Her Majesty the Queen et al. v. Peterman [Indexed as: R. v. Peterman]

70 O.R. (3d) 481

[2004] O.J. No. 1758

Docket Nos. C39930 and C39935

Court of Appeal for Ontario

Rosenberg, Borins and Feldman JJ.A.

April 30, 2004

Charter of Rights and Freedoms -- Remedies -- State-funded counsel -- Accused retaining out-of-town counsel who had acted for him in past -- Legal Aid refusing to pay counsel's travel expenses -- Accused bringing application shortly before trial for order that Legal Aid pay travel expenses and reasonable preparation time for counsel and junior counsel -- Application judge erring in granting order -- Order not required to protect accused's right to fair trial -- Court not having jurisdiction to review reasonableness of Legal Aid decisions -- State not having positive obligation to fund counsel of choice except in those rare situations where accused can only obtain fair trial if represented by particular counsel or cannot find competent counsel to represent him on conditions imposed by Legal Aid.

The accused was charged with four counts of arson as a result of a fire in Smiths Falls. The trial was to take place in Perth. The accused was financially eligible for legal aid and Legal Aid Ontario issued him a legal aid certificate which allowed him to select a lawyer of his choice. The lawyer was required to bill Legal Aid at the legal aid tariff and accept certain conditions. One of those conditions related to out-of- town counsel. It is a policy of Legal Aid that where there is competent counsel available in the jurisdiction where the offence took place, Legal Aid will not ordinarily pay an out- of-town lawyer for travel time and disbursements such as mileage, meals and accommodation. In any event, counsel require prior authorization from the area director for travel time and expenses. Prior authorization is also required to retain junior counsel. The accused retained W, in whom he had confidence as W had acted for him in the past. W's office was in Newmarket, a four-hour drive away. He sought authorization from the Legal Aid area director for travel expenses in 2001. His request was denied. He did not seek authorization for junior counsel.

In 2003, the accused brought a Fisher application, seeking an order for payment of rates in excess of the normal legal aid tariff for W and junior counsel retroactive to April 30, 2001. He also sought payment of counsel's reasonable disbursements, payment of counsel for the full amount of preparation time with no maximum limit on the number of hours of preparation, and payment for counsel's meals and accommodation. The application was heard one month before the trial date. The application judge concluded that it was necessary to make the order sought in order to ensure that the accused received a fair trial. The application judge found that the case against the accused was complex and that no one other than W could fairly represent him at that stage of the proceedings. She decided that the denial of travel time, reasonable preparation time and travel expenses was unreasonable and that the request for junior counsel was reasonable. She ordered that Legal Aid Ontario pay for the junior counsel and for his and W's travel time, travel and meal expenses and all of their preparation time, subject only to the reasonableness of the time expended. Failing payment by Legal Aid Ontario, these expenses were to be paid by the Crown. She awarded costs against the Crown in the amount of $500. The Crown and Legal Aid Ontario appealed.

Held, the appeal should be allowed. [page482]

The obligation for setting legal aid rates and policies relating to retention of out-of-town counsel and of junior or co-counsel lies with Legal Aid Ontario, not the court. A criminal trial court has no jurisdiction to review those policies and, having determined that they are unreasonable, impose other arrangements on Legal Aid Ontario. A criminal trial court's jurisdiction rests solely on the obligation to ensure that an accused person receives a fair trial. The Charter guarantees to a fair trial and fundamental justice mean that the state must provide funds so that an indigent accused can be represented by counsel where counsel is required to ensure that the accused has a fair trial. Further, within reason, the court will protect an accused's right to choose his or her counsel. However, the right of an 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 of choice. There would appear to be two exceptions to this general proposition. First, in some unique situations, it may be that an accused can establish that he or she can only obtain a fair trial if represented by a particular counsel. In those unusual circumstances, the court may be entitled to make an order to ensure that the accused is represented by that counsel. Second, in unusual circumstances, the court may find that the accused simply cannot find competent counsel to represent him or her on conditions imposed by Legal Aid. For example, if the accused was unable to retain local counsel, Legal Aid would inevitably grant authorization to retain out-of-town counsel. Courts in Ontario, with few exceptions, have rejected the proposition that enhanced rates above those authorized by Legal Aid are necessary to ensure that accused receive competent counsel.

The accused's case was not unique and was not unusually complex. The fact that the accused had a prior relationship with W and had confidence in him was also not unusual, and did not entitle him to state-funded counsel of choice. There was no evidence before the application judge that other competent counsel were not available to take the case and to do so on the conditions imposed by Legal Aid. The timing of the application did not justify the order made by the application judge as the accused and W had long been aware that W was not going to be paid by Legal Aid for his travel time and expenses, and they had no reason to believe that Legal Aid would pay for junior counsel as W had not sought prior authorization. There was no evidence that no other lawyer was available to proceed with the trial on the scheduled trial date. Even if there had been such evidence, the application judge could have adjourned the case to permit the accused time to retain local counsel, or alternatively could have required W to proceed with the case since he was on the record and had undertaken to defend the accused. The order made by the application judge was not necessary to ensure that the accused was properly represented and received a fair trial.

Even if a case had been made out for a Fisher-type order, the order should have been made against the Crown, not Legal Aid Ontario. It would then be for the Attorney General of Ontario to determine how to respond to the order.

Finally, the application judge should not have made the costs order against the Crown. The order was apparently made solely on the basis that costs should follow the event as in civil cases. That is not the rule in indictable matters. There was nothing in the conduct of the case by the Crown that would warrant a costs order.

APPEAL from an order requiring Legal Aid or the Crown to pay defence counsel's travel expenses and other costs of defence.

R. v. Fisher, [1997] S.J. No. 530 (Q.B.), distd Other cases referred to New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, 216 N.B.R. (2d) 25, 177 D.L.R. (4th) 124, 244 N.R. 276, 552 A.P.R. 25, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203; [page483] Québec (procureur général) v. C. (R.) (2003), 2003 33470 (QC CA), 13 C.R. (6th) 1, [2003] J.Q. no. 7541, J.E. 2003-1578, [2003] R.J.Q. 2027 (C.A.); R. v. Abu-Taha, [2001] O.J. No. 4278 (S.C.J.); R. v. Bruha, [2003] 1 W.W.R. 339, 2002 NWTSC 58, [2002] N.W.T.J. No. 72 (S.C.); R. v. C. (R.), [2002] 2 S.C.R. 762, 289 N.R. 206, 164 C.C.C. (3d) 423, 2002 SCC 52, 2 C.R. (6th) 138 (S.C.C.) (sub nom. Quebec (Attorney General) v. C. (R.), Quebec (Attorney General) v. Beauchamps); R. v. Cai, [2003] 3 W.W.R. 423, 104 C.R.R. (2d) 341, 170 C.C.C. (3d) 1, 2002 ABCA 299, 9 C.R. (6th) 184, 9 Alta. L.R. (4th) 28, [2002] A.J. No. 1521 (C.A.); R. v. G.L. (2002), 99 C.R.R. (2d) 91, [2002] O.J. No. 3898 (C.J.) (sub nom. R. v. Little); R. v. Ho, [2004] 2 W.W.R. 590, 2003 BCCA 663, 21 B.C.L.R. (4th) 83, 17 C.R. (6th) 223, [2003] B.C.J. No. 2713 (C.A.); R. v. Leduc (2003), 2003 52161 (ON CA), 108 C.R.R. (2d) 337, 176 C.C.C. (3d) 321, 18 C.R. (6th) 167, [2003] O.J. No. 2974 (C.A.); R. v. Magda, [2001] O.J. No. 1861, [2001] O.T.C. 370 (S.C.J.); R. v. McCallen (1999), 1999 3685 (ON CA), 43 O.R. (3d) 56, 59 C.R.R. (2d) 189, 131 C.C.C. (3d) 518, 22 C.R. (5th) 103 (C.A.); R. v. Montpellier, 2002 34635 (ON SC), [2002] O.J. No. 4279, [2002] O.T.C. 864 (S.C.J.); R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, 133 N.S.R. (2d) 321, 118 D.L.R. (4th) 154, 172 N.R. 161, 380 A.P.R. 321, 23 C.R.R. (2d) 239, 92 C.C.C. (3d) 353, 33 C.R. (4th) 85, 6 M.V.R. (3d) 181; R. v. Rockwood (1989), 1989 197 (NS CA), 91 N.S.R. (2d) 305, 233 A.P.R. 305, 42 C.R.R. 369, 49 C.C.C. (3d) 129 (C.A.); R. v. Rowbotham (1988), 1988 147 (ON CA), 25 O.A.C. 321, 35 C.R.R. 207, 41 C.C.C. (3d) 1, 63 C.R. (3d) 113 (C.A.); R. v. Speid (1983), 1983 1704 (ON CA), 43 O.R. (2d) 596, 3 D.L.R. (4th) 246, 7 C.R.R. 39, 8 C.C.C. (3d) 18, 37 C.R. (3d) 220 (C.A.); R. v. Swearengen (2002), unreported, December 5, 2002 (Ont. S.C.J.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 11(d) Criminal Code, R.S.C. 1985, c. C-46, ss. 434, 434.1, 435, 676.1 Legal Aid Services Act, 1998, S.O. 1998, c. 26 Rules and regulations referred to Criminal Proceedings Rules, SI/92-99, rule 27.05(3) Law Society of Upper Canada, Rules of Professional Conduct, rule 2.09(5)

Susan Reid, for appellant the Crown. Tracy A. Pratt, for appellant Legal Aid Ontario. Charles Wrock and Kevin D. Zaldin, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- This is an appeal by Legal Aid Ontario and the Crown pursuant to s. 676.1 of the Criminal Code, R.S.C. 1985, c. C-46 [See Note 1 at the end of the document] from an order made by MacLeod J. that Legal Aid or the Crown pay to the respondent's counsel certain costs associated with the respondent's defence to charges of arson. At the [page484] conclusion of the hearing of the appeal, the court allowed the appeal, quashed the order and indicated that additional reasons would be provided. As we said at the time, the type of order made by the application judge in this case, a so-called Fisher order (R. v. Fisher, [1997] S.J. No. 530 (Q.B.)), is justified only in unusual circumstances, and there was no evidence to support the making of the order in this case.

The Facts

The chronology

[2] While a detailed review of the facts is not necessary, it is important to set out certain benchmarks in the proceedings. On April 30, 2001, the respondent Bryan Peterman was charged with two counts of arson for a fraudulent purpose contrary to s. 435(1) of the Criminal Code, one count of arson contrary to s. 434 of the Criminal Code, and one count of arson contrary to s. 434.1 of the Criminal Code. The charges relate to a fire that had occurred about one month earlier in the Town of Smiths Falls. The trial is to take place in the nearby Town of Perth. The respondent was financially eligible for legal aid and the appellant Legal Aid Ontario issued him a legal aid certificate. The certificate allowed the respondent to select a lawyer of his choice to represent him, provided the lawyer would accept the certificate. The certificate carries with it certain conditions. The lawyer must bill Legal Aid at the legal aid tariff and accept certain limitations.

[3] The most important limitations involved in this case concern payment of fees and expenses of out-of-town counsel, preparation time and retention of junior counsel. With respect to the former, Legal Aid has certain policies concerning the use of out-of-town counsel. If there is competent counsel available in the jurisdiction where the offence took place, Legal Aid will not ordinarily pay an out-of-town lawyer for travel time and disbursements such as mileage, meals and accommodation. In any event, counsel requires prior authorization from the Legal Aid director for the area where the trial is to take place to be paid for travel time and such expenses. Similarly, counsel requires prior authorization from the area director to retain junior counsel to assist in the defence.

[4] In May 2001, the respondent approached Charles Wrock to represent him on the arson charges. The respondent had confidence in Mr. Wrock who had acted for him on several civil and criminal matters, including criminal matters in 1996 and 1997. On May 22, 2001, the respondent received his legal aid certificate and Mr. Wrock agreed to act for him on the certificate. Mr. Wrock's [page485] office is not in the Perth area. He works in Newmarket, a minimum four-hour drive from Perth.

[5] Soon after he accepted the legal aid certificate, Mr. Wrock sought authorization from Michael Cliffen, the Legal Aid area director for Lanark County, for "travel authorization". In June 2001, Mr. Cliffen turned down the request. Counsel pursued the request throughout 2001, but without success. In November 2001, the final internal appeal from Mr. Cliffen's decision was dismissed. The following is an excerpt from the reasons of the appeals officer:

Counsel points out that he has a continuing solicitor and client relationship with this legal aid applicant and he has knowledge of the background of the offence as it relates to the purchase of property and insurance. The applicant is on a contributory certificate. These factors weigh in favour of granting travel authorization. However, Legal Aid Policy's primary focus respecting this issue is whether there is available counsel in the area where the trial is taking place who are competent and available to conduct the proceedings. I have concluded that the Area Committee correctly determined that the authorization for travel should be denied in this case.

There is no indication that local counsel is unavailable or unable to conduct these proceedings. The fact that counsel from Newmarket has conducted part of the Judicial Pre-trial and has familiarity with the case does not, in my view, weigh heavily in favour of authorizing travel as counsel was advised prior to his attendance at the pre-trial that travel authorization was not granted. It does not seem to me that a fee-paying client of modest means would choose counsel from outside the jurisdiction in these circumstances to conduct a trial with a pre-trial, preliminary and trial which are likely to last at least several days and accommodation, in addition to travel, would be necessary. Nor does it appear to me that authorization for travel in this case would be in accordance with the policies of Legal Aid.

(Emphasis added)

[6] On December 17, 2001, counsel wrote to Mr. Cliffen one more time asking for a further reconsideration of the decision in light of the fact that the respondent had moved back to the Newmarket area. The following day, Mr. Cliffen again refused the request. That was the last contact with Legal Aid. At no time did Mr. Wrock seek authorization for junior counsel.

[7] On June 4, 2002, the respondent and Mr. Wrock attended for the preliminary inquiry in Perth. The preliminary inquiry was scheduled for seven days but concluded after only one day, apparently because an alleged accomplice agreed to testify as a Crown witness. At the conclusion of the preliminary inquiry, the respondent was ordered to stand trial. On September 5, 2002, he was charged in an indictment that included the original two charges and two further charges of arson under ss. 434 and 434.1 of the Criminal Code. A pre-trial was conducted on October 11, 2002. It was estimated that the jury trial would last seven days. [page486] On November 15, 2002, a trial date was set in the Superior Court of Justice for May 5, 2003. Approximately one year had now elapsed since counsel last had contact with Legal Aid and neither he nor the respondent had taken steps to retain local counsel to take over the defence of the charges.

[8] In February 2003, the respondent brought a "Fisher" application. The application, which included a challenge to the constitutionality of the Legal Aid Services Act, 1998, S.O. 1998, c. 26 and Regulations, was served on the local Crown Attorney and the Attorneys General of Ontario and Canada. By inadvertence it was not served on Legal Aid Ontario. The application was returnable March 14, 2003. Legal Aid found out about the application from the Crown and requested an adjournment to give it an opportunity to provide submissions and evidence. The application was adjourned to April 3, 2003.

The nature of the application

[9] In his application, the respondent sought an order for payment at rates in excess of the normal legal aid tariff for Mr. Wrock and junior counsel retroactive to April 30, 2001. He also sought payment of counsel's reasonable disbursements, payment of counsel for the full amount of preparation time with no maximum limit on the number of hours of preparation [See Note 2 at the end of the document], and payment for counsel's meals and accommodation.

The factual basis for the application

[10] The application was supported by two affidavits, one sworn by the respondent and the other sworn by Mr. Wrock's associate. In his affidavit, the respondent set out the history of his relationship with Mr. Wrock and stated that he had confidence in him because of that history. He further stated that unless the government were to pay reasonable remuneration, he would not be able to afford to pay Mr. Wrock for representing him in this case.

[11] In the second affidavit, which was provided by junior counsel, the application of the legal aid scheme to the respondent's case and the history of contacts with Legal Aid were summarized. The affidavit concluded with this statement:

Having reviewed the disclosure and discussed the case with Charles Wrock, I am satisfied that no competent lawyer could effectively represent Mr. Peterman [page487] in this case based upon the fees allotted by the Legal Aid Ontario system. I agree with Charles Wrock that the preparation of this case will exceed the allowable time under the criminal tariff. The only way that a lawyer would be able to spend less time preparing this case would be to forego some of the Motions and Pre-trials, which would arguably advance the Applicant's defence or to forego the careful preparation which would be required to effectively examine and cross-examine the witnesses in this case. I further verily believe that as a result of the complexity of this case, Mr. Wrock requires my assistance with respect to preparation of Examinations and Cross-examinations and technical legal research.

[12] There was no evidence that there was no competent lawyer in the Perth area able to take the respondent's case. In the course of oral submissions before the application judge, Mr. Wrock stated the following:

Our investigations indicate that there are only seven lawyers in Lanark County who practice criminal law, one in Perth, one in Carleton Place and five in Smiths Falls. Only one practices criminal law exclusively.

[13] Counsel did not suggest that he or the respondent had approached any of these lawyers or that they were not competent to defend the respondent.

[14] Although the application had originally been adjourned at Legal Aid's request, counsel for Legal Aid did not attend the hearing. Counsel for Legal Aid did, however, file written argument and Mr. Cliffen was available in the courtroom to testify. Crown counsel sought leave of the trial judge to call Mr. Cliffen to testify about the availability of local counsel to represent the respondent. The trial judge refused because the Crown and Legal Aid had not complied with rule 27.05(3) of the Criminal Proceedings Rules [See Note 3 at the end of the document], which requires the respondent to a Canadian Charter of Rights and Freedoms application to file affidavit evidence where it seeks to rely on material not filed by the applicant. On this appeal, the Crown and Legal Aid Ontario seek to admit as fresh evidence an affidavit setting out the evidence Mr. Cliffen would have given.

[15] In his submissions before the application judge, Mr. Wrock stated that for the trial the Crown had 30 witnesses and that there would be four defence witnesses.

The reasons of the application judge

[16] The application judge found that the case against the respondent was "by its very nature, a complex case and not one that is of average sort of complexity". She appeared to base this [page488] finding on the nature of the arson case and that a former accomplice had agreed to be a Crown witness. She decided that "[a]ll of these things are exceedingly complicating in a case where Mr. Peterman's liberty is significantly at stake." She then framed the issue in these terms:

The issue and the real concern that I have at this point, being April the 3rd, looking at a now fixed trial date of May the 5th, is about the fairness of the trial should these matters not be resolved and should the accused be forced to have to defend himself.

[17] The application judge refused to grant most of the relief sought by the respondent. She dismissed the challenge to the constitutionality of the Legal Aid Services Act, 1998 and refused to make any order for an increase in the hourly rate above the legal aid rates. She also stated that there should not be a stay of proceedings.

[18] The application judge nevertheless went on to find that, "This is a complicated case, the trial being May the 5th, I'm satisfied that no other person other than Mr. Wrock could do a fair representation of the accused at this stage." She decided that the denial of travel time, reasonable preparation time and travel expenses was unreasonable and that the request for junior counsel was reasonable. She stated that she had "some serious concerns" that if counsel's travel expenses and reasonable accommodation and meal expenses were not paid "the accused [would] not receive a fair trial."

[19] Accordingly, the application judge ordered that Legal Aid Ontario pay for the junior counsel and for his and Mr. Wrock's travel time, travel and meal expenses and all of their preparation time, "with the only limitation being the reasonableness of the time expended". Failing payment by Legal Aid Ontario, these expenses were to be paid by the Ministry of the Attorney General.

Analysis

[20] Defence counsel who undertake to defend indigent accused through the legal aid system perform an invaluable service to the community and to the administration of justice in this province. The state has a constitutional obligation to ensure that indigent accused receive a fair trial, and in many cases that means ensuring that the accused is represented by counsel. Under the Ontario legal aid certificate system, it is because defence lawyers are willing to accept legal aid certificates and provide competent and effective counsel to accused facing criminal charges that the state is able to fulfill its constitutional obligation. The importance [page489] of the work that defence counsel perform for legal aid clients cannot be underestimated. Moreover, defence counsel agree to perform these services at rates, and in accordance with conditions, that mean they will not always be fully reimbursed for all the work they do to ensure that clients caught up in the criminal justice system receive fair treatment and an effective defence. See the comments of Nicholas J. in R. v. G.L., [2002] O.J. No. 3898, 99 C.R.R. (2d) 91 (C.J.).

[21] However, under our system the obligation for setting legal aid rates and policies relating to retention of out-of-town counsel and of junior or co-counsel lies with Legal Aid Ontario, not the court. See New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124 at paras. 102-08 and R. v. Cai (2002), 2002 ABCA 299, 170 C.C.C. (3d) 1, 9 C.R. (6th) 184 (Alta. C.A.), application for leave to appeal to the Supreme Court of Canada dismissed [2003] S.C.C.A. No. 253, at paras. 8-18. A criminal trial court has no jurisdiction to review those policies and, having determined that they are unreasonable, impose other arrangements on Legal Aid Ontario. A criminal trial court's jurisdiction rests solely on the obligation to ensure that an accused person receives a fair trial. In some cases, the court will be satisfied that if an accused is not represented by counsel, his or her right to a fair trial as guaranteed by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms will be infringed. If such an accused lacks the means to employ counsel privately, but has nevertheless been refused legal aid, the court can make an order staying the proceedings until the necessary funding for counsel is provided by the state. The trial will then not proceed until either the government or Legal Aid Ontario provides funding for counsel. This is a so-called Rowbotham order based on this court's decision in R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1, 35 C.R.R. 207. The court explained the legal basis for this order at p. 66 C.C.C.:

In our opinion, those who framed the Charter did not expressly constitutionalize the right of an indigent accused to be provided with counsel, because they considered that, generally speaking, the provincial legal aid systems were adequate to provide counsel for persons charged with serious crimes who lacked the means to employ counsel. However, in cases not falling within provincial legal aid plans, ss. 7 and 11(d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require funded counsel to be provided if the accused wishes counsel, but cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial.

[Emphasis in original omitted]

[22] In some cases, legal aid has been refused because in accordance with legal aid guidelines, the person does not qualify [page490] financially for legal aid. Where the accused seeks a Rowbotham order, the court, while giving appropriate deference to the decision of Legal Aid, must reach its own decision about whether the accused can afford counsel. As was said in Rowbotham at p. 69 C.C.C., "there may be rare circumstances in which legal aid is denied but the trial judge, after an examination of the means of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial". However, when a court makes a Rowbotham order, it is not conducting some kind of judicial review of decisions made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial.

[23] In this case, there was never any dispute that the respondent required counsel to ensure that he had a fair trial and that he could not fully fund counsel from his own resources. He was therefore granted a contributory [See Note 4 at the end of the document] legal aid certificate.

[24] On the application, the respondent raised two sets of issues. First, he submitted that the legal aid rates were so low that he was denied adequate representation and therefore a fair trial. The application judge found against the respondent and it is no longer an issue in this appeal. The second set of issues concerned the reasonableness of the conditions attached to the legal aid certificate, namely the denial of compensation for travel time and disbursements, the limit on preparation time and the requirement of prior approval for junior counsel. This appeal concerns that second set of issues.

[25] In considering these issues, the application judge was, again, not entitled to review the reasonableness of the decisions made by Legal Aid. Her focus had to be on whether the respondent's right to a fair trial was imperilled because of the conditions under which he was being defended. In my view, there was no evidence to support a finding that the respondent's right to a fair trial was at risk.

[26] The Charter guarantees to a fair trial and fundamental justice mean that the state must provide funds so that an indigent accused can be represented by counsel where counsel is required to ensure that the accused person has a fair trial. Further, within reason, the court will protect an accused's right to choose his or her counsel. As this court said in R. v. Speid (1983), 1983 1704 (ON CA), 43 O.R. (2d) 596, 7 C.R.R. 39 (C.A.) at p. 598 O.R.: [page491]

The right of an accused to retain counsel of his choice has long been recognized at common law as a fundamental right. It has been carried forth as a singular feature of the Legal Aid Plan in this province and has been inferentially entrenched in the Charter of Rights which guarantees everyone upon arrest or detention the right to retain and instruct counsel without delay. However, although it is a fundamental right and one to be zealously protected by the court, it is not an absolute right and is subject to reasonable limitations.

[27] Absent compelling reasons, such as a disqualifying conflict of interest or incompetence, the courts will not interfere with an accused's choice of counsel. Further, the courts will avoid actions that result in accused persons being improperly or unfairly denied the opportunity to be represented by their counsel of choice. See R. v. McCallen (1999), 1999 3685 (ON CA), 43 O.R. (3d) 56, 131 C.C.C. (3d) 518 (C.A.) at pp. 531-32 C.C.C.

[28] However, the right of an 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 of choice. See R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, 92 C.C.C. (3d) 353 at pp. 267-68 S.C.R., p. 374 C.C.C.; R. v. Rockwood (1989), 1989 197 (NS CA), 49 C.C.C. (3d) 129, 42 C.R.R. 369 (N.S.C.A.); R. v. Ho, 2003 BCCA 663, [2004] 2 W.W.R. 590, [2003] B.C.J. No. 2713 (C.A.); and Québec (procureur général) v. C. (R.) (2003), 2003 33470 (QC CA), 13 C.R. (6th) 1, [2003] J.Q. no. 7541 (C.A.).

[29] There would appear to be two exceptions to this general proposition. First, in some unique situations it may be that an accused can establish that he or she can only obtain a fair trial if represented by a particular counsel. In those unusual circumstances, the court may be entitled to make an order to ensure that the accused is represented by that counsel. This was the case in R. v. Fisher and the genesis of the so-called Fisher order. But in making the order, Milliken J. recognized that he was faced with a unique case, and he suggested at para. 20 that the circumstances that led him to make the order might not occur in Saskatchewan "in another thirty years".

[30] Second, in unusual circumstances, the court may find that the accused simply cannot find competent counsel to represent him or her on conditions imposed by Legal Aid. One would expect those cases to be exceedingly rare. For example, if the accused was unable to retain local counsel, Legal Aid would inevitably grant authorization to retain out-of-town counsel. See R. v. Swearengen (December 5, 2002, unreported, Ont. S.C.J.). Courts in Ontario have, with few exceptions, rejected the proposition that enhanced rates above those authorized by Legal Aid are necessary to ensure that accused receive competent counsel. See R. v. Abu-Taha, [2001] O.J. No. 4278 (S.C.J.); R. v. Montpellier, 2002 34635 (ON SC), [2002] O.J. No. 4279 (S.C.J.); R. v. Swearengen; and R. v. Magda, [2001] O.J. No. 1861 (S.C.J.). [page492]

[31] The respondent's case is not unique and it is not of the same order of complexity as the Fisher case. It is an arson case expected to last seven days in which there may be up to 30 Crown witnesses, one of whom was a former accomplice. If this is the level of complexity that would justify a Fisher order, virtually every accused facing a jury trial could claim an entitlement to state-funded counsel of choice. That is simply not the law. As to the respondent's relationship with his counsel, it is not unusual for accused to have prior professional relationships with a lawyer. The fact that counsel had a prior relationship with the respondent and that the respondent had confidence in him similarly did not demonstrate an entitlement to state-funded counsel of choice. See R. v. Bruha, 2002 NWTSC 58, [2003] 1 W.W.R. 339, [2002] N.W.T.J. No. 72 (S.C.). I have set out earlier a paragraph from the affidavit of junior counsel where he attempts to explain the basis for the application. There is nothing in that paragraph that could justify a conclusion that this case was so difficult, and that counsel's relationship with the respondent was so special, that only Mr. Wrock could handle it.

[32] This was also not a case where a Fisher-type order was required because the respondent could not otherwise obtain competent counsel. There was no evidence before the application judge that other competent counsel were not available to take the case and to do so on the conditions imposed by Legal Aid. Oral submissions from counsel at the hearing about the number of lawyers in the county was no basis for finding that there were no other competent lawyers available to take the case.

[33] Since there was nothing unique about this case and the respondent failed to show that local counsel were not available, the basis for the order would seem to turn on the timing of the application. As I have said, the application judge framed the issue in these terms:

The issue and the real concern that I have at this point, being April the 3rd, looking at a now fixed trial date of May the 5th, is about the fairness of the trial should these matters not be resolved and should the accused be forced to have to defend himself.

[34] She then held that given the trial was to begin in one month, "no other person other than Mr. Wrock could do a fair representation of the accused at [that] stage." In my view, the imminent approach of a trial date could not justify the order made by the application judge.

[35] Under the Ontario system, the respondent was entitled to seek out a lawyer willing to accept his legal aid certificate. He sought out Mr. Wrock and Mr. Wrock accepted the certificate. However, Mr. Wrock would require authorization in advance [page493] from the area director for travel time, travel expenses and junior counsel. In the circumstances, counsel's professional obligation in December 2001 was either to proceed on Legal Aid's terms, or assist his client in finding other competent counsel who was prepared to defend his client.

[36] The preliminary inquiry was held in June 2002. It was expected to last seven days. In fact, it lasted only one day because a former accomplice pleaded guilty and then testified for the Crown. The respondent says that it was at that point that the case took on added complexity. Assuming that to be the case, the trial was still some time off. As it turned out, the trial date was almost one year later. At that point, Mr. Wrock and the respondent knew that Mr. Wrock was not going to be paid by Legal Aid for his travel time and expenses. They certainly had no reason to believe at that point that Legal Aid would pay for junior counsel, since Mr. Wrock had not sought prior authorization. The respondent, however, did not seek out other counsel and in the result this application came on for hearing only one month before trial.

[37] There was, in any event, no evidence that no other lawyer was available to proceed with the trial on the scheduled trial date. Even if there had been such evidence, it would not follow that the respondent was entitled to the order made by the application judge. The application judge could have adjourned the case to permit the respondent time to retain local counsel. Subsequent events have demonstrated that the respondent is not concerned with or prejudiced by delay of his trial. At his request the trial has in fact now been adjourned for over a year pending the outcome of this appeal.

[38] Alternatively, having regard to the circumstances, the application judge could have required Mr. Wrock to proceed with the case since he was on the record and had undertaken to defend the respondent. Rule 2.09(5) of the Rules of Professional Conduct of the Law Society of Upper Canada is clear on this issue:

2.09(5) Where a lawyer has agreed to act in a criminal case and where the date set for trial is not far enough removed to enable the client to obtain another lawyer or to enable another lawyer to prepare adequately for trial and an adjournment of the trial date cannot be obtained without adversely affecting the client's interests, the lawyer who agreed to act may not withdraw because of non-payment of fees.

(Emphasis added)

[39] The order made by the application judge was not necessary to ensure that the respondent was properly represented and received a fair trial. There was therefore no basis for making that order and it must be set aside. [page494]

[40] In light of this conclusion, which is based on the record before the application judge, I need not consider the other grounds of appeal concerning the application judge's refusal to receive the evidence of Mr. Cliffen and the application to receive fresh evidence.

[41] I do, however, wish to deal with two further matters. The first issue is the propriety of making an order against Legal Aid Ontario. Even if a case had been made out for a Fisher-type order, the order should have been made against the Crown, not Legal Aid Ontario. It would then be for the Attorney General of Ontario to determine how to respond to the order. He may have been able to make some arrangement with Legal Aid Ontario. But that was a matter for the Attorney General and the Legal Aid authorities. It was not an issue for the criminal court. See Québec (Procureur général) v. C. (R.), at para. 177.

[42] Finally, the application judge made an order that the Crown pay the respondent $500 as costs of the application. The order seems to have been made solely on the basis that costs should follow the event as in civil cases. That is not the rule in indictable matters. See R. v. Leduc (2003), 2003 52161 (ON CA), 176 C.C.C. (3d) 321, [2003] O.J. No. 2974 (C.A.). The trial judge erred in ordering costs against the Crown in this case. There was nothing in the conduct of the case by the Crown that would warrant a costs order.

Disposition

[43] Accordingly, as was indicated at the conclusion of oral argument, leave to appeal is granted, the appeals by the Crown and Legal Aid Ontario are allowed and the order of the application judge, including the costs order, is quashed.

Appeal allowed.

Notes

Note 1: Section 676.1: "A party who is ordered to pay costs may, with leave of the court of appeal or a judge of a court of appeal, appeal the order or the amount of costs ordered." See Quebec (Attorney General) c. C. (R.); R. v. Beauchamps, 2002 SCC 52, [2002] 2 S.C.R. 762, 164 C.C.C. (3d) 423.

Note 2: The legal aid tariff sets a limit on the number of hours of preparation for which it will pay. However, an application may be made to the area director for a discretionary increase.

Note 3: SI/92-99, 1992 Canada Gazette, part II, p. 2298, amended SI/97-121, October 29, 1997, Canada Gazette, part II, Vol. 131, p. 3042, Rule 27.

Note 4: As a condition for obtaining legal aid, the respondent was required to make some payments to Legal Aid Ontario.