ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1598/12
DATE: 2012/02/01

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – LEEANNE HOULE and TERRANCE McGILL Applicant

Vanessa Glasser, for the Respondent, Her Majesty the Queen in right of Ontario

Ron Ellis, for the Applicants, Leeanne Houle and Terrance McGill

HEARD: January 20, 2012

DESOTTI, J.

[ 1 ] This is an application by the accused Leeanne Houle and Terrence McGill for a ‘ Fisher ’ order seeking an increase in funding for their chosen counsel who have law offices out of London, Ontario.

[ 2 ] The applicants are charged with 31 counts of fraud over $5,000.00 contrary to section 380 (1) of the Criminal Code of Canada and have a preliminary hearing scheduled for February 13 th , 2012 in the Ontario Court of Justice.

[ 3 ] The applicants both have legal aid certificates that allow them to retain counsel and have also secured travel expenses for these counsel should they accept this form of retainer. The Legal Aid rate is said to be $101.01 (Tier 2) but counsel is seeking a rate of $300.00 per hour to adequately compensate them for their efforts in what they describe as a lengthy preliminary hearing and trial process in Sarnia that would have some negative impact on their practice in London.

[ 4 ] In the result, after most candid and appropriate submissions by counsel, I dismissed this application and indicated that I would provide written reasons as I considered the matter to be of significant concern for the parties and frankly others who might desire to proceed with this type of application.

A. Preliminary Determinations

[ 5 ] There are two preliminary matters that I shall address before my formal analysis of my reasons for the dismissal of this application. Firstly, this type of application in Ontario should probably be designated as a ‘ Peterman ’ application as it was the first case that has proceeded to the Court of Appeal where counsel was seeking an increase in the prescribed Legal Aid rate (the trial judge mandated that Legal Aid should provide counsel’s travel expenses). The ‘ Fisher ’ decision originating from Saskatchewan would be the out of province equivalent.

[ 6 ] Secondly, I erroneously allowed the unrepresented applicants to file an application ex parte that would allow them to retain counsel to prepare this Fisher (now ‘ Peterman’ ) application . My endorsement on this ex parte application reads as follows:

October 25 th , 2011

The parties are allowed to proceed with their Fisher application. Counsel should be compensated (one counsel for each party) at a rate to be determined by the Court when the Court considers the merits of the application. I am loath to fix that compensation absent representation by the respondent party. However, I am satisfied that the parties have met the threshold test to have counsel prepare materials for just such an application. In short, there appears to be merit in proceeding with this application.

[ 7 ] I have now concluded that the application to apply for counsel to draft the formal ‘ Peterman ’ application should be served on the Crown and that this type of application should not be by an ex parte motion. My initial thinking was that with a February 13 th, 2012 preliminary hearing, the unrepresented parties were quickly running out of time to prepare and argue this application. I would note that in a smaller jurisdiction like Sarnia, court time is at a significant premium, however, some accommodation for this hearing might also have been found outside of Sarnia, in London or Windsor.

[ 8 ] Upon reflection, in my ultimate determination that the ‘ Peterman ’ application should be dismissed, the rationale for my dismissal of this application is identical to my conclusion that an increase in the Legal Aid rate should not be granted for the initial preparation of the application. In short, the cogent and successful argument by the Crown who opposed any increase in the Legal Aid rate is precisely why an ‘ ex parte’ application seeking funding to prepare this application is an inappropriate process to properly assess the merits of this preparatory application.

[ 9 ] As much as timeliness was of the great importance to the accused parties, the Crown should have been afforded an opportunity to respond. While there may be some merit to allow counsel to prepare this type of application in a given and specific circumstance, the Crown should be served and be present in court to at least point out an opposing view and position.

B. Analysis of the Dismissal of the ‘ Peterman ’ Application

[ 10 ] There are four very important issues to consider in this type of application.

1. Does the applicant (s) qualify for Legal Aid and corollary to this question, if yes, has Legal Aid allowed travel expenses to potential out of town counsel?

2. Unlike a Rowbotham application where the applicants are seeking a Legal Aid certificate in order to be represented by counsel, is there anything in the circumstances of the parties or the criminal offences that warrant the granting of this extraordinary relief, that is specific counsel at a rate of $300.00 per hour or over $200.00 beyond the Legal Aid tariff ?

3. What are the criteria that must exist before a ‘Peterman’ application is granted?

4. Do different considerations arise from a Peterman application at a preliminary hearing stage as opposed to a trial?

[ 11 ] The accused in this application qualified for both Legal Aid and travel and meals for out of town counsel. What is at issue is whether they can not only choose their counsel but also have them paid at a rate far in excess of the prescribed Legal Aid tariff.

[ 12 ] While these applications generally are uncommon, they sometimes arise in jurisdictions where there is a paucity of criminal counsel. In Sarnia for example, over the last 16 years that I have presided here, this is only our second Rowbotham / Fisher ( Peterman ) application and the first Rowbotham application was with a Mr. Baron who is also charged with these same offences .

[ 13 ] To put this in context, we have not had an application like this where there is a Legal Aid certificate, where there has been travel authorization and yet the accused is unable to find local counsel or any counsel outside of Lambton County other than Mr. Ellis and his associate Mr. Skinner who have their law office in London.

[ 14 ] I do not discount that significant steps have been taken by the accused Leanne Houle and Terrence McGill to find counsel here in Sarnia and outside of Sarnia. I am advised through the evidence called that there is some reluctance on the part of the accused parties to investigate vigorously counsel in Windsor as there is a perceived potential conflict of these counsel with the Crown attorney in Windsor and some of the search warrants that originated from Windsor.

[ 15 ] The Crown suggests that on balance there is an insufficiency in these attempts. While there may be some merit in this argument, nevertheless, even if these steps had exhausted all available possibilities, which I quickly conclude that they have not , that reality, from my perspective, would not meet the threshold for an order designating specific counsel such as Mr. Ellis and Mr. Skinner as the only available competent counsel.

[ 16 ] Justice Rosenberg in ‘ Peterman’ indicated certain principles that would militate against such a specific application. In that case, the Legal Aid fee schedule was in issue as well as whether counsel should be entitled to his travel expenses and the expense of a junior. At the application, Justice MacLeod imposed on Legal Aid a responsibility to provide travel expenses and meal expenses to Mr. Peterman’s counsel of choice, a Mr. Wrock, while dismissing all of the other relief requested such as increase in rate and unlimited hours of preparation and a junior counsel fee.

[ 17 ] At the Court of Appeal, the Court considered the principles and considerations in the decisions in Rowbotham and Fisher as well as other decisions that touched on this issue. Justice Rosenberg stated that the first obvious conclusion for those criminal lawyers who accept Legal Aid work is that “they will not always be fully reimbursed for all the work they do to ensure that their clients caught up in the criminal justice system receive fair treatment and effective defence”. (para. 20)

[ 18 ] He then went on to state in the most unequivocal way the following:

A criminal trial court has no jurisdiction to review those policies (those of Legal Aid) and, having determined that they are unreasonable, impose other arrangements on Legal Aid Ontario. (para.21)

[ 19 ] In affirming that in rare cases where the court is satisfied that an accused lacks the means to employ counsel privately, and his/her right to a fair trial pursuant to section 7 of the Charter of Rights and Freedoms would be compromised, the court may stay the criminal proceedings until the necessary funding is provided by the province either through Legal Aid or directly from the government. This is the Rowbotham order which is not in play in this case as there is both a Legal Aid certificate and a travel disbursement and meal authorization.

[ 20 ] Justice Rosenberg went on to affirm the proposition that a court would rarely step in to deny an accused the counsel of his choice but then went on to state at paragraph 28 the following:

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.

[ 21 ] This proposition is modified with two exceptions. Firstly, in extraordinary situations such as in Fisher , where counsel for the accused was in an unique position to represent the accused and guarantee him a fair trial, this circumstance was described by Justice Milliken as a reality that might not occur for “another thirty years.” The second extraordinary situation is where there is no competent counsel to represent the accused on conditions imposed by Legal Aid.

[ 22 ] With respect to this latter point, I am certainly not satisfied, on a balance of probabilities, that these accused have exhausted all competent counsel in Lambton, Chatam-Kent, Middlesex, or Essex Counties. Furthermore, while this case may have some complexities to it, I do not see how counsel, so requested, have the unique characteristics that were reflected in the Fisher decision out of Saskatchewan.

[ 23 ] At this juncture, there is every indication that there are competent counsel in some of the Counties outside Lambton County and thus there is no basis to compel Legal Aid Ontario or the Crown to fund the defence of the accused at a rate beyond the prescribed Tier 2 Legal Aid rate.

[ 24 ] There is some indication that counsel that have been chosen by the accused in light of this ruling will not conduct their defence at the preliminary hearing. The accused opine that their section 7 Charter of Rights and Freedoms would be affected. They have a Legal Aid certificate and they have a travel allowance but they will not have their counsel of choice.

[ 25 ] Recently, on a Rowbotham application in R. v. Baron , I indicated that I had agreed with Justice Fuerst in R. v. Valenti that it would be only in exceptional circumstances where I would consider granting such an order. In these circumstances, nothing is preventing the two accused from having counsel present at the preliminary hearing to guide them in the process within the courtroom. Their present counsel may be more familiar with the circumstances of the charges but we are only at the preliminary hearing stage.

[ 26 ] Again as stated by Justice Fuerst, there can be no Charter applications at a preliminary hearing and any evidentiary rulings affecting the admissibility of evidence does not bind the trial judge. Similarly, Justice Frank in R. v. Ryan , and my own decision in R. v. John Baron affirm the proposition that only in extraordinary cases would a Rowbotham application be successful at the preliminary hearing stage. The reality, that this application is not to secure a Rowbotham order but a Fisher (now Peterman ) order, makes the extraordinary circumstances even more distant.

[ 27 ] Finally, I agree with Crown counsel’s submission that the two accused should be significantly and thoroughly familiar with the evidence adduced at the preliminary hearing. They have both the educational background and work experience to fully understand the nature and complexities of the evidence adduced and, as stated, with some minimum assistance with counsel retained with their Legal Aid certificates, I am confident that they will be able to appreciate and respond effectively to the evidence so presented.

“Justice John A. Desotti”

The Honourable Mr. Justice John A. Desotti

Released: February 1, 2012

CASES CONSIDERED

R. v. Rowbotham , 1988 147 (ON CA) , [1988] O.J. No. 271 (Ont. C.A.) ; New Brunswick (Minister of Health and Community Services) v. G. (J.) [J.G.] , 1999 653 (SCC) , [1999] S.C.J. No. 47 ; R. v. Rain , 1998 ABCA 315 () , [1998] A.J. No. 1059 (Alta. C.A.) ; R. v. Fok , 2000 ABQB 696 ; R. v. Serre , 2010 ONSC 714 ; R. v. Rushlow , 2009 ONCA 461 ; R. v. Fisher, [1997] S.J. No. 530 ; R. v. Dew , (E.J.), 2009 MBCA 101 ; R. v. Keating , 1997 NSCA 135 () , 1997 14379 (NS CA) ; R. v. Peterman , 2004 39041 (ON CA) , [2004] O.J. No. 1758 (Ont. C.A.) ; The Attorney General of Quebec v. R.C. , 2003 33470 (QC CA) , [2003] J.Q. No. 7541 ; R. v. Speid , 1983 1704 (ON CA) , 43 O.R. (2d) 596 ; R. v. McCallen, 1999 3685 (ON CA) , [1999] O.J. No. 202 ; R. v. Fisher, [1997] S.J. No. 530 (Q.B.) ; R. v. Montpelier , 2002 34635 (ON SC) , [2002] O.J. No. 4279 (Ont. Sup. Ct.) ; R. v. Valenti , [2010] O.J. No. 1689 ; R. v. Ryan, Ruling on Application of Justice Frank, 3 May 2011; R. v. J.P. Baron , Unreported bench ruling of Desotti, J. on December 21, 2011; R. v. McGibbon , 1988 149 (ON CA) , [1988] O.J. No. 1936 (Ont. C.A.) ; R. v Magda , [2001] O.J. No. 1861 (Ont. Sup. Ct.) ; R. v. Goba , Endorsement of Justice Nordheimer, 26 November 2007; R. v. Solleveld , Endorsement of Justice Whitten, 11 May 2011; R. v. Williams, Ruling on Application of Justice Molloy, 13 December, 2011; R. v. Cai , 2002 ABCA 299 () , [2002] A.J. No. 1521 (Alta. C.A.) ; R. v. P.C. , 2010 ONSC 6077 (Endorsement of Kelly J. dated November 1, 2010); R. v. Cyr , Endorsement of Ramsay, J. dated December 3, 2009

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – LEEANNE HOULE and TERRANCE McGILL REASONS DESOTTI, J

Released: February 1, 2012.