Catherine Galligan

The applicant sought a stay of proceedings unless the Attorney General funded his defence at Legal Aid Ontario rates pursuant to a Rowbotham application.

Legal Aid had refused continued funding after the accused sought to change counsel.

The court accepted that counsel was essential to ensure a fair trial given the seriousness of the drug trafficking charge, the complexity of the proceedings, and the accused’s ability to participate.

After reviewing the applicant’s financial circumstances, including assistance from family members and equity in his spouse’s home, the court concluded that he lacked the means to retain counsel.

A conditional stay of proceedings was granted unless state-funded counsel was provided.

The appellant appealed convictions for trafficking in cocaine and conspiracy to traffick in cocaine arising from a jury trial.

During deliberations, the jury asked whether defence counsel had been appointed by the court, and the trial judge answered that question in the negative while also instructing that the matter was irrelevant.

The court held that the jury should instead have been told there was no evidence on the point, that it was totally irrelevant, and that they should not speculate about it.

Because the response introduced potentially prejudicial information bearing on the appellant's financial means and impaired the appearance of trial fairness, the appeal was allowed, the conviction was quashed, and a new trial was ordered.

The appellant appealed drug trafficking and proceeds convictions on the ground that he was wrongly denied a jury trial after failing to attend on the scheduled trial date.

The court held that under s.598(1) of the Criminal Code the onus rested on the accused to establish a legitimate excuse, and the pre-trial judge was entitled to reject the illness explanation as not credible.

The court further held that the trial judge did not err in refusing to reconsider the pre-trial s.598(1) ruling on the basis that only the trial judge had jurisdiction.

The appeal from conviction was dismissed.