Legal Aid Tariff, the judge may set a date and time for an application for court appointed counsel and shall cause the Executive Director of Court Services to be notified of the hearing. 3. Included in the material to be filed in support of the application should be:


Members section

(a) a Financial Statement of the Applicant (Form 67), or, a Waiver of Financial Statement (Form 68) executed by the Department of Justice and the Respondent; and (b) written confirmation from the Saskatchewan Legal Aid


Commission that it will not be representing the accused.

Updated 19 Feb 2001 01:59 PM

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