R. v. Cai,

• Judge: McClung, Côté and McFadyen, JJ.A.
• Neutral Citation: 2002 ABCA 299
• Date: 12 December 2002
• Court: Court of Appeal (Alberta)

R. v. Chan (M.K.) (2002), 317 A.R. 240 (CA);

    284 W.A.C. 240

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. DE.068

Her Majesty The Queen (appellant) v. Candi Bi Ying Cai, Thinh Duc Vu and Xuan Vinh Dang (respondents/accused)

(0003-0497-A0; 0003-0498-A1; 0003-0499-A0; 2002 ABCA 299)

Indexed As: R. v. Chan (M.K.) et al.

Alberta Court of Appeal

McClung, Côté and McFadyen, JJ.A.

December 12, 2002.

Summary:

Several accused were charged with conspiracy, participating in a criminal organization and related drug offences. The accused applied for the appointment of state funded counsel at rates in excess of the rates authorized by Legal Aid. Other counsel on Legal Aid certificates sought to have their rates topped up to the level that the court deemed appropriate or, alternatively, to withdraw and be appointed at such rate.

The Alberta Court of Queen's Bench, in a decision reported at 276 A.R. 1, allowed the application and ordered the Crown to pay higher rates than the Legal Aid rates. The Crown refused to pay for lawyers for three of the accused. The trial judge permanently stayed the prosecution of those three accused. The Crown appealed the stay.

The Alberta Court of Appeal allowed the appeal and removed any need for the Crown to fund the three accused's defences.

Barristers and Solicitors - Topic 3407

Compensation - Particular matters - Where counsel appointed for accused by court - Several accused applied for state funded counsel at rates exceeding Legal Aid rates - The trial judge held that Legal Aid rates were insufficient for this complex and lengthy case - Further, certain Legal Aid restrictions and limitations would pose real and substantial difficulties with respect to effective representation - The trial judge determined the appropriate rates and ordered that an independent adjudicator be appointed to authorize and approve fees and disbursements - He ordered that counsel be compensated for reasonable preparation time - Counsel on Legal Aid certificates could turn in their certificates and be compensated under this plan - The trial judge stayed proceedings with respect to three accused for whom the Crown refused to fund counsel - The Alberta Court of Appeal allowed the Crown's appeal - The trial judge applied the incorrect test in ordering state funded counsel - The accused did not prove that they would receive an unfair trial with counsel compensated at Legal Aid rates - The trial judge assumed some flaws in Legal Aid that might not have existed, might have been curable or might not have imperilled trial fairness - Further, the evidence did not meet the high threshold needed to prove a prospective Charter breach - The court also declared that the hourly rates payable by Legal Aid were not justiciable.

Civil Rights - Topic 4633

Right to counsel - Appointment of counsel by the court or the state - Where party impecunious - [See Barristers and Solicitors - Topic 3407 ].

Civil Rights - Topic 4648

Right to counsel - Appointment of counsel by the court or the state - Appeal from order - Several accused applied for the appointment of state funded counsel at rates exceeding Legal Aid rates - The trial judge granted the application - The Crown refused to pay for lawyers for three of the accused - The trial judge permanently stayed the prosecution of those three accused - The Crown appealed from the stay - The accused challenged the Crown's right to appeal, arguing that it was an interlocutory criminal appeal and, therefore, not authorized by the Criminal Code - The Alberta Court of Appeal held that the Crown could appeal under s. 676.1 of the Code, which gave a right of appeal from an order that the appellant "pay costs" - That covered an order funding the other side's counsel (R.C. v. Québec (Procureur général) (SCC)) - Further, s. 676(1)(c) authorized the Crown to appeal from "an order of a trial court that stays proceedings on an indictment" - See paragraphs 102 to 104.

Civil Rights - Topic 4648

Right to counsel - Appointment of counsel by the court or the state - Appeal from order - Several accused applied for the appointment of state funded counsel at rates exceeding Legal Aid rates - The trial judge granted the application - The Crown refused to pay for lawyers for three of the accused - The trial judge permanently stayed the prosecution of those three accused - The Crown appealed the stay and challenged the order for state funded counsel - The accused argued that the Crown was guilty of some kind of abuse of process, using any right of appeal for an oblique motive - The Alberta Court of Appeal rejected the argument - The court stated that "A statutory right of appeal exercised for proper and constitutional purposes in a diligent fashion cannot possibly be an abuse of process" - Further, the court stated that "it is common, probably necessary, to base an appeal on the formal judgment or final relief, rather than on the reasons for judgment. ... Reasons for decision may well give or disclose a ground of appeal, but they need not found the right to appeal." - See paragraphs 106 and 107.

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See second Civil Rights - Topic 4648 ].

Criminal Law - Topic 4821

Appeals - Indictable offences - Right of appeal - General - [See second Civil Rights - Topic 4648 ].

Criminal Law - Topic 4825

Appeals - Indictable offences - Right of appeal - From an interlocutory decision - [See first Civil Rights - Topic 4648 ].

Criminal Law - Topic 4828

Appeals - Indictable offences - Right of appeal - By Crown - [See first Civil Rights - Topic 4648 ].

Criminal Law - Topic 4829

Appeals - Indictable offences - Right of appeal - From an order that stays proceedings on an indictment or quashes an indictment - [See first Civil Rights - Topic 4648 ].

Cases Noticed:

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 6].

Phillips v. Westray Mine Inquiry - see Phillips et al. v. Richard, J.

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 6].

Keegstra v. Canadian Broadcasting Corp. (1986), 77 A.R. 249; 35 D.L.R.(4th) 76 (C.A.), refd to. [para. 6].

R. v. Rain (M.M.) (1998), 223 A.R. 359; 183 W.A.C. 359; 130 C.C.C.(3d) 167 (C.A.), leave to appeal refused (1998), 239 N.R. 197; 250 A.R. 192; 213 W.A.C. 192 (S.C.C.), refd to. [para. 8].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 63 C.R.(3d) 113; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 8].

R. v. Robinson; R. v. Dolejs (1989), 100 A.R. 26; 51 C.C.C.(3d) 452 (C.A.), refd to. [para. 8].

R. v. Howell (D.M.) (1995), 146 N.S.R.(2d) 1; 422 A.P.R. 1 (C.A.), affd. [1996] 3 S.C.R. 604; 203 N.R. 247; 155 N.S.R.(2d) 58; 457 A.P.R. 58, refd to. [para. 8].

R. v. Rockwood (1989), 91 N.S.R.(2d) 305; 233 A.P.R. 305; 49 C.C.C.(3d) 129 (C.A.), refd to. [para. 8].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 10].

R. v. Innocente (D.J.) et al. (2001), 199 N.S.R.(2d) 192; 623 A.P.R. 192 (S.C.), refd to. [para. 10].

R. v. Williams (P.H.L.) (2001), 208 Sask.R. 79 (Q.B.), refd to. [para. 10].

R. v. Drury (L.W.) et al., [2001] 1 W.W.R. 442; 150 Man.R.(2d) 64; 230 W.A.C. 64 (C.A.), leave to appeal refused (2000), 269 N.R. 393; 160 Man.R.(2d) 28; 262 W.A.C. 28 (S.C.C.), refd to. [para. 10].

R. v. Johal (B.) (1998), 110 B.C.A.C. 146; 178 W.A.C. 146; 127 C.C.C.(3d) 273 (C.A.), refd to. [para. 10].

R. v. McFadden (1975), 62 Cr. App. R. 187 (C.A.), refd to. [paras. 30, 38, footnote 1].

Ohio v. Gregory McKnight, 2002 01-CR-7230, refd to. [para. 30, footnote 2].

Nissen v. Calgary (City) (1983), 51 A.R. 252 (C.A.), refd to. [para. 69].

E., Re, [1922] 2 W.W.R. 1324 (Alta. C.A.), refd to. [para. 69].

Auckland Harbour Board v. R., [1924] A.C. 318; 93 L.J.P.C. 126 (N.Z.P.C.), refd to. [para. 93].

R. v. Savard - see Canada (Attorney General) v. Stuart, J., and Savard.

Canada (Attorney General) v. Stuart, J., and Savard (1996), 74 B.C.A.C. 81; 121 W.A.C. 81; 106 C.C.C.(3d) 130; 47 C.R.(4th) 281 (Y.T.C.A.), leave to appeal refused (1997), 207 N.R. 320; 85 B.C.A.C. 240; 138 W.A.C. 240 (S.C.C.), refd to. [para. 93].

R. v. R.J.H., [2000] 6 W.W.R. 437; 255 A.R. 320; 220 W.A.C. 320; 78 Alta. L.R.(3d) 21 (C.A.), refd to. [para. 93].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 94].

Quebec (Attorney General) v. R.C. (Beauchamp) - see R.C. v. Québec (Procureur général).

R.C. v. Québec (Procureur général) (2002), 289 N.R. 206; 213 D.L.R.(4th) 226; 164 C.C.C.(3d) 423 (S.C.C.), refd to. [para. 102].

Authors and Works Noticed:

Dicey, A.V., Introduction to the Study of the Law of the Constitution (10th Ed. 1959), p. 317 [para. 93].

Counsel:

J.N. Shaw and D.R. Valgardson, for the appellant;

M.R. Bloos, for the respondent, Cai;

C.B. Davison, for the respondent, Vu;

T.P. Glancy, for the respondent, Dang;

B.M. Commandeur, for the intervener, Attorney General of Alberta.

This appeal was heard on September 5-6, 2002, by McClung, Côté and McFadyen, JJ.A., of the Alberta Court of Appeal. The following reasons of the court were filed at Edmonton, Alberta, on December 12, 2002.