






Citation:



R. v. Ertmoed



Date:
20030117











2003 BCCA 83



Docket:



CA030085





Registry:  Vancouver





COURT OF APPEAL
  FOR BRITISH COLUMBIA





ORAL REASONS FOR JUDGMENT





BEFORE THE HONOURABLE

Madam Justice Prowse









January 17, 2003

























Vancouver,
        B.C.













BETWEEN:





REGINA





RESPONDENT





AND:





SHANE ROBERT ERTMOED





APPELLANT






















S. Goldberg



appearing
  for the Appellant





J. Gordon



appearing
  for the (Crown) Respondent





R. Holloway



appearing
  for the Legal Services Society







[1]

PROWSE, J.A.
: This
  is an application pursuant to s. 684 of the
Criminal Code
for the
  appointment of counsel to represent Mr. Ertmoed.

[2]

The circumstances in which this application are
  made are most unusual.  In most cases where an application is made under s.
  684 of the
Criminal Code
, it is a condition precedent to bringing
  such an application that the Legal Services Society has determined that it
  will not fund counsel.  In this case, the Legal Services Society has determined that
  this is an appropriate case in which to fund counsel.  The difficulty arises
  because the Legal Services Society, as a result of extensive cutbacks, now has
  a cap on the funding that it is able to make available.  In this case, and
  perhaps in all cases, the cap is $50,000.  That cap is for all fees and disbursements. 
  In this case, there is a letter, or information from the court reporters,
  indicating that the cost of funding the transcripts alone may well exceed
  $100,000.  In other words, the cost of funding the transcripts without more
  and, in particular, without funding counsel, is at least twice as high as the
  cap under which the Legal Services Society operates.

[3]

Counsel for the Crown submits that this
  application is premature.  He submits that there may be a possibility, after
  discussions between counsel, of finding a way to limit the transcripts
  necessary for the appeal.  He says he is not in a position to make that
  determination at this point because he is not fully aware of all of the grounds
  of appeal which Mr. Goldberg will be arguing.

[4]

It is crystal clear, however, that Mr. Goldberg
  and the Crown are unable to agree with respect to the consequences if the
  appellant is successful on appeal in excluding various statements made by Mr.
  Ertmoed. 
  Mr. Goldbergs view is that this would result in a successful appeal and an
  acquittal being entered.  The Crown takes the view that it has a circumstantial
  case which could withstand the absence of these statements and that at best,
  Mr. Goldberg would be looking at a new trial for Mr. Ertmoed.

[5]

I have heard various other discussions between counsel
  in terms of the likelihood of, for example, an agreed statement of facts.  I
  should make it clear that Mr. Holloway kindly appeared as a courtesy to the
  court with respect to this application.  He has advised me of the constraints
  under which the Legal Services Society is operating.  He has said that the
  $50,000 cap is non-negotiable; it is absolute.  He has indicated that the Legal
  Services Society funds an appeal; it does not fund grounds of appeal.  In this
  case, it has funded this appeal in general terms.  He has indicated that the
  Legal Services Society is prepared to do whatever it can do in order to assist
  counsel to reach an agreement that might in some way limit the need for all
  of the transcripts to be ordered and to limit other costs.

[6]

In my view, however, it seems unlikely that
  counsel will reach an agreement which would significantly reduce the costs
  of the transcripts in this matter.  I am, obviously, operating under some
  limitations myself since I have limited knowledge of what this appeal
  involves.  But, given the fact that the costs of the transcripts alone, without
  regard to the costs of counsel (which I would think would be significant) are
  so far over the cap, it seems to me that funding would be required by an
  appointment under s. 684 in any event.

[7]

In the result, I am prepared to make an
  appointment of counsel under s. 684 of the
Criminal Code
on the
  basis that it is essential to secure a fair hearing on appeal.  In my view, a
  justice of this Court should not be placed in the position of saying that only
  certain grounds should be funded, or that only certain numbers of transcripts
  should be ordered.  We simply are not in a position to make that kind of
  assessment.  I am, therefore, going to make the order for the appointment of
  counsel under s. 684.  I should add that I regard this as an extremely
  exceptional case and that it should not be regarded as a precedent for future
  cases.  Each case will have to be dealt with on its merits.

(discussion)

[8]

PROWSE, J.A.
:
  I should add to my reasons that nothing I have said here should preclude counsel
  from attempting to make any agreement possible in order to limit the necessity
  for the full transcripts.  I am simply saying that I am not prepared to make
  that determination here.  I do not think it is appropriate to compel counsel to
  engage in what I believe will be lengthy discussions in that regard.  I would
  also suggest that counsel avail themselves of any assistance which can be
  provided by the Legal Services Society.  I think it is in everyones best
  interests that the appeal proceed on only those materials necessary to permit
  counsel to fairly raise all relevant issues before this Court.



The Honourable Madam Justice Prowse

CORRECTION:  February 12, 2003

The docket number should be CA030085







