R. v. Boucher (K.), (2015) 441 N.B.R.(2d) 119 (PC)

• Judge: LeBlanc, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: September 25, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 441 N.B.R.(2d) 119 (PC);2015 NBPC 6

R. v. Boucher (K.) (2015), 441 N.B.R.(2d) 119 (PC);

    441 R.N.-B.(2e) 119; 1152 A.P.R. 119

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. NO.008

Renvoi temp.: [2015] N.B.R.(2d) TBEd. NO.008

Keith Boucher (applicant) v. Her Majesty the Queen (respondent)

(04224811; 2015 NBPC 6; 2015 NBCP 6)

Indexed As: R. v. Boucher (K.)

Répertorié: R. v. Boucher (K.)

New Brunswick Provincial Court

LeBlanc, P.C.J.

September 25, 2015.

Summary:

Résumé:

Boucher was charged with possessing a moose carcass, contrary to s. 58 of the Fish and Wildlife Act. He admitted the facts supporting the charge. He posited that he did not require a licence to possess the moose meat in question since he was an aboriginal person, thereby being protected from such prosecutions. The prosecution and the defence had closed their cases. The prosecution had stated that it would present rebuttal evidence and the defence had stated that it intended to call surrebuttal evidence. Neither had yet occurred. Boucher's first legal aid lawyer retired from the legal profession following the closing of the Crown's case. Boucher's current counsel, assigned the file from Legal Aid, requested an "Okanagan hearing" on a motion for advance costs. Boucher was requesting that the state (1) bear the costs of a competent lawyer of his choice with experience and knowledge in the field of aboriginal law; (2) pay all expenses associated with the costs and disbursements that would be incurred in researching his case, the law and the legal and evidentiary requirements of mounting a defence based on aboriginal heritage; and (3) pay the costs associated with hiring expert witnesses to prepare reports and attend court to testify on his behalf.

The New Brunswick Provincial Court denied Boucher's request for state-funded counsel of choice. Boucher's Okanagan-based request for advanced costs was denied because the Provincial Court of New Brunswick had no jurisdiction to make such an order.

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - [See Criminal Law - Topic 4587 ].

Civil Rights - Topic 4633

Right to counsel - Appointment of counsel by the court or the state - Where party impecunious - [See Criminal Law - Topic 4587 ].

Courts - Topic 2013.1

Jurisdiction - General principles - Criminal cases - Costs - [See Criminal Law - Topic 4587 ].

Courts - Topic 5884

Provincial Courts - New Brunswick - Provincial Court - Jurisdiction - General - [See Criminal Law - Topic 4587 ].

Criminal Law - Topic 4587

Procedure - Costs - Interim funding - Boucher was charged with possessing a moose carcass, contrary to s. 58 of the Fish and Wildlife Act - He posited that he did not require a licence to possess the moose meat in question since he was an aboriginal person, thereby being protected from such prosecutions - The prosecution and the defence had closed their cases - The prosecution had stated that it would present rebuttal evidence and the defence had stated that it intended to call surrebuttal evidence - Neither had yet occurred - Boucher's first legal aid lawyer ("L.A.L.") retired from the legal profession following the closing of the Crown's case - Boucher's current counsel, assigned the file from Legal Aid, requested an Okanagan hearing on a motion for advance costs - Boucher requested that the state (1) bear the costs of a competent lawyer of his choice with experience and knowledge in the field of aboriginal law; (2) pay all expenses associated with the costs and disbursements that would be incurred in researching his case, the law and the legal and evidentiary requirements of mounting a defence based on aboriginal heritage; and (3) pay the costs associated with hiring expert witnesses to prepare reports and attend court to testify on his behalf - The New Brunswick Provincial Court denied Boucher's request for state-funded counsel of choice - The court was not convinced that L.A.L. did not adequately represent Boucher - Nor did it receive any evidence that his current counsel could not adequately represent him - There were no compelling reasons to interfere with the choice of counsel made by Legal Aid - With respect to Boucher's Okanagan-based request for advanced costs, the Provincial Court of New Brunswick had no authority to order the type of advanced costs described in Okanagan because it lacked the equitable jurisdiction to do so - In any event, the court was not convinced that the prerequisites of the third criterion in Okanagan had been met - The court was not persuaded that this constituted a test case such as would allow it to conclude that the issues raised transcended the individual interests of Boucher or were of public importance - See paragraphs 24 to 50.

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - [See Criminal Law - Topic 4587 ].

Cases Noticed:

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, consd. [para. 19].

R. v. Bernard (J.) (2003), 262 N.B.R.(2d) 1; 688 A.P.R. 1; 2003 NBCA 55, refd to. [para. 20].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.), [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 2005 SCC 43, refd to. [para. 20].

R. v. Osborne (S.) (2003), 268 N.B.R.(2d) 184; 704 A.P.R. 184; 2003 NBCA 86, consd. [para. 25].

R. v. Koumoutsidis (P.), [2006] N.B.R.(2d) Uned. 4 (Q.B.), revd. (2006), 297 N.B.R.(2d) 186; 771 A.P.R. 186; 2006 NBCA 32, refd to. [para. 27].

Jones v. Coxeter (1742), 2 Atk. 400; 26 E.R. 642 (Ch.), refd to. [para. 35].

R. v. Caron (G.) (2007), 413 A.R. 146 (Q.B.), consd. [para. 38].

R. v. Yellowhorn (B.) (2006), 399 A.R. 144; 2006 ABQB 307, refd to. [para. 38].

Greene v. New Brunswick (Attorney General) (2013), 405 N.B.R.(2d) 274; 1050 A.P.R. 274; 2013 NBCA 40, refd to. [para. 48].

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 48].

R. v. Acker (K.J.) (2004), 281 N.B.R.(2d) 275; 736 A.P.R. 275; 2004 NBPC 24, affd. 2006 NBQB 77, refd to. [para. 49].

R. v. Hopper (R.) (2008), 331 N.B.R.(2d) 177; 849 A.P.R. 177; 2008 NBCA 42, refd to. [para. 49].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 51].

Counsel:

Avocats:

Rebecca Butler, for the applicant;

Brian Barnett, for the respondent.

This application was heard before LeBlanc, P.C.J., of the New Brunswick Provincial Court, who delivered the following decision on September 25, 2015.