Counsel conundrum
Defence says man charged with accessory to murder should get to choose private lawyer
If you’re charged with a serious crime in this province and you want a private lawyer, there’s a rule about just who can and cannot choose one and have it paid for by the province.
But a St. John’s lawyer speaking for a man charged with being an accessory to murder says that rule is not completely clear and can be understood to mean something else.
“It’s in the interpretation of it,” Bob Buckingham said. “It’s the wording used.”
Buckingham made the point Thursday at Newfoundland Supreme Court during a hearing held to argue an application that he filed on behalf of Jonathan Rowe.
Rowe — who wasn’t in the courtroom Thursday — was implicated in the murder of Nick Winsor by allegedly helping Philip Pynn evade police after the 20-year-old Winsor was killed on July 9, 2011, in a garage at 271 Portugal Cove Rd. Pynn was charged with second-degree murder, but was found guilty of manslaughter and given an 8 1/2year jail term.
Rowe wants the Newfoundland and Labrador Legal Aid Commission to provide a certificate to have it pay for private counsel of his choice. He’s indicated he wants Buckingham to represent him at his trial, which is set to begin Nov. 2.
But the commission argues Rowe is not permitted to choose private counsel, since in the Legal Aid Act the charge of accessory to murder is not listed as one of the offences in which an accused can be provided with paid private counsel.
Section 31(3.1) of the act states, “Where the application is for legal aid with respect to an offence of murder, manslaughter or infanticide, the applicant may select a solicitor employed by the commission or a solicitor in private practice in the province.”
But Buckingham pointed out that the words used in that section, “with respect to” — instead of “persons charged with” — leaves it open to interpret it to mean charges relating to murder.
“If it said ‘charged with,’ it would define and limit it, but it doesn’t say that,” he said.
When Justice David Orborn pointed out the charge of attempted murder is not included in that section either, Buckingham replied, “I’m not here to argue that,” adding that for attempted murder, the result is not death by way of murder, as it was in Pynn’s case.
Buckingham also pointed out that a charge of accessory to murder is a serious one, with a maximum sentence of life in prison.
However, Derek Hogan, representing the commission, said the act is very clear.
“If legislation intended to grant counsel of choice (to those accused of accessory to murder), legislation would’ve said so. It did not,” he said.
Hogan said if it was open to interpretation, “The most logical interpretation is that (accessory to murder) is not included.”
Hogan explained that the charge of manslaughter is there because it’s an included offence to murder, meaning a person charged with murder may be found not guilty of that charge, but can be found guilty of manslaughter.
Hogan said the words, “with respect to” were used because those being investigated for murder, manslaughter or infanticide can also be granted counsel of their choice, even if they’re not formally charged.
Orsborn didn’t give a specific date when he would return with a decision, but said he would would as soon as possible, because Rowe’s trial is approaching.
It’s Rowe’s second attempt at private counsel. Earlier this year, his first application was denied. Evidence from that hearing was banned from publication.