J. 2001 SKQB 347 Q.B. A.D. 2001 No. 376 J.C.P.A. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT and HIS HONOUR JUDGE T.W. FERRIS RESPONDENT G.A. Chovin for the applicant J.E. Syrnick for the Crown JUDGMENT WILKINSON J. July 6, 2001 [1] This is an application for orders of certiorari and mandamus concerning a decision of a Youth Court judge not to appoint counsel to represent a young person. [2] The issue is whether the Court has discretion to refuse, having regard to the provisions of s. 11(4) of the Young Offenders Act, R.S.C. 1985, c. Y-1, which states: 11(4) Where young person at his trial or at hearing or review referred to in subsection (3) wishes to obtain counsel but is unable to do so, the youth court before which the hearing, trial or review is held or the review board before which the review is held (a) shall, where there is legal aid or assistance program available in the province where the hearing, trial or review is held, refer the young person to that program for the appointment of counsel; or (b) where no legal aid or assistance program is available or the young person is unable to obtain counsel through such program, may, and on the request of the young person shall, direct that the young person be represented by counsel. [3] It has been held that once young person makes request of the Youth Court for representation by counsel the language of s. 11(4)(b) on plain reading makes it abundantly clear that the exercise of discretion is no longer an option and the making of an order becomes mandatory (see R. v. T.W.P., [1996] O.J. No. 2668 (Prov.Div.)). [4] In the context of s. 11(4)(b) as it applies to the circumstances before me, the issue involves the meaning of the word "unable". On April 4, 2001 the young person appeared before the Youth Court judge and requested that the Court appoint him counsel after his Legal Aid lawyer withdrew. The young person was facing variety of charges including failure to comply with conditions of an undertaking, failure to attend court, possession of property obtained by crime and obstructing peace officer. The Youth Court judge was told that the young person's parents were both on social assistance and would likely be unable to provide financial assistance to him. The young person indicated he had no resources. The matter was adjourned to investigate the possibility that an aunt might be able to provide financial assistance in the matter of obtaining counsel. [5] When the matter resumed on April 11, 2001, the young person advised the Court that his aunt was unable to assist him financially. The Youth Court judge then asked why the young person did not stick with his Legal Aid lawyer. The response was "I don't know. Because was messing up in court and not coming to court" and "not phoning them and stuff". As the court records indicate the young person failed to appear on the trial date and bench warrant issued. [6] Counsel for the young person suggests the judge relied simply on the Crown's contention that the matters the young person was facing were uncomplicated and fact-driven in deciding not to appoint counsel. If that was the case, there would be grounds for complaint. However, the judge goes on to state at p. 23 of the transcript: In my view, relying on my decision in R. v. DJB which was another young offender who wanted the Judge to appoint lawyer for him at the taxpayers' expense it appears to me that it's not case where you were unable to obtain counsel through Legal Aid initially, which is what section 11(4)(b) of the Act refers to. You had counsel and they quit on you because you didn't bother to go see them, you didn't come and attend at your trials. You now want me to appoint private counsel. There's no reason for me to believe that you would be any more cooperative with him. decline to appoint lawyer for you. [7] That excerpt sets out the basis on which the learned judge declined to appoint counsel. was not favoured with copy of the decision in R. v. DJB and it does not appear to be reported. Nonetheless, it would appear to be premised upon the ordinary and natural meaning of the words in s. 11(4)(b), supra. Here, it is not case where the young person was unable to obtain counsel through the Legal Aid program. He had Legal Aid representation but disentitled himself to continued representation by his own misconduct. [8] Counsel for the young person cited two concurrent decisions of the Ontario Court of Appeal, R. v. J.H., [1999] O.J. 3894 and R. v. M.(B.) (1999), 1999 CanLII 3795 (ON CA), 139 C.C.C. (3d) 480, where, at p. and p. 8, respectively, the court stated: In the final analysis, this case is about the simple matter of the proper administrative process to be followed before youth court judge is required to order state-funded counsel for young offender. Before the state pays for counsel, the inability of the young person to obtain counsel must be established. This question cannot completely be answered without reference to the finances of the young person's parents. That is all that has been decided in this case. Nothing in this decision should be read as in any way denigrating or casting doubt on the proposition that young people in this province have the right to counsel. [9] Counsel for the young person argues that the Court's discretion in s. 11(4)(b) is limited to inquiries regarding the ability of parent or family member to provide financial assistance. If the result of the inquiry is that the young person has no financial resources whatsoever available to him, as is the case here, then counsel must be appointed. The use of the word "shall" in s. 11(4)(b) means the court has no jurisdiction to decline the request. [10] Prior to the decisions of the Ontario Court of Appeal, the cases had predominantly held that the youth court had no jurisdiction to inquire into the means of the parents. note that an application for leave to appeal the decision in R. v. J.H. was dismissed by the Supreme Court of Canada on May 25, 2000 at [1999] S.C.C.A. No. 611 (Q.L.). [11] It is noteworthy that in R. v. M.(B.), at para. 15, the Court of Appeal said that because the Act makes inability to obtain counsel the touchstone for the analysis, the youth court judge has every right to determine inability and has discretion to determine on case by case basis whether such inability exists. [12] In my view, the Youth Court\'s discretion to determine inability is not limited solely to considerations of financial inability. Inability may be asserted for other reasons and the court is entitled to inquire into the foundation. In R. v. B.W., [1997] B.C.J. No. 3056 (Q.L.) (B.C. Youth Courts), the young person refused to be represented by legal aid counsel and applied for court appointed counsel of his own choice. He argued he ought to be able to discharge his counsel without disclosing reasons. The court held that such broad reading of s. 11(4)(b) of the Act was not warranted and that in the absence of substantive reason for the discharge of his legal aid counsel the court would not appoint counsel at public expense. The court noted such broad interpretation begs the question as to what would occur if counsel of choice refused to act for whatever reason. [13] Here, if counsel for the young person is correct and the inquiry as to inability to obtain counsel is limited solely to financial inability some manifestly absurd results could follow. young person without financial assistance could, ad infinitum, disqualify himself from legal representation by his own misconduct or discharge his counsel for whatever reason and repeatedly insist on the appointment of substitute counsel. [14] Accordingly, I am of the view the learned Youth Court judge did not err in refusing to direct that the applicant have counsel appointed to him. The application is accordingly dismissed.
An application for certiorari and mandamus. In issue is whether the Youth Court judge has the discretion to refuse to appoint counsel to represent a young person having regard to the provisions of s.11(4) of the Young Offenders Act. The meaning of the word 'unable' in s.11(4)(b) was in issue. The youth was facing a variety of charges including failure to comply with conditions of an undertaking; failure to attend court; possession of property obtained by crime; obstructing a police officer. He requested the Youth Court appoint counsel after his Legal Aid lawyer withdrew. Both parents were on social assistance. The matter was adjourned to investigate the possibility of an aunt providing financial assistance but the youth advised in April that she was unable to do so. HELD: The application was dismissed. The Youth Court judge did not err in refusing to direct counsel be appointed. The Youth Court judge's discretion is not limited solely to considerations of financial inability. The youth disentitled himself to continued Legal Aid representation by his own misconduct.