Her Majesty the Queen v. Ian Conklin, 2012 ONSC 5259

COURT FILE NO.: 10-G00010

DATE: 2012/09/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

IAN CONKLIN

Applicant

Lisa Micucci, for the Respondent

Leonardo Russomanno, for the Applicant

HEARD: September 13, 2012

AMENDED REASONS FOR decision

This is an amendment to the Reasons for Decision released September 19, 2012. The amendment occurs at paragraph [47].

M. Linhares de Sousa J.

INTRODUCTION

[1] The Applicant, Ian Conklin, brings this application pursuant to sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”). Mr. Conklin seeks a stay of the criminal proceedings being brought against him pursuant to section 24(1) of the Charter unless and until he is granted funding for legal representation in the criminal proceedings he is facing so that he can make full answer and defence to the criminal charges brought against him. In addition to this relief, Mr. Conklin seeks an order for the appointment and funding of two lawyers to represent him, namely Mr. Leonardo Russomanno and Mr. Mark Reiger. Furthermore, he requests that each counsel be paid at the rate of $200 per hour and that all reasonable and required disbursements which will be incurred by his counsel be paid by the Attorney-General or Legal Aid Ontario.

[2] This application is frequently simply referred to as a “Rowbotham application”, after the case of R. v. Rowbotham, 1988 CanLII 147 (ON CA), [1988] O.J. No. 271, (1988), 41 C.C.C. (3d) 1, in which the Ontario Court of Appeal established the legal precedent and parameters for this kind of funding application. In that decision the Court of Appeal justified a funding order when an accused’s right to a fair trial may be compromised because of the lack of financial resources. At p. 41 of the decision the Ontario Court of Appeal held:

In our view, a trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided. As stated above, the finding of legal aid officials that an accused has the means to employ counsel is entitled to the greatest respect. Nevertheless, there may be rare circumstances in which legal aid is denied but the trial judge, after an examination of the means of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial. In those circumstances, even before the advent of the Charter, the trial judge had the power to stay proceedings until counsel for the accused was provided. Such a stay is clearly an appropriate remedy under s. 24(1) of the Charter. Where the trial judge exercises this power, either Legal Aid or the Crown will be required to fund counsel if the trial is to proceed.

THE CHARGES AND FACTUAL BACKGROUND

[3] The parties have agreed that the factual background to this case can be found in paras. 3 to 9 inclusive of the Crown’s Factum and in paras. 7 to 13 inclusive in the Defence Factum to the application.

[4] The parties have also agreed concerning the Crown disclosure in this matter as follows:

[1] Paper disclosure for Mr. Conklin has now passed through the hands of 3 counsel and Mr. Conklin himself for a period that he was self-represented. After each change of counsel it has been returned to the Crown. The Crown can no longer guarantee the completeness of the original hard copy disclosure therefore we have created an electronic document that will serve as future disclosure.

[2] The disclosure in this matter consists of:

• Officers’ notes
• Surveillance reports
• Transcripts and audio of intercepted calls
• Warrants, Informations to Obtain, and supportive documents
• Part VI authorization and supporting Information to Obtain
• Photographs
• Physical evidence seized
• Statements to authorities
• Expert evidence (report and CV)

[3] This was a lengthy investigation and disclosure is voluminous. The lead investigation created a 3 volume synopsis called the Source Integrated Synopsis, which contains the case against Mr. Conklin and all the other co-accused. It is the “roadmap” of the prosecution. By reference to these 3 volumes it is easy to see what parts of disclosure are relevant – including dates of surveillance, officers, intercepted calls and physical seizures.

[5] That material and the evidence presented on this application show the following.

[6] Mr. Conklin is facing the following eight criminal charges on a single indictment: conspiracy to traffic in cocaine (CCC 465(1)(c)), conspiracy to possess cocaine for the purposes of trafficking x 2 (CCC 465(1)(c)), conspiracy to possess proceeds of crime (CCC 465(1)(c)), trafficking in cocaine (CDSA 5(1)), possession of cocaine for the purposes of trafficking (CDSA 5(1)), participating in the activities of a criminal organization (CCC 467.11(1)), and committing an indictable offence for the benefit of a criminal organization (CCC 467.12)).

[7] The charges laid against Mr. Conklin were laid as a result of a joint police investigation code named “Project Beckenham” carried out by the Biker Enforcement Unit, consisting of members of the Royal Canadian Mounted Police, the Ontario Provincial Police, and the Ottawa Police Service and which targeted alleged Hells Angels affiliates. Project Beckenham was carried out over a two-year period. At the end of this investigation, in January of 2010, charges were laid and an arrest warrant was issued for Mr. Conklin and for other individuals. Mr. Conklin was ultimately arrested on May 20, 2010. He has remained in custody on these charges since that time, having been refused judicial interim release on August 25, 2011.

[8] A trial, by judge and jury, on the charges which Mr. Conklin faces has been set for 2013, scheduled to run for six weeks from January 7 until February 15. In addition, there are five days of pre-trial motions set aside on the case for the week of November 19, 2012. A preliminary hearing on the charges took place in February and March of 2011 at which Mr. Conklin appeared without counsel.

[9] The Crown concedes that the offences are serious, and upon conviction could attract a substantial period of incarceration. The Crown also concedes that the case is complex. Counsel for Mr. Conklin on this application, while they have not received the Crown disclosure on the case, anticipate that the disclosure will be voluminous and consisting of products of search warrants and electronic police surveillance. There may be an issue concerning a statement made by Mr. Conklin to the police. Numerous legal issues could arise at trial.

[10] When Mr. Conklin’s criminal prosecution on these charges and on others charges before the Cornwall Court for alleged offences under the Excise Tax Act, R.S.C. 1985, c. E-15 began, he funded his legal representation, a number of different lawyers, from his own resources (some $3,500) and from money borrowed from his father, Mr. Gordon Conklin (approximately $45,000). These payments covered the period June 15, 2010 to May 8, 2012. Mr. Gordon Conklin testified that he is no longer willing to fund his son’s legal representation even if that means that his son has to commence his trial without a lawyer.

[11] Mr. Conklin wishes to have legal representation. He states that he has no assets, either liquid or capable of being liquefied, to fund his legal representation. Since his arrest he has not earned an income. The evidence demonstrated that Mr. Conklin first applied to Legal Aid in September of 2010. While he states in his affidavit, dated August 8, 2012, that he abandoned this application because his father was at that time willing to lend him money to fund his legal representation, that first application to Legal Aid was refused because Mr. Conklin “failed to provide requested information”, as evidenced in a letter from Legal Aid Ontario dated January 24, 2012 (tab 5, Application Record).

[12] Mr. Conklin applied a second time for legal aid funding for his Ottawa charges in December of 2011. In response to that second application, Legal Aid Ontario requested further information from Mr. Conklin regarding four properties owned by him at the time of his arrest, in order to determine his financial eligibility for legal aid (tab 5 Application Record). The four properties, owned by Mr. Conklin, were the following:

• 3932 County Road 12, Newington, Ont.
• 3400 County Road 26, Prescott, Ont.
• 3700 Blue Church Road, Prescott, Ont.
• 3846 County Road 26, Brockville, Ont.

[13] Counsel acting for Mr. Conklin on this application responded to Legal Aid Ontario, on April 4, 2012, providing more information on the four properties as well as some documentation regarding the four properties. Some of these documents are found at tabs 11, 12, 13 and 14 of the Application Record. The pith and substance of the additional information provided to Legal Aid about the four properties and what was presented in the evidence during this application was as follows:

• Re 3932 County Road 12, Newington, Ont. - it was sold under power of sale by Ralph Bellamy who had a mortgage on the property that was not paid. There were substantial outstanding tax arrears owed on the property. Mr. Conklin did not receive any proceeds from the sale of this property.
• Re 3400 County Road 26, Prescott, Ont. - Mr. Conklin owned this property but in 2005 registered a mortgage on the property in the amount of $100,000 in favour of his father, Mr. Gordon Conklin, for money he had borrowed from his father over the years and which he had never paid back. According to the evidence of Mr. Conklin at the suggestion of his sister, Mr. Conklin decided to transfer the property to his father in recognition of that debt. Mr. Gordon Conklin testified that it was his son’s idea to transfer this property to him after his incarceration. At Mr. Gordon Conklin’s request the transfer was made to Dorothy Duford, the common-law spouse of Mr. Gordon Conklin, so as to avoid any joining of that property with the adjoining property already owned by Mr. Gordon Conklin. The transfer to Ms. Duford was for $1.00 and took place after Mr. Conklin was incarcerated in 2010. The evidence showed that the MPAC (municipal tax assessment vehicle) assessment of this property in 2012 was $91,000.
• Re 3700 Blue Church Road, Prescott, Ont. - this property was Mr. Conklin’s family home. This property was sold by power of sale in 2010 by one of the mortgage holders, Ralph Bellamy. Another mortgage holder, Canadian Western Trust, was also paid his mortgage. Mr. Conklin did not receive any proceeds of the sale of this property.
• Re 3846 County Road 26, Brockville, Ont. - this property was sold under power of sale by a mortgagee, Canadian Western Trust Company to Knapp’s Paving and Landscaping in 2010. Mr. Conklin is now being sued by Knapp’s Paving and Landscaping for a judgment on an alleged Agreement of Purchase and Sale of this property entered into between it and Mr. Conklin, which sale was prevented because of the seizure of the property by the Federal Prosecution relating to a “grow up” on the property. Knapp’s Paving and Landscaping is also alleging that they advanced to Mr. Conklin the amount of $20,000, in March, 2009, as a deposit for the sale of this property to it. Mr. Conklin did not receive any money from the proceeds of the power of sale of this property.
• According to Mr. Conklin some $48,500 from the proceeds of the sales of three of his properties were claimed by the Canada Revenue Agency as monies owed by him under both the Excise Tax Act and the Income Tax Act. The remaining $8,194.27 remains in the possession of the federal government as suspected proceeds of crime. In December of 2011 Mr. Conklin brought a motion to have the monies released to him to meet his reasonable legal fees but his motion was denied. Mr. Conklin is willing to charge these funds for any Legal Aid funding he receives for legal representation.

[14] On March 2, 2012, Mr. Conklin was again refused legal aid funding. In a letter dated May 22, 2012, Legal Aid Ontario stated that Mr. Conklin was refused legal aid because he “failed to provide legal aid with all of the necessary financial documentation required to make an eligibility decision” on his file. Legal Aid’s response went on to list in detail all of the documentation relating to the dispositions of Mr. Conklin’s four properties which were required (tab 7, Application Record).

[15] On June 25, 2012, counsel for Mr. Conklin on this application replied to Legal Aid essentially stating that there are no further documents to be provided to Legal Aid Ontario. Anything more could only be obtained at substantial cost which Mr. Conklin was unable to pay for and which his father, Mr. Gordon Conklin, was unwilling to advance to his son. The evidence indicated that the cost of the detailed property searches which Legal Aid Ontario required to be done on the four properties would cost in the area of $2,500 to $3,000 plus disbursement and mileage, and possibly more “dependent upon the time involved” (tab 2, Second Supplement to the Application Record ).

[16] The evidence of Mr. Gordon Conklin seemed to suggest that there may be more documents found in Mr. Conklin’s property that he collected from 3700 Blue Church Road, Prescott, Ontario, when the family was evicted prior to the power of sale proceedings. However, all of that material is stored in his barn and he has no idea what is in among that property. Mr. Gordon Conklin has been acting as his son’s Power of Attorney since Mr. Conklin’s incarceration. He has no other documents he can provide Legal Aid. To the knowledge of Mr. Gordon Conklin his son’s only bank account is closed and overdrawn.

[17] On July 16, 2012, Mr. Conklin was again refused legal aid funding because he did not qualify based on the information given. In the Comments section the refusal letter indicated the following:

1. The client disposed of assets/property after his need for legal fees existed.
2. Client is considered to have financial resources, these resources have paid private legal fees of approximately $40,000 to date.

[18] Mr. Conklin appealed this decision to the Area Director at the Ottawa District Office in Ottawa. On August 23, 2012, the area committee, in a letter sent to Mr. Conklin, agreed with the decision that he did not qualify financially for a legal aid certificate.

[19] Following this refusal, Mr. Conklin is still able to appeal the decision of the area committee to Legal Aid in Toronto, which he has done. At the time of the hearing of this application, Mr. Conklin did not know the outcome of that appeal which, so he was informed, would be expedited.

JURISPRUDENCE

[20] It was not disputed that the onus rests on Mr. Conklin to persuade this Court on a balance of probabilities that he has met the two branches of the Rowbotham test, that he requires counsel to have a fair trial and that he is indigent, cannot afford his legal representation and that he is not able to obtain legal aid.

[21] After the decision in R. v. Rowbotham, supra, in which the Ontario Court of Appeal recognized that a stay of proceedings may be an appropriate remedy under s. 24(1) of the Charter, where the trial judge is satisfied that an accused lacks the means to employ counsel and that counsel is necessary to ensure a fair trial for the accused, the Ontario Court of Appeal had occasion to reconsider this issue in the case of R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302. In that case the trial judge ruled that the accused had not met the first branch of the Rowbotham test, namely, that he would not be deprived of a fair trial if he did not have counsel. The trial judge concluded that she was not satisfied that this was “one of those unique and extraordinary cases in which the presence of counsel is a prerequisite to a fair trial.”

[22] The Ontario Court of Appeal allowed a new trial finding that the trial judge had applied too stringent a test. The Rowbotham order was not limited to an extreme case where Legal Aid’s decision was completely perverse and there was a substantial possibility of lengthy imprisonment. At paras. 19 and 20 of Rushlow, supra, the Court of Appeal stated the following:

[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. Because of the pervasiveness of legal aid, it will be the rare and exceptional case that the court will find it necessary to appoint counsel. This does not mean that counsel is only required in exceptional cases. Rather, it is the fact that legal aid is available for accused who cannot afford a lawyer that Rowbotham orders are exceptional.

[20] Courts have considered a number of factors in determining whether appointing counsel is essential in view of the complexity and seriousness of the case. 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 the trial; and the likelihood of imprisonment: see R. v. Wood 2001 NSCA 38, (2001), 191 N.S.R. (2d) 201 (C.A.); R. v. Wilson 1997 CanLII 1501 (NS CA), (1997), 163 N.S.R. (2d) 206 (C.A.); R. v. Hayes 2002 NBCA 80, (2002), 253 N.B.R. (2d) 299 (C.A.); R. v. Drury 2000 MBCA 100, (2001), 150 Man. R. (2d) 64 (C.A.); R. v. Rain (1998), 1998 ABCA 315, 223 A.R. 359 (C.A.) and R. v. Chemama, 2008 ONCJ 31, 2008 ONCJ 31.

[23] The above relates to the first branch of the Rowbotham test. The second branch of the test is based on the judge’s conclusion from the evidence about the accused’s means, namely, that the accused, because of the length and complexity of the proceedings, or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial.

WILL THE APPLICANT’S RIGHT TO A FAIR TRIAL BE MATERIALLY COMPROMISED WITHOUT LEGAL REPRESENTATION?

[24] The Crown acknowledges that the charges Mr. Conklin faces are serious, and that the pending trial will be long and complex. The Crown concedes that “it is unlikely that the Applicant has the capacity to adequately defend the case without counsel” (para. 28, Respondent’s Factum).

[25] I come to the same conclusion based on the evidence before me relating to the nature of the evidence that will be before the court at trial such as wiretap and surveillance evidence, the likelihood of expert evidence relating to organized and gang crime and the possible introduction of statements made by Mr. Conklin to persons in authority. The trial will be long preceded by a week of pre-trial motions. Clearly, Mr. Conklin requires legal counsel to make a full answer and defence and to ensure that all of his rights under the Charter are protected. Mr. Conklin has met the first branch of the Rowbotham test. On a balance of probabilities Mr. Conklin has shown that his right to a fair trial will be materially compromised absent public funding for counsel.

DOES THE APPLICANT HAVE THE FINANCIAL MEANS TO RETAIN COUNSEL?

[26] The second branch of the Rowbotham test requires Mr. Conklin to establish, on a balance of probabilities, that he does not have the financial means to retain counsel. The Crown submits that Mr. Conklin fails on this branch of the test and that his application ought to be denied. Firstly, she argues that as long as Mr. Conklin has not exhausted his appeals to Legal Aid Ontario, which he has not in this case, as he is still awaiting the results of his latest appeal, Mr. Conklin cannot persuade this Court, on a balance of probabilities, that he does not have access to public funding for his legal representation.

[27] The Crown also argues that Mr. Conklin has failed to prove that he is indigent. According to the Crown his proof of indigency, is incomplete and wanting, as was pointed out by Legal Aid in refusing to grant him a legal aid certificate on that ground. The Crown submits based on the financial material that Mr. Conklin did provide on this application many questions continue to abound about the sales and the transfers of his properties after his incarceration. Furthermore, the Crown argues that Mr. Conklin voluntarily divested himself of an asset, namely 3400 County Road 26, Prescott, Ontario, by transferring it in favour of his father, an asset which might have been available to him to fund his defence.

[28] The arguments of Crown counsel on this second branch of the Rowbotham test on the facts of this case are not without some merit. Nonetheless, after examining all of the evidence, I come to the conclusion, that on the balance of probabilities Mr. Conklin has met the onus upon him with respect to this second branch of the test. I find that he is indigent and in need of public funding to make full answer and defence to the charges before the court for the following reasons.

[29] Firstly, theoretically Mr. Conklin still has one faint hope that his last appeal to Legal Aid Ontario may secure for him a legal aid certificate which may indeed materialize as these reasons are being written. However, as was pointed out by counsel for Mr. Conklin and as Legal Aid Ontario was informed there can be no further documentation produced by Mr. Conklin about his confusing financial situation because, being incarcerated, he is not in any position to be able to collect the material which has long left his control. Any further collection of this material by his father would be at a substantial cost which Mr. Conklin cannot pay. Mr. Gordon Conklin, after collecting the material already provided to Legal Aid Ontario and paying so much for his son’s criminal proceedings, is just not willing to incur any more expense. It is clear that the “financial resources” that have paid for Mr. Conklin private legal fees to date, which formed part of the basis for the public funding refusal by Legal Aid, have dried up. There is no legal obligation on Mr. Gordon Conklin to do more. Consequently, the state of Mr. Conklin’s financial disclosure to Legal Aid has not changed since his initial application. It is fair to conclude that it is unlikely he would qualify for legal aid.

[30] In the case of R. v. Rushlow, supra, just such a situation was found on the evidence before the court. Mr. Rushlow was found to have “theoretically” (para. 28) one further appeal to the provincial office. However, the evidence also showed that since his initial application Mr. Rushlow’s financial situation, which was described as “desperate” had not changed. This led the Court to conclude that it “was unlikely he would qualify for legal aid”. In the case of R. v. Rushlow, supra, the existence of this last faint appeal hope did not prevent the Court from granting the requested relief. Nor should it on the facts of this case.

[31] One final important consideration here is that Mr. Conklin’s trial date and pre-trial motion week are fast approaching. The right to a fair trial includes the ability of retained counsel to prepare for the trial and pre-trial motions by dealing with the significant disclosure which has yet to be obtained from the Crown in this matter. On the facts of this case, this is a time sensitive application and requires a decision now.

[32] Secondly, I consider what the substance of the evidence relating to Mr. Conklin’s financial circumstances reveals about his ability to retain the services of a lawyer privately for the trial at this time. I agree with Hackland J. in his decision, R. v. Serre, 2010 ONSC 714, when he states at paras. 10 and 11:

[10] The case law establishes that in applications of this sort, the court does not sit in judicial review of decisions made by Legal Aid authorities, nor is it the court’s concern as to how its decision will impact Legal Aid Ontario’s operations. On the other hand, a lack of co-operation by the accused, such as unjustifiably refusing to sign a reasonable contribution agreement, may disentitle the accused to relief in some circumstances, see R. v. Martell [2009] O.J. No. 176 (Ont. C.A.)

[11] I am to make my own decision about whether the accused can afford counsel. Rosenberg J.A. made the following observation in R. v. Peterman 2004 CanLII 39041 (ON CA), [2004] O.J. No. 1758 at paragraph 22:

22. In some cases, legal aid has been refused because in accordance with legal aid guidelines, the person does not quality financially for legal aid. Where the accused seeks a Rowbotham order, the court, while giving appropriate deference to the decision of Legal Aid, must reach its own decision about whether the accused can afford counsel. As was said in Rowbotham at p. 69, “there may be rare circumstances in which legal aid is denied but the trial judge, after an examination of the means of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial”. However, when a court makes a Rowbotham order, it is not conducting some kind of judicial review of decisions made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial.

[33] Legal Aid Ontario in its correspondence to Mr. Conklin has indicated that they require more documentation about the disposition of Mr. Conklin’s four properties. The full documentation on these properties is incomplete and confusing. Mr. Conklin, in his own oral evidence has questioned the nature of the transactions revealed in the documentation he has been able to collect with the assistance of his father. He also questioned if he was not cheated of some of his equity in those properties in the various power of sale proceedings that took place with respect to three of those properties. Nonetheless, in all of this evidence, one fact is clear, Mr. Conklin has not received, nor does he have at this time any apparent legal claim or access to, any of the proceeds realized in the disposition of the three properties that were sold under power of sale. In addition, he is facing a judgment involving $20,000 liability relating to one of them. The evidence also reveals that Mr. Conklin has no other assets or bank accounts and no source of income since his incarceration in 2010. At this time a reasonable contribution agreement between himself and Legal Aid would not appear to be possible. Mr. Conklin has offered to Legal Aid to have charged to the benefit of Legal Aid any existing funds which are found to be due to him now or in the future.

[34] I am further convinced by the evidence that this is not a case of demonstrated lack of co-operation on the part of Mr. Conklin. He has made all reasonable efforts, given his limited personal ability to act on his own, to obtain the documentation and information requested by Legal Aid. As the evidence of Mr. Gordon Conklin showed any further disclosure efforts would have entailed a substantial cost, which Mr. Conklin could not personally pay and which Mr. Gordon Conklin was unwilling to pay.

[35] With respect to 3400 County Road 26, Prescott, Ontario, Mr Conklin favoured his father by transferring this property to his step-mother while he was incarcerated and when, it can be assumed that he knew that he would be requiring the services of a lawyer for a lengthy and multiple criminal proceedings. Legal Aid would appear to have good grounds for specifically mentioning this transaction in its reasons for refusing Mr. Conklin a legal aid certificate. However, I do not sit, as the case law has pointed out, in judicial review of decisions made by the Legal Aid authorities.

[36] In my own assessment of the evidence before me regarding this property, I come to the conclusion that it is unlikely that Mr. Conklin had any equity left in this property at the time he transferred it, at the request of his father, to his step-mother, Ms. Duford. The evidence of both Mr. Conklin and Mr. Gordon Conklin showed that the mortgage registered on this property in 2005 in favour of Mr. Gordon Conklin arose after many years of Mr. Conklin living off the largesse and generosity of his father, who appears to have funded his farming activities, the purchase of farm equipment, experiments, and finances, his family responsibilities and matrimonial settlement, and his financial defaults in his debts and lines of credit. This largesse and generosity continued to the amount of approximately $45,000 immediately before and after his incarceration, not to mention the care of cattle and horses after Mr. Conklin’s incarceration. This continued until Mr. Gordon Conklin had to draw the red line and was unwilling to fund his son’s personal circumstances any longer. On the evidence there does appear to be a legitimate basis for the transfer of this property to the benefit of Mr. Gordon Conklin at the time it was transferred. I cannot conclude that this is a case of Mr. Conklin attempting to artificially divest himself of an available asset.

[37] In summary, for the reasons given above, I must conclude, on the balance of probabilities, that Mr. Conklin has met the onus on him imposed by the second branch of the Rowbotham test. He is currently indigent and unable to afford to retain counsel privately. That being the case, I have the jurisdiction to enter a conditional stay of the prosecution in order to give the Government of Ontario a reasonable opportunity to retain publicly funded counsel to represent the accused in this matter which I so do.

THE “FISHER APPLICATION”

[38] There is a second level of relief sought in this application by Mr. Conklin. In particular, Mr. Conklin requests that his counsel of choice, in fact two counsel, the lawyers who have been helping him pro bono with this application, Mr. Leonardo Russomanno and Mr. Mark Rieger, be appointed to represent him and that their rate of remuneration be set by the Court at $200 per hour for the government to pay. This is above the recognized, normal legal aid rate. It was argued that given the imminent trial and pre-trial motions, the short time that is left and the lengthy and voluminous Crown disclosure which must be examined and culled by defence counsel in preparation for trial, this is required to make full answer and defence. Mr. Russomanno submitted that he would not necessarily refuse the legal aid rate if chosen to take the matter. Furthermore, it was argued there is precedent for this kind of order. (See R. v. Fisher, 1997 CarswellSalk 821 (Sask. Q.B.) (Westlaw) and R. v. Costa, 2007 ONCA 704).

[39] This issue was dealt with, in a substantial way, by our own Ontario Court of Appeal in the case of R. v. Peterman (2004), 2004 CanLII 39041 (ON CA), 70 O.R. (3d) 481 (C.A.). On the facts of that case which included a pending trial which was one month away, the trial judge, given the complexity of the case and the fact that a former accomplice to an alleged offence of arson agreed to be a Crown witness, concluded that only the lawyer chosen by the accused, who lived out of town and who had represented the accused previously, could fairly represent him. The trial judge ordered Legal Aid to pay for a junior lawyer and for his and the lawyer’s travel time, travel and meal expenses, and a reasonable preparation time. Legal Aid Ontario and the Crown appealed from the order of the trial judge.

[40] The Ontario Court of Appeal allowed the appeal, finding the trial judge’s order to be unjustified in principle. The Ontario Court of Appeal found that an accused’s choice of counsel is not to be interfered with by the courts. But there are recognized limits to this. At para. 28, the Court stated:

[28] However, the right of an accused person to be free of unreasonable state or judicial interference in his or her choice of counsel does not impose a positive obligation on the state to provide funds for counsel of choice. Se R. v. Prosper (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at p. 374, R. v. Rockwood (1989), 1989 CanLII 197 (NS CA), 49 C.C.C. (3d) 129 (N.S.C.A.), R. v. Ho, 2003 BCCA 663, [2004] 2 W.W.R. 590 (B.C.C.A.), and Attorney General of Quebec v. R.C. (2003), 2003 CanLII 33470 (QC CA), 13 C.R. (6th) 1 (Que. C.A.).

[41] State funded counsel of choice is simply not the law.

[42] The Ontario Court of Appeal distinguished the facts before it from the facts found in the case of R. v. Fisher, supra, where it was found by the trial judge that the facts were “unique” and such that the circumstances would not likely occur “in another thirty years” (para. 29). The Ontario Court of Appeal found nothing unique about the facts of the case before it. There was no evidence to show that the accused could not otherwise obtain competent counsel. There was no evidence to show that there was not other competent counsel available to take the case and to do so on the conditions imposed by Legal Aid. Furthermore, after examining the question of timing of the trial the Ontario Court of Appeal also concluded that there was no evidence to show that no other lawyer was available to proceed with the trial on the scheduled trial date. In the final analysis, the Ontario Court of Appeal concluded that the order of the trial judge was not necessary to ensure a fair trial for the accused.

[43] In Peterman, supra, at para. 21 the Ontario Court of Appeal highlighted the limits of courts’ jurisdiction in applications of this kind:

[21] However, under our system the obligation for setting legal aid rates and policies relating to retention of out-of-town counsel and of junior or co-counsel lies with Legal Aid Ontario, not the court. See New Brunswick (Minister of Health and Community Services v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 at paras. 102 - 8 and R. v. Cai 2002 ABCA 299, (2002), 170 C.C.C. (3d) 1 (Alta. C.A.), application for leave to appeal to the Supreme Court of Canada dismissed [2003] S.C.C.A. No. 253, at paras. 8 – 18. A criminal trial court has no jurisdiction to review those policies and, having determined that they are unreasonable, impose other arrangements on Legal Aid Ontario. A criminal trial court’s jurisdiction rests solely on the obligation to ensure that an accused person receives a fair trial. In some cases, the court will be satisfied that if an accused is not represented by counsel, his or her right to a fair trial as guaranteed by ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms will be infringed. If such an accused lacks the means to employ counsel privately, but has nevertheless been refused legal aid, the court can make an order staying the proceedings until the necessary funding for counsel is provided by the state. The trial will then not proceed until either the government or Legal Aid Ontario provides funding for counsel. This is a so-called Rowbotham order based on this court’s decision in R. v. Rowbotham 1988 CanLII 147 (ON CA), (1988), 41 C.C.C. (3d) 1. The court explained the legal basis for this order at p. 66:

In our opinion, those who framed the Charter did not expressly constitutionalize the right of an indigent accused to be provided with counsel, because they considered that, generally speaking, the provincial legal aid systems were adequate to provide counsel for persons charged with serious crimes who lacked the means to employ counsel. However, in cases not falling within provincial legal aid plans, ss. 7 and 11 (d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require funded counsel to be provided if the accused wishes counsel, but cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial.

[44] In Peterman, supra, at para. 41, the Ontario Court of Appeal stated:

…The first issue is the propriety of making an order against Legal Aid Ontario. Even if a case had been made out for a Fisher-type order, the order should have been made out against the Crown, not Legal Aid Ontario. It would then be for the Attorney General of Ontario to determine how to respond to the order. He may have been able to make some arrangement with Legal Aid Ontario. But that was a matter for the Attorney General and the Legal Aid authorities. It was not an issue for the criminal court. See Attorney General of Quebec v. R. C. at para. 177.

[45] As pointed out by Hackland J. in R. v. Serre, supra at para. 22, Justice Durno has accurately stated the law on this issue in the case of R. v. Cairenius, 2008 CanLII 28219 (ON SC), [2008] O.J. No. 2323 (S.C.J.) when he states as follows:

[22] In Cairenius, Durno J., after reviewing the Peterman case as well as other pronouncements of the court in Attorney General of Quebec v. R.C. and New Brunswick (Minister of Health and Community Services) v. G.J., 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 and R. v. Ho (2003), 2003 BCCA 663, 17 C.R. 6th 223 (B.C.C.A.), stated his conclusion at paras. 39-40:

39 I am persuaded on the basis of these authorities that, in Ontario, a judge has no jurisdiction to set fees in criminal cases after a finding that the accused person requires counsel to have a fair trial within the meaning of s. 7 of the Charter. The court determines that, unless the state provides counsel, the accused cannot have a fair trial, and would stay the charges if counsel is not provided. However, how that counsel is retained, and at what rate, is not a matter for the courts. If the government cannot reach an agreement with counsel, the charge(s) is stayed and the proceeding ends. There appears to be no principled reason why that same criteria should not apply to the appointment of counsel under s. 486.3 of the Criminal Code. While it is not a constitutional obligation, it is a legislated mandate given to the Crown in a criminal prosecution.

40 Similarly, where a Fisher or Fisher-type order is made, a court cannot set the fees to be paid. The court makes an order, including the specifics under which the accused must be represented, or the proceedings are stayed. It is for the Attorney General, not the courts, to determine how that counsel will be retained, and at what rates. If there is no counsel provided, the proceedings are stayed or remain stayed.

[46] In the final analysis, on the facts of this case and on the evidence before me, I am not persuaded that this is a unique case that requires a “Fisher or Fisher-type” order to ensure that Mr. Conklin has a fair trial. I therefore decline Mr. Conklin’s request that I make an order that the Government of Ontario retain the two named defence counsel of choice for Mr. Conklin or to pay such counsel any particular hourly rate, or to provide for any specific preparation time. These are issues properly dealt with by the Legal Aid authorities.

DISPOSITION

[47] Having found that Mr. Conklin has met, on the balance of probabilities, the onus on him to establish the criteria for the Rowbotham funding order, I direct that the charges which Mr. Conklin is facing on the indictment before this Court be conditionally stayed until such time as funding for counsel to represent Mr. Conklin is in place so that he can be given a fair trial. Given the fact that Mr. Conklin remains incarcerated pending trial, I leave it to him or any counsel on his behalf to consider whether he wishes to bring an application to adjourn his scheduled trial dates.

M. Linhares de Sousa J.

Released: September 28, 2012