Law Times

Law Times • August 19, 2013 Pay should reflect competence Continued from page 1 Crawley told Law Times. "The ministry meets with our stakeholders and sector partners to discuss matters of mutual interest and concern, and we will be happy to meet with the Criminal Lawyers' Association." In the event that the government isn't willing to negotiate, the CLA is keeping "all options open," notes Boxall. Those options include a constitutional challenge, he says. The dissenting minority in Ontario v. Criminal Lawyers' Association of Ontario saw no constitutional impediment to judges being able to set the pay for amicus curiae even when the attorney general and the lawyers don't agree on the amount. "The attorney general and the amicus should be invited to agree on both the rate of remuneration and the manner in which the amicus's budget is to be administered. If an agreement cannot be reached, the trial judge should fix the rate. The attorney general then has the option of either paying the fee or staying the proceedings as a matter of prosecutorial discretion," wrote Justice Morris Fish on behalf of the minority. Andras Schreck, counsel for the CLA, finds this view "more correctly recognizes the reality of these types of situations." "The court should have a final say in matters such as these," he says. Even so, Schreck points out the top court didn't decide what the pay for amicus curiae should be. "The decision did not say all court-appointed counsel should be paid the legal aid rate," he says, noting that the government is to make the decision after negotiating with the lawyer. "It's certainly our hope that the Crown will take this seriously and negotiations will be conducted in good faith and that it will not be an exercise of the Crown searching for the lowest bidder to play the important role of amicus curiae in cases involving unrepresented accused," Schreck adds. From Schreck's point of view, the silver lining in the court's decision — "if there is one" — is the recognition of judges' authority to appoint amicus curiae based on their level of skills and experience. From that, Schreck hopes it would follow that remuneration for amicus curiae would be in line with their level of competence. "The concerns about having an adequate budget to cover the largest number of certificates, which the legal aid system is about, is not the same as the concern here," he notes, adding that the issue here is appointing skilled counsel when needed in relatively fewer cases. LT NEWS Page 5 A matter of making instructions clear for jurors Continued from page 1 person conspiracy is alleged. "The difficulty is that after a jury finds step one satisfied, it is sorely tempting not to stop there and simply convict, foregoing steps two and three," he tells Law Times. The Criminal Lawyers' Association joined in support as an intervener in the Puddicombe appeal. The Public Prosecution Service of Canada was also an intervener in support of the Crown and in upholding the Carter instructions. Deciding whether there's a plan in step one "requires the jury to consider the very evidence the admissibility of which is in question in the Carter analysis," argued Toronto defence lawyer Peter Copeland, who acted for the CLA in the appeal. In the Puddicombe hearing, the panel was required to determine if its decision in R. v. Bogiatzis should be reversed. In that case, the Court of Appeal concluded that obiter dicta from the Supreme Court's decision in R. v. Barrow was binding and that the Carter instruction did apply to a two-person conspiracy. The obiter dicta in Barrow was "integral TCF_LT_Aug19_13.indd 1 to the analysis" related to Carter instructions and, as such, is still binding on lower courts, wrote Doherty on behalf of justices Marc Rosenberg, Janet Simmons, and Michael Tulloch. (justice Robert Armstrong sat on the panel during oral arguments in January but didn't participate in the decision as he has since retired from the Court of Appeal). Despite finding that the issue was decided in Barrow, the Court of Appeal addressed "the merits" of whether a Carter instruction can be applied fairly to a two-party conspiracy "for the sake of completeness," explained Doherty. "The rationale driving the formulation of the three-step approach in Carter applies equally to a two-person conspiracy. The jury must understand that the existence of the agreement and membership in the agreement are discrete issues. The Carter instruction is a uniquely Canadian response to the conundrum posed by the application of the co-conspirator exception to the hearsay rule." The Court of Appeal stressed that the instruction can still be "appropriately tailored" to each case with a "clear caution" against assuming membership based on the existence www.lawtimesnews.com of an agreement. A draft jury instruction was also provided by the Court of Appeal at the end of its ruling. Despite its ultimate findings, the Court of Appeal agreed that it's "challenging for a jury to comprehend and apply" the Carter instructions, says Harris. "The real debate is being premised on two questions: Do we believe that the jury is up to the job of applying Carter scrupulously and is there a viable alternative instruction?" he adds. Harris says no final decision has yet been made on whether to seek leave from the Supreme Court. John North, a senior federal Crown who represented the Public Prosecution Service of Canada, says the Court of Appeal has reinforced an important principle. "Jurors can and do follow clear and correct instructions," he says. The Carter instruction is important in drug prosecutions where allegations of two-party conspiracies aren't uncommon. "Fundamentally, it is a matter of making the instructions clear for jurors," says North, who adds he believes the draft instructions provided by the Court of Appeal will make this task easier for trial judges. LT 13-08-08 3:10 PM

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