Court File and Parties
Court File No.: Toronto Region Ontario Court of Justice
Between:
Her Majesty the Queen
T. Harrison, for the Crown
— And —
Kevin Lewis
--- And ---
The Criminal Lawyers' Association, Intervener
— And —
Salma Jaffer, Amicus Curiae
H. Pringle, for the Intervener on behalf of Amicus Curiae
Heard: December 21, 2011
FELDMAN J.:
Background
[1] This is an application by the Intervener, the Criminal Lawyers' Association, on behalf of Salma Jaffer, for court-assessed fees set above her legal aid rate of $88.00 per hour for work done by her in the matter of Regina v. Kevin Lewis following her appointment as amicus curiae by me in my role as case management judge. Mr. Lewis was charged with a number of serious sexual offences. The matter had some urgency as one of the more elderly complainants suffered from dementia, was terminally ill and her ability to recall or even testify was uncertain.
[2] It was therefore important that this case, for which a preliminary inquiry was shortly pending, proceed with dispatch. There was a very real risk, however, that the proceeding might be derailed. Mr. Lewis seemed either unable or unwilling to sustain a solicitor-client relationship with at least two lawyers. In addition, his fitness was questionable.
[3] It became clear that in the circumstances it was essential that the court make its best efforts to have the preliminary inquiry go forward, if possible, on July 30 and 31, 2010, while at the same time protecting Mr. Lewis' fair trial interests. I felt that I required the assistance of a neutral 'friend of the court' to advise and assist the preliminary inquiry judge in relation to these issues with a view to resolving the question of retained counsel, finding a lawyer to cross-examine the complainants, dealing with fitness, conducting a focus hearing and avoiding the kind of delay that would jeopardize the prosecution and in the process diminish the administration of justice.
[4] I sought an amicus counsel who I felt was capable, conscientious and importantly, available on short notice. I intended to leave it open in the circumstances of this case for amicus to shift into the role of defence counsel should that prove necessary and feasible.
[5] I was aware that Ms. Jaffer appeared frequently in these courts. I felt she possessed those professional qualities this case required. On July 17, I asked Ms. Yolande Edwards, Scarborough supervisor of duty counsel, to canvass Ms. Jaffer's availability and willingness to accept this assignment.
[6] On July 18, Jack Moise appeared for the defendant but was fired by him. Mr. Lewis told the court he had other counsel, but would not reveal his name. That was not the first time. Mr. Moise declined to participate further.
[7] On that date, Ms. Jaffer agreed to act as amicus in relation to the earlier mentioned concerns and issues. The Crown did not oppose the appointment. The applicant advised the court, however, that she would not agree to accept remuneration at legal aid rates. I left that issue to be resolved by the preliminary inquiry judge, who later was of the view that since I made the appointment it would be more appropriate that I also resolve the question of court-assessed fees.
[8] I set the focus hearing for July 22. I also asked the applicant to find counsel to cross-examine the complainant. I am told that Justice T. Lipson, the assigned judge, asked Ms. Jaffer to prepare for a fitness hearing on July 22.
[9] I am also advised that Mr. Lewis was found unfit and sent for treatment for 60 days. The preliminary inquiry was delayed. Unfortunately, the complainant died before testifying.
[10] Ms. Jaffer set out her role and responsibilities in an affidavit in support of this application. When appointed amicus, she had been at the Bar for 5 years. She described her task as multi-faceted, one that included reviewing disclosure and making it available to the accused; determining potential evidentiary issues; preparing for an anticipated Code s. 540 application by the Crown; locating suitable counsel to cross-examine the complainants under s. 486; preparing for and participating in a fitness hearing that ultimately resulted in a finding of unfit; organizing her preparation with a view to the possibility of taking on an increasing quasi-defence counsel role. Ms. Jaffer's private fee rate is $200 per hour.
Applicable Principles
[11] Both superior and statutory courts have jurisdiction to appoint amicus curiae and to set the terms of that appointment where they determine it is necessary to avoid an injustice. A necessary incident of this jurisdiction is the authority to set the rate of compensation and require the state to pay: R. v. Russel, 2011 ONCA 303.
[12] The court in Russel accepted that judges should proceed cautiously in making orders that had the effect of expending public funds, but of relevance here, put to rest the submission that because amicus undertakes a role similar to that of defence counsel under a legal aid certificate, the effect of an order for enhanced fees serves to circumvent the provisions of the Legal Aid Services Act. Rather, Rosenberg J.A. viewed amicus' role in Russel as assisting the court in difficult circumstances in part by performing some of the services of defence counsel for an uncooperative client but "also serving the much broader interests of the administration of justice". The circumstances here were similarly daunting. An uncooperative, mentally disordered accused threatened to derail a proceeding on serious charges where the demise of an elderly material witness appeared imminent.
[13] I would characterize the appointment of amicus in this situation, as did Ratushny J. in R. v. Greenspon, as, in part, an "insurance policy" against the matter not being able to proceed on the scheduled date. The relatively brief duration of Ms. Jaffer's responsibilities here was directly related to the collaboration of the Attorney General and Legal Aid in assigning counsel to replace amicus. Predictably, given the history, that counsel was fired. It would seem that the administration of justice would have been better served by assigning amicus, as this court contemplated possible, an enhanced advocacy role to protect the fair trial interests of the accused while continuing to assist the court as needed. The charges were serious and the proceedings in jeopardy. It would be my view, in these circumstances, that the short-lived nature of this retainer bears no relation to consideration of the rate of remuneration. It relates, rather, to the importance and complexity of the assignment in difficult and exigent circumstances where the interests of justice prevail.
Setting the Rate of Compensation
[14] In Russel, Justice Rosenberg described the setting of the rate of compensation as a "judgement call". He relied on the criteria discussed by Binnie J. in R. v. White, 2010 SCC 59 in assessing what was fair and reasonable in the circumstances, including "recognition of the limits of state funding, but having regard to such factors as counsel's experience, the importance of the issues raised and the complexity of the case".
[15] Of significance, Justice Binnie said that while the legal aid tariff was unilaterally set by the Crown based on its own policies and priorities, it was not conclusive, although a significant factor to be taken into account.
[16] Justice Rosenberg also made reference in this regard to R. v. Figueroa (2003), where the court weighed such factors as the importance of the assignment, legal complexity, the skill and experience of counsel and his or her normal private rate, all viewed in the context of serving the needs of the administration of justice.
[17] He, as well, noted that while performing such a public service, the appointee "ought not to expect to be remunerated at private sector rates", given the stress on public funds. He added that the rate legal aid would pay to defence counsel is also an important factor and "may serve as the applicable template in many cases".
Application to this Case
[18] Salma Jaffer is recognized in this jurisdiction as competent counsel known for the thoroughness of her preparation and relentless advocacy on behalf of difficult clients that belie her years at the Bar. I asked her to undertake on short notice an assignment as amicus that included in part traditional responsibilities of defence counsel but also contemplated a role that balanced her assertion of the fair trial interests of an uncooperative accused carrying mental health issues who was hijacking the process with his unpredictable behaviour with an overriding duty to the court to assist it in attempting to prevent a serious proceeding from being derailed and the prosecution jeopardized. Her duties included, as well, an administrative function of finding competent counsel to cross-examine the complainants. Her involvement helped maintain the proper functioning of the administration of justice in difficult circumstances.
[19] Ms. Jaffer also demonstrated the ability to safeguard the liberty interests of a mentally disordered accused at a fitness hearing while navigating near-incompatible responsibilities of protecting privileged communications while fulfilling her duty to assist the court as it directed. There was complexity in this manner of representation.
[20] In determining what is fair and reasonable remuneration in the circumstances, I am mindful of the public service nature of amicus' role, the limits on state funding and the fact that the legal aid tariff is a significant factor to be taken into account. In this latter regard, I do not accept the Crown's submission that the legal aid tariff is the norm in this weighing process, although it may be the appropriate starting point, even "template" in many cases.
[21] In balancing the Figueroa criteria in this case in the context of my earlier assessment of counsel's skill, the importance of this assignment and its legal challenges, including carriage of the fitness issue, I am of the view that amicus is entitled to receive court-assessed fees of a level above legal aid rates that also indicates respect for use of public funds and acknowledgement that such rates are an important consideration in this analysis.
[22] In all the circumstances, having regard to Ms. Jaffer's private hourly fee rate, I would set her remuneration at $150 per hour. It is unclear what responsibilities her slightly more senior colleague undertook briefly on her behalf. I would set his rate, as well, at $150 per hour. I direct the Ontario Attorney General to compensate Ms. Jaffer at that hourly rate.
Released: February 17, 2012
Signed: "Justice L. Feldman"