R. v. Huber (E.E.), 2004 BCCA 43

• Judge: Southin, Rowles and Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 22, 2003
• Jurisdiction: British Columbia
• Citations: 2004 BCCA 43;(2004), 192 B.C.A.C. 75 (CA)

R. v. Huber (E.E.) (2004), 192 B.C.A.C. 75 (CA);

    315 W.A.C. 75

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. FE.013

Regina (respondent) v. Eric Emerson Huber (appellant)

(CA027936; 2004 BCCA 43)

Indexed As: R. v. Huber (E.E.)

British Columbia Court of Appeal

Southin, Rowles and Smith, JJ.A.

January 27, 2004.

Summary:

The accused was charged with two counts of trafficking in cocaine, two counts of weapons possession and storage offences and two counts of conspiracy to import and traffic in cocaine. The accused was con­victed on the trafficking counts. The weapons possession and storage counts were stayed by the Crown. The accused was acquitted on the conspiracy charges. The accused appealed the convictions.

The British Columbia Court of Appeal, Smith, J.A., dis­senting, allowed the appeal and ordered a new trial.

Barristers and Solicitors - Topic 1581

Relationship with client - Termination of relationship - General - The British Col­um­bia Court of Appeal, per Southin, J.A., stated that a litigant had a right to dis­charge counsel and a judge had no right to impose coun­sel on him - See paragraph 100.

Barristers and Solicitors - Topic 1583

Relationship with client - Termination of relationship - Withdrawal by lawyer - Gen­eral - The British Columbia Court of Appeal, per Rowles, J.A., stated that absent a finding that a lawyer's ap­plication to withdraw had an ulterior purpose, a trial judge had no discretion to deny the appli­cation - What­ever the reasons might be for counsel seeking to withdraw, the court's scope of inquiry was circumscribed by issues that lay properly within the domain of counsel and client - Inquiries must end at the point at which "unhappy dif­ferences" or privilege were cited - Once the client con­sented to the withdrawal or had dis­charged counsel, the bench could intervene no fur­ther than attempting to urge recon­ciliation between coun­sel and client - See para­graphs 6 to 10, 21 to 25, 56 to 81.

Barristers and Solicitors - Topic 1583

Relationship with client - Termination of relationship - Withdrawal by lawyer - Gen­eral - The British Columbia Court of Appeal, per Southin, J.A., stated that a member of the bar had a right to throw up his brief without the court's consent and a judge had no right to require him to con­tinue - See paragraph 101.

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Criminal cases - With­drawal after a preliminary inquiry - Dur­ing a voir dire on the first two days of a criminal trial, defence counsel sought to withdraw, allegedly because the accused dis­charged him - The trial judge refused to permit counsel to withdraw - The Brit­ish Colum­bia Court of Appeal held that the trial judge erred by not considering the ac­cused's right to discharge his counsel (Rowles, J.A.), and by announcing that the trial, no matter what, would continue (Southin, J.A.) - The refusal denied the accused a fair trial and constituted a mis­carriage of justice - The accused's seeming acquiescence in the lawyer's continued representa­tion of him was not an affirm­ation or ratification of their relationship - The court ordered a new trial - See para­graphs 6 to 10, 21 to 25, 56 to 81, 98 to 116.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Waiver of right - A preliminary inquiry took four months to complete - The British Columbia Court of Appeal held that the preliminary inquiry and trial were adjourned at the accused's request, which constituted waivers of time periods - The court held that considering the waiver and the lack of demonstrated prejudice to the accused from the delay, there was no violation of s. 11(b) of the Charter right to a speedy trial - See para­graphs 82 to 88.

Civil Rights - Topic 4620.6

Right to counsel - General - Right to coun­sel of choice - [See Bar­risters and Solici­tors - Topic 1581 ].

Cases Noticed:

Leask v. Cronin, [1985] 3 W.W.R. 152; 18 C.C.C.(3d) 315; 66 B.C.L.R. 187 (S.C.), refd to. [para. 62].

Vescio v. R., [1949] S.C.R. 139; 92 C.C.C. 161, refd to. [para. 71].

R. v. Spataro, [1974] S.C.R. 253, refd to. [para. 75].

R. v. Bowles and Danylak (1985), 62 A.R. 167; 21 C.C.C.(3d) 540 (C.A.), refd to. [para. 75].

R. v. Dunbar and Logan (1982), 138 D.L.R.(3d) 221 (Ont. C.A.), refd to. [para. 75].

Luchka v. Zens (1989), 37 B.C.L.R.(2d) 127; 36 C.P.C.(2d) 271 (C.A.), refd to. [para. 76].

R. v. Creasser (D.D.) (1996), 187 A.R. 279; 127 W.A.C. 279; 110 C.C.C.(3d) 323 (C.A.), refd to. [para. 76].

R. v. D.D.C. - see R. v. Creasser (D.D.).

R. v. Downey (P.), [2002] O.T.C. 279 (Sup. Ct.), refd to. [para. 76].

Jorgensen v. Kelly Peters & Associates Ltd. (1987), 18 B.C.L.R.(2d) 316 (S.C.), refd to. [para. 76].

R. v. Woodward, [1944] All E.R. 159, refd to. [para. 79].

R. v. Butler (1973), 11 C.C.C.(2d) 381 (Ont. C.A.), refd to. [para. 81].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 81].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 83].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 143 C.C.C.(3d) 1, appld. [para. 89].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417, refd to. [para. 89].

R. v. Francois (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161; 91 C.C.C.(3d) 289, refd to. [para. 93].

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 124].

Rosin v. MacPhail (1997), 85 B.C.A.C. 69; 138 W.A.C. 69; 32 B.C.L.R.(3d) 279 (C.A.), refd to. [para. 124].

R. v. Deschamps (M.B.) (2003), 177 Man.R.(2d) 301; 304 W.A.C. 301; 2003 MBCA 116, refd to. [para. 125].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 143 C.C.C.(3d) 289; 200 SCC 22, refd to. [para. 152].

R. v. Dunbar (A.A.) et al. (2003), 191 B.C.A.C. 223; 314 W.A.C. 223; 2003 BCCA 667, refd to. [para. 153].

R. v. Jim (G.) (2003), 185 B.C.A.C. 173; 303 W.A.C. 173; 2003 BCCA 411 (C.A.), refd to. [para. 155].

R. v. A.R.B., [2000] 1 S.C.R. 781; 255 N.R. 201; 135 O.A.C. 144; 146 C.C.C.(3d) 191; 48 O.R.(3d) 640, affing. (1998), 113 O.A.C. 286; 41 O.R.(3d) 361; 128 C.C.C.(3d) 457 (C.A.), refd to. [para. 203].

Authors and Works Noticed:

Johnson, Patricia M., Articles on McCreight, British Columbia Historical Quarterly (1948), generally [para. 103].

McEachern, A Compendium of Law and Judges; http://www.courts.gov.bc.ca/Le­gal_Compendium/Index.htm, c. 7, p. 3 [para. 125].

McGreight, J.F., An Historic Trial (1951), 9 The Adovcate 45, generally [para. 103].

Counsel:

D.B. Muir, for the appellant;

V.L. Hartney and B.F. Smith, for the respondent, Crown.

This appeal was heard in Vancouver, British Columbia, on September 22, 2003, before Southin, Rowles and Smith, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on Jan­uary 27, 2004, when the following opinions were filed:

Rowles, J.A. - see paragraphs 1 to 96;

Southin, J.A. - see paragraphs 97 to 116;

Smith, J.A., dissenting - see paragraphs 117 to 207.