



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Sharif,







2008 
          BCCA 16



Date: 20080117

Docket: CA033610

Between:

Regina

Respondent

And

Mohammed 
    Yunus Sharif

Appellant




Before:


The 
          Honourable Madam Justice Ryan




(In 
          Chambers)








M. 
          Sharif

S. 
          Goldberg


Acting on his own behalf

Counsel for the Appellant




R. 
          Holloway

J.  
          Gordon, Q.C.

S. 
          Martorana


Counsel for Legal Services Society

Counsel for Criminal Justice Branch

Counsel for the Attorney General for British Columbia




Place 
          and Date of Hearing:


Vancouver, British Columbia




December 11, 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 17, 2008



Reasons 
    for Judgment of the Honourable Madam Justice Ryan:

Introduction

[1]

This application began as an application for directions made by the 
    Legal Services Society after Mr. Sharif, who obtained an order from the court 
    under s. 684 of the
Criminal Code
, R.S.C. 1985, c. C-46 (the
Code
), for a limited appointment of counsel, refused to accept 
    anyone but Sheldon Goldberg to act for him.  The Legal Services Society has 
    a contractual arrangement with the Province of British Columbia to provide 
    counsel for those appellants who are granted assistance under s. 684 of the
Code
.  For reasons I will explain shortly, Legal Services will 
    not appoint Mr. Goldberg to act for Mr. Sharif.

[2]

The question has become whether I have the authority under s. 684 of 
    the
Code
to appoint a specific lawyer for Mr. Sharif, and, if 
    I do, whether I should appoint Mr. Goldberg to act on Mr. Sharifs appeal.

Background

[3]

Mr. Sharif is presently serving an indeterminate sentence after being 
    designated a dangerous offender in New Westminster Supreme Court by Madam 
    Justice Ross on November 28, 2005.

[4]

On March 26, 2006, Mr. Sharif filed a notice of appeal against the 
    finding that he is a dangerous offender.

[5]

The Registry file shows that on April 20, 2006, Mr. Sharif filed an 
    application for an extension of time to appeal convictions made against him 
    on April 23, 1998 by Mr. Justice Henderson for assault, unlawful confinement 
    and break and enter.  As I understand it, some of those convictions comprise 
    the predicate offence or offences upon which the dangerous offender designation 
    was based.  At the same time as his application for an extension of time, 
    Mr. Sharif filed an application for the appointment of counsel under s. 684 
    of the
Code.

[6]

The application for appointment of counsel came on before Mr. Justice 
    Mackenzie on May 31, 2006.  It was dealt with as an application for appointment 
    of counsel on the dangerous offender appeal.  It is common ground that the 
    Legal Services Society has denied Mr. Sharifs request for legal aid on the 
    dangerous offender appeal on the basis that the grounds of appeal, as set 
    out by Mr. Goldberg in correspondence with the Society, are not meritorious. 
     The application before Mr. Justice Mackenzie was adjourned as Mr. Sharif 
    was not prepared to make his argument that day.

[7]

The application for appointment of counsel returned to chambers on 
    June 15, 2006, before Madam Justice Southin.  It was adjourned so that Mr. 
    Sharif could determine whether a transcript of his dangerous offender proceedings 
    was in the possession of the Correctional Service of Canada.

[8]

The matter came on again before me on July 13, 2006.  On that date 
    Mr. Sharif had learned that the Correctional Service of Canada did have a 
    copy of the dangerous offender proceedings.  Mr. Sharif had obtained access 
    to some of the transcripts but had not yet had an opportunity to read them.  
    He requested two months to do so.  I adjourned the matter to September 20, 
    2006.

[9]

The matter came on before Madam Justice Kirkpatrick on September 20, 
    2006.  At the conclusion of that hearing, Madam Justice Kirkpatrick made a 
    limited appointment for counsel to assist Mr. Sharif in determining whether 
    grounds existed for the bringing of an appeal against his dangerous offender 
    designation.  Madam Justice Kirkpatrick said at paras. 7 and 8 of her reasons:

[7] 
     Accordingly, I will grant the application for a limited appointment.  Mr. 
    Sharif has indicated that he wishes to have Sheldon Goldberg appointed.  He 
    apparently has had discussions with Mr. Goldberg in this regard and he has 
    indicated that Mr. Goldberg is prepared to take on such an appointment.

[8] 
     Lastly, I should note that Mr. Sharif has asked the Court to hold in safekeeping 
    a box [of] documents that he has brought to Court with him this morning.  
    Mr. Registrar has indicated that although the Court of Appeal does not have 
    a secure area in which to hold such things, he says that he can find an area 
    in which to keep the box of documents locked.  Mr. Sharif has agreed that 
    upon the appointment of Mr. Goldberg as counsel, the box can be released to 
    Mr. Goldberg without further communication between the Court and Mr. Sharif.  
    I will ask the Registrar to ensure that the box is locked in as safe a place 
    as can be located in the Court of Appeal Registry.

[10]

The essential part of Madam Justice Kirkpatricks entered order reads:

It 
    is ordered that the application aforesaid be and the same is hereby granted 
    to the extent only that counsel be appointed for the limited purpose of preparing 
    and arguing the application under s. 684 itself on behalf of the appellant.

[11]

On August 10, 2007 a letter was received by the Court of Appeal Registry 
    addressed to the attention of Madam Justice Kirkpatrick.  In that letter Mr. 
    Sharif expressed his understanding that Mr. Goldberg had been appointed as 
    counsel for him.  He said that instead the Legal Services Society had appointed 
    other counsels for him.  He asked that he be brought in from prison to the 
    court so that he could seek to amend Justice Kirkpatricks order to specifically 
    provide that Mr. Goldberg be appointed as counsel.

[12]

The matter was not placed before Madam Justice Kirkpatrick.  It may 
    be that Justice Kirkpatrick was unavailable in August.  In the meantime however, 
    Legal Services, by letter dated September 25, 2007 requested that Mr. Sharifs 
    case be placed before a Justice in Chambers for directions to resolve its 
    impasse with Mr. Sharif.  I heard the matter on October 9 and adjourned it 
    to November 14, 2007 so that Mr. Goldberg might attend.  On that date Mr. 
    Goldberg appeared and spoke to the matter.  He submitted that if he had not 
    been appointed to act for Mr. Sharif by Madam Justice Kirkpatrick, he should 
    have been.  The matter was adjourned once again to December 11, so that counsel 
    for the Attorney General could be present to articulate the position of the 
    Attorney General.

Positions of the Parties

[13]

I should say at the outset that it is my view that the reasons for 
    judgment of Madam Justice Kirkpatrick demonstrate that Mr. Goldberg was not 
    appointed as counsel for Mr. Sharif.  As I read her reasons, Madam Justice 
    Kirkpatrick did not appoint Mr. Goldberg, but proceeded on the premise that 
    he would be assigned as counsel by the Legal Services Society.  In the usual 
    course, as will be explained later in these reasons, Mr. Goldberg would have 
    been appointed.  In this case he was not.  The order, signed by Madam Justice 
    Kirkpatrick, does not appoint Mr. Goldberg as counsel.  Thus, the matter proceeded 
    as an application before me to make the specific order that Mr. Goldberg be 
    appointed to act for Mr. Sharif.

[14]

Counsel for the Attorney General, Ms. Martorana, conceded that I have 
    the power to appoint a particular lawyer for an appellant under s. 684 of 
    the
Code
.  She submitted however, that I should not exercise 
    my discretion to do so.

[15]

As I mentioned earlier, it is Mr. Sharifs position that in the circumstances 
    of his case I should appoint Mr. Goldberg to act for him.  Mr. Sharif says 
    that Mr. Goldberg has acted for him over the last ten years.  Mr. Sharif knows 
    and trusts Mr. Goldberg.  He has had some success in the courts when Mr. Goldberg 
    has acted for him.  As well, Mr. Goldberg is familiar with the intricacies 
    of Mr. Sharifs case.  It would take a very long time for another lawyer to 
    study and understand the issues Mr. Sharifs case raises.

Discussion

[16]

Section 684 of the
Code
provides:
(1) 
     A court of appeal or a judge of that court may, at any time, assign counsel 
    to act on behalf of an accused who is a party to an appeal or to proceedings 
    preliminary or incidental to an appeal where, in the opinion of the court 
    or judge, it appears desirable in the interests of justice that the accused 
    should have legal assistance and where it appears that the accused has not 
    sufficient means to obtain that assistance.
(2) 
     Where counsel is assigned pursuant to subsection (1) and legal aid is not 
    granted to the accused pursuant to a provincial legal aid program, the fees 
    and disbursements of counsel shall be paid by the Attorney General who is 
    the appellant or respondent, as the case may be, in the appeal.
(3) 
     Where subsection (2) applies and counsel and the Attorney General cannot 
    agree on fees or disbursements of counsel, the Attorney General or the counsel 
    may apply to the registrar of the court of appeal and the registrar may tax 
    the disputed fees and disbursements.
[17]

As can be seen, s. 684(2) provides that where counsel is appointed 
    by the court and legal aid has been refused the fees and disbursements of 
    counsel appointed shall be paid by the Attorney General.
[18]

An examination of the case law indicates that while this court has, 
    on occasion, appointed a particular lawyer to act for an appellant or respondent, 
    the usual order is a general one, naming no particular lawyer.  There are 
    practical reasons for this.  Applicants do not often come to the court with 
    a specific lawyer in mind.  If they do, that lawyer may not be available in 
    a timely way, and since it is the public purse that pays for the provision 
    of a lawyers services, it is understood that the applicant is entitled to 
    a competent lawyer, not necessarily the lawyer of his or her choice.
[19]

In these cases, where the general order is made, it falls to the Attorney 
    General to find counsel for the successful applicant.  In turn the Attorney 
    General looks to the Legal Services Society to provide counsel.
[20]

By virtue of s. 92(14) of the
Constitution Act
,
1867
, 
    the provinces are responsible for the administration of justice in the province.  
    The Ministry of the Attorney General is impressed with executing those duties 
    which include, under the
Legal Services Society Act
, negotiating 
    with the Society for the funding of legal aid.  Ms. Martorana provided the 
    court with the affidavit of Mr. George Faddis, the Director of the Legal Access 
    Policy Division of the Ministry of the Attorney General.  Mr. Faddis deposed 
    that under s. 21 of the
Legal Services Society Act,
S.B.C. 2002, 
    c.30, the Ministry and the Legal Services Society negotiate a Memorandum of 
    Understanding every three years.  That memorandum includes the requirement 
    that the Legal Services Society assist the Ministry of the Attorney General 
    with respect to a number of exceptional matters which fall outside the Legal 
    Services Societys legal aid program.  The list of exceptional matters for 
    which the Legal Services Society receives funding includes criminal proceedings 
    where the court appoints counsel under s. 684 of the
Code
.
[21]

Mr. Faddis deposed that the Legal Services Society administers the 
    appointment of counsel under s. 684 in the same way it administers its legal 
    aid program.
[22]

Mr. Holloway, who appeared on this application on behalf of the Legal 
    Services Society, advised me that in the normal course if the applicant indicates 
    to the Society that he or she prefers the appointment of a particular lawyer, 
    the Society will appoint that lawyer as counsel, if that lawyer is willing 
    to take on the work.
[23]

The difficulty in the case at bar is that in September 2004, after 
    conducting a review, the Society made the decision to terminate Mr. Goldbergs 
    vendor number for appeals.  Put simply, the Legal Services Society will not 
    refer cases to Mr. Goldberg, and Mr. Goldberg is unable to bill the Society 
    for work done on appeals.
[24]

Ms. Martorana provided me with a number of cases dealing with the appointment 
    of counsel.  These principles emerge from the cases:
1. The court will not appoint counsel where legal aid 
    has been granted. (
R. v. Johal
(1998), 127 C.C.C. (3d) 273.)
2.  It is not open to an applicant to turn down counsel 
    provided by legal aid in favour of a specific appointment under s. 684.  (
R. 
    v. Gagnon
, 2006 YKCA 12;
R. v. Martin
, 2007 SKCA 69).
3.  
    The right to counsel, where taxpayers bear the burden of the expense, entitles 
    an accused person to competent counsel, not necessarily counsel of choice.  
    (
R. v. Ho
, 2003 BCCA 663).
[25]

Ms. Martorana says that it follows from these principles that Mr. Sharif 
    should not be permitted to refuse the assistance of counsel provided by legal 
    aid and seek the appointment of Mr. Goldberg under s. 684.
[26]

The difficulty with this argument is that Mr. Sharif has not been provided 
    counsel under the provincial legal aid program.  Counsel has been appointed 
    by the court under s. 684.  The Legal Services Society has not changed its 
    decision to deny Mr. Sharif counsel.  Thus the provisions of s. 684(2) are 
    engaged and the Legal Services Society is only involved in finding a lawyer 
    for Mr. Sharif on account of the Memorandum of Understanding.  A plain reading 
    of s. 684(2) is that where the court appoints counsel and legal aid denies 
    funding the Attorney General must foot the bill.
[1]
That is what happened in this case.  The question is reduced to whether I 
    should appoint Mr. Goldberg.
[27]

Ms. Martorana submitted that there is good reason not to appoint Mr. 
    Goldberg.  The reason can be found in the findings of the hearing panel of 
    the Law Society
In Law Society of BC v. Goldberg
, 2007 LSBC 
    03.  The panel found that Mr. Goldberg had incompetently conducted four appeals 
    taken to this Court in which the main ground of appeal was the incompetence 
    of counsel.  As a result, Mr. Goldberg has been ordered to serve a 90-day 
    suspension that is set to begin in April 1, 2008.
[28]

Ms. Martorana submits that this Courts comments in the reasons for 
    judgment in the four cases referred to by the hearing panel of the Law Society 
    are reason enough not to appoint Mr. Goldberg.  She notes that in any event 
    his suspension may cause delays that would work to the prejudice of Mr. Sharif.
[29]

On the other hand, Mr. Sharif is adamant that he have the services 
    of Mr. Goldberg.  He points out that Mr. Goldberg is intimately familiar with 
    his files and has been his lawyer for over ten years.  Mr. Goldberg was counsel 
    on the trials of the predicate offences, on the dangerous offender hearing 
    and appeared for him on two appeals connected with those proceedings.
[30]

Mr. Goldbergs relationship to Mr. Sharif and his cases persuades me 
    that I should appoint Mr. Goldberg as counsel on the s. 684(2) application.  
    When this matter was last before me I advised counsel and Mr. Sharif that 
    if I made the order appointing Mr. Goldberg, it would be to represent him 
    on the appeal, and not as a limited appointment as ordered by Madam Justice 
    Kirkpatrick.  I have re-considered that proposition.  I have not been directed 
    to anything in the material so far which suggests that Mr. Sharif has any 
    meritorious ground of appeal.  That aspect of this application should be canvassed.
[31]

In the result, I would appoint Mr. Goldberg to assist Mr. Sharif in 
    developing an argument that counsel should be appointed to act for Mr. Sharif 
    on the full appeal.  Since Mr. Goldberg is familiar with the dangerous offender 
    proceedings, he should be able to put together submissions dealing with the 
    merits of the grounds of appeal.  I would also order that this application 
    be heard before the end of March 2008.  I am not seized of the application.
The Honourable
Madam Justice Ryan


[1]
I am aware of the
dicta
in
R. v. Johal
,
supra,
stating that the Attorney General
may
be required to pay.  The comments 
    in my view were
obiter
as the Chief Justice was not asked to address 
    that question directly.
