Ruling on Application

Date: August 20, 2019

Information No.: 2811-998-17-25083-00 and 2811-999-17-23207-00

Ontario Court of Justice

Her Majesty The Queen v. Rose A. Andrews-Somers

Before the Honourable Justice G.R. Wakefield

On: August 20th, 2019, at Oshawa, Ontario

Appearances

• C. Bourrier – Counsel for the Crown
• E. Neubauer – Counsel for Rose Andrews-Somers
• A. Risen – Counsel for Rose Andrews-Somers

Ruling

WAKEFIELD, J. (Orally):

Not long ago, there was a tradition in which barristers would agree to represent defendants pro bono. Courts could direct barristers to represent indigent defendants, even in murder trials, albeit at a time in which such a murder trial might only take two or three days to conclude. Today that professional obligation must meet the reality of substantially higher costs of running a legal practice, hence that it is now a Constitutional right for a fair trial to have appropriate counsel involved in the process when necessary. Indeed, while many law firms and individual lawyers volunteer pro bono hours, many lawyers do not. My impression is that very few lawyers accept criminal Legal Aid certificates, and of those not all will accept a certificate for any type of charge, but consider which types of charges that they will accept a certificate upon. In my view, the risk of reduced Legal Aid assistance in hours per case can only result in a chill as to which certificates are accepted by which counsel and increase the number of self-represented accused, thereby increasing the number of Rowbotham applications that might ensue, or Peterman, as the case may be. However, as I have said, in order to bring finality to this application, whether this really is a Rowbotham application, though how it can be where there is counsel representing the accused, or a Peterman application, I am ruling orally now, but rely on the court's engagement with both counsel during submissions as part of the reasons for these conclusions.

Having said that, I agree with the comments of Justice Rosenberg in R. v. Peterman, 2004 OR (3d) 481 para. 20 that:

Defence counsel who undertake to defend indigent accused through the legal aid system perform an invaluable service to the community and to the administration of justice in this province. The state has a Constitutional obligation to ensure that indigent accused receive a fair trial, and in many cases that means ensuring that the accused is represented by counsel. Under the Ontario Legal Aid certificate system, it is because defence lawyers are willing to accept Legal Aid certificates and provide competent and effective counsel to accused facing criminal charges that the state is able to fulfill its Constitutional obligation. The importance of the work that defence counsel perform for Legal Aid clients cannot be underestimated. Moreover, defence counsel agree to perform these services at rates, and in accordance with conditions that mean they will not always be fully reimbursed for all the work they do to ensure that clients caught up in the criminal justice system receive fair treatment and an effective defence.

I have two foundational principles to apply in this application. First, I must determine if there is an imperiling of the defendant's right to a fair trial. I note that the test is one of a fair trial and not a right to a perfect trial. Secondly, I must be careful not to trespass onto the government's responsibility as to how to expend funds absent a Constitutional challenge to statutory authority that would prevail. Government and courts have different roles and each must respect the independence of other, Her Majesty The Queen v. Criminal Lawyers' Association of Ontario, 2013 SCC 43.

I do note the glimmer of an opening for the applicant in that case, at paragraph 67, within the context respecting the government's role in how it expends funds. However, it is not counsel's Charter rights being infringed here that is the test, but rather the Charter rights of an accused.

However, in my view, whether framed as increases in hourly rates or increases in paid hours, the net effect is the same, which is that there is an additional incursion into the state's pocketbook to pay for those enhancements. I must also agree and acknowledge the obligations of all barristers, as referenced in Peterman and again in R. v. Ahmad, that upon accepting the certificate and its conditions, that I must accept that barristers who so accept those certificates will, "discharge their professional obligations in accordance with the standards expected of them", Ahmad at para. 64.

I agree with the applicant's concession that, had Court of Appeal intended to overturn the Peterman decision in R. v. Fournier, it would have done so explicitly. I view this decision as one restricted to the requirement to apply to Legal Aid first before recourse to the courts, and not the basis for reviewing the Legal Aid budget for that matter. In my view, it certainly does not explicitly water down the clear direction to trial judges set out in Peterman regarding the acceptance of a certificate, with its limitations, or deciding to refuse the certificate and assisting the accused in finding other competent counsel. Here I do not even have the evidentiary foundation that no other competent counsel will accept the budget proposed by Legal Aid, though I appreciate defence counsel's concerns about how one would prove that situation.

I certainly agree with the analysis set out by F. Dawson, J. in Ahmad and its application to the case at bar and adopt those reasons in denying this application.

For a practical analysis, the Legal Aid budget is just over $5,000 less than the proposed defence budget to Legal Aid. At most this means a shortfall of under $3,000 for each defence lawyer before tax, or presumably less than $1,500 after tax. I acknowledge that, for some junior lawyers, that sum would be devastating, but not in the specific case before me, and such a net sum would not in any way imperil the applicant's Constitutional challenge.

I would also note two things: First, as Legal Aid further reduces their funding of criminal barristers' certificates, there will be an increased risk of deterring competent counsel from accepting certificates, given the financial risk of loss. Secondly, in a post Jordan era, I would have expected the state to realize that the dollar difference between the Legal Aid position and the defence applied budget is substantially less than having Crown civil counsel and Crown criminal counsel attend on this application, occupying a courtroom with a judge, a reporter, and a clerk for most of a judicial day. In my view, the state's decision to contest the defence budget, which I accept was a very conservative estimate on the part of the applicant, was short-sighted economics. At the same time, I am not blind to the concern that such applications might be brought in almost all certificates, to reduce the personal financial donations in hours made by defence counsel in serving their clients.

I did not rely upon Mr. Neubauer's fair minded assertion that he will remain on board for the Constitutional challenge whatever the ruling is here, and as such it's not a factor here in my determination, but I would be remiss if I did not express the Court's appreciation for the financial consequences that Mr. Neubauer has incurred in the furtherance of a fair trial and this application. I realize that does not put a single dollar back into his firm bank account.

The application is indeed dismissed.