ONTARIO SUPERIOR COURT OF JUSTICE

oshawa COURT FILE NO.: 12947/12
DATE: 20120821

BETWEEN :

Her Majesty the Queen

Respondent

— and —

Donald Guiler

Applicant

COUNSEL:

Mr. T. Balka for the Applicant

Ms. S. Ansari for the Respondent

HEARD: April 18, 2012

H.K. O’Connell J.

RULING

[ 1 ] The issue on this application was whether enhanced funding should be made available to proposed counsel, Mr. Balka. Mr. Balka seeks such funding if he is to represent Mr. Guiler. This application was originally returnable on January 18, 2012 but not heard until April 18, 2012.

[ 2 ] The Attorney General opposes the request. The Attorney General concedes that Rowbotham [1] funding is required for Mr. Guiler, but nothing more.

[ 3 ] On August 07, 2012 I advised the parties that I was allowing the application for enhanced funding. These are my reasons.

Position of the Applicant

Overview

[ 4 ] Mr. Balka argued very comprehensively as to why this case is particularly unique. His position is informed by his submissions and the detail provided in his factum.

[ 5 ] Counsel starts by saying this is the first time he has brought an application for enhanced funding. That is so because the case at bar is so unique. He points out that Mr. Guiler’s affidavit goes unchallenged. Mr. Guiler was not cross examined on his affidavit.

[ 6 ] Mr. Guiler faces a new trial on two counts of sexual assault on a minor, and one count of sexual touching in relation to the same complainant.

Affidavit of Mr. Guiler

[ 7 ] In his affidavit sworn December 15, 2011, Mr. Guiler sets out the chronology of his exposure to the criminal justice system as it underpins his charges. He is now 66. He has serious health issues. His work history is largely as a miner.

[ 8 ] On May 24, 2007 he was escorted out of his step-daughter’s home in Oshawa by a Children’s Aid Society Worker. He went to Kirkland Lake. He was arrested on October 16, 2007 by Toronto Police. His whereabouts were known after he left Oshawa until his apprehension. He was remanded into custody.

[ 9 ] He attests that his former trial counsel consented to his detention on November 13, 2007, unbeknownst to him. He had retained his then trial counsel on the same day, via a legal aid certificate. He came to know his then counsel because his cell mate had retained the same lawyer on “sexual assault type charges”. He did not know any lawyers, having never been arrested before.

[ 10 ] On February 21, 2008 he was convicted of sexual interference. He was remanded in custody for sentence. Sentencing occurred on March 04, 2008. He did not understand the fact that he was convicted until he was asked to sign a probation order at the conclusion of the court day. In addition he was not aware until after court had concluded that he was not only convicted but also sentenced to a further 168 days in jail, placed on 3 years probation, and placed on the sexual offender registry.

[ 11 ] He requested that his former counsel appeal his conviction and sentence. He was advised by that counsel that he had no grounds upon which to do so. Correspondence from former counsel was referenced stating his categorical opinion of there being no merit to either a conviction or sentence appeal.

[ 12 ] The defence of his original trial proceedings was funded by legal aid. His funding was secured by a lien on his then property, which had on it at the time a home. However the home was subsequently lost in a fire.

[ 13 ] Mr. Guiler retained appellate counsel, Mr. Rumble, who perfected his appeal as against conviction and sentence. His appeal was allowed on May 02, 2011. The Court of Appeal held, in the words of the applicant, that the proceedings “should never have taken place”.

[ 14 ] Subsequent to the order for a new trial, Mr. Guiler was refused legal aid. He exhausted his appeal route of that process without satisfaction. Legal aid did however remove the lien that secured his initial funding.

[ 15 ] The applicant sought out Mr. Rumble as his trial counsel for his new trial. However Mr. Rumble is unable to take on the retainer based on his current commitments.

[ 16 ] Mr. Guiler states:

I have lost all faith and trust in all defence counsel and the criminal justice process except for my appellate counsel, Wayne A. Rumble. Mr. Rumble has recently advised me that he is confident that Thomas F. Balka, senior competent trial counsel practicing in the City of Oshawa and surrounding areas in the Province of Ontario, is prepared to represent me on these charges if a funding application is granted.

[ 17 ] Mr. Guiler further states that he has total faith in Mr. Balka, as Mr. Rumble has recommended him. He does not have the financial ability, means or resources to retain counsel privately.

Affidavit of appellate counsel, Mr. Rumble

[ 18 ] Mr. Rumble’s affidavit is filed without objection and without challenge.

[ 19 ] Mr. Rumble represented Mr. Guiler on his appeal. Mr. Rumble came to realize that former counsel for Mr. Guiler had provided ineffective assistance of counsel on a number of fronts. The decision of the Court of Appeal in R. v. D.M.G. 2011 ONCA 343 , 105 O.R. (3d) 481 as written by Watt J.A. is appended to Mr. Rumble’s affidavit. In addition to the criticisms as set out by Watt J.A., Mr. Rumble also notes the sorry state of former counsel’s engagement of the file of Mr. Guiler.

[ 20 ] Mr. Rumble states that the applicant “…..has lost all faith and trust in all defence counsel and the criminal justice system, except for myself, because of his nightmarish experience in being wrongly convicted on these serious charges.”

[ 21 ] Mr. Rumble provides his opinion on the various facets of the legal aid system, inclusive of his comment that “the legal aid system in most provinces in Canada today is broken beyond repair.” Let me note here that some of the contents of appellate counsel rise to simple opinion and exhibit manifest disdain for the funding provided by Legal Aid Ontario. Suffice to say that none of that commentary was useful to the court in arriving at the conclusion that it did. [2]

Submissions of Mr. Balka

[ 22 ] Mr. Balka submits that given the very unique factual matrix of this case that it falls within the R. v. Peterman 2004 39041 (ON CA) , 70 O.R. (3d) 481 (C.A.) exception as to when rates should be higher than legal aid prescribed rates.

[ 23 ] Counsel recognizes that the right to retain counsel of choice does not impose upon the state a positive obligation to provide funds for counsel of choice.

[ 24 ] As the Court of Appeal noted in R. v. Peterman there are two exceptions to this presumptive non-obligation for the state to fund counsel of choice. Only the first exception is relied upon by Mr. Balka in this case. Mr. Balka says Mr. Guiler can demonstrate that a fair trial is only obtainable if he is represented by counsel of choice.

[ 25 ] In Peterman the court recognized that in some unique situations a fair trial can only be obtained by the retaining of counsel of choice. In this unique situation “the court may be entitled to make an order to ensure that the accused is represented by that counsel.” The court underscored that this was the case in R. v. Fisher [1997] S.J. No. 530 (Q.B.) , a scenario where the justice presiding on the Fisher matter noted that the circumstances that lead to enhanced funding in that case may not be present “in another thirty years.”

[ 26 ] Mr. Balka says he meets this first exception for enhanced funding. A fair trial requires Mr. Balka at the helm, which requires enhanced funding.

[ 27 ] Mr. Balka says it is not only the complex case that should fetch the remedy he is seeking. Reference to the appellate decision granting Mr. Guiler a new trial is the foundation of Mr. Balka’s argument for uniqueness. Mr. Balka says Mr. Guiler found himself in a “ Kafkaesque situation ” from which he is trying to extricate himself.

[ 28 ] The factors of Mr. Guiler’s proceedings are very particular and unique. Mr. Guiler spent 8 months in jail throughout which he never admitted any guilt. Rather he steadfastly maintained his innocence.

[ 29 ] Mr. Balka argues that given the ingredients in Mr. Guiler’s criminal proceedings history it is simply not realistic to say that he should reach out to any lawyer to represent him. Mr. Balka says in this case what is of particular importance is Mr. Guiler’s belief that he is being represented properly. Mr. Guiler attests to the fact that he trusts Mr. Balka, given that Mr. Rumble has recommended him.

[ 30 ] This makes in this case Mr. Guiler’s right to choose the counsel of his choice the lynch pin of a fair trial. Mr. Balka argues that Mr. Guiler’s case fits squarely within the limited exception where counsel of choice is required to fulfil the fairness requirement of the trial proceedings.

Position of Crown counsel

Submissions of Crown Counsel

[ 31 ] Crown counsel relies upon its factum, submissions and reference to decision in its casebook.

[ 32 ] The Crown reminds that the court only has to deal with the issue of enhanced funding. Funding by the Attorney General is conceded. The Crown says that Mr. Guiler can receive a fair trial without his counsel of choice Mr. Balka being his barrister. Indeed the remedy that was achieved by Mr. Guiler, namely a new trial, has ensured that he will now get a fair trial.

[ 33 ] There is no constitutional right to publicly funded counsel. A desire for counsel of choice does not impose an obligation on the state to fund that counsel above and beyond legal aid rates.

[ 34 ] In addition the facts show that Mr. Guiler has not approached any other counsel to see if they would be prepared to take his case on a funding level equivalent to legal aid. That is a requirement that must be fulfilled. Referencing the dicta in Peterman , the Crown argues that Mr. Guiler’s case is not unique, and is not of the same complexity as the Fisher case. The mere fact of an historical relationship between counsel and the client is not enough to demonstrate enhanced state funding for that counsel.

[ 35 ] In Peterman , the court noted that there was nothing in the affidavit proffered on the application before the trial judge in that case to show either that the case was so difficult, or that the association with counsel of choice was so special, that the only counsel who could handle it was the preferred counsel of choice. That reasoning says the Crown applies to this case.

[ 36 ] The Crown references the dicta of Rosenberg J.A. in Peterman where he says:

The fact that counsel had a prior relationship with the respondent and that the respondent had confidence in him similarly did not demonstrate an entitlement to state-funded counsel of choice.

[ 37 ] Referencing the decision in R. v. P.C. , 2010 ONSC 6077 , the Crown further argues in that case where the proposed counsel of choice had been involved at the pre-trial proceedings in the accused’s homicide trial, and where counsel spoke Mandarin which was also the accused’s mother tongue, nonetheless counsel was not appointed at enhanced funding rates. Justice Kelly, referencing Peterman , noted that what was required was that counsel “show a unique relationship to the case, not a unique relationship to the accused.”

[ 38 ] When one looks, says the Crown to the actual relationship between Mr. Balka and this case, it cannot be said that it is unique in the Peterman described sense.

[ 39 ] In addition the Crown says the Court of Appeal’s reasons in R. v. Guiler 2011 ONCA 343 , 105 O.R. (3d) 481(C.A.) fully notes the issues that were involved in the first, now impugned, trial. The Court of Appeal never suggested that Mr. Guiler needed a specific counsel.

[ 40 ] In sum the Crown says in the absence of a showing that another counsel would take the case at legal aid rates, and in the absence of the Peterman uniqueness standard, the application must fail. In short a fair trial can be had absent the presence of Mr. Balka as counsel.

Reply of Mr. Balka

[ 41 ] Mr. Balka re-iterates that this case is very peculiar. The Crown’s rejection of the nature of Mr. Guiler’s affidavit was described as “misguided”.

[ 42 ] Mr. Balka reminds that the suggestion that Mr. Guiler did not try to seek out a counsel who would take on this case with legal aid compensatory rates misses the point that Mr. Guiler tried to do that at his initial trial proceedings.

Should a Peterman Order be made

[ 43 ] It is trite to say that courts should not interfere with an accused’s desire to retain counsel of choice. In R. v. McCallen [3] , the Court of Appeal made it plain that the right to counsel of choice is not absolute. Counsel must be competent to the task, willing to accept the retainer, available within a reasonable time frame for trial and free from any conflict of interest.

[ 44 ] However counsel of choice retained via state funding at enhanced rates is appropriate where one of the Peterman exceptions is applicable. This, I found, was one of those rare cases.

The Proceedings

Arrest, Detention, Conviction and Sentence

[ 45 ] Suffice it to say that on its face the facts underpinning the procedural history of this case are unique and disturbing. Mr. Guiler’s history is noted above. There is nothing in the record to disturb his evidence on this application. I will highlight some of it.

[ 46 ] From the time of his arrest on October 16, 2007 in Kirkland Lake, until November 13, 2007, Mr. Guiler was detained awaiting a bail hearing. On November 13, 2007 he was ordered detained, even though he attests that his counsel never asked the Crown whether or not release on his own recognizance or with a surety was an option. I note here that the Crown bore the onus of sustaining his detention.

[ 47 ] On February 21, 2008 Mr. Guiler pleaded not guilty in Ontario Court. After what was a nolo contendere type of proceeding, he was convicted. He was sentenced two weeks later. This was so in spite of his adamant desire to have a trial and to assert his innocence. He did not come to realize his predicament until he was escorted to the cells after the proceeding and asked to sign a probation order.

[ 48 ] Mr. Guiler realized he had been sentenced to 168 days incarceration, in addition to time served, plus 3 years probation. He was also subjected to the automatic inclusion of his name on the Sexual Offender Information Registry . He now stood convicted of sexual interference.

[ 49 ] Upon his realization of his predicament he contacted former counsel who advised Mr. Guiler that he had no grounds for either a conviction or sentence appeal.

[ 50 ] Throughout his proceedings in Ontario Court he was represented by counsel funded by legal aid. Legal aid secured its funding by placing a lien on his and his estranged wife’s home.

[ 51 ] To cap off his experience, Mr. Guiler states:

Throughout the entire criminal justice process from being arrested on or about October 16, 2007, until long after I was sentenced on March 04, 2008, I was without the two (2) hearing aids in my ears making it almost impossible to hear most of what was being said by my own lawyer, the Crown Attorney, or the presiding Judge.

The Appellate Proceedings

[ 52 ] The appeal was argued on November 09, 2010. As noted on May 2 nd 2011 Mr. Guiler was granted a new trial.

[ 53 ] An overview of the reasons of Watt J.A., speaking for the unanimous court, are very instructive. I will set out the portions that I find particularly germane as to why this case is so unique and requires the appointment of counsel at rates greater than the legal aid tariff.

[ 54 ] Watt J.A. noted the following:

G. (D.M.) (the appellant) pleaded not guilty to a charge of sexual interference. He thought he would have a trial where he could tell his side of the story. He had a lawyer to help him out. But the appellant didn’t have a trial. He didn’t get to tell his side of the story. And he didn’t see or hear anyone else testify against either.

[ 55 ] Justice Watt overviewed the history of Mr. Guiler with his then defence counsel. Watt J.A. noted that Mr Guiler never wavered from his denial of guilt, and his desire for a trial. Watt J.A. noted that the accounts of Mr. Guiler and his then trial counsel as to what happened before the court proceedings began on February 21, 2008 “diverge remarkably.”

[ 56 ] As Justice Watt noted when court convened on February 21, 2008 counsel advised the court that his client was pleading not guilty, was content that the Crown read in the allegations, and would be inviting the court to accept those allegations. Regrettably no one asked Mr. Guiler if he was content with the procedure and whether he agreed to it. Nor did the trial judge engage the plea inquiry. As Watt J.A. noted the procedure was akin to a nolo contendere plea, a plea not contemplated in Canadian jurisprudence.

[ 57 ] In commenting upon the manner in which the proceedings developed on February 21, 2008, Justice Watt stated:

In my view, at least in combination, the manner in which the prosecutor discharged her burden of proof after the appellant’s plea of not guilty, and the failure of the trial judge to conduct any inquiry into the voluntariness of the appellant’s participation and his understanding of the nature and effect of the procedure, caused a miscarriage of justice.

[ 58 ] In relation to trial counsel’s competency, Watt J.A. had this to say:

We have no trial transcript to review in order to assess whether trial counsel’s lack of preparation made the trial unfair or contributed to an unreliable verdict. On the other hand, only the stunningly naïve among us would not connect the dots between the lack of preparation and the fortuitous turn of events that terminated the trial proceedings by a de facto guilty plea, a procedure of which the appellant was not fully informed. ( emphasis added )

[ 59 ] This commentary was made in light of the finding of the Court of Appeal that trial counsel had not prepared his client to testify as a witness in his own defence, despite Mr. Guiler indicating repeatedly that he wished to do so, nor had trial counsel “developed any meaningful strategy to defend the case or an outline of potential cross-examination of the prosecution witnesses.”

[ 60 ] Having found that a miscarriage of justice was occasioned the court ordered a new trial. The remarks of Watt J.A. at the tail end of the appellate judgment, bear repetition:

The practical effect was that the appellant, who pleaded not guilty, essentially admitted the full sweep of the prosecutor’s allegations that he had consistently denied since arrest. Yet none of those safeguards that we associate with either formal admissions or pleas of guilty were evident in the rush to judgment that occurred here. A hasty, ill informed volte face from an outright denial to a veiled acceptance of everything alleged in the blink of an eye as trial proceedings were about to begin.

Another Factor

[ 61 ] It is also beyond dispute that the audio enhancement system functioned only intermittently at the trial proceedings. This flaw in the system was to repeat on sentencing day, March 08, 2008. This system deficiency took on greater importance to Mr. Guiler as he is hearing impaired. That fact was known at the time as trial counsel had requested the enhanced system for the proceedings. I also note that Mr. Guiler in his affidavit on this application references his lack of hearing aids from before the date of his arrest until after his sentencing had occurred. In short his hearing deficiency was present throughout his exposure to the criminal justice system.

Conclusion

[ 62 ] Mr. Guiler found himself in custody, facing serious charges, and was then subjected to a process fraught with peril. His cynicism of counsel in general given his ordeal is understandable.

[ 63 ] Mr. Guiler is virtually impecunious with substantial health issues. The Crown says he should reach out to counsel who would otherwise entertain legal aid rates for which the Crown would abide payment. I find the Crown’s submission that Mr. Guiler should hunt for a counsel to represent him at legal aid rates, albeit funded by the Attorney General, to be wholly unrealistic given his particular situation. I find that in this particular case that is simply not tenable for this accused. He was given a legal aid certificate in first instance, he was met with an unfair trial that precipitated appellate intervention, and he is now told he is not eligible for legal aid.

[ 64 ] There comes a time when the obligation usually placed on the shoulders of the accused, must be displaced by the reality of the situation. The situation facing Mr. Guiler was and is truly extraordinary.

[ 65 ] Appellate courts have recognized that sometimes a verdict is unreasonable, sometimes a miscarriage of justice occurs, and sometimes at its most grievous an accused is found to have been wrongfully convicted. In this case Mr. Guiler did not author one quotient of his very regrettable misfortune. He stood convicted and sentenced of an offence with its pall of turpitude. All premised on a miscarriage of justice, engendered by a mix of factors as so pointedly referenced by the Court of Appeal.

[ 66 ] Mr. Balka is local counsel, very well respected, with a strong pedigree in criminal law. The trust that Mr. Guiler has in him is crucial to Mr. Guiler getting what he is presumptively entitled to, but for which he has been historically denied, namely a fair trial. In this case counsel of choice must be funded at enhanced rates.

[ 67 ] As a consequence the Attorney General must fund Mr. Balka at the rate he proposed.

The Honourable Mr. Justice H.K. O’Connell

DATE RELEASED: August 21, 2012

[1] R. v. Rowbotham 1988 147 (ON CA) , [1988] O.J. No. 271 (C.A.).

[2] Curiously the Court of Appeal commented upon material that was in Mr. Guiler’s affidavit, before that court, that referenced conclusions drawn from discussions with his appellate counsel. The Court noted “ these conclusions are neither evidence nor helpful.” Those observations apply mutatis mutandis to the comments about Legal Aid Ontario in Mr. Rumble’s affidavit on this application.

[3] R. v. McCallen (1997), 43 O.R. (3d) 57 (Ont. C.A.)