A Whitehorse woman’s second-degree murder charge has been conditionally stayed until the government provides funding for her lawyer of choice, a Yukon Supreme Court judge ruled this morning.

Alicia Murphy was denied her preferred local lawyer and assigned Outside counsel by Yukon Legal Services Society earlier this year.

Found guilty by a judge and jury of beating and drowning Evangeline Billy in 2008, Murphy successfully appealed that decision. Her retrial is scheduled for June of next year.

Murphy applied for legal aid after her appeal, specifying that she wanted Jennie Cunningham, who represented her during her appeal, to also represent her at the retrial.

In July, the Yukon Legal Services Society informed Murphy that she’d been assigned lawyer Donald Campbell of Kamloops, B.C.

Murphy appealed that decision, again requesting Cunningham, but legal services upheld Campbell’s appointment, citing his experience defending murder charges and “using common sense when resolving matters.”

The board further stated in its letter that it “is not required to provide a client with their choice of counsel,” and if Murphy didn’t want Campbell, she could pay for her own lawyer.

In an application brought before the Supreme Court last week, Cunningham said the legal aid board’s decision to offer Murphy one lawyer, and tell her to hire private counsel if she didn’t approve, equates to denying her legal aid.

Although there’s no “absolute right” to state-funded counsel of choice, there is an entitlement to choose, she said.

Possible limitations to that entitlement, like lawyers’ competence or fees, weren’t at issue here, Cunningham said.

Justice Leigh Gower agreed.

“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,” he wrote in today’s decision.

“It does not give rise to a genuine choice on the part of the accused.”

Crown prosecutor David McWhinnie had argued that an accused has no right to state-funded counsel, and that Murphy can’t say she was denied legal aid when the board did appoint her a lawyer.

At last week’s hearing, Murphy testified that she was “very mistrustful” of that appointment for several reasons.

She’s yet to meet or speak to Campbell, yet she learned he’d already called the Crown to discuss her file.

The language used in the board’s letter – that Campbell has experience “resolving matters” – makes her concerned that he’ll pressure her to enter a guilty plea, she said.

Gower said this concern is understandable.

Murphy cannot afford her own counsel, and said she doesn’t understand why a lawyer she doesn’t know or trust would be appointed when she has one locally who has already spent hundreds of hours on her case.

“I felt pressured,” she said of the board’s ultimatum. “I felt like I didn’t have any options, like I was kind of bullied.”

“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,” Gower wrote in his decision.

Cunningham’s application is “based on the premise that the accused will likely not receive a fair trial unless her chosen counsel represents her, and that this will constitute a breach of her constitutional right to a fair trial in accordance with the principles of fundamental justice,” he said.

The board’s refusal to appoint Cunningham can be viewed as denial of legal aid, Gower determined.

Both Cunningham and McWhinnie acknowledged that these circumstances are unusual.

While the right to preferred counsel has come up before in the Yukon, often the issue involves an accused seeking an Outside lawyer when legal aid has agreed to fund a local one.

In case law, the application Cunningham brought forward – known as a Rowbotham – emphasizes the importance of an accused’s trust and confidence in his or her representation, Gower noted, adding the application does not serve as a review of the legal aid decision.

Under a Rowbotham application, there are four requirements an accused must meet to have charges conditionally stayed pending state funding: he or she must have been denied legal aid, be unable to afford counsel, be facing a serious charge, and be unable to deal with the charge without a lawyer.

Despite the conditional stay of Murphy’s second-degree murder charge, she will remain detained at the Whitehorse Correctional Centre in the meantime.

She also faces charges of breaching her release conditions, for which Cunningham said she’d not be seeking bail immediately.