Canada (Attorney General) v. Stuart, J., and Savard, (1996) 74 B.C.A.C. 81 (YukCA)

• Judge: Wood, Rowles and Ryan, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: August 16, 1995
• Jurisdiction: Yukon
• Citations: (1996), 74 B.C.A.C. 81 (YukCA)

Can. (A.G.) v. Stuart, J. (1996), 74 B.C.A.C. 81 (YukCA);

    121 W.A.C. 81

MLB headnote and full text

Attorney General of Canada (appellant) v. His Honour Judge B. Stuart and Alain Savard (respondents)

(YU00291)

Indexed As: Canada (Attorney General) v. Stuart, J., and Savard

Yukon Court of Appeal

Wood, Rowles and Ryan, JJ.A.

April 10, 1996.

Summary:

The accused, Savard, was in custody re­specting a charge of breaching a recogni­zance. A show cause hearing was pending respecting his judicial interim release. His fitness to stand trial was in issue. Pursuant to s. 672.24 of the Criminal Code, the Terri­torial Court judge ordered that La Flamme represent the accused for the purposes of the show cause hearing and up to an including the fitness hearing. The accused was found fit to stand trial and was convicted. On the conclusion of the fitness hearing La Flamme continued to act on a pro bono basis throughout the trial and sentencing. La Flamme sought payment of his fees up to the end of the fitness hearing. The Territorial Court judge ordered that pursuant to s. 672.24 La Flamme's costs and fees would be paid by the Attorney General of Canada. The Attorney General of Canada applied for orders of certiorari and prohibition.

The Yukon Territory Supreme Court dis­missed the application. The Attorney General appealed, arguing that the Territorial Court judge had no jurisdiction to order that the Attorney General bear the costs of legal representation ordered under s. 672.24, and, if such jurisdiction existed, the judge erred in making the order in the absence of a finding that the accused was unable either to retain counsel privately or to obtain legal aid funding.

The Yukon Court of Appeal, Wood, J.A., dissenting, allowed the appeal and set aside the order of the Territorial Court judge requiring the Attorney General of Canada to pay La Flamme's fees. The court held that the Territorial Court judge exceeded his jurisdiction in making the order against the Attorney General.

Criminal Law - Topic 92.6

Mental disorder - Jurisdiction to order Attorney General to pay for court appointed counsel - An accused was in custody and awaiting a judicial interim release show cause hearing - His fitness to stand trial being in issue, the Territorial Court judge ordered, pursuant to s. 672.24 of the Criminal Code, that the accused be represented by counsel (La Flamme) in mat­ters up to and including the fitness hearing - The accused was found fit to stand trial and was convicted - The Terri­torial Court judge ordered that the Attor­ney General of Canada pay La Flamme's fees - The Yukon Court of Appeal held that the judge exceeded his jurisdiction - In the absence of express language in the Code requiring the gov­ernment to pay counsel, the power to do so could not be inferred.

Criminal Law - Topic 2813.1

Jurisdiction - To order Attorney General to pay for court appointed counsel - [See Criminal Law - Topic 92.6 ].

Cases Noticed:

Auckland Harbour Board v. R., [1924] A.C. 318 (P.C.), appld. [paras. 10, 104].

R. v. Ewing (1974), 18 C.C.C.(2d) 356; 49 D.L.R.(3d) 619 (B.C.C.A.), refd to. [paras. 11, 100].

R. v. White (1976), 32 C.C.C.(2d) 478; 73 D.L.R.(3d) 275 (T.D.), refd to. [para. 11].

R. v. Rowbotham (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1; 63 C.R.(3d) 113 (C.A.), refd to. [paras. 11, 101].

Deutsch v. Law Society of Upper Canada Legal Aid Fund, Lawsons and Legge (1985), 11 O.A.C. 30; 48 C.R.(3d) 166; 16 C.R.R. 349 (Div. Ct.), refd to. [para. 11].

R. v. Rooney (J.J.) (1994), 126 Nfld. & P.E.I.R. 1; 393 A.P.R. 1 (P.E.I.T.D.), refd to. [para. 11].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1; 92 C.L.L.C. 14,036; 10 C.R.R.(2d) 1, refd to. [paras. 14, 105].

British Columbia (Minister of Finance) v. R., [1935] S.C.R. 278, refd to. [para. 22].

R. v. S.T.C.; R. v. D.M.T. (1993), 140 A.R. 259; 81 C.C.C.(3d) 407 (Q.B.), refd to. [para. 32].

R. v. Fairholm (1990), 60 C.C.C.(3d) 289 (B.C.C.A.), refd to. [para. 40].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481, refd to. [para. 41].

Turgeon v. Dominion Bank, [1930] S.C.R. 67, refd to. [para. 58].

Canadian Broadcasting Corp. v. Broadcast Council of Canadian Union of Public Employees, Local 667 and Creamer, [1987] 3 F.C. 515; 76 N.R. 155; 38 D.L.R.(4th) 617 (F.C.A.), refd to. [para. 59].

R. v. Ouellette, [1980] 1 S.C.R. 568; 32 N.R. 361, refd to. [para. 61].

CNCP Telecommunications v. Alberta Government Telephones and CRTC, [1989] 2 S.C.R. 225; 98 N.R. 161, refd to. [para. 61].

Canadian National/Canadian Pacific Tele­communications - see CNCP.

Friends of the Oldman River Society v. Canada (Minister of Transport and Min­ister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; [1992] 2 W.W.R. 193; 88 D.L.R.(4th) 1, refd to. [para. 61].

Bombay (Province) v. Bombay (Municipal Corporation), [1947] A.C. 58 (P.C.), refd to. [para. 62].

Dietrich v. R. (1992), 109 A.L.R. 385 (Aust. H.C.), refd to. [para. 102].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353, refd to. [para. 107].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 69]; sect. 10(b) [para. 107].

Constitution Act, 1867, sect. 106 [para. 9].

Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 111]; sect. 672.12(2) [para. 76]; sect. 672.24 [para. 1]; sect. 672.5(8) [para. 33]; sect. 684(1), sect. 684(2) [para. 12]; sect. 694.1 [para. 13]; sect. 694.1(1) [para. 54].

Financial Administration Act, R.S.C. 1985, c. F-11, sect. 26 [para. 9].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 11, sect. 12 [para. 53]; sect. 17 [para. 61].

Supreme Court Act, R.S.C. 1985, c. S-19, sect. 53(7) [para. 30].

Young Offenders Act, R.S.C. 1985, c. Y-1, sect. 11(4)(b), sect. 11(5) [para. 31].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), p. 165 [para. 28]; 167 [para. 56].

Counsel:

S.D. Frankel, Q.C., and S. Fothergill, for the appellant;

L.F. Gower, for the respondents.

This appeal was heard in Vancouver, British Columbia, on August 16, 1995, before Wood, Rowles and Ryan, JJ.A., of the Yukon Court of Appeal. The following judgment of the court was delivered on April 10, 1996, including the following opinions:

Wood, J.A., dissenting - see paragraphs 1 to 71;

Rowles, J.A. - see paragraphs 72 to 116;

Ryan, J.A. - see paragraphs 117 to 120.