A Yukon Supreme Court deputy justice has dismissed an application from two Pelly Crossing sisters asking for a stay in their first-degree murder proceedings unless they obtain state funding for their defences. (Crystal Schick/Yukon News file)

Judge dismisses ‘premature’ application over legal aid funding for Pelly Crossing murder case

Deputy Justice Elizabeth Hughes says lawyers could request more hours after preliminary inquiry

A Yukon Supreme Court deputy judge has dismissed an application from two Pelly Crossing sisters asking for a stay in their first-degree murder proceedings unless they obtain state funding for their defences.

In her decision delivered in a Whitehorse courtroom Sept. 28, Deputy Justice Elizabeth Hughes described the application brought by Lynzee and Charabelle Silverfox, who are both facing charges in the 2017 slaying of Derek Edwards, as “premature.”

The sisters had turned to the courts after the Yukon Legal Services Society (YLSS), also referred to as legal aid, initially offered their lawyers 100 preparation hours to take on their cases, with room for up to 25 more. That offer was later replaced with a new one that didn’t have the 25-hour cap.

However, then-YLSS executive director David Christie said during cross examination in July that due to budgetary constraints, YLSS at the moment wouldn’t be able to approve requests for additional time.

Lawyers Jennifer Budgell and Jennifer Cunningham, who are representing Lynzee and Charabelle, respectively, argued during the application’s hearing Sept. 11 that 100 hours was “inadequate” and would compromise the sisters’ ability to mount proper defences. They noted the complexity of the case, seriousness of the charges and large amount of evidence that had already been shared with defence, arguing no lawyer, anywhere, would be be able to take the case for the budget YLSS had.

Crown attorney Ludovic Gouaillier, in turn, had argued the application was being brought on too early and that the Silverfox sisters should speak to some other lawyers first to see if they’d be willing to take on their cases.

Hughes, in her decision, ultimately agreed with the Crown.

There’s a “heavy evidentiary burden” in this kind of application, she said, the first requirement of which is that the applicants have been denied legal aid.

“Clearly, the applicants cannot meet the first aspect of the test,” Hughes said, noting that there had been no evidence put before the court of either sister attempted to seek out other lawyers who might be willing to work with YLSS before bringing the application.

“The question then is whether the legal aid certificate is so inadequate that the Silverfox sisters have been denied the opportunity to make a full answer and defence, in light of the voluminous disclosure and the serious nature of the allegations facing them,” she continued.

“I am of the view it is premature to make this determination.”

Hughes pointed out that during arguments, Cunningham and Budgell indicated that in the past, they’ve made requests for additional hours after preliminary inquiries, during which the key issues in a case become “focused and clarified.”

YLSS’s new offer, Hughes said, provides an adequate amount of time to achieve that, after which the parties can reevaluate what the case requires (the Silverfox sisters’ preliminary inquiry is scheduled to begin in November). She also said she accepted Christie’s evidence that YLSS would consider requests for additional hours in good faith.

Hughes added that, should the application be brought again later on, a “stronger evidentiary basis” would be needed. While Budgell and Cunningham had brought forward examples of how legal aid negotiations work in Ontario and British Columbia, Hughes said it would be more helpful to have affidavits from local lawyers who have worked similar cases on similar offers.

“This court cannot change YLSS’s budgetary constraints but it can make relevant context-specific comparisons,” she said. “Given these budget constraints, it is crucial that the fair trial of the Silverfox sisters remains the focus rather than the narrow emphasis on compensation.”

Budgell and Cunningham have until the end of the week to decide if they want to officially go on record as the Silverfox sisters’ lawyers. If they decline, Hughes direct YLSS to contact other lawyers on its roster to see if they can take the case instead.

Contact Jackie Hong at jackie.hong@yukon-news.com

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