Her Majesty the Queen v. Okafor [Indexed as: R. v. Okafor]

97 O.R. (3d) 690

Court of Appeal for Ontario,

Moldaver, Feldman and Lang JJ.A.

September 23, 2009

Criminal law -- Counsel -- Accused bringing unsuccessful Rowbotham application part way through trial -- Counsel testifying during motion that accused owing substantial fees and continuing representation would be hardship unless Rowbotham order were made -- Application judge removing counsel from record over accused's objections and without formal application by counsel -- Accused self-represented for remainder of trial -- Application judge erring in removing counsel without evidence of fundamental disagreement between counsel and accused, serious breakdown in communications or ethical dilemma -- Accused's right to counsel being violated -- Accused not required to demonstrate actual prejudice in order to obtain new trial.

Partway through his trial on a charge of fraud over $5,000, the accused brought a Rowbotham application. The application was heard by a judge who was not the trial judge because the trial judge had already heard evidence during the trial about the accused's financial circumstances. Defence counsel testified on the application that he was owed substantial legal fees and that unless a Rowbotham/Fisher order were made, his continued representation of the accused would result in serious hardship, but he made no formal application to be removed as counsel. The application judge dismissed the application and, over the objections of the accused, removed defence counsel as counsel of record. The trial continued with the accused representing himself and ended in a conviction. The accused appealed.

Held, the appeal should be allowed.

The application judge erred in removing defence counsel from the record in the absence of a fundamental disagreement between defence counsel and the accused, a serious breakdown in communications or an ethical dilemma that prevented defence counsel from acting. It was far too late in the process to let defence counsel off the record, at least without ensuring that the accused had other counsel who could properly represent him. The accused's right to be represented by counsel was violated. The accused was not required to demonstrate actual prejudice to obtain a new trial. However, in this case, actual prejudice existed.

APPEAL from the judgment of Hambly J. of the Superior Court of Justice dated August 22, 2007 for a conviction for fraud. [page691]

Cases referred to R. v. Brundia, [2007] O.J. No. 4051, 2007 ONCA 725, 230 O.A.C. 29, 75 W.C.B. (2d) 346, 162 C.R.R. (2d) 166 (C.A.); R. v. Clement, 2002 CanLII 44951 (ON CA), [2002] O.J. No. 2177, 159 O.A.C. 323, 166 C.C.C. (3d) 219, 54 W.C.B. (2d) 460 (C.A.); R. v. Downey, [2002] O.J. No. 1524, [2002] O.T.C. 279, 54 W.C.B. (2d) 132 (S.C.J.); R. v. Fisher, [1997] S.J. No. 530 (Q.B.); R. v. Rowbotham, 1988 CanLII 147 (ON CA), [1988] O.J. No. 271, 25 O.A.C. 321, 41 C.C.C. (3d) 1, 63 C.R. (3d) 113, 35 C.R.R. 207p, 4 W.C.B. (2d) 30 (C.A.)

Anthony Okafor, appearing in person. Daniel Stein, duty counsel. Greg Skerkowski, for respondent.

[1] Endorsement BY THE COURT: -- The appellant was tried by Justice Hambly of the Superior Court of Justice on one count of fraud over $5,000. The trial commenced on August 16, 2004 and continued sporadically over the next three years until August 22, 2007, when the appellant was found guilty as charged. On November 5, 2007, the appellant was sentenced to imprisonment for nine months and ordered to make restitution in the amount of $109,699. He appeals against conviction and sentence.

[2] The appellant appeared on his own behalf in this court. He was ably assisted by Mr. Daniel Stein, duty counsel, to whom we are grateful.

[3] Partway through his trial, the appellant applied to the trial judge for a Rowbotham order (R. v. Rowbotham, 1988 CanLII 147 (ON CA), [1988] O.J. No. 271, 41 C.C.C. (3d) 1 (C.A.)). Because the trial judge was familiar with the appellant's financial circumstances from evidence adduced at the trial, he felt that the Rowbotham application should be heard by a fellow judge. Accordingly, on May 14, 2007, the application proceeded before Justice Ramsay of the Superior Court of Justice (the "application judge").

[4] In the course of the application, counsel for the appellant, Mr. Charles Roach, testified that he was owed substantial legal fees for work he had already performed and that unless a Rowbotham/Fisher order (R. v. Fisher, [1997] S.J. No. 530 (Q.B.)) were made, his continued retention would result in serious hardship.

[5] The application judge determined that this was not a proper case for a Rowbotham order, in part because he was not satisfied that the appellant could not fund the trial. Accordingly, he dismissed the application. In doing so, he made a further order, over the objection of the appellant and absent a formal application by Mr. Roach, removing Mr. Roach as counsel of record. He then adjourned the matter for several weeks and ordered the appellant to appear before Justice Hambly to continue the trial. The application judge told the appellant that he had two choices at that point: he could either re- retain Mr. Roach or complete the trial on his own.

[6] At the continuation of the trial, the appellant made a further attempt to obtain a Rowbotham order. The trial judge refused his request and, over the appellant's objection, the trial continued with the appellant representing himself. [page692]

[7] The appellant's primary complaint on appeal is that the application judge should not have ordered Mr. Roach's removal from the record. In doing so, he violated the appellant's right to be represented by counsel and compromised the fairness of the trial. We agree with that submission.

[8] In our respectful view, the application judge erred in ordering Mr. Roach's removal from the record, part way through the trial, for what effectively amounted to non-payment of legal fees. Unlike the situation in R. v. Downey, [2002] O.J. No. 1524, [2002] O.T.C. 279 (S.C.J.), this case did not involve a fundamental disagreement between the appellant and Mr. Roach; nor was it one involving a serious breakdown in communications or an ethical dilemma that prevented Mr. Roach from continuing to act. On the contrary, the record shows that while the appellant and Mr. Roach may have had some disagreements as to the manner in which the case should be defended, Mr. Roach was willing to stay on as counsel so long as he was remunerated for his services.

[9] In short, leaving aside minor disagreements as to how the case should be defended, Mr. Roach's concern was financial. To the extent that the application judge found otherwise, in our respectful view, he erred. The record simply does not support a finding of fundamental disagreement, communication breakdown or ethical dilemma.

[10] In the circumstances, where Mr. Roach had committed to the appellant's defence and represented him for a considerable portion of the trial, it was wrong for the application judge to order Mr. Roach's removal from the record for non-payment of legal fees: see R. v. Brundia, [2007] O.J. No. 4051, 2007 ONCA 725 and R. v. Clement, 2002 CanLII 44951 (ON CA), [2002] O.J. No. 2177, 166 C.C.C. (3d) 219 (C.A.). Any disagreement about fees between Mr. Roach and the appellant should have been for the two of them to sort out, either amicably or by means of the civil process.

[11] In short, it was far too late in the process to let Mr. Roach off the record, at least without ensuring that the appellant had other counsel who could properly represent him. Any suggestion that Mr. Roach may have been duped by the appellant rings hollow. Mr. Roach had acted for the appellant in the past and this was not the first time he experienced difficulty collecting his fees. He also knew, or should have known, the strategy the appellant wished to pursue and either refused the brief or protected his fees.

[12] Having determined that the appellant's right to be represented by counsel was violated, the appellant need not demonstrate actual prejudice to obtain a new trial. As this court observed in Brundia, at para. 58: [page693]

Given that the appellant was required to represent himself at trial even though he had counsel of record, we conclude that his right to be represented by counsel was violated and that a new trial is required. Like R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 131 C.C.C. (3d) 518 (Ont. C.A.), this is not a case where the appellant must demonstrate actual prejudice in order to obtain an order for a new trial. Rather, a new trial is required "to protect and vindicate the right that has been breached and to ensure the perception of fairness of the proceeding": McCallen at paras. 86-87, referring to R. v. Tran (1994), 1994 CanLII 56 (SCC), 92 C.C.C. (3d) 218 (S.C.C.).

[13] That said, it appears that there may have been prejudice here. The Crown's case against the appellant was not the strongest and the appellant's conviction was by no means a foregone conclusion. Indeed, in his lengthy and comprehensive reasons, the trial judge rejected all but one of the bases upon which the Crown sought to establish fraud. On the one he did accept -- that the appellant obtained benefits from the Workplace Safety and Insurance Board by "representing to the board falsely his life circumstances" -- the trial judge considered the many gaps and unanswered questions in the Crown's case and stated that it was "not without some anxious consideration after listening to the persuasive argument of Mr. Murdoch [Crown counsel]" that he became satisfied of the appellant's guilt.

[14] Given that the appellant was unrepresented in the final stages of the trial, it is impossible to know whether the trial judge would have come to the same conclusion had he received "persuasive argument" from defence counsel.

[15] In view of our conclusion that a new trial must be ordered, we need not consider the other grounds of appeal raised by the appellant; nor is it necessary to address the issue of sentence.

[16] Accordingly, the appeal is allowed, the conviction is set aside and a new trial is ordered.

Appeal allowed.