R. v. Ho (G.D.), 2003 BCCA 663

• Judge: Southin, Huddart and Low, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 03, 2003
• Jurisdiction: British Columbia
• Citations: 2003 BCCA 663;(2003), 190 B.C.A.C. 187 (CA)

R. v. Ho (G.D.) (2003), 190 B.C.A.C. 187 (CA);

    311 W.A.C. 187

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. DE.029

Regina (appellant) v. Gou Din Ho (respondent) and Attorney General of British Columbia (intervenor)

(CA029850; 2003 BCCA 663)

Indexed As: R. v. Ho (G.D.)

British Columbia Court of Appeal

Southin, Huddart and Low, JJ.A.

December 2, 2003.

Summary:

The Crown preferred a direct indictment against Ho and six others, charging them with conspiracy to import heroin into Canada, trafficking in heroin and two counts of possession of property obtained by certain drug offences. Ho applied for and was found eligible for Legal Aid. During a voir dire, Ho's lawyer with­drew. The trial judge severed Ho's trial from that of the others. Ho found another lawyer to assist him. Meanwhile, the "cap" on the amount of Legal Aid available was reached. The Attor­ney General of Canada agreed to reimburse the Legal Services Society for expenses exceeding this "cap". The new lawyer declined to act under the fee ar­rangement. The accused applied for a stay of proceed­ings until the Attorney General provided the necessary funding for counsel or an order appointing counsel and directing the Attor­ney General to fund the defence. The trial judge granted the stay of proceed­ings. The Crown appealed. Meanwhile, Ho was de­ported.

The British Columbia Court of Appeal, per Finch, C.J.B.C., in a decision reported in 177 B.C.A.C. 66; 291 W.A.C. 66, directed that the issue of mootness be raised on the hearing of the appeal proper.

The British Columbia Court of Appeal, in the following decision, allowed the appeal.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - An accused was entitled to Legal Aid - Dur­ing his trial, the "cap" on the amount available for counsel for any one accused in any one case, was reached - To ensure continued representation, the Attorney General of Canada and the Legal Services Society entered into a fee arrangement for expenses exceeding this "cap" - Before the agreement was signed, the accused's coun­sel withdrew - A replacement lawyer declined to act under the arrangement - The British Columbia Court of Appeal stated that "When an accused does not have counsel and the court determines that he cannot have a fair trial without counsel, no s. 7 or s. 11(d) Charter breach can be found until the accused has exhausted all reasonable avenues to obtain counsel with the financial resources available to him." - There was no evidentiary foundation on which to conclude that the accused's s. 7 or 11(d) Charter rights were or would be breached - See paragraphs 80 to 87.

Civil Rights - Topic 4620.6

Right to counsel - General - Right to coun­sel of choice - An accused was entitled to Legal Aid - At that time, there was a $50,000 "cap" on the amount of legal aid for counsel for any one accused in any one case - The "cap" was reached here - To ensure continued representation, the Attor­ney General of Canada and the Legal Services Society entered into a fee agree­ment for expenses exceeding this "cap" - Before the agreement was signed, the accused's counsel withdrew - A re­place­ment lawyer declined to act under the fee arrangement - The trial judge stayed the charges - The British Columbia Court of Appeal held that the accused was not entitled to counsel of his choice, but to be represented by reasonably competent coun­sel - See paragraphs 80 to 87.

Civil Rights - Topic 4635

Right to counsel - Appointment of counsel by the court or the state - Duty of trial judge - The British Columbia Court of Appeal stated that the trial court should not make orders or give directions as to the fixing of fees for criminal defence counsel - See paragraph 83.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - An accused was entitled to Legal Aid - During his trial, the "cap" on the amount available for counsel for any one accused in any one case, was reached -To ensure continued representation, the Attorney General of Canada and the Legal Services Society entered into a fee ar­rangement for expenses exceeding this "cap" - Before the agreement was signed, the accused's counsel withdrew - A re­placement lawyer declined to act under the arrangement - The trial judge stayed the charges - The British Columbia Court of Appeal held that a stay was not the "last resort" available - The applica­tion should have been adjourned to require the accused to explore the availability of other counsel - See paragraphs 80 to 87.

Cases Noticed:

R. v. Moore (G.P.) et al. (1993), 27 B.C.A.C. 253; 45 W.A.C. 253; 81 C.C.C.(3d) 161 (C.A.), refd to. [para. 10].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 23].

R. v. Gibson (1887), 18 Q.B.D. 537 (U.K.), refd to. [para. 48].

Dietrich v. R. (1992), 177 C.L.R. 292 (Aust. H.C.), refd to. [para. 49].

R. v. Chan (M.K.) et al. (2002), 317 A.R. 240; 284 W.A.C. 240; 170 C.C.C.(3d) 1; 2002 ABCA 299, consd. [para. 51].

R. v. Hampden (1637), 3 State Trials; 13 Charles I 831, consd. [para. 57].

Auton et al. v. British Columbia (Minister of Health) (2002), 173 B.C.A.C. 114; 283 W.A.C. 114; 6 B.C.L.R.(4th) 201; 2002 BCCA 538, refd to. [para. 68].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1, refd to. [para. 72].

R. v. Paterson (D.R.) (1998), 102 B.C.A.C. 200; 166 W.A.C. 200; 122 C.C.C.(3d) 254 (C.A.), refd to. [para. 72].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1, refd to. [para. 86].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d) [para. 37].

Counsel:

S.D. Frankel, Q.C., and M. Devlin, for the appellant (in right of Canada);

W.S. Berardino, Q.C., and A.I. Nathanson, for the respondent;

G.H. Copley, Q.C., and T.A. Mason, for the intervenor.

This appeal was heard in Vancouver, British Columbia, on November 3, 2003, before Southin, Huddart, and Low, JJ.A., of the British Columbia Court of Appeal. The following opinions were filed On December 2, 2003:

Southin, J.A. - see paragraphs 1 to 79;

Low, J.A. (Huddart, J.A., concurring) - see paragraphs 80 to 87.