Court File and Parties

COURT FILE NO.: CR-16-90000386-00MO DATE: 20170106 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – KEVIN EKOW PLANGE Applicant

COUNSEL: Erin Carley, for the Crown Self-represented

HEARD: January 4, 2017

RULING ON A ROWBOTHAM APPLICATION

B. P. O’mARRA J.

[1] The applicant seeks an order for state-funded counsel pursuant to s. 24(1) of the Charter. He alleges that without the appointment of counsel to represent him, his constitutional right to a fair trial in accordance with the principles of fundamental justice under ss. 7 and 11(d) of the Charter will be violated. The Crown opposes the application on the basis that the preconditions for the granting of such an order have not been established.

[2] The applicant was charged on July 10, 2015 with a single count of fraud over $5000. It is alleged that between August 7, 2013 and July 28, 2014 he fraudulently diverted over $40 million in a scheme involving the Canada Revenue Agency and a number of public corporations. On July 27, 2015, he was released on bail in the amount of $50,000 without deposit. His mother was noted as surety and he is to reside at her home in Brampton.

[3] Three days were scheduled for a Preliminary Hearing for this charge in the Ontario Court of Justice. Two days have been concluded and the final day is set for January 16, 2017. I was advised by counsel that on the final day set for the Preliminary Hearing, the Crown will be proceeding pursuant to s. 540(7) of the Criminal Code. That will involve the officer in charge testifying and referring to the various documents that relate to the alleged fraudulent scheme. The bulk of the documentary evidence are the applicant’s banking records and transcripts of phone calls he allegedly made.

[4] The applicant first applied for legal aid on August 26, 2015. His application was denied because Legal Aid Ontario (LAO) concluded that he had access to resources through his parents who had not provided financial assessments. On November 26, 2015, the applicant filed an appeal of the refusal by LAO. By letter dated January 18, 2016, the appeal of the refusal was dismissed. The applicant made a further request for reconsideration notwithstanding that there was no further appeal from the decision.

[5] In a final letter dated June 16, 2016, senior counsel at LAO indicated the following:

I am not satisfied that complete and credible information has been provided in your case as it does not seem plausible that you would be released on $50,000 no deposit bail wherein your parents have no declared assets. In addition, I note that you have made a separate application for Legal Aid for the same matter using a differing name. Having done so, it appears that you have not been forthright with Legal Aid.

[6] On this application, Mr. Plange presented as a very intelligent and articulate person. He made detailed and specific reference to various documents relating to the legal aid applications and the refusals. It is significant that he agreed with the Crown that LAO was acting on inaccurate information in the course of his application and various appeals. However, Mr. Plange took no responsibility for how that inaccurate information got to LAO. I asked him if he had any idea how LAO would have received this inaccurate information and he simply had no answer. He indicated that he and his parents in fact were truthful throughout.

[7] There are three well-established criteria that an accused person must satisfy in order to obtain a Rowbotham order. They are:

(1) The accused person must have been refused legal aid; (2) The accused must lack the means to employ counsel; and (3) Representation for the accused person must be essential to a fair trial.

[8] In relation to the first criterion, the applicant must establish that he has not been refused as a result of anything that he has done or failed to do. In R. v. Montpellier, [2002] O.J. No. 4279 (ON SC), Justice Gordon indicated the following at para. 34:

It is my view, however, that an applicant cannot come to the Court relying upon Legal Aid refusal when his failure or inaction has been the cause thereof.

[9] It is well-known that LAO struggles with a limited budget and great demand. It is essential that those who seek legal aid funding provide full, accurate and truthful information so that a fair decision can be made. I am not satisfied that the applicant on this application has been forthright. LAO can only act on what information they are given. In this matter they were given incomplete, inaccurate and possibly false information to consider. It is no answer for the applicant to simply throw up his hands and say “I agree they had inaccurate information but it’s not my fault.” I am not satisfied that the applicant has satisfied the first of the three components that he must establish in order to qualify for a Rowbotham order. That would be enough to dispose of this application but I wish to make some further comments in terms of the fair trial interests of the applicant.

[10] In R. v. Valenti, 2010 ONSC 2433, Justice Fuerst considered whether such an order should be made at the Preliminary Hearing stage. She was of the view, with which I agree, that this remedy is available only in exceptional circumstances in that stage in proceedings. At para. 17, she indicated as follows:

I conclude that while the availability of a Rowbotham order to an accused facing a preliminary hearing may not be foreclosed, it is a remedy that could be available in only exceptional circumstances. The limited powers of a preliminary hearing judge make it difficult to conclude that the conduct of the preliminary hearing will adversely affect the fairness of the accused person’s trial in such a way or to such an extent that representation at the preliminary hearing is essential to a fair trial. Rulings that are within the power of the preliminary hearing judge to make, including those about the admissibility of evidence, do not bind the trial judge. Further, the preliminary hearing judge has no jurisdiction to hear and decide Charter applications.

In Valenti, the charges were serious, the disclosure was voluminous, and the Preliminary Hearing was expected to be lengthy and complex. Notwithstanding those circumstances, the Court held that it did not establish that the assistance of state-funded counsel at that stage was essential to a fair trial. I do not find that there are exceptional circumstances in this case.

[11] The second criteria relating to whether or not the applicant has established that he lacks the means to employ counsel in this situation is bound up with the inaccurate and possibly false information that has been provided to LAO. I am unable to conclude that the applicant has established that he is unable or lacks the means to employ counsel to represent him at the Preliminary Hearing.

[12] For these reasons, the application is dismissed.

B. P. O’Marra J. Released: January 6, 2017