Court File and Parties

Date: February 24, 2012

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Phillip Fleischman

Before: Justice Heather McArthur

Heard on: February 6 and 7, 2012

Reasons for Judgment released: February 24, 2012

Counsel:

• Ms. E. Rizok and Ms. S. Kim for the Crown
• Mr. J. Berman for the accused

McArthur J.:

Introduction

[1] Phillip Fleischman is charged with impaired driving and over 80. He brings an application pursuant to sections 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms for the proceedings against him to be conditionally stayed until state-funded counsel is provided for his trial.

[2] The Crown opposes the application. As a preliminary matter, the Crown argues that there is no possibility that the applicant will go to jail and as a result the application should be summarily dismissed. Alternatively, the Crown argues that the applicant has failed to establish that he is indigent and has no other means to retain counsel, and that he has failed to establish that counsel is essential to his right to a fair trial.

The Facts

[3] The applicant is 63 years old. His sole form of income is from the Ontario Disability Support Program. After money is deducted for shelter, he receives between $689 and $695 a month. He lives on approximately $22.75 a day.

[4] The applicant finds it difficult to survive on such a limited amount of money. He does not have enough food to eat and often has only one meal a day. While in the past he had a girlfriend who would help with food, he is now alone and no one provides him with any assistance. He no longer drives, and finds it difficult to get to the food bank without a car. He has lost approximately 80 pounds in the last few years.

[5] The applicant has no savings. His only asset is an 11-year-old Honda. The applicant took the car to a dealership to see what he could get for it, but the car is essentially worthless. Although he no longer drives, he has kept the car in the hopes that he can give it to one of his children. He pays $11 a month for car insurance.

[6] The applicant has four adult children, ages 43, 42, 31 and 21. His oldest child lost her business, is in poor financial shape and is struggling to keep her home. About 12 years ago he lent her money to start up a business, but she has never paid back "a penny". His next child is a travel agent and the next is in the navy. His youngest child is a student. The applicant has not asked his children to pay for his legal defence, but says that none of them are in a financial position to assist. He also testified that he went through a "horrible" divorce 12 years ago and that there were resulting difficulties with him seeing his children. It is unclear to what extent those difficulties have continued, but whether it is because of a strained relationship or their own financial situation, his children have not assisted the applicant with basic necessities such as food.

[7] In terms of the applicant's background, he attended a "handful" of universities, and audited a number of courses, including some law courses, before finally obtaining a liberal arts B.A. from McGill in 1978. Before he had to stop work for health reasons, he was a sales manager for a number of different companies and also involved in retirement planning.

[8] Unfortunately, at the age of 55 the applicant suffered a number of debilitating health issues, including cancer, diabetes, high blood pressure and severe heart disease. His mobility is limited and he requires the use of a walker or wheelchair. Over the last few years he has fainted and fallen down many times. Indeed, when testifying he became dizzy and advised that he felt like he might faint. In the last year he has been hospitalized a half-dozen times. Even attending the court for preliminary matters such as setting a date or having a judicial pre-trial have been difficult for the applicant, and he has thrown up, been very ill and hospitalized several times as a result.

The Legal Framework

[9] It is well established that pursuant to sections 7 and 11(d) of the Charter an accused has a constitutional right to a fair trial. In some circumstances, a fair trial includes the right to state-funded counsel. The onus is on the applicant to establish his entitlement to state-funded counsel in the circumstances of his case. The applicant must establish three things on a balance of probabilities:

1. That he is ineligible for, or has been refused Legal Aid and has exhausted all available appeals;[1]

2. That he is indigent and has no other means to retain counsel; and

3. That counsel is essential to his right to a fair trial.

(See R. v. Rowbotham, [1988] O.J. No. 271 (Ont.C.A.); New Brunswick (Minister of Health and Community Services) v. G.(J), [1999] 3 S.C.R. 46 at para. 51)

[10] Recently, in R. v. Rushlow (2009), 2009 ONCA 461, 96 O.R. (3d) 302, the Ontario Court of Appeal articulated some of the factors to consider when determining whether counsel is essential to a fair trial. Rosenberg J., writing for the Court, noted at para. 19:

In considering whether to appoint counsel, the trial judge is required to consider the seriousness of the charges, the length and complexity of the proceedings and the accused's ability to participate effectively and defend the case.

Further, at para. 20, Rosenberg J. wrote:

Generally, the courts look at the personal abilities of the accused, such as their education and employment background, their ability to read and their facility with the language of the proceedings. The courts will also consider the complexity of the evidence; the procedural, evidentiary and substantive law that applies to the case; the likelihood of especially complex procedures, such as a voir dire; the seriousness of the charges; the expected length of trial and the likelihood of imprisonment.

[11] Rosenberg J. rejected the argument that state-funded counsel would only be required in "exceptional cases" and noted at para. 24 that a case did not need to present unique challenges before a Rowbotham order could be made. He explained:

The authorities hold that the case must be of some complexity, but a requirement of unique challenges puts the threshold too high. It is enough that there is a probability of imprisonment and that the case is sufficiently complex that counsel is essential to ensure that the accused receives a fair trial.

[12] The importance of the personal abilities of an applicant to the analysis was considered by Lamer C.J. writing for the majority of the Supreme Court in New Brunswick (Minister of Health and Community Services) v. G.(J), [1999] 3 S.C.R. 46. There, the court dealt with the issue of whether the government was under a constitutional obligation to provide the appellant with state-funded counsel in a custody hearing context. At paragraph 75, Lamer C.J. determined that the appellant's right to a fair hearing required that she be represented by counsel having regard to the seriousness of the interests at stake, the complexity of the proceedings and the capacities of the appellant. When considering the capacities of the appellant, Lamer C.J. explained at para. 83:

Competence is a necessary but not sufficient factor for determining whether an unrepresented parent will receive a fair custody hearing. Although competent, the parent must be able to participate meaningfully at the hearing, which goes beyond the mere ability to understand the case and communicate.

He also commented at para. 86:

The seriousness and complexity of a hearing and the capacities of the parent will vary from case to case. Whether it is necessary for the parent to be represented by counsel is directly proportional to the seriousness and complexity of the proceedings and inversely proportional to the capacities of the parent.

[13] In considering whether to appoint counsel, the trial judge is not engaged in reviewing the decision of the legal aid authorities. As the Court of Appeal noted in R. v. Peterman (2004), 185 C.C.C. (3d) 352 at para. 22:

When a court makes a Rowbotham order, it is not conducting some kind of judicial review of a decision made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial.

[14] It is clear that representation by counsel is not necessarily a prerequisite to a fair trial, or required by the principles of fundamental justice: see New Brunswick (Minister of Health and Community Services) v. G.(J), supra, at para. 86; R. v. Rain, 1998 ABCA 315 at para. 36). Further, when determining whether counsel is essential to the fair trial rights of the applicant, the court must consider its own obligation to assist an unrepresented accused during trial and whether the court's assistance would be adequate to address the accused's needs: see R. v. Rushlow, supra, at para. 21; R. v. Keating (1997), 1997 NSCA 135, 159 N.S.R. (2d) 357 (C.A) at para. 21; R. v. Dew, 2009 MBCA 101 at para. 40.

[15] When considering the assistance that will be provided by the trial judge, however, the analysis is too narrow if focused only on the need for legal representation within the context of the courtroom itself. As noted recently by the Manitoba Court of Appeal, in R. v. Dew, supra, at para. 46:

Most cases also have certain strategic decisions to be made as to whether to call evidence, or, in this case, to bring certain motions. A lawyer's value to their client is not limited to the courtroom. Not only was Dew unrepresented for 10 days of what turned out to be a two-week trial, but most importantly, he did not have counsel who was capable of looking at the case as a whole and giving him strategic legal advice as to how his case should proceed and which pre-trial motions should be taken.

Analysis

The preliminary legal issue: Is the probability of jail a precondition for an order for state-funded counsel?

[16] The Crown submits that the application should be summarily dismissed since there is no possibility that the applicant will go to jail. She argues that, if convicted, the applicant would receive the minimum fine of $1000. She concedes that if the applicant's current financial condition were to continue, he would not be in a position to pay the fine. In light of the Supreme Court decision in R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, however, she argues that the applicant would not go to jail in default of payment, as the reason for non-payment would be poverty.

[17] Ms. Rizok, the Crown arguing the application, candidly admitted that as she is from the Crown Law Office-Civil, that she could not guarantee that a subsequent Crown looking at the matter might not take a different position. However, Ms. Kim, the trial Crown, undertook before me that the file would be marked so that the Crown would not seek a warrant of committal in the event that the applicant were convicted and he failed to pay the fine because of his financial situation.[2] On the basis of the position taken before me, I am satisfied that there is no possibility that, if convicted, the applicant will be incarcerated.

[18] The Crown makes two submissions in support of her position that the application should be summarily dismissed since the applicant is not facing a jail sentence. First, she argues that the applicant must establish both a s.7 and a s.11(d) breach in order to obtain the remedy of state-funded counsel pursuant to s.24(1). Since the applicant is not facing a jail sentence, s.7 is not engaged. Thus, even if the applicant can establish that his s.11(d) rights would be infringed by a trial without counsel, she argues, the remedy of state-funded counsel is not available pursuant to s.24(1). Second, she submits that in light of comments from the Court of Appeal in Rushlow, supra, the remedy of state-funded counsel is never available unless there is a probability that the applicant will go to jail.

[19] I am satisfied, however, that if the applicant establishes that counsel is essential for a fair trial, the remedy sought is available. I will address each of the Crown's submissions in turn.

In the event that s.7 is not engaged because the applicant will not go to jail, is the remedy sought available through s.11(d) and s.24(1) of the Charter?

[20] As a starting point, it is not only incarceration which can trigger the liberty interest in section 7. In Reference re Motor Vehicle Act (British Columbia) s.94(2), [1985] S.C.J. No. 73 at para. 74, Lamer J. (as he then was), writing for the majority of the Court, noted that the liberty interests in section 7 are engaged when there is a potential for either imprisonment or probation: see also R. v. Nickel City Transport (Sudbury) Ltd., [1993] O.J. No. 1277 (Ont.C.A.) at para. 63; R. v. 1260448 Ontario Inc. (c.o.b. William Cameron Trucking), [2003] O.J. No. 4306 (Ont.C.A.) at para. 16. In the circumstances of this case, probation may well be part of an appropriate sentence. Thus, if the lack of counsel would lead to an unfair trial, section 7 is engaged.

[21] That said, assuming that the Crown is correct and s.7 is not engaged by the facts of this case, that does not end the inquiry. The issue then becomes, if I were to find that the applicant's right to a fair trial would be infringed if he were without counsel, would the remedy sought be available through the combined effect of s.11(d) and s.24(1) of the Charter? I find that it would.

[22] It is clear that s.11(d) provides a constitutional right to a fair trial. This right is not dependent on whether or not the applicant will face a jail sentence. As Wilson J. wrote on behalf of the majority of the Supreme Court in R. v. Wigglesworth, [1987] 2 S.C.R. 541, at para. 22:

There are many examples of offences which are criminal in nature but carry relatively minor consequences following conviction. Proceeding in respect of these offences would nevertheless be subject to the protections of s.11 of the Charter. It cannot be seriously contended that, just because a minor traffic offence leads to a very slight consequences, perhaps a small fine, that offence does not fall within s.11. It is a criminal or quasi-criminal proceeding. It is the sort of offence which by its very nature must fall within s.11.

(See also, R. v. Richard, [1996] 3 S.C.R. 525 at paras. 19-20)

[23] Section 24(1) of the Charter provides:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

As noted by McIntyre J. in Mills v. The Queen, [1986] 1 S.C.R. 863 at para. 279, "[i]t is difficult to imagine language which could give the court a wider and less fettered discretion."

[24] The Supreme Court has held that an appropriate and just remedy will: (1) meaningfully vindicate the rights and freedoms of the claimant; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made: see Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, paras. 55-58; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 at paras. 18-20.

[25] A court is required to bring a generous and expansive interpretation to Charter remedies. As noted by Iacobucci and Arbour JJ., for the majority of the court in Doucet-Boudreau v. Nova Scotia (Minister of Education), supra, at para. 25:

Purposive interpretation means that remedies provisions must be interpreted in a way that provides "a full, effective and meaningful remedy for Charter violations" since "a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach" (Dundin, supra, at paras. 19-20). A purposive approach to remedies in a Charter context gives modern vitality to the ancient maxim ubi jus, ibi remedium: where there is a right, there must be a remedy. More specifically, a purposive approach to remedies requires at least two things. First, the purpose of the right being protected must be promoted: courts must craft responsive remedies. Second, the purpose of the remedies must be promoted: courts must craft effective remedies.

[26] Applying the considerations set out by the Supreme Court, I believe that if I were to find that counsel was essential for a fair trial, a conditional stay pending the provision of state-funded counsel would be an appropriate and just remedy.

Does the Court of Appeal decision in Rushlow change the analysis?

[27] The Crown, however, also points to the comment of the Court of Appeal from Rushlow, supra, at para. 24, set out above, that when considering whether to appoint state-funded counsel, "[i]t is enough that there is a probability of imprisonment and that the case is sufficiently complex that counsel is essential to ensure that the accused receives a fair trial." This, she argues, means that the remedy of state-funded counsel is never available unless there is a probability of jail.

[28] In my view, however, the Court's comment was a critique of the overly stringent test applied by the trial judge in that case. It was not meant to be, and should not be taken, as the Court ruling that the probability of jail is a precondition to state-funded counsel even when the absence of counsel would render the trial unfair. This is particularly so, as the issue of whether incarceration is a precondition to state-funded counsel did not arise on the facts of Rushlow. The Supreme Court and the Court of Appeal have repeatedly made clear that it is inappropriate and unwise to decide constitutional issues in the absence of a concrete factual situation or when it is unnecessary to do so; see Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 at paras. 5-11; Clark v. Peterborough Utilities Commission, [1998] O.J. No. 2915 (Ont.C.A) at para. 16; R. v. R.K., [2005] O.J. No. 2434 (Ont.C.A.) at para. 59; Ontario Deputy Judges' Assn. v. Ontario (Attorney General), [2006] O.J. No. 2057 (Ont.C.A.) at para. 40; Niagara River Coalition v. Niagara-on-the-Lake (Town), 2010 ONCA 173, [2010] O.J. No. 937 (Ont.C.A.) at para. 31; Abou-Elmaati v. Canada (Attorney General), 2011 ONCA 95, [2011] O.J. No. 474 (Ont.C.A.) at para. 39.

[29] I have no hesitation in finding that the Court did not intend to depart from the long-standing principle that courts will not consider constitutional issues unnecessarily and without the proper factual foundation. Moreover, nothing in the judgment suggests that the Court intended, in the absence of a factual basis, to wade into the issue of whether an individual who is not facing a jail sentence would be disentitled to state-funded counsel even where counsel is found to be essential to a fair trial. If it had, the Court would have provided some analysis, or at the very least, adverted to the fact that it was doing so.

[30] Thus, the fact that the applicant is not facing jail does not mean that he is disentitled to the constitutional remedy he is seeking. Rather, the issue is whether he is indigent and has no other means to retain counsel, and, if so, whether counsel is essential to his right to a fair trial? I now turn to consider these two questions.

Is the applicant indigent with no other means to retain counsel?

[31] Initially the Crown argued that the applicant had failed to establish that he is indigent. I found the Crown's position difficult to reconcile with her position that the applicant would never be jailed for being in default of payment since he would be too poor to pay the minimum fine. When questioned about the tension between her two positions, the Crown conceded that the applicant was, in fact, indigent.

[32] She submitted, however, that since he has not asked any of his four adult children for the funds to obtain counsel, he has not established that he has exhausted all possible means for retaining counsel and has failed to establish that he has no other means to retain counsel. In oral submissions, she agreed that it would be unreasonable to expect the applicant to ask his oldest child, who is struggling to keep her home, or his youngest child, who is a student, for the funds for his defence. She maintained that he should have asked his other two children for the money for his defence. In considering this position, I note that the applicant testified that he exists on approximately $22.75 a day and often does not have enough to eat. I also note his testimony regarding his bitter divorce. If his children do not have the ability or the inclination to assist their aging, infirm father with basic necessities such as food, I find it difficult to accept that it is reasonable to find that they would pay for his legal expenses.

[33] Moreover, the applicant's case is distinguishable from the cases relied upon by the Crown where there was good reason to suspect that the accused was being disingenuous about his true financial condition or that the accused had access to significant funds, but had taken steps to hide assets: see R. v. Malik, 2003 BCSC 1439; R. v. Farinacci, 2011 ONSC 6322; R. v. Tang ONSC (unreported, Sept 23, 2011). Rather, I find that the following comment of Rosenberg J. in Rushlow, supra, at para. 30, applies:

This is not a case in which the appellant's finances reveal that he could have retained counsel and made a calculated decision not to.

[34] In light of the circumstances, I find that the applicant has established on a balance of probabilities that he is indigent and has no other means to retain counsel.

Is Counsel Essential to the Applicant's Right to a Fair Trial?

[35] As noted above, I must consider the seriousness of the charges, the length and complexity of the proceedings and the applicant's ability to participate effectively and defend the case. Here, the applicant is facing a criminal conviction for impaired driving. A criminal conviction is obviously more serious than a conviction, for example, for some regulatory offences. However, the applicant is not facing a jail sentence. That factor renders the matter less serious than some other criminal convictions.

[36] This trial is set for three days and the Crown anticipates calling seven witnesses. While not as lengthy as some matters, it is not a case that will take only a few hours of court time. Moreover, some impaired driving offences can be complex and challenging: see R. v. Sanderson, [2012] ONCJ 41 at para. 26; Impaired Driving in Canada, 2009 Edition, Justice Joseph Kenkel, LexisNexis, at p. 3.

[37] That said, there are many impaired driving cases that do not present with any particularly difficult or complex issues. A number of courts have held that, in light of the complexities of the specific case being considered, that the fair trial rights of the accused would not be infringed by having an impaired driving and over 80 trial without counsel; see R. v. Rain, supra, at paras. 61-66; R. v. Badertscher, [1996] O.J. No. 4528 (Ont.Ct.Prov.Div.); R. v. Krzak, [1996] O.J. No. 3096 (Ont.Ct.Prov.Div.). As noted by the Manitoba Court of Appeal in Rain, supra at para. 67, "[t]he determination of whether representation by counsel is essential to a fair trial must be made on a case-by-case consideration".

[38] In the present case, there are a number of complexities over and above those found in many impaired and over 80 cases. First, the samples were taken outside of the two hour limit. As a result, the Crown cannot rely on the presumption of identity pursuant to s.258(1)(c) of the Criminal Code. The Crown has advised that she will not call a toxicologist and intends to rely upon section 657.3(1) of the Criminal Code to adduce the affidavit of the toxicologist. Second, Ms. Kim, the trial Crown, advised that she may seek to rely on utterances made by the applicant to a firefighter or EMS worker who arrived on scene to offer assistance. Ms. Kim, in a very fair and helpful manner, advised that a number of potential issues may be involved in the statement voir dire, including whether the firefighter was a person in authority and, given the medical condition that the applicant was found in, whether he had an operating mind. Third, and most importantly, the applicant will be advancing a medical defence. As noted by defence counsel, this makes the case more complex and requires the kind of assistance and preparation outside of court that the trial judge is simply not in a position to provide: see R. v. Dew, supra, at para. 46.

[39] Thus, I find that there are specific issues in the applicant's case that render it more complex than many other impaired and over 80 cases. Even with the specific complexities of the case, however, there may well be many accused who would be able to have a fair trial without counsel. The issue here is, can the applicant?

[40] The Crown argues that in light of the applicant's educational and work background, counsel is not essential to his right to a fair trial. The Crown points to the fact that the applicant has audited a number of courses at different institutions, including Harvard. He has either audited or taken courses dealing with the philosophy of the law. He ultimately obtained his B.A from McGill. He also was once a very successful salesman/manager, and worked with a number of different companies. I note, however, that while the applicant took some courses on philosophy of law, he has no training, education or background in criminal procedure, evidence or substantive criminal law. He also earned his degree in 1978, before the advent of the Charter. In terms of his employment background, it is not related in any way to the matter before the court. The present case is distinguishable from cases where the accused had experience and expertise in the subject matter of the charge: see for example, R. v. Williams, 2011 ONSC 7406 at paras. 12-13.

[41] More importantly, there have been significant intervening events that render the applicant's former education and employment background of less significance than they might otherwise have been. Simply put, he is not the man he once was. Starting about nine years ago, the applicant suffered from a series of debilitating health issues. He appears frail and in obviously poor health. He has limited mobility and appeared in front of me twice with a walker, and once in a wheelchair. When he testified, it was apparent that he was in obvious physical distress and pain. At times he had difficulty keeping his composure and communicating. He also appeared to be in physical discomfort and unable to follow the proceedings at times during submissions.

[42] The Crown argues, and I agree, that I can make certain accommodations for the applicant's ill-health. For example, I can allow him to cross-examine from his wheelchair and take extra and lengthier breaks. The more difficult issue is, how will the applicant's ill-health impact on his ability to meaningfully participate in defending himself? Based on my observations of the applicant, I have serious concerns about the effect his ill-health and the concomitant physical discomfort will have on his cognitive abilities and on his ability to stay composed, to communicate and to comprehend the proceedings.

[43] There are a number of unique factors in this case, both with respect to the complexity of the matter and the significant health issues suffered by the applicant. Having regard to these factors, I find that in the particular circumstances of this case, the applicant has established on a balance of probabilities that counsel is essential to his right to a fair trial.

Conclusion

[44] The applicant has established that he is indigent and has no other means to retain counsel, and that counsel is essential to his right to a fair trial. As a result, I am conditionally staying the proceedings until such time as state-funding is provided.

Date: February 24, 2012

Signed: Justice Heather McArthur

Footnotes

[1] The Crown concedes that the applicant does not qualify for Legal Aid and that any appeal would be unsuccessful.

[2] I note that this position would be predicated on the applicant's current financial situation continuing. If the applicant were to have a financial windfall, then different considerations would apply.