COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hafizi, 2015 ONCA 534

DATE: 20150717

DOCKET: C58939

MacPherson, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario

Appellant

and

Ahmed Hafizi

Respondent

Troy Harrison and Ann Christian-Brown, for the appellant

Dominic Lamb and Solomon Friedman, for the respondent

Heard: June 26, 2015

On appeal from the order of Justice Monique Métivier of the Superior Court of Justice, dated May 22, 2014, with reasons reported at 2014 ONSC 3121.

ENDORSEMENT

Introduction

[1] In granting the respondent’s Rowbotham application, the application judge appointed his counsel of choice as state-funded counsel. She conditionally stayed his first degree murder charge until the state negotiated compensation in good faith with the respondent’s chosen counsel.

[2] Ontario no longer disputes that the respondent could not fully fund counsel from his own resources and that he required counsel to ensure a fair trial. In other words, Ontario no longer contests the application judge’s decision to order state-funded counsel under Rowbotham. Ontario only seeks leave of this court to appeal the counsel of choice appointment – the Fisher order – arguing that the application judge erred in ordering Ontario to pay for the specific counsel the respondent wished to represent him.

[3] In the interests of moving this case along, Ontario has agreed to fund the respondent’s chosen counsel even if successful on this appeal.

Leave to Appeal

[4] Ontario seeks to appeal only the Fisher order, with leave, under s. 676.1 of the Criminal Code, R.S.C. 1985, c. C-46. This section provides:

A party who is ordered to pay costs may, with leave of the court of appeal or a judge of a court of appeal, appeal the order or the amount of costs ordered.

[5] The term “costs” in s.676.1 covers obligations to make future payments imposed by judicial decision: R. v. Beauchamps, 2002 SCC 52, [2002] 2 S.C.R. 762, at para. 14; R. v. Figueroa (2003), 2003 CanLII 42300 (ON CA), 64 O.R. (3d) 321 (C.A.), at para. 16.

[6] Leave to appeal is granted. In our view, the application judge’s decision to order publicly-funded counsel of choice in this case is contrary to the binding decision of this court in R. v. Peterman (2004), 2004 CanLII 39041 (ON CA), 70 O.R. (3d) 481 (C.A.).

Publicly Funded Counsel (and Counsel of Choice) in Criminal Proceedings

[7] Where a court is satisfied that an accused person’s right to a fair trial guaranteed by ss. 7 and 11(d) of the Charter would be infringed if he or she was not represented by counsel, the court can make what is called a Rowbotham order. That is, pursuant to R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.), the court may order the state to fund counsel to represent the accused person so as to ensure trial fairness.

[8] Justice Rosenberg in Peterman expanded upon Rowbotham. Beginning at para. 21, he describes the Rowbotham principle set out above. At paras. 26-27, he restates the fundamental right of an accused person to choose his or her counsel, a right zealously protected by the court. As Rosenberg J.A. explains at para. 28, however, the right of an accused person to choose his or her counsel does not require the state to pay for an accused person’s chosen counsel, even where the accused person wins a Rowbotham order. At paras. 29-30 of Peterman, Rosenberg J.A. goes on to describe the two very narrow exceptions to that general rule, which he variously observes will be “unique”, “unusual” and “exceedingly rare”.

[9] The first exception is where an accused person can show that he or she will only receive a fair trial if represented by a specific lawyer. In other words, no other counsel is able to, or will, protect the fair trial rights of the accused person. Justice Rosenberg notes that this exception applies only in unusual circumstances. Such rare circumstances underlay R. v. Fisher, [1997] S.J. No. 530 (Q.B.), the genesis of the Fisher order: Peterman, at para. 29.

[10] The second exception that Rosenberg J.A. describes is where an accused person satisfies the court that he or she cannot find competent counsel under Legal Aid rates and conditions: Peterman, at para. 30.

[11] Finally, as Rosenberg J.A. emphasized at paras. 31-32 and 37 in Peterman, the onus lies on the accused person to produce evidence justifying an order under either of the two exceptions. In our view, the respondent in the case before us failed to produce sufficient evidence to fit into either exception.

Discussion

[12] The application judge relied on the following facts in granting the counsel of choice application:

• The respondent is facing a serious charge and a complex case;

• His family, after spending $147,000 on his defence, cannot or will not spend more money on his legal fees;

• His counsel of choice have taken part in the case for two years and have participated in pre-trial proceedings; and,

• The respondent was denied Legal Aid and has exhausted all available appeals.

[13] We do not think that the facts support either of the narrow and rare exceptions outlined in Peterman. Respectfully, the application judge’s reasons do not refer specifically to the Peterman test; they do not include any analysis of its components; and they do not reference any evidence capable of satisfying either Peterman exception.

[14] The respondent in this court relies simply on the complexity of the case and the familiarity of his counsel of choice with the details of it. The respondent does not explain why it would not be possible for other competent counsel to protect his fair trial rights.

[15] On the application judge’s reasoning, nearly any accused person facing a serious charge and a complex trial could succeed on a counsel of choice application once he or she ran out of money to pay his or her lawyer. That broad availability does not fit with the intended rarity of a counsel of choice order.

[16] Finally, there is nothing in the application judge’s reasons to support the need for payment of enhanced rates above those authorized by Legal Aid to ensure that the respondent receives competent counsel: see Peterman, at para. 30; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 66. Despite that, we again acknowledge that Ontario has agreed to fund the respondent’s counsel of choice even if successful on this appeal.

Disposition

[17] Leave to appeal is granted and the appeal is allowed. The order appointing the respondent’s counsel of choice as state-funded counsel, at a rate to be negotiated in good faith, is set aside. In accordance with Ontario’s position on this appeal, the respondent’s counsel will not be removed.

“J.C. MacPherson J.A.”

“J. Simmons J.A.”

"H.S. LaForme J.A."