Court of Appeal for Ontario

Date: February 27, 2018

Docket: M48045 (C62030)

Nordheimer J.A. (In Chambers)

Between

Her Majesty the Queen Respondent

and

John Josipovic Applicant (Appellant)

Counsel

Delmar Doucette and Daniel C. Santoro, for the applicant

Craig Harper, for the respondent

Heard

February 21, 2018

Application

On an application for the appointment of counsel on appeal pursuant to s. 684(1) of the Criminal Code, R.S.C. 1985, c. C-46.

Reasons for Decision

[1] The applicant, John Josipovic, along with his brother, Mato Josipovic, were convicted of second degree murder on December 18, 2015 for the death of Lou Malone. John Josipovic was sentenced to life imprisonment without eligibility for parole for 13 years on April 8, 2016.

[2] On January 17, 2017, the applicant and his brother brought applications for the appointment of counsel pursuant to s. 684(1) of the Criminal Code, R.S.C. 1985, c. C-46 to represent them on their appeals.

[3] On January 25, 2017, Huscroft J.A. granted the brother's application but dismissed the applicant's application. In doing so, Huscroft J.A. made two central findings. First, he found that the applicant had raised an arguable case and was not capable of advancing his appeal without the assistance of counsel. However, Huscroft J.A. also found that the applicant had not met his burden of establishing that he had insufficient means to retain counsel.

[4] In reaching the latter conclusion, Huscroft J.A. found that the applicant had not provided: his tax returns (save for his 2014 return); a current valuation of his pension; or a current valuation of the matrimonial home. Huscroft J.A. also found that neither the applicant's wife nor his parents provided any information regarding their ability or willingness to fund counsel for the applicant's appeal.

[5] The applicant now renews his application for the appointment of counsel. On this application, the applicant provided both his and his wife's tax returns for the years 2010 to 2015. There is nothing in those tax returns that would suggest that the applicant has the financial resources to fund counsel for his appeal.

[6] The applicant also provided a Municipal Property Assessment Notice for the 2016 property tax year assessing the value of the matrimonial home at $427,000.00.

[7] In terms of his pension, the evidence establishes that the pension is "locked-in" such that the applicant cannot take the value of the pension. He might have been able to do so at an earlier point in time by way of a special application to the Financial Services Commission of Ontario, but that opportunity has now passed. The applicant could take early retirement in which case he would receive $400 per month. If the applicant waited until he turned 65, he would receive $1,000 per month. The applicant does not wish to take early retirement.

[8] In terms of the applicant's parents, his father passed away on September 30, 2017 and his mother has numerous health issues. The applicant's sister holds a power of attorney over their mother's affairs. The applicant's sister believes that, given her mother's financial needs, she is not in a position to assist the applicant with legal expenses for his appeal. Moreover, the applicant's sister would not have the authority to disburse their mother's assets for any purpose other than their mother's expenses.

[9] Finally, in terms of the applicant's spouse, the evidence is that she advanced something in the order of $100,000 towards the applicant's trial legal fees by way of a line of credit on the matrimonial home. There is still approximately $67,000 in outstanding legal fees owed to the applicant's trial counsel.

[10] Of more importance, in terms of the applicant's spouse, is the fact that the applicant and his wife entered into a separation agreement in October 2015, shortly before the criminal trial began. Under that separation agreement, the applicant transferred his interest in the matrimonial home to his wife and agreed to provide her with her interest in his pension. In return, the applicant's wife agreed to not seek spousal support. The applicant has filed an opinion from a family law lawyer which says that the separation agreement "produced a result consistent with the parties' rights and obligations under the Family Law Act" and that the applicant's wife "received no more – and quite possibly less – than she was entitled to receive under the Family Law Act."

[11] The Crown opposes the application on essentially two bases. One is what the Crown views as suspicious circumstances surrounding the execution of the separation agreement. The Crown sees the separation agreement as simply a mechanism to isolate or protect assets that would otherwise be available to the applicant to fund his legal costs. The other is the Crown's contention that the applicant did not do more to realize the value of his pension prior to it being "locked-in".

[12] The Crown's suspicions surrounding the separation agreement do not form a proper basis upon which this court could refuse a s. 684 appointment. Suspicions are not evidence. In any event, the reality is that the applicant's spouse has no legal obligation to fund the applicant's legal fees. She is entitled to refuse to allow her assets, including any interest that she has in the matrimonial home, to be used for the applicant's legal expenses. I note, in passing, that the same is true with respect to the applicant's parents, even if they had the means at their disposal. There is nothing in the record before me to establish that the separation agreement is not a valid contractual resolution of the parties' separation.

[13] On the second point, I accept that the applicant might have done more to realize the value of his pension at some earlier point in time. However, he did not do that and there is now no legal way for him to do so.

[14] All of that said, I am mindful of the fact that the applicant's pension still represents an asset that he could use to provide some contribution to his legal expenses – if not now, then at least at some time in the future. On this point, the applicant offered to enter into a contribution agreement whereby he would contribute to the payment of his legal fees in the event that he is released from custody. Such contribution agreements are not unusual in cases where Legal Aid Ontario provides a certificate for counsel.

[15] I do not see any principled reason why this court cannot impose, as a term of making a s. 684 order, that an accused person enter into a contribution agreement whereby s/he commits to making a contribution to the legal expenses that the public will otherwise expend on their behalf. While it is in the public's interest to have persons charged with very serious criminal offences properly represented, the public is also entitled to have persons, who receive the benefit of public funds, contribute to those expenses to a degree that is both practical and reasonable for them to do. Certainly, there is nothing in the plain wording of s. 684 that would prohibit the imposition of such a term.

[16] In the end result, I am satisfied that the applicant has shown that he has insufficient means to retain counsel. An order will therefore go under s. 684, appointing Delmar Doucette and Daniel Santoro as counsel for the applicant on his appeal. That order, however, is conditional on the applicant entering into a contribution agreement, on terms acceptable to the office of the Attorney General, where he will contribute the sum of $500 per month to his legal expenses commencing on April 1, 2018. If any issues arise concerning the contribution agreement, the matter can be brought back before me for further submissions.

[17] I will mention one other matter. While I was considering my decision in this matter, it occurred to me that, in light of the family lawyer's opinion on the separation agreement and the additional financial disclosure, it might be appropriate to simply refer this matter back to Legal Aid Ontario for a reconsideration of their refusal to provide a legal aid certificate. Counsel were contacted and invited to comment on whether this should happen.

[18] Counsel for the applicant advised that, on October 31, 2017, they had submitted the matter for reconsideration to Legal Aid Ontario with the family law lawyer's opinion and the additional financial information. The response of Legal Aid Ontario was to say that their decision was final and "is not subject to reconsideration". Nevertheless, counsel for the Crown submitted that the matter should be returned to Legal Aid Ontario, pursuant to s. 28(6) of the Legal Aid Services Act, 1998, S.O. 1998, c. 26. Section 28(6) reads:

The Corporation may issue a certificate to an individual who is an appellant or respondent in a criminal appeal if the Supreme Court of Canada or the Court of Appeal for Ontario is of the opinion that it is desirable in the interests of justice that the individual be represented and has requested that counsel be appointed to represent him or her.

[19] This section of the Legal Aid Services Act, 1998 was utilized in R. v. Rafferty, 2013 ONCA 741 where Rosenberg J.A. granted an order appointing counsel under s. 684 but also referred the matter back to Legal Aid Ontario for reconsideration, with the order appointing counsel only becoming effective if legal aid was refused (para. 12).

[20] While I was inclined to use that same approach in this matter, on the assumption that Legal Aid Ontario might take a different view if the matter was referred back to it as a result of a request by this court, that assumption appears to be a flawed one. Counsel for the applicant have drawn to my attention that in R. v. Wabason (C61698; M46948) Juriansz J.A. referred a s. 684 matter back to Legal Aid Ontario and, notwithstanding his request that Legal Aid Ontario reconsider the matter, Legal Aid Ontario refused to do so. Legal Aid Ontario's stance on the subject appears to be consistent with the contents of the letter that Legal Aid Ontario sent in this case, as referred to above.

[21] In the end result, I agree with counsel for the applicant that referring this matter back to Legal Aid Ontario would be "futile". The s. 684 order is granted as set out above.

I.V.B. Nordheimer J.A.