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Gabarit EDJ

Matchewan c. Comité de révision de la Commission des services juridiques

2012 QCCS 1248

JD 2836








N° :






March 27 2012









Jean Maurice MATCHEWAN









Mis en cause







[1]           The Court is seized of a Motion in Judicial Review instituted by Jean Maurice Matchewan.  He asks the Court to quash a decision of the Comité de révision de la Commission des services juridiques (the "Committee") refusing his request to receive legal aid.  The Committee was sitting in revision of the decision of the director of the Centre communautaire juridique de l'Outaouais (the "Centre") refusing Mr. Matchewan's request. 

[2]           The Centre intervened in the proceedings on September 29, 2011 and took the lead in contesting the present motion.

[3]           Mr. Matchewan is a member of the Algonquin First Nation community at Barrière Lake, Québec.  He is accused of blocking Highway 17, which runs through the community, on November 19, 2008.

[4]           Mr. Matchewan faces a charge of mischief pursuant to section 430 (1)(c) (4)(b) of the Criminal Code.[1] He is to be tried summarily and, if convicted, will be subject to a maximum of six months in prison or, more likely a fine of up to $2,000.00.


[5]           On February 9, 2011, Mr. Matchewan applied for a legal aid mandate to be represented in the criminal trial of this charge against him.

[6]           On May 17, 2011, the Centre denied his request for legal aid.  The decision is succinct, stating: "Service not covered".[2]

[7]           On May 26, 2011, by letter addressed to the Committee,[3] Mr. Matchewan asked for the revision of this decision.  In the letter, he stated that he would raise a colour-of-right defence based on his  "legitimate belief that he had a legal right to the property" where the offence is alleged to have occurred.  Given the contested status of the land in question, he stated that the proof would be complex, as evidenced by the fact that he and the Crown had requested two days for trial.  He also placed emphasis on the possibility of a significant prison term. 

[8]           In a teleconference held on August 11, 2011, the Committee held a hearing on Mr. Matchewan's application for review of the Decision.  Both Mr. Matchewan and his counsel were heard.

[9]           The Committee rendered its decision on the same day and denied Mr. Matchewan's application for review.[4]  As a result, Mr. Matchewan is not entitled to receive legal aid for the defence of the criminal charge laid against him.


[10]        After concluding that Mr. Matchewan was financially admissible to receive legal aid, the Committee analyzed article 4.5 (3) of the Act Respecting Legal Aid and Provision of Certain Other Legal Services[5] (the "Legal Aid Act").  That section reads as follows:

4.5. In criminal or penal matters, legal aid shall be granted, in first instance,


 (3) for the defence of a person, other than a young person, facing prosecution before a court for an offence under an Act of the Parliament of Canada that is punishable on summary conviction, or for the defence of a person, whether an adult or a person under 18 years of age, facing prosecution before a court under the Code of Penal Procedure (chapter C-25.1) where, in either case, upon conviction there is likelihood either of imprisonment or committal to custody, or of loss of means of earning a livelihood or where it is in the interests of justice that legal aid be granted to the accused, having regard to exceptional circumstances, for instance the seriousness of the matter or the complexity of the case;

[11]        The Committee considered that the principal issue in the matter was the recognition of the ancestral territorial rights of a First Nation.  For the Committee, this was a matter of general interest to the First Nation, but not one in the particular individual interest of Mr. Matchewan.

[12]        Furthermore, the Committee was of the view that the facts of the matter were not complex.

[13]        The Committee concluded that none of the discretionary elements of section 4.5 (3) of the Legal Aid Act were present.  More particularly, it considered:

·         that, although Mr. Matchewan has a prior prison record, it is in an unrelated matter;

·         that, if Mr. Matchewan is found guilty, a prison sentence is remote;

·         that Mr. Matchewan will not lose his means of subsistence in the event of a guilty verdict; and

·         that the matter raises no exceptional circumstance calling the interests of the justice system into question.[6]

[14]        The Committee did not comment on the colour-of-right defence raised by Mr. Matchewan.


[15]        Mr. Matchewan submits that the standard of review is that of reasonableness.

[16]        Mr. Matchewan also acknowledges that the possibility he would be sentenced to a prison term is remote.

[17]        The principal ground he raises in support of his position that the decision of the Committee is unreasonable is that the Committee misunderstood the complexity of the color-of-right defence. As such, it failed to properly consider the criteria of section 4.5 (3) of the Legal Aid Act.  In particular, he submits that the Committee should have concluded that the matter was complex[7] and its reference to the lack of complexity of his defence was inappropriate. 

[18]        Mr. Matchewan also submits that the Committee failed to consider his personal interest in the matter.

[19]        Mr. Matchewan refers the Court to several prior decisions of the Committee.[8] In two cases involving charges of illegal hunting and fishing the accused raised a defence based on aboriginal rights to hunt or fish. The other two involved charges under the Criminal Code of driving while intoxicated and the presentation of an affirmative defence involving mixed questions of fact and law.  In these cases, legal aid services were provided to applicants. They will be discussed further below.


[20]        The Committee essentially relied on the arguments of the Centre.


[21]        The Centre agrees that the standard of review in the present case is one of reasonableness.  It relies on the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick,[9] where the Court stated:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.  Instead, they may give rise to a number of possible, reasonable conclusions.  Tribunals have a margin of appreciation within the range of acceptable and rational solutions.  A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.[10]

[22]        It notes that its decision whether or not to grant a legal aid mandate in a particular matter is discretionary.  Legal aid is not granted automatically, but only if the criteria set out in the legislation are met.  It is a privilege, not a right.

[23]        The Centre underlines that section 3.2 of the Legal Aid Act declares that the efficient management of legal aid services is a fundamental principle that the Committee must consider.[11]  Given that the Committee manages public funds, it must always consider the public interest.  The Centre must also be mindful of these criteria, as it renders the initial decision following a request to receive legal aid.

[24]        The Centre points out that the decision of the Committee benefits from a privative clause, section 79 of the Legal Aid Act.  As well, since the Committee is interpreting its enabling legislation, significant deference must be accorded to its decision.[12]

[25]        The Centre adds that the decision is well founded.  In particular, it submits that the individual interest of Mr. Matchewan relates only to the alleged crime and, given his particular situation, a conviction will not have serious consequences for him.  Given that the real issue is the recognition of the ancestral rights of a First Nation on a particular territory and not the rights of an individual it is not in the interests of justice to grant Mr Matchewan's request to receive legal aid.


[26]        It is clear that the decision of the Committee is a quasi-judicial decision subject to the reviewing power of the Superior Court, as decided by the Court of Appeal in Latreille v. Comité de révision de la Commission des services juridiques.[13]

[27]        The Court agrees that the decision of the Committee is subject to the standard of review of reasonableness.  In deciding whether to authorize a legal aid mandate for Mr. Matchewan, the Committee was interpreting its enabling statute and dealing with a mixed question of fact and law.  Its decision on the question is discretionary.  Finally, while section 79 of the Legal Aid Act does not have all the trappings of many privative clauses, only stating that the decision of the Committee is final, without the possibility of appeal, it is certainly an element to consider.  All these factors lead to the conclusion that the appropriate standard of review is reasonableness.[14]

[28]        Therefore, the question that the Court must answer is whether the Committee's decision to refuse legal aid "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law"[15] presented to the Committee.  Given the discretion that the Committee possesses, that test is met.  The Committee's decision is reasonable.

[29]        The Committee analyzed each one of the factors set out in section 4.5 (3) of the Legal Aid Act

[30]        It concluded that in the event of a guilty verdict a prison term is remote.  This is certainly a reasonable conclusion given that all the parties have so agreed. 

[31]        The Committee further concluded that a conviction would not deprive Mr. Matchewan of the possibility of earning his livelihood.  This conclusion is also reasonable, given the conclusion that a prison term is unlikely.  Moreover, Mr. Matchewan already has a criminal record, so a further conviction is less likely to have a negative impact on his job possibilities than if he was faced with a first conviction.

[32]        This said, there are three issues where there is room for some debate:

a.    Are the circumstances of this matter exceptional because of their seriousness or complexity?


b.    Does the intent of Mr. Matchewan to raise a defence that he had a legal right to the property, due to his belief in the ancestral rights of the Algonquin First Nation, render the matter complex?


c.    Is the defence one that furthers Mr. Matchewan's own interest or the larger interest of the Algonquin First Nation?

[33]        The facts of the matter do not appear to be complex.  In fact, in his letter of May 26, 2011,[16] Mr. Matchewan's lawyer admitted that Mr. Matchewan does not deny the facts surrounding alleged infraction.

[34]        With respect to the color-of-right defence, the jurisprudence produced by Mr. Matchewan[17] clearly demonstrates that it is a defence that has been raised on a number of occasions.  To successfully raise it, he will have to demonstrate his honest belief that the Algonquin First Nation's ancestral right to the land in question gave him the right to block the road.  Demonstrating an honest belief is not exceedingly complex and it was not unreasonable for the Committee to conclude as such.

[35]        Finally, to the extent that the complexity of Mr. Matchewan defence will as alleged in the letter of May 26, 2011, "… rest in part on the proof of the contested status of the land and the ongoing negotiations process…", Mr. Matchewan will be raising an issue which is much more related to the general interest of the Algonquin First Nation than to his own.

[36]        As Mr. Matchewan pointed out, there are instances where the Committee has granted legal aid in cases relating to aboriginal fishing and hunting rights and the presentation of an affirmative defence involving mixed questions of fact and law.  In the two cases dealing with fishing and hunting rights, the Committee concluded that it was in the interests of justice to provide legal aid services to the accused, who in both instances claimed that their ancestral rights gave them the right to fish or hunt year round.  These cases are clearly distinguishable from the present matter in that an individual's right to fish and hunt was at issue.

[37]        In another case, the Committee concluded that there was a probability of imprisonment and a probability that the applicant would lose his means of economic subsistence.  Similar concerns do not exist in the present matter.

[38]        The last case dealt with a defence of whether or not the accused had the care and control of a vehicle.  This is a significantly different situation from the present one.

[39]        Mr. Matchewan's case is more similar to the one considered in Faucher v. Comité de révision de la Commission des Services Juridiques.[18]  There, Mr. Faucher had been charged in relation to his participation in a demonstration.  As part of his defence, he indicated that he would raise the unconstitutionality of a municipal regulation. The Committee refused to authorize a legal aid mandate.  A conviction would have meant a $100.00 fine and no prison term.

[40]        On the issue of complexity, in its decision in Mr. Faucher's file the Committee stated: "De plus, ce n'est pas parce qu'une défense est complexe qu'il y aura nécessairement des circonstances exceptionnelles donnant ouverture à l'intérêt de la justice".[19]

[41]         Justice Richard Mongeau dismissed the motion in judicial review.  He underlined that the Committee exercises a discretionary power under section 4.5 (3) of the Legal Aid Act and that the discretion must be exercised "d'une façon judiciaire".[20]

[42]        He then stated : "Il n'y a pas erreur de la part du Comité de révision d'affirmer que le critère de l'intérêt de la justice cible d'abord l'intérêt particulier et non l'intérêt général…"[21]

[43]        In the present matter there is no reason to arrive at a conclusion different from that of Justice Mongeau in Faucher. The Committee exercised its discretion appropriately.  Its decision was clearly within the realm of possible decisions given the facts and the legal issue before it. 

[44]        The Court notes that, in Faucher, the motion was dismissed without costs given its particular nature.[22]  It is appropriate to take the same approach to costs here.


[46]        DISMISSES the motion in judicial review of Jean Maurice Matchewan;








Me Peter Shams

Peter Shams Lawyer

Lawyer for Mr. Matchewan


Me Gilles Daoust

Commission des services juridiques

Lawyer for the Respondent


Me Christine Fortin

Loranger, Marcoux

Lawyer  for  the Respondent                                                                                                                                                                    


Date of hearing :

January 19, 2012


[1].   R.S.C. ,1985, c. C-46.

[2].   Exhibit A-2.

[3].   Exhibit A-3.

[4].   Exhibit A-4.

[5].   R.S.Q., c. A-14.

[6].   Paragraph 12 of the decision.

[7].   R. v. Wawatie 2002 CanLII 34646 (QC CQ); R . v. Manuel , 2008 BCCA 143 (CanLII).

[8].   #82-06-69702678-01; #90-03-69700581-01, 00582, 00583; 87-04-196362002; 80-05-69902157-01.

[9].   2008 S.C.C. 9 (CanLII).

[10].  Ibid. paragraph 47.

[11]. Paquette c. Commission des services juridiques, AZ-50227391 , J.E. 2004-1134 (C.S.) paragraph 39. 

[12]Celgene Corporation v. Attorney General of Canada, 2011 CSC 1 (CanLII).

[13].  AZ-50123750 , J.E. 2002-893 (C.A.).

[14]Dunsmuir v. New Brunswick, supra note 9, paragraphs 53-55; Celgene Corporation v. Attorney General for Canada, supra note 13, paragraph 34; Paquette v. Commission des services juridiques supra note 12.

[15]Dunsmuir v. New Brunswick, supra note 9, paragraph 47.

[16].  Exhibit A-3.

[17]R v. Mathias 2010 QCCQ 5363 (CanLII); R. v. Manuel,   2008 BCCA 143 (CanLII).

[18].  2006 QCCS 5515 (CanLII),  AZ-50406373 (C.S.).

[19]Ibid. paragraph 13.

[20].  Ibid. paragraph 29.

[21]Ibid. paragraph 33.

[22]Ibid. paragraph 49.

Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.

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