DATE: 20060619

DOCKET: C41662

COURT OF APPEAL FOR ONTARIO

WEILER, GOUDGE AND ROULEAU JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Randy Schwartz for the appellant

Appellant

• and -

PIERRE FOURNIER and DENISE MENARD

Michael Swinwood for the respondent Menard

Respondents

Heard: June 1, 2006

On appeal from the order of Justice J. Stephen O’Neill of the Superior Court of Justice dated March 12, 2004.

BY THE COURT:

[1] In 2001 the respondents, Menard and Fournier (who has since died) together with a third accused, Bergeron, were jointly charged with fraud. The charges related to the issuance of alleged native status cards by the League of Independent Indian Nations of North American (“LINNA”).

[2] In July 2003 Menard and Fournier filed a Notice of Constitutional Question in the Superior Court challenging the jurisdiction of the court to prosecute them, on the basis of their aboriginal heritage. Their counsel Mr. Swinwood then made an application on their behalf for the funding by the Crown of their defence, including this constitutional issue. He submitted a proposed budget of $35,000 for his fees at his hourly rate of $200 plus experts’ fees.

[3] During the course of the hearing of the funding application, it came to light, that neither Fournier or Menard had applied for legal aid. The trial judge suggested that Legal Aid be contacted. (In doing so, the trial judge was following the dictates of R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1, (Ont. C.A.) although he did not specifically refer to this decision.)

[4] Legal Aid advised that if the respondents applied and met the financial qualifications, it would provide funding for the experts as well as legal fees at legal aid rates of $92 an hour for an estimated total of $17,500, or one-half the amount budgeted. Mr. Swinwood advised the trial judge of Legal Aid’s position, but continued to pursue his funding application.

[5] On March 12, 2004, the trial judge made an order against the Crown for funding of $17,500 regardless of what legal aid might ultimately do, and also ordered the Crown to pay the costs of the funding application which he fixed in the amount of $2,500. The Crown appeals that order. In the meantime the prosecution proceeded.

[6] After the funding application, Bergeron, who had been separately represented and who had a legal aid certificate, dismissed his counsel and retained Mr. Swinwood. Throughout the litigation in the trial court, legal aid was thus provided to Mr. Swinwood, who represented all three accused.

[7] On February 7, 2006, after 20 days of hearing, the trial proceedings concluded. The accused formally acknowledged that the Crown nor any government recognized the LINNA card as establishing in or of itself that the cardholder possessed or could exercise Aboriginal or treaty rights. They agreed that they would make that clear in the future. They also agreed that in order to prevent any misunderstanding on the part of LINNA members, government officials and merchants they would take certain steps to provide notice of their acknowledgement and to change the language on existing and future promotional materials prepared for LINNA. In return, the Crown agreed to participate in a without prejudice “reconciliation circle” with the accused and other participants. On that basis the Crown concluded that a stay of proceedings was appropriate.

[8] At the outset of this appeal, Mr. Swinwood advised the court that he was not seeking to be paid the $17,500 awarded by the trial judge. He accepted what he had received from Legal Aid as full payment for his fees, and also conceded that the order that the Crown pay $2,500 was improper. He maintained, however, that the trial judge had not erred in making the funding order for payment of $17,500.00 and sought to uphold it.

[9] As is now apparent, the funding of the defence, including the constitutional issues raised, was available from Legal Aid and, in fact, those funds were paid. This, to us, clearly demonstrates that there was no basis for the trial judge’s funding order. The procedure that ought to have been followed in the circumstances of this case is the one set out in R. v. Rowbotham (1988), 41 C.C.C. (3d) p. 1 (Ont. C.A.) and confirmed in R. v. Peterman, 2004 39041 (ON CA), [2004] O.J. 1758. These stand for the proposition that, in criminal matters such as the present case, before seeking relief from the court in the nature of a funding order, the defendants must apply to the Legal Aid Plan for available funding or demonstrate that that would be futile. This was not done and, for that reason, the trial judge erred and the funding order and the order for costs of the funding application must be set aside.

[10] In making his funding order, the trial judge briefly assessed the underlying merits of the case. Although we have serious doubts as to whether the trial judge was correct in this assessment and we note that he did not carry out a detailed legal analysis of the issues as was done in the decision in R. v. Yellowhorn, [2006] A. J. No. 491, we need not deal with this aspect of his decision in light of the conclusion we have reached on the procedure that ought to have been followed. We do note that in the end the parties appear to have reached a reasonable accommodation, which seems a much better outcome than seeking to have a court decide questions that may be ill-suited to judicial resolution.

[11] The appeal is therefore allowed.

RELEASED: June 19, 2006 “STG”

“Karen M. Weiler J.A.”

“S.T. Goudge J.A.”

“Paul Rouleau J.A.”