Her Majesty the Queen in right of Ontario (as represented by the Attorney General for Ontario) v. Figueroa et al.

[Indexed as: Ontario v. Figueroa]

64 O.R. (3d) 321

[2003] O.J. No. 1783

Docket No. C39025

Court of Appeal for Ontario

Carthy, Goudge and Gillese JJ.A.

May 13, 2003

Criminal law -- Independent prosecutor -- Remuneration -- Court having power to appoint independent prosecutor to take carriage of contempt proceedings and to fix rate at which Crown had to remunerate independent prosecutor -- Rate of remuneration must be reasonable -- Independent prosecutor is performing public service paid for out of public funds and ought not to expect to be remunerated at private sector rates -- Court erring in fixing rate at independent prosecutor's "normal rate" for private sector clients.

Because of persistent delays in bringing the accused in a murder trial to court, the trial judge cited senior officials of the detention centre where the accused were being held in custody for contempt of court and acceded to the Crown's suggestion that an independent prosecutor be appointed. The trial judge ordered that the independent prosecutor be remunerated at the Crown's expense at his "normal rate" of $375 per hour. The trial judge also held that the independent prosecutor was entitled to employ junior counsel at the hourly rate of $210. The Crown appealed the rate of remuneration and the order that the Crown be required to pay for junior counsel.

Held, the appeal should be allowed in part.

There was no dispute that the trial judge had the inherent jurisdiction to conduct contempt proceedings or that this inherent jurisdiction gave him the power to appoint an independent prosecutor to take carriage of the proceedings. The parties also agreed that a necessary corollary of this power was that the court could fix the rate at which the Crown was required to remunerate the independent prosecutor. That rate had to be reasonable. In arriving at a reasonable rate, it was important to bear in mind that the independent prosecutor would perform a public service and would be paid out of public funds. In light of those two circumstances, an independent prosecutor ought not to expect to be remunerated at private sector rates. The trial judge in this case erred in considering only counsel's "normal rate" and in failing to consider the other factors. A reasonable rate in the circumstances was $250 per hour.

There was no reason to interfere with the trial judge's view that the matter warranted junior counsel. However, the rate of remuneration for junior counsel should be reduced to $140 per hour.

APPEAL from an order setting a rate of remuneration for an independent prosecutor and ordering that the Crown pay for junior counsel.

Cases referred to MacMillan Bloedel Ltd. v. Simpson, 1995 57 (SCC), [1995] 4 S.C.R. 725, 14 B.C.L.R. (3d) 122, 130 D.L.R. (4th) 385, 191 N.R. 260, [1996] 2 W.W.R. 1, 33 C.R.R. (2d) 123, 103 C.C.C. (3d) 225, 44 C.R. (4th) 277 (sub nom. P. (J.) v. MacMillan Bloedel Ltd.); Ouellet (No. 1) (Re) (1976), 1976 1250 (QC CA), 72 D.L.R. (3d) 95, 32 C.C.C. (2d) 149, 36 C.R.N.S. 296, [1976] C.A. 788 (Que. C.A.), affg (1976), 1976 1254 (QC CS), 67 D.L.R. (3d) 73, 28 C.C.C. (2d) 338, 34 C.R.N.S. 234, [1976] C.S. 503 (Que. S.C.); R. v. Figueroa, [2002] O.J. No. 3140 (Quicklaw) (S.C.J.); R.C. v. Quebec (Attorney General), 2002 SCC 52, 213 D.L.R. (4th) 226, [page322] 164 C.C.C. (3d) 423, [2002] S.C.J. No. 53 (Quicklaw), 2 C.R. (6th) 138, 289 N.R. 206, J.E. 2002-1175 Statutes referred to Criminal Code, R.S.C. 9185, c. C-46, s. 462.34(4)(c)(ii), (5.2), 523(2)(a), 676.1, 684(2) Solicitors Act, R.S.O. 1990, c. S.15 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 57

Dennis W. Brown, Q.C., and James Kendik, for appellant. Dan J. Shields, for respondent.

The judgment of the court was delivered by

[1] GOUDGE J.A.: -- On October 9, 2002, McIsaac J. ordered that the independent prosecutor appointed by the court to take carriage of contempt proceedings against certain provincial officials be remunerated by the Crown at the independent prosecutor's normal rate of $375 per hour.

[2] Pursuant to s. 676.1 of the Criminal Code, R.S.C. 1985, c. C-46, the Crown seeks to appeal, with leave, from that order. It argues that McIsaac J. failed to consider relevant factors in making his order and that as a result, the order is unreasonable in the circumstances and should be set aside.

[3] For the reasons that follow, I agree. I would therefore grant leave and allow the appeal.

[4] The factual background to this appeal is straightforward and not in dispute.

[5] The proposed contempt proceedings arose in the context of a criminal trial before McIsaac J. in Newmarket, Ontario. The four accused -- Norman Figueroa, Andre Jones, Christian Ortiz and Shu Kwan (Johnny) Wong -- were charged with first degree murder and conspiracy to murder. Pre-trial motions began in mid-January 2002 and the jury began to hear evidence on April 29, 2002.

[6] The accused were being held in custody at the Metro West Detention Centre (MWDC), a facility of the Ontario Ministry of Public Safety and Security. On a number of occasions, there were delays in getting the accused from that facility to the Newmarket Courthouse to begin court on time. Between May 7 and May 22, 2002, there were eight separate delays, including one of one hour and 15 minutes and one of 50 minutes. [page323]

[7] The trial judge concluded that these delays were attributable to mismanagement at the MWDC. As a consequence, he directed a hearing pursuant to s. 523(2)(a) of the Criminal Code to determine if the accused should be released pending the conclusion of the trial.

[8] On May 27, 2002, he issued reasons which said this at paras. 8-10 in R. v. Figueroa, [2002] O.J. No. 3140 (Quicklaw) (S.C.J.):

Accordingly, I am not satisfied that any of the accused should be released from custody at this stage of the proceedings. However, it is my present intention to cite the Minister of Public Safety and Security and/or some of his senior officials at MWDC, along with OPSEU officials, for contempt of court once this trial is concluded. This is based on the continuing delays in getting these accused before the court in a timely manner.

These delays are an assault on the rule of law. Someone will answer for them. If they continue, each delay will be added to the citation.

I am directing that a copy of these reasons be forwarded to the Minister of Public Safety and Security, Catherine Morris, the Superintendent of MWDC and the President of OPSEU.

[9] On July 15, 2002, the accused again arrived late for court and the trial judge indicated that he wanted to revisit the contempt issue.

[10] On July 17, 2002, the Crown Attorney prosecuting the trial advised the trial judge as follows:

MR. WESTGATE: Thank you. I can advise you that the position of the Crown is that in the circumstances, bearing in mind a number of factors, including that if the Ministry of the Attorney General were to undertake carriage of this matter other branches of government would be involved, it is thought best if Your Honour should appoint private counsel in this matter.

[11] This issue was subsequently put over to October 4, 2002 when Mr. Brown, on behalf of the Crown, and Mr. Shields, the independent prosecutor appointed by the trial judge, attended and made submissions with respect to the rate of compensation to be paid to the independent prosecutor by the Crown.

[12] On October 9, 2002, the trial judge issued the order which is the subject of this appeal. In full, his reasons are as follows [at paras. 1-3]:

Counsel for the Attorney General of Ontario concedes that an independent prosecutor must be appointed by the court. He does not contest the proposition that, as a function of that appointment, I am entitled to require that the Attorney General of Ontario pay the independent prosecutor. However, he suggests that such remuneration be limited to the "usual fees" paid for independent counsel retained in such matters as the Walkerton Inquiry. However, Mr. Shields' "normal rate" falls within the range of compensation envisioned by the Rules of Civil Procedure. They are patently reasonable. [page324]

Accordingly, I order that the independent prosecutor be remunerated at the hourly rate of $375.00 per hour. Mr. Shields is also entitled to employ junior counsel at the hourly rate of $210.00 per hour.

I am prepared to assess Mr. Shields' interim and final accounts, if required.

[13] Before this court, the Crown acknowledged the inherent jurisdiction of the trial judge, as a Superior Court, to initiate and conduct contempt proceedings. Mr. Brown further acknowledged that this jurisdiction extends to the appointment of an independent prosecutor at the Crown's expense where, as here, the Crown would be subject to a conflict of interest if it were to take carriage of those proceedings. He also conceded that a necessary corollary of this was that the trial judge could fix the rate of remuneration which the Crown would be obliged to pay, but only if he considered the relevant factors and determined a rate that was reasonable in all the circumstances. Mr. Brown argued that the trial judge failed to do so and that the appropriate guideline was the rate paid by the Crown to private counsel acting in the Walkerton Inquiry. The top rate permitted there was $250 per hour, which was paid to Commission counsel. Mr. Brown said that the same rate would be reasonable in this case. Finally, he said that the contempt proceedings were not sufficiently complicated to warrant junior counsel.

[14] Mr. Shields, who appeared in this court to support the order under appeal, agreed that the trial judge had the jurisdiction to initiate and conduct contempt proceedings and, in circumstances like these, to appoint an independent prosecutor paid by the Crown at a rate fixed by the trial judge. He argued that the Crown could not insist that the court fix a particular rate and that to yield to that would erode judicial independence. Ultimately, he agreed with Mr. Brown that the standard to be applied by the court in fixing the rate was that of reasonableness. However, he said that this is just what the trial judge did here in ordering that the independent prosecutor receive his normal rate of $375 per hour. Finally, he said that the circumstances warranted a junior counsel and that this would be the most cost-efficient way to proceed.

Analysis

[15] There are two issues that divide the parties in this appeal. The first is the rate at which the Crown is ordered to remunerate the independent prosecutor. The second is the order that the Crown be required to pay for junior counsel as well. Before turning to these two, there are a number of issues about which there is no dispute in this case. [page325]

[16] First, the parties agree that this appeal is properly brought under s. 676.1 of the Criminal Code. R.C. v. Quebec (Attorney General), 2002 SCC 52, 213 D.L.R. (4th) 226 makes clear that the section encompasses an order which, like this one, creates an obligation to make future payments of costs.

[17] Second, there is no dispute that the trial court in this case has the inherent jurisdiction to conduct contempt proceedings as part of its power to control its process and enforce its orders. See MacMillan Bloedel Ltd. v. Simpson, 1995 57 (SCC), [1995] 4 S.C.R. 725, 130 D.L.R. (4th) 385.

[18] Third, the Crown properly concedes that in circumstances such as these, this inherent jurisdiction gives the court the power to appoint an independent prosecutor to take carriage of the contempt proceedings. Where those to be cited include representatives of the Crown, it would put the Crown Attorney in a clear conflict of interest if he or she were to prosecute the contempt proceedings. The independent prosecutor does not act to advance the interests of the Crown but fills the role that would otherwise be played by the Crown Attorney. This is what was done in Re Ouellet (No. 1) (1976), 1976 1254 (QC CS), 28 C.C.C. (2d) 338, 67 D.L.R. (3d) 73 (Que. S.C.), affd (1976), 1976 1250 (QC CA), 32 C.C.C. (2d) 149, 72 D.L.R. (3d) 95 (Que. C.A.).

[19] Moreover, both parties argue that a necessary corollary of this power is that the court can fix the rate at which the Crown must remunerate the independent prosecutor and that the rate must be reasonable. I agree. The fixing of the rate is important to facilitate the retaining of the independent prosecutor.

[20] While this much is not in dispute, there remains a significant debate about the criteria to be applied to determine a reasonable rate of remuneration for the independent prosecutor.

[21] I agree with Mr. Shields that it is not up to the Crown to fix that rate. That is a determination for the court.

[22] I also agree that the practice under s. 684(2) of the Code where the Attorney General pays for defence counsel is not a very useful analogy, since counsel thus retained is essentially a substitute for counsel paid at provincial legal aid rates. In this case, the Crown has argued that $250 per hour is a reasonable rate, implicitly recognizing that the much lower legal aid rate is less than reasonable in this circumstance. While this discrepancy is troubling, because both defence counsel paid by legal aid and the independent prosecutor in this case are expected to perform important functions, the solution is not to reduce the rate for the latter to a rate which even the Crown acknowledges to be inadequate to the task.

[23] Similarly, the provisions of s. 462.34(4)(c)(ii) and (5.2) of the Code do not provide a very exact analogy to assist in the fixing of a [page326] reasonable rate primarily because the source of payments to counsel ordered under that section is not the public purse, but property seized from the person served by counsel.

[24] Nor is Rule 57 of the Rules of Civil Procedure, and the cost grid which accompanies it, of great assistance. It is meant to apply in civil proceedings where one party (normally the losing party) has been ordered to pay costs to another party (normally the winning party) in the litigation. This process fixes the costs paid to a party, not the rate of remuneration paid by that party to its lawyer. The task in this case is not to fix the costs to be paid by the Crown to another party in the litigation, but to fix the rate of remuneration to be paid by the Crown to the lawyer who will play the role normally played by the Crown Attorney.

[25] Though more apt, even the process of assessing what lawyers can properly charge their clients, provided by the Solicitors Act, R.S.O. 1990, c. S.15 cannot simply be borrowed to fix the reasonable rate required here. Several important differences prevent that. Here the Crown does not retain the independent prosecutor. He is appointed by the court and the Crown is ordered to pay for him. Moreover, he is not the Crown's lawyer but performs the service in the public interest that would otherwise be performed by the Crown Attorney.

[26] While these various processes offer some analogies, none provides a precise road map to the fixing of a reasonable rate for the independent prosecutor.

[27] In my view, a number of considerations should go into this task. While not exhaustive, that list includes the importance of the assignment undertaken, the legal complexity of the work to be done, the skill and experience of counsel to be appointed and his or her normal rate charged to private sector clients. These considerations reflect the fact that, to some extent, this is a retainer like any other.

[28] However, in several respects this is not a retainer like any other. First, the independent prosecutor is being asked by the court to serve the needs of the administration of justice. In my view, acting in the public interest in this way constitutes one manifestation of the professional responsibility that has characterized the legal profession at its best. To the extent that an independent prosecutor is performing such a public service, he or she ought not to expect to be remunerated at private sector rates. It is part of the privilege of belonging to a profession that is not simply a business.

[29] Second, it must be remembered that the rate fixed for the independent prosecutor will be paid from public funds. In an age [page327] when there are so many pressing needs taxing that resource, I do not think that it should be used to pay at private sector rates.

[30] Thus I would add these two considerations to the list. It is relevant to fixing a reasonable rate for the independent prosecutor that he or she is performing a public service paid for with public funds.

[31] Viewed in the context I have described, I think the trial judge erred in fixing the rate for the independent prosecutor. He appears to have considered only counsel's "normal rate" which Mr. Shields acknowledged to be his normal rate for private sector clients. It is of no moment that this rate is within the range provided by the costs grid in the Rules of Civil Procedure for the substantial indemnity of a party whose lawyer has Mr. Shields' years at the bar. The costs grid is part of the process provided by Rule 57, which, as I have said, is for an entirely different purpose -- namely, the quantifying of costs ordered to be paid by one litigant to another litigant. Moreover, even when applied in its proper context, the costs grid should not be used simply to sanction a lawyer's marketplace rate.

[32] In considering only counsel's "normal rate" and in failing to consider the other factors I have referred to, the trial judge erred. I would therefore set aside his conclusion that the independent prosecutor is to be remunerated at $375 per hour. In the circumstances this is not a reasonable rate.

[33] Turning to the question of remedy, we are urged by the Crown to substitute our own determination of a reasonable rate.

[34] I agree that in these circumstances this is preferable to remitting the issue back to the trial judge. To do that could result in a further appeal of his determination with yet another delay as a consequence. Where contempt proceedings are contemplated, it is appropriate that they be dealt with expeditiously, so that the air can be cleared.

[35] There is no doubt that the delays which underlie these proposed contempt proceedings constituted a real problem for the administration of justice. Now that the trial in which they occurred is over, immediate pressures may have been reduced to the point where the trial judge feels that the blunt tool of contempt proceedings is no longer necessary. That must be his decision. If there are to be such proceedings, however, they will be facilitated if we set the reasonable rate for remuneration of the independent prosecutor now.

[36] There is no doubt that the assignment asked of the independent prosecutor is an important one: at the request of the court to undertake contempt proceedings against representatives of the Crown among others. There is also no doubt about the significant [page328] skill and experience of counsel selected by the court or his normal rate of remuneration. The legal work to be done, however, does not appear unduly difficult or complex. A good deal of the evidence that may be required has already been gathered and is in the record before us. Finally, it is important to remember that this work is in the public interest and paid for out of public funds.

[37] No doubt the setting of a reasonable rate of remuneration for the independent prosecutor is more art than science. However, taking these factors together I conclude that $250 per hour is a reasonable rate in the circumstances. It was sufficient to produce first-class lawyering for the Walkerton Inquiry and I am confident it will do the same here.

[38] The second question, that of junior counsel, can be dealt with much more quickly. While the Crown argues that this matter does not warrant junior counsel, I see no reason to interfere with the trial judge's contrary view. Used responsibly, as I am sure will happen here, junior counsel can greatly enhance the efficient and economic discharge of this retainer.

[39] However, as with the independent prosecutor, the rate fixed for junior counsel must reflect the considerations I have discussed. I would therefore reduce the rate fixed by the trial judge for junior counsel by the same proportion as that for independent counsel and fix it at $140 per hour.

[40] In summary I would grant leave to appeal, allow the appeal and change the rates of remuneration for independent counsel and his junior to $250 per hour and $140 respectively. I would not otherwise alter the decision appealed from.

[41] This is not a case for costs.

Appeal allowed in part.