Her Majesty the Queen in Right of Ontario v. Martell [Indexed as: R. v. Martell]
94 O.R. (3d) 60
Court of Appeal for Ontario,
Doherty, MacPherson and Lang JJ.A.
January 19, 2009
Charter of rights and freedoms -- Fundamental justice -- Right to counsel -- Rowbotham order -- Accused seasonal worker refusing to accept conditional legal aid certificate requiring monthly payments as did not think could make payments -- At time of motion accused unable to make payments -- Motion judge erring in granting Rowbotham order -- Cancellation of certificate not automatic if accused missing payment -- Accused's rejection of terms of certificate not equivalent to being denied legal aid -- Other Rowbotham factors irrelevant absent denial of representation through legal aid -- Appeal allowed.
The accused chose not to accept a conditional legal aid certificate requiring him to make monthly payments because he did not believe that he could make them. The accused, a seasonal worker, was an undischarged bankrupt, and could not have made the payments at time of motion. The motion judge granted a Rowbotham order. The Crown appealed.
Held, the appeal should be allowed.
The accused's choice to refuse to accept the terms upon which he was offered legal aid could not be equated to a denial of legal aid. Cancellation of the certificate and the consequent loss of representation would not be automatic if he missed any payments. His inability to make payments at time of motion did not mean that representation was not available to him under the legal aid certificate. In the circumstances, denial of legal aid was the first criteria for making a Rowbotham order, and it was not met. The motion judge erred in making the order, and it is set aside.
APPEAL by Crown from the Rowbotham order of Valin J., [2008] O.J. No. 550, 76 W.C.B. (2d) 424 (S.C.J.).
Troy Harrison, for appellant. Andras Schreck, for intervener Criminal Lawyers' Association.
[1] Endorsement BY THE COURT: -- We would set aside the "Rowbotham" order made by the trial judge.
[2] The respondent was not refused Legal Aid. Legal Aid granted the respondent a certificate on the condition that he pay $300 a month towards the legal costs covered by the certificate. Legal representation was available to the respondent if he was prepared to assume the obligations flowing from the conditional certificate. The respondent chose not to accept the conditional certificate because he did not believe that he could make the monthly payments required under the certificate.
[3] The material before the trial judge indicated that the respondent was a seasonal worker. While employed, it would appear that [page61 ]he had the means to make the necessary payments, but while unemployed he clearly did not have those means. He was, in fact, an undischarged bankrupt at the time of the motion.
[4] In granting the application, the trial judge said [at paras. 29-30]:
This is an exceptional case. I am struck by the candour of the applicant who refused at the outset, and continues to refuse, to sign a contribution agreement that he believes is beyond his financial ability to honour.
Given the current level of family income, I find that the applicant has no ability to make any payments on a contribution agreement. In those circumstances, the availability of a Legal Aid certificate on condition that the applicant signs a contribution agreement calling for payments that are well beyond his financial means is tantamount to a denial of Legal Aid.
[5] We accept the motion judge's finding that the respondent was unable to make the monthly payments at the time of the motion. It, of course, cannot be said that the appellant would not be in a position to make future monthly payments. This is particularly true given the seasonal nature of the respondent's employment.
[6] The respondent's inability to make one or more of the monthly payments did not, in our view, mean that legal representation was not available to him under the certificate offered by Legal Aid. If the respondent did not make the payments, that would not automatically terminate any legal representation made available to him under that certificate. The Legal Aid authorities would have to decide what steps, if any, to take in the face of the non-payment. Legal Aid could alter the terms on which the certificate was granted; Legal Aid could do nothing; or Legal Aid could cancel the certificate.
[7] If Legal Aid followed the first or second alternative outlined above, the respondent would continue to be represented under the certificate. He would, however, be in debt to Legal Aid as a result of the condition requiring monthly payments. Going into debt to obtain legal representation through Legal Aid cannot be equated with a denial of legal representation by Legal Aid. We note that even under the terms of the order made by the trial judge, the respondent would find himself in debt, albeit to the Attorney General, as a result of the legal services provided to him. If Legal Aid decided to cancel the certificate in the face of non-payment, then the time for a Rowbotham application would have arrived.
[8] In our view, the respondent's decision not to avail himself of the legal representation available to him through the Legal Aid services cannot be equated with a denial of Legal Aid. On the facts of this case, it is agreed that legal representation was available and that counsel was prepared to act for the respondent [page62 ]under the terms of the certificate offered by Legal Aid. In the circumstances of this case, a denial of Legal Aid was a prerequisite to the granting of a Rowbotham order. Absent that denial, there was no need to consider the other factors relevant on a Rowbotham application.
[9] We would allow the appeal and set aside in its entirety the order of the trial judge.
Appeal allowed.