Court File and Parties

Court File No.: Caledon 1202488 Date: 2012-06-12 Ontario Court of Justice

Between: Her Majesty the Queen Respondent

— And —

Jason Meloche Applicant

Counsel:

• Mr. J. Zarudny and Mr. E. Bala for the Crown, Respondent
• Rohan Michael Robinson for the Applicant, Jason Meloche

Heard: In Writing

Ruling

MAUND, J.:

Introduction

[1] This is an application on behalf of Jason Meloche for the Court to appoint amicus curiae in this proceeding in respect of his interests. Mr. Meloche is jointly charged with Allen John Villeneuve and Shane Gordon Whiteman with the offences of robbery, aggravated assault and uttering threats contrary to Sections 344(b), 268 and 264.1(1)(a) respectively of the Criminal Code of Canada. The charges arise from a serious alleged incident on October 17th, 2011 in the Town of Caledon in which the complainant was said to have been stabbed in the abdomen.

[2] The co-accused parties, Mr. Villeneuve and Mr. Whiteman, are currently represented by counsel and have been represented throughout these proceedings. Mr. Whiteman has been in custody since this incident in October, 2011 and remains in custody. Mr. Villeneuve was originally in custody but has recently been released on a recognizance of bail. The Applicant, Mr. Meloche was released on bail at the outset.

[3] Two of the parties elected a trial by Judge and Jury and a preliminary inquiry has been set to proceed on June 18th and 22nd next. As the preliminary is imminent and one of the accused persons remains in custody, there is some urgency in dealing with this Application.

[4] The Applicant was originally represented by counsel, Ms. Adele Monaco. As a result of concerns raised by the Crown that Ms. Monaco was in a conflict situation, she voluntarily removed herself from the Record. At that time, Ms. Monaco held a Legal Aid certificate for the Applicant and she approached Mr. Robinson to determine if he would become retained on behalf of Mr. Meloche. I am advised that Mr. Robinson agreed to represent the Applicant provided his Legal Aid certificate was confirmed.

[5] There has been considerable delay in the intake period and in scheduling the first judicial pretrial before me as case management Judge. This may well have been for reasons of the changing of legal representation of the parties as well as the ongoing and extensive nature of the disclosure provided by the Crown. I do not assign responsibility for delay to date in these Reasons. In any event, the judicial pretrial was first held on February 16th, 2012 and proceeded on four subsequent appearances up to and including April 18th, 2012. On that date, early preliminary inquiry dates were reserved for June 18th and June 22nd on the basis that two of the accused at that time were in custody. During all appearances, Mr. Robinson made it clear that he was not officially retained on behalf of Mr. Meloche pending confirmation of his status.

[6] The materials before me indicate that Legal Aid refused to issue a new certificate to the Applicant after previous counsel was obliged to withdraw. The Applicant's appeal of this refusal was denied on April 9th, 2012. The Appeal reasons from Legal Aid indicate that Mr. Meloche did not advise Legal Aid in a change in his financial circumstances when he qualified for a limited period to collect EI benefits. During that period of time his income was said to exceed the minimum Legal Aid assessment standards. I am advised that the Applicant currently has no financial resources to retain counsel to act on his behalf in this criminal proceeding.

[7] While the discussion and positions of the parties and the Crown at the judicial pretrial is confidential, I can indicate that there will be significant issues in connection with potential committal at the preliminary inquiry, particularly in relation to Mr. Whiteman and Mr. Meloche who were alleged to have acted as parties to the offence. It is trite to observe that the three co-accused are adverse in interest in this proceeding.

[8] The Court was advised for the first time during argument of this application on June 4th by Mr. Fetterly on behalf of the assigned Crown for the preliminary, that the Crown intends to apply pursuant to Section 486.3(2) to appoint counsel to conduct the cross-examination of the complainant on behalf of Mr. Meloche as an unrepresented party. The Crown invariably brings such applications well in advance of trial or preliminary inquiries. In the event that the Court makes such appointments under this section, it is necessary to identify counsel who could be available and prepared to conduct such cross-examinations well in advance of a proceeding. As the Crown has not brought such a section 486.3(2) application to date, I must assume that it is their intention to wait until the commencement of the preliminary inquiry on June 18th. The practical effect of that, if the Order were granted by the presiding Judge would be that the preliminary inquiry would not commence on the first day. The second day would very probably be lost as well.

[9] Apart from the fact that one of the co-accused will have remained in custody for approximately eight months as of June 18th, the potential difficulty in re-scheduling a matter involving three experienced and busy counsel as well as the inconvenience to scheduled witnesses is obvious. The Court has a duty to ensure that this preliminary inquiry proceeds in a timely manner. I also have noted my concern about the current length of the intake process for this case in the Ontario Court of Justice to date. While I make no finding of responsibility in that regard, it is an important consideration.

The Issues

[10] I will attempt to deal with the issues as they were argued by the Crown during argument, namely:

1. Whether Mr. Robinson has standing to bring this Application on behalf of Mr. Meloche;

2. Whether the Ontario Court of Justice has jurisdiction as a statutory Court or to appoint amicus curiae or alternatively whether it is appropriate for this Court to make such an Order in these circumstances; and

3. If an appointment of amicus curiae is made whether the Court can or should fix a rate of compensation in excess of the Legal Aid rates.

1. Standing

[11] The Crown submits that Mr. Robinson has no standing to make an application for appointment of himself as amicus curiae. Further the Crown argues respectfully but bluntly, that this Application is an "end run" around other more appropriate avenues to seek public funding of an unrepresented accused, namely the Rowbotham and Fisher procedures.

[12] The Crown concedes that this Court has the authority to consider the appointment of an amicus curiae on its own motion. During the various pretrials I repeatedly raised concerns as case management Judge about the impact of representation for Mr. Meloche on the process. When the Applicant's Legal Aid appeal was denied, the Court was advised by Mr. Robinson that he would bring this Application before the Court. Mr. Meloche raised his concerns over his lack of legal representation over the course of many appearances.

[13] Mr. Robinson assisted Mr. Meloche and also the Court in this process well before this Application. I think it is fair to say that counsel never sought this particular assignment. Rather it found him as a result of the evolving needs of the Applicant and the Court. I cannot agree that Mr. Robinson is prevented from arguing this Application on behalf of Mr. Meloche in the circumstances. Nor, in my view, is this similar to the circumstances before my colleague Justice Mocha in R v. Jason Passaretti (Ont.C.J. February 21, 2008 unreported). In that case, the Court made a section 486.3 Order without reference to any particular counsel and counsel appeared to argue the issue of his potential rate of remuneration.

[14] Mr. Robinson is fully informed on all of the issues in relation to Mr. Meloche. It is entirely appropriate that he argue this matter on his behalf. While I agree that the filing of Mr. Robinson's affidavit in support is not the best practice, the facts are essentially not in dispute and are generally well known to me through my case management responsibilities in this case.

2. Authority to Appoint Amicus Curiae

[15] The essential issue is whether this Court can or should appoint an amicus curiae in these circumstances. The authority of the Ontario Court of Justice as a statutory Court to appoint amicus curiae was clarified by R v Imona-Russell 2011 ONCA 303, 104 O.R. (3d) 721 (Ont.CA). The Court states at paragraph 37:

"In limited circumstances, there will be a statutory basis for a court to order appointment of amicus curiae. Where s. 24(1) of the Charter does not apply, and there is no statutory basis, we are satisfied that a superior court and a statutory court conducting a criminal trial have the jurisdiction to appoint amicus curiae,.."

The issue before me is not a request for a Charter based remedy. As pointed out in argument, the elections made trigger a preliminary inquiry in this case. Accordingly, this Court has no Charter jurisdiction. This Court has no authority to consider either a Rowbotham or a Fisher application in the circumstances.

[16] Imona-Russell would indicate that where s. 24(1) of the Charter does not apply, the power of a statutory Court flows from the authority at common law to "control the process in order to function as court of law" or as later stated in paragraph 40, such jurisdiction derives from "that court's power to manage its own process". Further at paragraph 43 the Court states:

"It is unnecessary to fully explore the circumstances in which a statutory court may exercise the authority to appoint amicus. The authority at least arises where the exercise of the power to appoint amicus is necessary for the court to properly exercise the jurisdiction conferred by statute, in this case the jurisdiction conferred by the Criminal Code to try an accused.."

[17] I do not interpret the reference by Justice Rosenberg in paragraph 37 to "a statutory court conducting a criminal trial" (emphasis added) as limiting the jurisdiction of a statutory court to criminal trial proceedings. Preliminary inquiries are an important component of the statutory process to try an accused. A full reading of the discussion on this issue in Imona-Russell leads me to conclude that the jurisdiction to appoint amicus curiae must extend to preliminary inquiries.

[18] I agree with the Crown that the power to appoint amicus curiae must be exercised with constraint and in limited circumstances. As often stated in the caselaw and by Justice Feldman of this Court in R v Lewis [2012] O.J. No. 773 (OCJ) paragraph 12:

"The Court in Russell accepted that judges should proceed cautiously in making orders that had the effect of expending public funds...."

[19] So what are the circumstances to consider. The standard has been described as those circumstances where it was "necessary to prevent a failure of justice". Imona-Russell (paragraph 43).

[20] The Crown argues that it is unlikely that the preliminary inquiry will be derailed if the court declines invoke this jurisdiction. With respect, I fail to see how the preliminary could not be derailed at this late date which is within two weeks of commencing. If the Applicant continues without legal assistance and the Crown is granted a s. 486.3 Order, I do not know how the preliminary could possibly proceed. And I have already stated my concern about a preliminary where one accused is in custody not proceeding after eight months.

[21] I would also observe that the prospect of the Applicant pursuing a Rowbotham style of remedy before the Superior Court of Justice at this late date is unrealistic. Even if granted, the prospect of counsel being both available and prepared by June 18th is unlikely.

[22] The appointment of amicus curiae would equally protect the process of this court as well as protect the interest of the Applicant to have a fair criminal proceeding. It is trite to state that counsel for the other accused have no role in protecting the interest of Mr. Meloche at the preliminary. And while I acknowledge the limited statutory powers of an Ontario Court Justice on a preliminary inquiry, that proceeding is very important and historic part of the pretrial process. It often determines the ultimate result of trial. I cannot agree or accept that the Applicant could participate in this proceeding on these serious charges in any meaningful way without counsel. I have concluded in these circumstances that I have jurisdiction and it is necessary to appoint amicus curiae for the Applicant until the conclusion of the preliminary inquiry.

[23] The Crown reminds me of caselaw which indicates that some process of broader selection of counsel for this role is the best practice. R v. Cairenius O.J. No. 2323 (SCJ) at paras. 106 and 113. I agree with that in principle. However, I need to protect this process going forward. Mr. Robinson is already engaged in the issues and is prepared. He enjoys the apparent confidence of Mr. Meloche and, more importantly, the confidence of the Court. In these rare circumstances, Mr. Robinson is the only logical candidate for amicus curiae who is both available and prepared to conduct the proceeding. This court simply does not have the luxury of a selection process as proposed by the Crown at this stage.

[24] Finally, I appreciate the argument by the Crown that there are alternative remedies which might have been pursued. However, I do not find that a Rowbotham application must be sought first before I may grant this relief. In the circumstances such an Application cannot be dealt with in a timely way and is impractical.

3. Rate of Remuneration

[25] Imona-Russell establishes that the rate of remuneration is within the jurisdiction of this court. Generally the court should consider the nature of the appointment, the level of experience of counsel and the complexity of the undertaking. The Legal Aid rate is also an important consideration. Such a rate must be fair and reasonable and also reflect that compensation will be paid from public funds.

[26] Mr. Robinson is an experienced criminal counsel and his ordinary rate is $350.00 per hour. He has indicated that he recommends a rate of $180.00 per hour which is roughly half of his private rate. Given the lateness of this appointment, Mr. Robinson will have to prioritize this case to be ready by June 18th. He has already received and reviewed Crown disclosure which is said to be extensive and continues to be forthcoming on the eve of the preliminary. The duties of counsel as amicus curiae are broader in scope than simply representing a client and that is also a factor to consider.

Conclusion

[27] In the result, Rohan Michael Robinson is appointed amicus curiae until the completion of the preliminary inquiry in relation to Jason Meloche at a compensation rate of $180.00 per hour. His account shall be reviewed and approved by the presiding Justice at the preliminary inquiry or such person as he may delegate.

[28] I would like to add one final comment. The Crown expressed concern in argument that this Application circumvents the usual practice. The implication is that granting such an Order may open the floodgates to requests by the Defence for public funding through this procedure. In the view of this Judge, my Order is made in unique circumstances and is of limited duration. I believe it is a rare, but necessary exercise of the discretion of this Court.

Released: June 12th, 2012

Signed: Justice Douglas B. Maund