N.W.T. judge agrees to back-up lawyer in effort to prevent more delays in Yellowknife murder trial

The N.W.T. courthouse in Yellowknife. (Natalie Pressman/CBC - image credit)
The N.W.T. courthouse in Yellowknife. (Natalie Pressman/CBC - image credit)

An N.W.T. Supreme Court judge has signed off on an order to appoint another lawyer to potentially help Devon Larabie represent himself in his murder trial later this year.

That's if Larabie dismisses his current lawyer before the trial.

Larabie is scheduled to go on trial Nov. 14 for second degree murder in the death of Breanna Menacho, whose body was found in a Yellowknife apartment in May 2020.

Larabie's current lawyer is Michael Spratt, an Ottawa-based criminal defence lawyer who also works in the Northwest Territories.

Spratt is the fourth publicly-appointed lawyer to represent Larabie in this case. Larabie has dismissed three previous lawyers appointed through Legal Aid N.W.T. He dismissed his third lawyer, Scott Cowan, the week before his trial was set to begin last September.

Crown prosecutor Blair McPherson argued in court on Friday that appointing a fifth lawyer as a "friend of the court" would mean that Larabie can represent himself if he dismisses Spratt before or during the case, avoiding another delay in the trial similar to the one last September.

A "friend of the court" (or amicus curiae in Latin) is a lawyer appointed by the court to help someone who is representing one's self in a trial. If Larabie retains Spratt as his lawyer until the end of the trial, the "friend of the court" won't end up participating in the trial at all.

Spratt said that he and his client had no objection to the motion, expressing that he did not foresee any reason that his relationship with Larabie might break down.

A 'nuanced' role

Judge Michel Gates also accepted the motion. He acknowledged that appointing an amicus is a rare step, but one he believed was appropriate in this case.

However, Gates also had a lot of questions about what the process of appointing the new lawyer would look like, and how much the appointed lawyer would be taking on if Larabie does end up self-representing.

"In my entire legal career I have only once seen an amicus involved in a case," Gates said.

McPherson said that in this case, in addition to giving Larabie legal advice, the new lawyer would be required to cross-examine certain vulnerable witnesses on Larabie's behalf so they aren't re-traumatized.

McPherson said the question of just how much an amicus can take over for a self-represented defendant is legally controversial, but believes a ruling coming soon from the Supreme Court of Canada may help decide the question.

Gates also had questions about how they were going to find a lawyer qualified to take on the role.

"What we're asking someone to do here is very nuanced," he said. "As you know, not all lawyers are created equal."

In the end, the prosecutor and judge decided, with help from Spratt, that McPherson will ask Legal Aid N.W.T. for a list of suitably experienced lawyers who are available to be at the trial. Gates will then pick one after consulting both McPherson and Spratt.

The N.W.T Department of Justice will pay for the new lawyer.

Larabie disagrees with order

Larabie, however, was not happy with the decision. He spoke to the court by video conference on Friday to say that didn't agree with the order.

"I feel like the [court]... is denying me in advance the right to have a defence counsel if me and Mr. Spratt should have a breakdown in our relationship," he said.

"If I have an argument that he's not willing to make, I need a lawyer to make that argument for me… I don't know how to make an argument."

Larabie tried to ask Gates a question about whether an amicus would be able to help him make a specific argument he wanted to make at the trial, but Spratt intervened and told him it wasn't the right time to talk about the arguments they might be making.

Gates said he understood Larabie's concerns, but encouraged Larabie to focus on maintaining a good relationship with Spratt.

"It sounds like you're telling me not to worry about it but you're worried about it," Larabie responded.

Gates also told Larabie that if he does decide to dismiss Spratt, the Crown will likely ask that the trial go forward as scheduled.