The Crown has been ordered to pay for the lawyer of a woman preparing for a second second-degree murder trial.
The case of Alicia Murphy boils down to how much choice you get when you are being represented by a legal aid lawyer.
Both sides agreed that there is no “absolute right” to pick whoever you want. But Murphy’s lawyer argued that she was, in fact, getting no choice at all.
“In my view, the essential issue here is whether the accused has been provided with a genuine choice about the counsel she wishes to represent her on this very serious charge, for which she faces a sentence of life imprisonment if found guilty,” Yukon Supreme Court Justice Leigh Gower explained in his 21-page decision.
Murphy was convicted of murder in the 2008 death of Evangeline Billy. Murphy appealed that decision and was granted a retrial. That’s scheduled for June of next year.
She applied for legal aid and specifically asked to be represented by local lawyer Jennifer Cunningham, who had represented her at the appeal.
Legal aid told her that Donald Campbell, a lawyer from Kamloops, B.C., had been chosen.
“The board explained that this was primarily for two reasons. First, Mr. Campbell has almost 30 years of experience as a criminal defence lawyer and has specialized in defending murder charges,” Gower said.
“Second, that he had recently represented a young adult male charged with first-degree murder, at the request of legal aid, and that legal aid thought he ‘did excellent work’ and ‘uses common sense when resolving matters.’”
She was told that if she did not want Campbell, she could pay for a lawyer of her own.
In an affidavit, Murphy told the court she was concerned about the wording of this letter. She intends to plead not guilty and fight the charges in court.
She said she’d heard Campbell was identifying himself as her lawyer before he had even talked to her.
Part of Murphy’s original appeal was the accusation that she had ineffective counsel from her first legal aid lawyers.
Though that was not the part of the appeal she won, she said she is mistrustful of the process, but trusts Cunningham.
This type of court application, known as a Rowbotham application, comes up when a person has been denied legal aid but cannot afford a lawyer to represent them on a complex, serious charge.
A Rowbotham application is not supposed to be about reviewing the decision-making process at legal aid, the judge notes.
In court, prosecutor David McWhinnie argued that Murphy can’t say that she was denied a lawyer. He said Murphy’s reasons for mistrusting the lawyer picked for her are vague and subjective.
But Gower disagreed.
He said legal aid’s refusal to authorize Cunningham to act for the accused in this context can be viewed as a de facto denial of legal aid.
He pointed to the letter from the legal aid board which suggested that if Murphy were to not accept legal aid’s offer, then she was “free to hire (her) own counsel privately.”
“Again, I do not want to fall into the trap of reviewing legal aid’s decision, but I cannot help observing that, in the present circumstances, the board’s suggestion here is simply unrealistic. It does not give rise to a genuine choice on the part of the accused,” he said.
For now, Murphy’s charges have been stayed until funding for Cunningham can be worked out.
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