R.C. v. Quebec (Attorney General); R. v. Beauchamps

The applications for leave to appeal from the judgments of the Superior Court of Quebec in these two cases were joined for hearing. Those judgments ordered the Attorney General of Quebec to pay defence counsel’s professional fees, on terms, or based on tariffs or eligibility criteria, that are contrary to those of the legal aid plan in effect in Quebec under the Legal Aid Act, R.S.Q., c. A‑14. In the leave applications, the Attorney General argued that a direct appeal to this Court under s. 40 of the Supreme Court Act , R.S.C. 1985, c. S‑26 , is the only remedy available to him.

Before considering the applications for leave to appeal, this Court decided to hear the parties in order to determine whether there were other avenues of appeal to an intermediate court of appeal, and accordingly whether a direct appeal lay to this Court. At the conclusion of the hearing, this Court unanimously held that s. 676.1 of the Criminal Code , R.S.C. 1985, c. C-46 , provided for an appeal from the type of decision made by the Superior Court, with leave, to an intermediate court of appeal. For the following reasons, the applications have been referred to the Quebec Court of Appeal to be disposed of by that court under s. 676.1 of the Code.

Both of these cases raise the same problem: the definition of the jurisdiction of the intermediate courts of appeal and this Court, respectively. However, the issues they raise in respect of the application or adaptation of Quebec’s public legal aid plan in the context of defending criminal charges are different.

In R.C. (S.C.C., No. 28923), the respondent had been charged with multiple counts of sexual assault and forcible confinement. He then tried to obtain legal aid in order to defend himself. Because he was at that time in receipt of compensation payments from the Société d’assurance automobile du Québec as a result of an automobile accident, his income, while modest, exceeded the eligibility cut‑off under the legal aid plan. The legal aid plan authorities considered him ineligible and had to refuse his application. In the Court of Québec (Criminal and Penal Division), R.C. requested adjournments and sought recognition of his entitlement to the assistance of a state‑funded lawyer. According to him, the complexity and difficulty of his case made it impossible for him to defend himself properly without the assistance of counsel. He had also found a lawyer who said that he was prepared to represent him, if he were paid at the legal aid tariff rate. After some argument in the Court of Québec, R.C. applied to the Superior Court under ss. 7 and 24(1) of the Canadian Charter of Rights and Freedoms .

Bellavance J. of the Superior Court allowed R.C.’s application: [2001] R.J.Q. 2294. He found that the importance of the questions of fact and law raised by the charges made the assistance of counsel essential and that the accused’s low income and lack of resources made it impossible for him to cover the costs himself. The Superior Court was of the opinion that this situation jeopardized R.C.’s fundamental rights, and ordered the Minister of Justice and Attorney General of Quebec to pay a defence lawyer’s fees, at the legal aid tariff rates, notwithstanding the fact that his income was above the eligibility cut‑off. The judge directed a conditional stay of proceedings if those fees were not paid. While the Attorney General did not acknowledge that this decision was correct, and reserved his remedies on appeal, he has since that time paid the fees of the lawyer chosen by the respondent. At the hearing, this Court was informed that R.C. had been eligible for legal aid since May 3, 2002, the date when the automobile insurance plan compensation payments ceased.

In Beauchamps (S.C.C., No. 29121) and in the related case 29180 (Attorney General of Quebec v. Brisebois; Commission des services juridiques v. Brisebois), the problem of the payment of the defence lawyers’ fees arose from a different angle. The respondents were charged with multiple serious offences, as part of the major trials initiated in Montréal against a number of individuals who, according to the applicant, belong to large‑scale international criminal organizations. Boilard J. and Paul J. of the Superior Court are presiding at the sittings of the trials in which the respondents are involved. The respondents’ eligibility for legal aid has apparently been recognized, from the information that was available about them when the matter was discussed at trial. However, these accused argued that the lawyers they had retained refused to conduct their defence at the rate provided by the legal aid tariffs, because of the complexity and what they anticipated to be the length of the trials. The lawyers in question confirmed that they would withdraw from the cases if they did not receive the fees justified by the scale and difficulty of these cases and by the fact that these cases required that they be completely available for a long period of time. In spite of the prosecution’s opposition, Boilard J. and Paul J. gave judgments which, while different in respect of some details, ordered the Attorney General to pay the respondents’ lawyers fees substantially in excess of the legal aid tariffs. If such fees were not paid, the judgments provided for a conditional stay of the proceedings against the accused: [2002] R.J.Q. 375 and (2002), 50 C.R. (5th) 152.

The Attorney General agreed to pay the fees directed in the judgments of Boilard J. and Paul J., but reserved all his rights. Since then, the trials have continued in Montréal. However, in the applicant’s application for leave to appeal, as in R.C.’s case, he seeks an opportunity to have all these decisions reviewed; in his view, they raise important issues in relation to respect for and the funding of the defence of accused persons in criminal cases. Whatever interest the issues raised may hold, we must first determine whether there are remedies, and in what court they will have to be exercised. It should be noted, however, that only file 29121 concerning the judgment rendered by Boilard J. was before the Court at the hearing; the proceedings in file 29180, relating to the applications for leave to appeal from the decision of Paul J., were not yet complete at that time.

In these cases, the Attorney General submits that there are no provisions in the Criminal Code that allow him to appeal to the Quebec Court of Appeal. The judgments in issue do not, in his submission, fall within any of the cases set out in s. 676 of the Criminal Code . Moreover, he submits, the judgments in issue cannot be regarded as comparable to decisions in respect of prerogative writs under s. 784 of the Criminal Code . Lastly, he submits that s. 676.1, to which I shall return, does not apply in the case of a judgment directing payment of future fees. The only way to resolve the matter, he submits, is by way of a direct appeal to this Court, in accordance with the principles laid down in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.

The respondents took a very finely defined position. They preferred to treat the decisions a quo as interlocutory decisions, from which no appeal lies. However, they did not appear to entirely rule out the possibility that s. 676.1 applies, while at the same time pointing out the imbalance that this would create between the respective rights of the prosecution and the defence.

The issue to be determined here is whether Parliament has given the intermediate courts of appeal jurisdiction over the type of judgment rendered by the Superior Court in these cases. First, those decisions impose an obligation on the Attorney General to pay the defence’s future fees and disbursements, in a trial that will be held or is already underway. Second, as noted earlier, they direct a stay of proceedings in the event that those payments are not made.

Because appellate jurisdiction is a creature of statute, we must refer first to the Criminal Code . None of the situations listed in s. 676, which defines the prosecution’s appeal rights, applies here. At the hearing, the Court directed the discussion to s. 676.1. That section creates a right of appeal, with leave, in a party who is ordered to pay costs:

676.1 [Appeal re costs] A party who is ordered to pay costs may, with leave of the court of appeal or a judge of a court of appeal, appeal the order or the amount of costs ordered.

This provision was added to the Criminal Code recently, by an Act that amended various provisions of the Code (Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 94). The legislative history of this provision sheds no light on either its objectives or its sources. We might even find it surprising that it was thought necessary to create a special right of appeal in this respect, given that it is the exception for costs to be awarded in criminal law. The Attorney General then argued that this provision created only a narrow jurisdiction, and that the only appeals for which it provided were appeals in relation to an obligation to pay costs for services already rendered, or as a penalty for abuse of process, for example. Section 676.1 of the Criminal Code , he submits, does not in any way provide for decisions directing that future fees be paid.

I am of the view that the Attorney General’s interpretation of the concept of costs in the provision in question is too narrow. Costs do indeed include the disbursements and fees incurred in the course of proceedings and interlocutory matters in the courts that have already concluded. In fact, this type of problem has been examined in several decisions of the Nova Scotia Court of Appeal in the past, in appeals brought under s. 676.1 of the Criminal Code . (See: R. v. Cole (2000), 143 C.C.C. (3d) 417; R. v. LeBlanc, [1999] N.S.J. No. 179 (QL); and R. v. Pottier, [1999] N.S.J. No. 95 (QL).)

The concept of costs is broader than this, however. It includes obligations to make future payments imposed by judicial decision. For example, the provisions made for costs in family law matters often cover payment of future professional services. In criminal law, it has been common for several years for Rowbotham orders to be made by the criminal courts, to provide for future legal services to be funded and made available; see: R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.). In New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at paras. 91 and 107, this Court recognized that a state‑funded lawyer could be made available to a party in appropriate cases. As well, this Court has sometimes directed, when granting leave to appeal, that regardless of the outcome of the appeal, a party’s costs should be paid or reimbursed, within the limits defined by the Court; see: Roberge v. Bolduc, [1991] 1 S.C.R. 374; and also B. A. Crane and H. S. Brown, Supreme Court of Canada Practice 2000 (1999), at p. 98. Whether payable in respect of past services or in consideration of services to be provided in future, they are still costs. Judgments ordering that they be paid may accordingly be appealed with leave under s. 676.1.

In these matters, it is important to respect the role of the intermediate courts of appeal in Canada. Those courts play an essential role in the Canadian legal system to ensure, within their respective spheres of jurisdiction, that the law develops and is applied consistently. In a case that may involve important problems of the fundamental fairness of criminal trials, and difficult questions of judicial administration and policy, we must be careful not to short‑circuit the provincial courts of appeal. Those courts, which are more familiar with regional and local situations, bring an invaluable perspective to the analysis of problems such as the ones that the applicant wanted to bring immediately to this Court.

However, it must be recognized that s. 676.1 of the Criminal Code creates a right of appeal that will, in practice, benefit only the Attorney General. In circumstances such as the ones that arose in these cases, the party against whom a court awards costs for the purposes of a defence will be the Attorney General, representing the state. An accused whose application for payment of costs were denied by the court could not rely on s. 676.1 of the Criminal Code . An analysis of his or her situation, however, is outside the context of the issue as it has been defined here. At most, the disposition of that issue enabled us to determine who will hear these applications. In this case, it is the Quebec Court of Appeal.

For these reasons, like my colleagues at the hearing, I agreed to refer the Attorney General’s applications to the Quebec Court of Appeal to be disposed of by that court under s. 676.1 of the Criminal Code .