Oliver v. Legal Aid Commission (Nfld. and Lab.) et al., 2007 NLCA 67

• Judge: Wells, C.J.N.L., Mercer and Barry, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: October 26, 2007
• Jurisdiction: Newfoundland and Labrador
• Citations: 2007 NLCA 67;(2007), 271 Nfld. & P.E.I.R. 121 (NLCA)

Oliver v. Legal Aid Comm. (2007), 271 Nfld. & P.E.I.R. 121 (NLCA);

    826 A.P.R. 121

MLB headnote and full text

Temp. Cite: [2007] Nfld. & P.E.I.R. TBEd. NO.007

Joseph Anthony Oliver (appellant) v. Newfoundland and Labrador Legal Aid Commission (first respondent) and Attorney General of Newfoundland and Labrador (second respondent)

(07/68; 2007 NLCA 67)

Indexed As: Oliver v. Legal Aid Commission (Nfld. and Lab.) et al.

Newfoundland and Labrador Supreme Court

Court of Appeal

Wells, C.J.N.L., Mercer and Barry, JJ.A.

November 5, 2007.

Summary:

Oliver was charged with two counts of second degree murder. The Legal Aid Commission denied his request for choice of counsel. The Legal Aid Appeal Board upheld the decision. Oliver applied for judicial review, on the basis that the Appeal Board was in conflict of interest. Oliver also sought an order appointing counsel to argue the application. O'Regan, J., set aside the Appeal Board decision, remitted the matter to a differently constituted panel and adjourned the application. Oliver did not appear before the newly constituted Appeal Board and it upheld the Commission's decision. When the application resumed, it was treated as an application for counsel of choice. Two issues were identified: first, whether counsel of Oliver's choosing, but funded by the Attorney General, should be appointed to argue the application for appointment of counsel for the trial of the criminal charges and, second, the application for appointment of counsel in the criminal matter itself, which was described as "the main application". Goulding, J., denied Oliver's request that counsel be appointed to represent him on the application. The main application was determined by Orsborn, J., who dismissed the application for state funded counsel of choice. Oliver appealed the decisions of O'Regan, Goulding and Orsborn, JJ.

The Newfoundland and Labrador Court of Appeal dismissed the appeal.

Government Programs - Topic 1443

Legal aid - Entitlement - Right to counsel of choice - Oliver was charged with two counts of second degree murder - The Legal Aid Commission denied his request for choice of counsel - The Legal Aid Appeal Board upheld the decision - Oliver applied for judicial review, on the basis that the Appeal Board was in a conflict of interest - Oliver also sought an order appointing counsel to argue the application - O'Regan, J., set aside the Appeal Board decision, remitted the matter to a differently constituted panel and adjourned the application - Oliver did not appear before the newly constituted Appeal Board and it upheld the Commission's decision - When the application resumed, it was treated as an application for counsel of choice - Two issues were identified: first, whether counsel of Oliver's choosing, but funded by the Attorney General, should be appointed to argue the application for appointment of counsel for the trial of the criminal charges and, second, the application for appointment of counsel in the criminal matter itself, which was described as "the main application" - Goulding, J., denied Oliver's request that counsel be appointed to represent him on the application - The main application was determined by Orsborn, J., who dismissed the application for state funded counsel of choice - Oliver appealed the decisions of O'Regan, Goulding and Orsborn, JJ. - He argued that O'Regan, J.'s and Goulding, J.'s decisions were incorrect and prevented Oliver from having a fair hearing before Orsborn, J. - The Newfoundland and Labrador Court of Appeal dismissed the appeal - On full consideration, the rule against collateral attack might prevent the court from hearing an attack against O'Regan, J.'s and Goulding, J.'s decisions - Even if the decision of O'Regan J. could be attacked on appeal, Oliver did not establish error in the conclusion of O'Regan J. that a differently constituted Appeal Board would be untainted by any perceived apprehension of bias relating to the Appeal Board - The same conclusion would apply in respect of the order of Goulding J. - Even if her decision could be attacked on this appeal, the argument that the failure of Goulding J. to appoint counsel to assist on the application prevented Oliver from obtaining a fair hearing before Orsborn J., would be rejected - See paragraphs 20 to 29.

Government Programs - Topic 1443

Legal aid - Entitlement - Right to counsel of choice - Oliver was charged with two counts of second degree murder - The Legal Aid Commission denied his request for choice of counsel - The Legal Aid Appeal Board upheld the decision - Oliver applied for judicial review, on the basis that the Appeal Board was in conflict of interest - Oliver also sought an order appointing counsel to argue the application - O'Regan, J., set aside the Appeal Board decision, remitted the matter to a differently constituted panel and adjourned the application - Oliver did not appear before the newly constituted Appeal Board and it upheld the Commission's decision - When the application resumed, it was treated as an application for counsel of choice - Two issues were identified: first, whether counsel of Oliver's choosing, but funded by the Attorney General, should be appointed to argue the application for appointment of counsel for the trial of the criminal charges and, second, the application for appointment of counsel in the criminal matter itself, which was described as "the main application" - Goulding, J., denied Oliver's request that counsel be appointed to represent him on the application - The main application was determined by Orsborn, J., who dismissed the application for state funded counsel of choice - Oliver appealed the decisions of O'Regan, Goulding and Orsborn, JJ. - He argued that Orsborn, J., improperly exercised his discretion - The Newfoundland and Labrador Court of Appeal dismissed the appeal - Even given the fresh evidence of a telephone call to legal aid, when a female refused to give him legal advice, there was no conflict of interest - Orsborn, J., exercised his discretion judiciously - See paragraphs 30 to 37.

Practice - Topic 5408.1

Judgments and orders - General - Collateral attack - [See first Government Programs - Topic 1443 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 18].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 18].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 20].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, dist. [para. 23].

Adriaanse et al. v. Malmo-Levine et al. (1998), 161 F.T.R. 25 (T.D.), dist. [para. 24].

Bailey et al. v. Saskatchewan Registered Nurses' Association (1998), 167 Sask.R. 232 (Q.B.), dist. [para. 24].

Carlin v. Registered Psychiatric Nurses' Association of Alberta (1996), 186 A.R. 186; 39 (Q.B.), dist. [para. 24].

Lee (C.D.) Trucking Ltd. v. Industrial Wood and Allied Workers of Canada et al., [1998] B.C.T.C. Uned. H13 (S.C.), dist. [para. 24].

R. v. Jesso (H.) (2007), 265 Nfld. & P.E.I.R. 187; 805 A.P.R. 187 (N.L.C.A.), refd to. [para. 31].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 31].

Moray Seafoods Ltd. v. Nasco Canada Ltd. et al. (2006), 256 Nfld. & P.E.I.R. 219; 773 A.P.R. 219 (N.L.C.A.), refd to. [para. 31].

R. v. Ryan (D.) (2007), 263 Nfld. & P.E.I.R. 22; 798 A.P.R. 22 (N.L.C.A.), refd to. [para. 38].

Counsel:

Kenneth Mahoney, for the appellant;

Nicholas Avis, Q.C., for the first respondent;

Lynn Moore, for the second respondent.

This appeal was heard on October 26, 2007, by Wells, C.J.N.L., Mercer and Barry, JJ.A., of the Newfoundland and Labrador Court of Appeal. The judgment of the Court of Appeal was delivered orally on November 5, 2007, and written reasons were filed on November 6, 2007.