R. v. Tye, 2012 ONSC 76

ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-0131-11
DATE: 2012-01-03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Marian E. Bryant, for the Crown

Respondent

• and -

PEGGY TYE

Israel Gencher, for the Applicant

Applicant

HEARD: November 17, 2011, at Perth, Ontario

REASONS ON APPLICATION

Madam Justice B. R. Warkentin

1This is an application by the Applicant, Peggy Tye for an order pursuant to s. 7 and 11(d) of the Canadian Charter of Rights and Freedoms granting the Applicant a stay of proceedings pursuant to section 24(1) of the Charter unless and until the Applicant is granted funding for legal representation by the Attorney General of Canada or the Ontario Legal Aid Plan (a Rowbotham Application). The Applicant alleges that the funding for legal representation is necessary for her to make a full answer and defence to the charges against her.

2The Applicant is charged with three counts of possession of controlled substances (cocaine, marijuana and psilocybin) for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (“ CDSA ”); two counts of simple possession of controlled substances (heroin and oxycodone) contrary to s. 4(1) of the CDSA and possession of $1,355.56 knowing the money was proceeds of crime, contrary to s. 354(1) (a) of the Criminal Code .

3The charges all arise from the same set of facts where on January 12, 2010 the Perth Police executed a search warrant at the apartment the Applicant shared with Adrian Gilpin.

4Mr. Gilpin was in the apartment at the time of the search and was initially separately charged. However, both Mr. Gilpin and the Applicant are now jointly charged in an indictment that was filed on November 9, 2011.

5The Applicant received a Legal Aid Certificate on February 18, 2010 and was represented by counsel until her Legal Aid Certificate was cancelled on May 4, 2011. The Applicant appealed the decision to cancel her certificate on July 27, 2011, however the original decision to cancel the certificate was upheld.

6The Applicant has been assisted by counsel since her certificate was cancelled in the appeal of the Legal Aid decision and in bringing this application for funding. The Applicant’s counsel has indicated that he is not prepared to represent the Applicant at trial on a pro bono basis. The Applicant claims to be without sufficient financial means to retain counsel privately.

7The Crown alleges that the Applicant has not met the threshold requirements to permit the Rowbotham Application and submits that the request for a stay of proceedings should be denied.

8The procedure established by the Ontario Court of Appeal in R. v. Rowbotham , 1988 147 (ON CA) , [1998] 25 O.A.C. 321 for these applications requires that before the orders sought may be granted, an accused must apply to the Legal Aid Plan for available funding or demonstrate such an action would be futile. In addition:

• An accused who has personal funds available must use them to pay for counsel and may not rely on public funds as a convenient alternative;

• An accused who has the means to pay the costs of his or her defence but refuses to retain counsel may properly be considered to have chosen to defend himself or herself; and

• A stay of proceedings pending state-funded counsel is a rare and exceptional remedy to be exercised by the court only in the clearest of cases.

9The onus is on the Applicant to show the court on a balance of probabilities that she is indigent and that she cannot obtain legal aid. She must show that:

a) She is ineligible for or has been refused Legal Aid and has exhausted all appeals in that regard;

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

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

10I accept the Crown’s position that the Applicant has not met the onus required and her Application is denied.

Analysis

11The Applicant testified in the Application and submitted affidavit evidence.

12The evidence of the Applicant did not contain any information from Legal Aid as to why they cancelled the certificate. The only evidence from Legal Aid indicated that the Applicant missed the deadline for appeal and as such her appeal was denied.

13The Applicant testified at length about her current employment and her ongoing monthly expenses. At the time she was charged with these offences, in January 2010, the Applicant qualified for Legal Aid funding. Subsequently, the Applicant obtained full time employment, earning $476.50 per week or approximately $24,800.00 per annum net after tax and deductions. This is presumably why her Legal Aid Certificate was cancelled.

14It is true that after calculating her monthly expenses that she has no funds to spare; however, her monthly expenses include providing a home rent free including food and other amenities for her adult son who is out of work. The Applicant also pays the child support her son owes for his two children in the amount of about $200.00 per month. The Applicant confirmed that she has certain other monthly expenses that are discretionary such as home internet and cable television which she claims are necessities for her grandchildren.

15The Applicant testified that she has refused to ask family members or friends for financial assistance to retain a lawyer. The Applicant has no debts except her monthly lease payments for her apartment and appliances. She was not asked about her ability to borrow money from a financial institution to assist with her legal expenses.

16The Applicant claims that it is necessary for her to have legal representation in order to properly protect her rights at trial. She intends to challenge the search warrant, a complex legal argument that she claims is beyond her ability to make.

17The Applicant is jointly charged with her former roommate/spouse, Mr. Gilpin who has retained counsel. The evidence in this application was that Mr. Gilpin intends to challenge the legitimacy of the search warrant as well. His counsel is fully capable of making the argument on this issue. Mr. Gilpin’s success or failure on that challenge to the warrant would apply to both Mr. Gilpin and to the Applicant.

18In all of the circumstances I find that the Applicant has not satisfied this Court that after her Legal Aid Certificate was cancelled that she exhausted her appeal options with Legal Aid. There was simply insufficient evidence provided at the hearing to make a determination on this issue.

19Additionally, given the Applicant’s income and employment status, she has not satisfied the Court that she is indigent and unable to privately fund legal representation for herself.

20Finally, I am not satisfied that her right to a fair trial will be materially compromised without state funding. The Applicant will benefit from the arguments made regarding the challenge to the search warrant on behalf of Mr. Gilpin by his counsel. Their interests may diverge at some point in time, but at the present time the evidence demonstrated that they are ad idem on this issue, which was the only complex issue identified as likely to arise at the trial.

21For these reasons, the Applicant’s application is dismissed. If the Applicant’s circumstances change in the future, her application may be renewed.