SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 7645
DATE: 2012-08-03

RE: R. v. Carrie Beninger

BEFORE: The Honourable Mr. Justice D. A. Broad

COUNSEL: Richard Prendiville, for the Crown

David McCarthy, for the Applicant

HEARD: July 31, 2012

ENDORSEMENT

[ 1 ] This is an application by the Applicant for an Order pursuant to sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms staying the prosecution of the charges against her pending the Attorney General of Canada, the Attorney General of Ontario or the Ontario Legal Aid Plan providing funding for her defence. This type of application is known as a Rowbotham Application after the case of R. v. Rowbotham (1988) 1988 147 (ON CA) , 41 C.C.C. (3d) 1 (Ont. CA).

[ 2 ] At the outset of the hearing counsel for the parties agreed that if the application is successful, the appropriate party to provide the requisite funding would be the Attorney General of Canada, and accordingly the application was not pursued as against the Attorney General of Ontario and the Ontario Legal Aid Plan.

[ 3 ] The Applicant was charged with four counts of possession of prohibited substances under the Controlled Drugs and Substances Act and one count of breach of a probation order pursuant to the Criminal Code , arising for the same incident involving the seizure of drugs from a vehicle in which the Applicant was the driver and two co-accused were passengers. None of the accused have made an election respecting the mode of trial.

[ 4 ] The Applicant gave evidence on this application both by affidavit and viva voce, and was cross-examined by counsel for the Respondent.

[ 5 ] The Applicant was initially issued a legal aid certificate, conditional upon her entering into a contribution agreement providing for the execution by her of an Irrevocable Assignment of Confiscated Money in the sum of $3,350.54 seized by the police at the time of her arrest. The Applicant did not return the executed Assignment within the specified time on the basis that $2,000.00 of the funds was given to her by her disabled father, with whom she resided, to purchase a wheelchair for him. She believed that was not in a position to assign that portion of the confiscated funds to the Legal Aid Plan.

[ 6 ] The Legal Aid Plan issued two apparently conflicting documents to the Applicant on January 10, 2012, being one day after expiry of the time for submission of the executed Assignment. One document was entitled a “Notice of Intention to Cancel” instructing the Applicant to contact the Client Service Centre of the Plan by telephone, with 14 days of receiving the notice, “to discuss whether or not your legal aid certificate should be cancelled” for failure to sign the contribution agreement. The other document was entitled “Notice of Refusal of an Application for Legal Aid” by which the Applicant was informed that her application for legal aid was refused because the contribution agreement had not been signed and/or she had not met the terms set out by Legal Aid. The Notice of Refusal attached a document entitled “Instructions for Review or Appeal Denial of Certificate Services.” The second page of the instructions stated that “any appeal/request for review delivered more than 15 calendar days after the date of the notice of denial of the coverage will not be accepted. Regulation 106/99” There was no mention anywhere of the ability of the Plan to extend the time for appeal pursuant to section 94 of the Legal Aid Services Act , 1998. The Applicant received both documents on January 16, 2012.

[ 7 ] The Applicant testified that she did not contact the Plan immediately upon receipt of the notices but rather determined to seek the advice and assistance of her intended counsel Mr. Mattson on January 30, 2012, being the date of her next court appearance, and being within the 14 days specified in the Notice of Intention to Cancel to telephone the Plan to “discuss whether or not [her] legal aid certificate should be cancelled.”

[ 8 ] Upon consulting her intended counsel, the Applicant was directed to the Legal Aid office to discuss the intended cancellation and her reasons for not signing the Assignment and, upon doing so, was advised by a Plan staff member that she was likely out of time to appeal and that her application had been refused. She was provided with a Notice of Appeal form which she completed with her lawyer and faxed to the Plan office. She subsequently received a letter from the Plan advising that the appeal had been refused as it was submitted out of time and there was no further right to appeal available.

[ 9 ] The Applicant deposed in her Affidavit that the Notices received from the Plan confused her and that she understood, based upon the Notice of Intention to Cancel, that she had 14 days of receipt of it to deal with the matter. She did not realize that she had actually been denied legal aid funding and had to launch an appeal. The evidence of the Applicant in this respect was not successfully challenged on cross-examination. Indeed the Legal Aid Plan implicitly acknowledged in its letter of July 30, 2012, admitted into evidence on consent, that the issuance of the two Notices was confusing. The letter stated that since the Plan had not issued a certificate pending receipt of the executed contribution agreement, the proper notice was the Notice of Refusal and that the Notice of Intention to Cancel should not have been issued.

Issues and Determination

[ 10 ] The issues raised on the Application are as follows:

1. Should the prosecutions be stayed pending the Attorney General of Canada providing funding for the Applicant’s defence costs?

2. If so, what is the appropriate scope of the required funding, i.e. should it apply to pre-trial steps in the proceeding, such as election of mode of trial and a preliminary hearing, if applicable, or should it apply only to the trial phase?

[ 11 ] For the reasons that follow I am of the view that, in unique circumstances of this case, the proceedings should be stayed pending the provision of funding by the Attorney General of Canada for the defence costs of the Applicant, and that the funding should include all required steps in the proceedings through trial, including the election of the application respecting the mode of trial and any preliminary inquiry.

Analysis

(a) The Test

[ 12 ] On an application such as this, the onus is on the Applicant to show, on a balance of probabilities, that:

(a) She is ineligible for or has been refused legal aid and has exhausted all appeals in that regard;

(b) She is indigent unable to privately retain counsel; and

(c) Her right to a fair trial will be materially compromised without state funding.

(see R. v. Tye 2012 ONSC 76 (SCJ) at para. 9 )

(b) Need for Counsel to Ensure Right to a Fair Trial

[ 13 ] Counsel for the Respondent, at para. 11 of his Factum, acknowledged, albeit somewhat equivocally, that the third prong of the test had been made out by the Applicant, by stating “the Respondent concedes the charges are serious with legal issues anticipated to be somewhat complex and with the Applicant facing a substantial jail sentence, if convicted. The Respondent submits, in the circumstances of this case, the Applicant may not be able to adequately defend herself given her assertions in her affidavit to the effect she does not believe she can represent herself adequately in order to make a full answer and defence to such serious charges.”

[ 14 ] In spite of the equivocal nature of the acknowledgement by the Respondent, I do find that the third prong of the test has been made out by the Applicant, due primarily to two factors, in addition to the seriousness of the charges and the real possibility of incarceration, if convicted. Firstly, the two co-accused are adverse in interest to the Applicant and are each represented by counsel, raising the real possibility of prejudice and heightened jeopardy to the Applicant at trial. The drugs were evidently not found on the person of any of the occupants of the vehicle and it is therefore expected that each accused will disclaim personal possession or knowledge of the drugs and will point fingers at one or both of the others. Secondly, there is a strong likelihood that there will be a Charter challenge to the admissibility of certain evidence relating to the search and seizure. The Applicant has a Grade 10 education and, as was evident during her testimony, lacks sophistication, particularly in legal matters. She deposed in her Affidavit that “I cannot defend this complicated case without the assistance of counsel” and “I understand that the defence of these charges will likely involve at least one Charter Application and I frankly, do not really understand what that is.” As stated in the case of R. v. Rushlow 2009 ONCA 461 at paragraph 24 “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.”

(c) Inability of Applicant to Privately Retain Counsel

[ 15 ] I am also satisfied on the evidence that the Applicant is indigent and is not able to fund the cost of her defence privately. The Applicant is not employed and lives with, and cares for, her disabled father who requires virtual constant care. The Applicant’s father’s sole source of income is derived from disability benefits which are apparently only sufficient to cover household expenses, including food and sundries for himself and the Applicant, as well as the cost of insurance and fuel for a vehicle used to transport the Applicant’s father to his medical appointments. The Applicant’s father’s income and resources are not sufficient to fund the Applicant’s defence costs. The relationships which the Applicant has with others with whom she associates are not sufficiently close or intimate to reasonably expect the Applicant to look to them to contribute to her defence costs.

[ 16 ] The Applicant’s employment and work history in recent years has been casual and sporadic, consisting of occasional odd jobs cleaning homes, cutting grass and cleaning for a motel. Her income from these engagements ranges in the hundreds of dollars per year, not in the thousands. It is clear that the Applicant has little in the way of marketable skills. Although the Applicant has been on social assistance in the past, she has not been in some time and presently draws no income from Ontario Works. I am satisfied that the Applicant’s employment potential has been, and continues to be, curtailed by the responsibilities she has taken on to care for her disabled father. Moreover, neither she, nor her father, have any savings or capital to draw upon to be utilized to fund her defence costs. The Applicant currently has $150.00 in a bank account.

[ 17 ] This is not a case, such as was found in the case of R. v. Sheikh 2011 ONSC 4942 () , 2011 CarswellOnt 10283 (SCJ), where the Applicant has structured her affairs to get state funding for her defence costs, has failed to make full and complete disclosure of her financial circumstances or has failed to prudently plan for her defence costs since the time of her arrest.

(d) Attempts to Obtain Legal Aid Funding

[ 18 ] The remaining question is therefore whether the Applicant has exhausted her attempts to obtain legal aid funding. The case of Ontario v. Martell 2009 ONCA 46 stands for the proposition that an unreasonable refusal on the part of an accused to avail himself or herself of legal aid services by, for instance, failing to enter into a required contribution agreement, cannot be equated with a denial of legal aid.

[ 19 ] It is noted that the court, on an application of this nature, is not to engage in a review of the decisions of the legal aid authorities (see R. v. Peterman (2004) 2004 39041 (ON CA) , 70 O.R. (3d) 481 (CA) at para. 22 ). However, the Applicant’s dealings with legal aid may be reviewed to determine whether she made sufficient efforts to obtain legal aid funding or acted unreasonably in failing to avail herself of such funding.

[ 20 ] Here the Applicant believed that she was not in a position to make the assignment of confiscated funds required of her and, more importantly, was led by the Plan, by means of the Notice of Intention to Cancel delivered to her, that she would have the opportunity to discuss that issue with a representative of the Plan. That opportunity, although communicated to her, was in fact not available and by the time that became apparent, legal aid funding had been cancelled and the path of appeal blocked. Had the Applicant been afforded the opportunity to discuss the requirement for the Assignment with a representative of the Plan within the 14 day period offered to her in the Notice, her concerns may very well have been sufficiently allayed to permit her to execute the Assignment to secure the legal aid funding. She did not appreciate that the effect of the Assignment was only to assign whatever interest she had in the confiscated funds, without impact on her father’s interest in them, something which could easily have been explained to her.

[ 21 ] Mr. Prendiville has raised the issue of the floodgates being thrown open for state funding of defence costs should the application be granted in this case. In my view, this case is unique and will not contribute to a flood of applicants unjustifiably applying to the court for state funding. The inability of the Applicant to secure legal aid funding, and to exhaust her appeal rights in that respect, was not as a result of her own lack of diligence or unreasonable behavior, but rather was caused by the misleading information given to her by the Plan itself.

(e) Scope for State Funding

[ 22 ] On the question of whether state funding should apply only to the trial or whether it should apply to all pre-trial proceedings, including any preliminary inquiry, I am of the view that there is no hard and fast rule, but rather the question will depend upon an assessment of whether, in the circumstances of the case, the absence of counsel at various pre-trial stages may impact the applicant’s right to a fair trial. Justice Ricchetti said it well in the recent case of R. v. James 2011 ONSC 5985 , as follows at para. 40:

There can be no doubt that issues at a preliminary inquiry may impact on an accused's right to a fair trial. Justice Durno in R. v. Davis (2008 unreported) dealt with a Rowbotham application for counsel at a preliminary inquiry. Justice Durno made the following comment regarding a preliminary inquiry and its impact on an accused's right to a fair trial:

A preliminary inquiry is not a mere formality. A preliminary inquiry can be an invaluable proceeding for accused persons. It permits defence counsel to test the credibility and reliability of key prosecution witnesses through cross-examination, to explore potential Charter applications, and to explore and determine the viability of potential defences. A well-conducted and focused preliminary inquiry can play a vital role in assuring the right to make full answer and defence, and in trial fairness.

[ 23 ] It is not appropriate at this stage to speculate on the strategy and approach that future counsel for the Applicant may take with respect to the conduct of a preliminary inquiry, or even with respect to the question of the election. It is sufficient to conclude that the observations of Justice Durno in R . v. Davis quoted by Ricchetti, J. in R. v. James have application in this case.

Disposition

[ 24 ] It is therefore ordered that the charges against the Applicant be conditionally stayed in order to provide the Crown in right of Canada with a reasonable opportunity to arrange for funding of counsel to represent the Applicant in these proceedings. In the event that counsel is not retained within a reasonable time, the Applicant will have leave to apply to the court for a permanent stay of proceedings.

D. A. Broad J.

Date: August 3, 2012