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RIGHTS OF ACCUSED - State-funded counsel - Choice of counsel

Tuesday, November 07, 2017 @ 6:00 AM  


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Application by the accused to extend the time to appeal and appeal by the accused from the dismissal of his application for judicial review of the Legal Aid Board’s denial of his request for private counsel. The accused was charged with being an accessory after fact to murder. The Board rejected the accused’s appeal of the Legal Aid Commission’s decision refusing his request for private counsel, finding that the Legal Aid Act (Act) only permitted choice of counsel for the named offences of murder, manslaughter and infanticide. The accused applied for judicial review of that decision on the grounds that the Board incorrectly interpreted s. 31(3.1) of the Legal Aid Act with respect to the offence of murder and that murder should include the offence of accessory after the fact to murder. The reviewing judge concluded the standard of review was likely reasonableness, but he was content to review the decision on the correctness standard. The judge determined that the Board failed to provide reasons for its decision, but addressed reasons that could be offered in support of the decision. Based on those reasons, he determined that the Commission’s decision was correct and that s. 31(3.1) of the Act did not apply to the offence of accessory after the fact to murder. The accused appealed.

HELD: Application allowed and appeal dismissed. The application for the extension of time to appeal the application judge’s decision was granted on the basis that the interpretation of section 31(3.1) of the Act, including its scope of application in these circumstances, was a matter on which it would be helpful for the appeal court to provide clarification. The appropriate standard of review was reasonableness. The interpretation of s. 31(3.1) of the Act did not engage a question of law of central importance to the legal system as a whole or have an impact on the administration of justice as a whole. The issue related to the assessment of the language and intention of the legislation regarding the narrow question of whether certain offences were included in s. 31(3.1) for the purposes of the provision of legal aid services. The Commission’s decision was reasonable. A reasonable interpretation of s. 31(3.1) was that the phrase “with respect to” was limited to an understanding of the word it modified, in this case, murder, rather than as a connected between two related subject matters. Furthermore, the offences listed in s. 31(3.1) were interconnected, as manslaughter and infanticide were included offences when a charge of murder had been laid, but accessory after the fact was not. Accessory after the fact to murder was a different kind of offence as it did not require direct involvement in a death. The general principle under the Act was that state-funded counsel would be provided by solicitors employed by the Commission with the limited exception outlined s. 31(3.1).

Rowe v. Newfoundland and Labrador (Legal Aid Commission), [2017] N.J. No. 342, Newfoundland and Labrador Supreme Court - Court of Appeal, B.G. Welsh, C.W. White and F.P. O'Brien JJ.A., October 4, 2017. Digest No. TLD-November62017003