SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CJ 4889
DATE: 2013-04-10

RE: R. v. Okafor

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

COUNSEL:
A. Sinnadurai and M. Murdoch, for the Crown
M. Hamalengwa, for the accused Anthony Okafor

HEARD: April 5, 2013

ENDORSEMENT

Nature of the Application

[1] This is an application by the Applicant for an Order pursuant to sections 7 and 24(1) of the Charter of Rights and Freedoms conditionally staying the prosecution of the criminal proceeding against him pending the Attorney General of Ontario or the Ontario Legal Aid Plan providing funding for his 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. C.A.)

Background

[2] The Applicant is charged with one count of fraud over $5000 relating to allegations that he drew benefits from the WSIB to which he was not entitled over a period from 1981 to 1998, when he was originally charged. The Applicant was previously tried in a trial which commenced in August 2004 and continued sporadically over the next three years until August 2007 when he was found guilty as charged. He was sentenced to imprisonment for nine months and ordered to make restitution in the amount of $109,699.

[3] Partway through his original trial the applicant applied to the trial judge for a Rowbotham order as he had exhausted his finances and was indebted to his trial counsel for work already performed. The application was heard, not by the trial judge, but by a fellow judge who determined that it was not a proper case for a Rowbotham order, dismissed the application and made a further order removing the Applicant's trial counsel from the record. At the continuation of the trial the Applicant made a further attempt to obtain a Rowbotham order which was refused and he continued the trial representing himself.

[4] The Applicant appealed his conviction to the Court of Appeal which allowed the appeal, holding that the application judge erred in ordering trial counsel's removal from the record partway through the trial, for what effectively amounted to non-payment of legal fees.

[5] The Court of Appeal commented that, although the Applicant did not need to demonstrate actual prejudice to obtain a new trial as his right to be represented by counsel was violated, there may have been prejudice in any event. The court noted that the Crown's case against the Applicant was not the strongest and conviction was by no means a foregone conclusion. The trial judge rejected all but one of the bases upon which the Crown sought to establish fraud, and stated that his acceptance of the one which he did find to have been made out was reached after listening to the persuasive argument of crown counsel. The Court of Appeal commented "given that the appellant was unrepresented in the final stages of the trial, it is impossible to know whether the trial judge would have come to the same conclusion if he had received ‘persuasive argument’ from defense counsel."

[6] On this application it was indicated that the documentary disclosure that which has already been provided consists of some 5000 pages of documents and on the original trial there were in the range of 300 exhibits.

[7] The Applicant filed an affidavit in support of the application, gave viva voce evidence and was cross examined. He testified that he is 68 or 69 years old and suffers from a range of health problems including high blood pressure, diabetes, pain in his shoulder, hip, neck and elsewhere from a motor vehicle accident, and most notably, for the purpose of this application, glaucoma. He stated that he is almost blind in one eye, his reading is blurry most of the time and he gets tears in his eyes when trying to read for more than 5 minutes. A lengthy list of medications which the Applicant is currently on was filed as an exhibit.

[8] The Applicant testified that after his counsel, who he described as his “eyes and ears”, was removed during his first trial he did not participate in the trial as he was not equipped to conduct cross examinations nor to make submissions, because he had no one to lead or advise him.

[9] The Applicant was issued a legal aid certificate for the second trial, however it was cancelled in the fall of 2012. Crown counsel acknowledges that the Applicant has exhausted all of his rights of appeal in respect of the cancellation of the certificate.

[10] The Applicant maintains that he does not have any money or other resources to retain counsel. He is not employed and his only sources of income are old-age security and guaranteed income supplement totalling $1,200 to $1,300 per month. From this amount he pays $950 per month for rent and uses the balance towards his medication and treatments. He obtains his food from food banks. In addition to his old age security and guaranteed income supplement, he receives some help from church members. He stated that he lost any businesses that he previously owned, and has no savings or investments.

[11] In his affidavit, the Applicant deposed that, when he attended at the Legal Aid Ontario office for a financial reassessment, he disclosed all of his assets and liabilities and provided various documentation requested of him. He disclosed that in 2008 his daughter borrowed $19,000 from a bank to lend to him to apply towards rent arrears, as he was facing eviction from his rental premises. When his daughter was subsequently planning her wedding, she pressured him to repay some of that advance as she had exhausted her credit by taking out the loan for him. The Applicant testified that he "begged" an insurance company, with which he maintained a life policy to cover burial expenses, to borrow $10,000 to partially repay his daughter. He stated that the insurance company made an exception for him but that no further loan advances would be available on the policy without resulting in its cancellation. He wishes to maintain the policy to cover burial expenses on his death so that his family will not be burdened by that expense.

Analysis

[12] The parties are agreed that on an application of this nature, the onus is on the Applicant to show, on a balance of probabilities, that:

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

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

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

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

[13] As indicated above, Crown counsel has acknowledged that the first prong of the test, relating to ineligibility for legal aid, has been satisfied. The Crown also acknowledges that the charge facing the Applicant is serious and the trial will be complex. However, it disputes that the Applicant is unable to privately retain counsel and points to financial choices made by the applicant which demonstrate a failure to prioritize the funding of his defence in favour of benefiting a family member, by his borrowing from an insurance company to partially repay his daughter. The Crown asserts that the applicant has not satisfactorily explained why he cannot obtain further funds from the insurance company. The Crown finally submits that the Applicant has been evasive with respect to his dealings with certain real estate properties which he owned during the 1980’s and which were referred to in an internal Legal Aid Plan Memorandum dated March 2, 1999.

[14] In addition to its submissions respecting the financial capability of the applicant, the Crown argues, as a preliminary matter, that the Applicant is not presently entitled to bring an application for a Rowbotham order as he is currently not unrepresented, since Mr. Hamalengwa remains as his counsel of record. The Crown states that the application is therefore premature and that, as a first step, Mr. Hamalengwa must first apply to removed as counsel of record, and if that is permitted, the Applicant would then be entitled to bring a Rowbotham application. The Crown points to the recent case of R. v. Crocker 2013 ONSC 640 (SCJ), a decision of Conlan, J. released on January 31 of this year, in support of this submission.

[15] In Crocker, following a jury trial in which the accused was represented by counsel, the accused was found guilty. The accused’s legal aid certificate was cancelled on the same day that the jury returned its verdict. Counsel brought a Rowbotham application seeking state funding for his legal representation with regard to the sentencing and other applications that may precede the sentencing, including a request for a stay of proceedings and the challenge to the constitutionality of the minimum mandatory penalty as a result of the firearm conviction.

[16] Justice Conlan commented as follows at paras. 14-16 of Crocker:

As to the second factor, Mr. Crocker has failed to establish on balance that the Order requested is essential to ensure that he receive a fair sentencing. Quite frankly, this is not a proper Rowbotham Application. Such an Application is a kind of Charter remedy for unrepresented accused persons. Mr. Crocker is not unrepresented. He is ably represented by Mr. Cornish. Mr. Cornish is counsel of record. There is no request to change that. Representation by Mr. Cornish will ensure that Mr. Crocker receives a fair sentencing. Representation by Mr. Cornish will ensure that Mr. Crocker is ably assisted with the anticipated challenge to the Constitutionality of the minimum mandatory penalty of imprisonment on the firearm conviction.

I have some sympathy for Mr. Cornish, and I commend him for continuing to ably represent the interests of Mr. Crocker since 28 September 2012. I also understand why Mr. Cornish wants to be assured that he will receive some compensation for his hard work. But a Rowbotham Application is for the benefit of the accused; it does not provide a mechanism for remedial measures in favour of counsel. I have been provided with no authority for the proposition that this Application, regardless of whether we label it Rowbotham or something else, may be granted where the accused Applicant has counsel of record. Nor am I aware of any such authority. Nor am I of the opinion that such authority ought to exist.

[17] The Crown, on submissions in this application, could point to any previous case-law standing for the proposition that an accused who has counsel of record is barred from bringing a Rowbotham application in all circumstances, and no specific authority was cited by Justice Conlan in Crocker for that proposition.

[18] It is noted that, in Crocker, Justice Conlan observed that defence counsel was on the record and there was no request to change that. Implicit in this was that the continued representation of the accused by counsel was not dependent on securing state funding. It was therefore not necessary to the disposition in that case to make a finding that there can be no circumstances in which an applicant with counsel of record will be able to satisfy the test for relief by way of a Rowbotham order.

[19] It is also noted that Justice Conlan also found that the applicant in Crocker failed to meet the third prong of the test, namely that he lacked the means to employ counsel. In particular he held that there was a lack of evidence as to what steps the applicant took to to appeal or challenge the cancellation of his legal aid certificate, as well as a lack of evidence on what he has done to try to privately retain a lawyer of his choice (see Crocker para. 19).

[20] In Rowbotham the issue was stated as follows at para. 187:

it is necessary for the purpose of this appeal to consider only the right of an accused charged with a serious offence who lacks the means to employ a lawyer to be provided with funded counsel at his or her trial” (emphasis added).

[21] The focus is therefore two-fold, provided it is established that the charge is sufficiently serious and complex, namely, whether the accused lacks the means to employ a lawyer and whether he or she should be provided with “funded counsel.” In my view, if an applicant is able to show, on a balance of probabilities, that he or she is indigent and unable to privately retain counsel, there is no absolute rule requiring counsel, in all cases, to apply to be removed from the record as a first step before application may be made for the conditional stay pending state funding. This is particularly so in a case like this, where legal aid had been provided and counsel had been providing representation under a certificate which was subsequently cancelled. In my view, a contextual approach should be utilized such that the question of whether removal from the record is required as a precondition of the granting of relief will depend on the particular circumstances of the case.

[22] In the present case, on November 22, 2012, at the commencement of argument on pre-trial applications and following the cancellation of the Applicant’s legal aid certificate, Justice Flynn made the following endorsement, in part, “because of Mr. Okafor’s difficulties with Legal Aid, it is necessary to vacate the dates for Pre-trial motions (Nov 22, 23 2012) and Trial (Jan 7/13)”. It is implicit in this endorsement that the case could not proceed, as scheduled, until measures were implemented to deal with continued legal representation of the Applicant, notwithstanding that Mr. Hamalengwa remained on the record. In these particular circumstances, Crocker is distinguishable, since, in that case, the requirement for state funding was not made out, as counsel of record was prepared to stay on the record and continue representing the applicant. That is not the case here.

[23] As indicated above, the Crown submits that the applicant has failed to prioritize funding to employ counsel for his defence and has utilized resources to benefit a family member. It is acknowledged that, even if an accused lacks the means to employ counsel, funding may be denied, in appropriate circumstances, where the applicant has not been prudent, has failed to show foresight and planning the to allow him to pay for counsel or has failed to make his anticipated legal expenses a priority (see R. v. Crichton 2013 BCSC 416 (BC SC) at paras. 18 and 25).

[24] Justice Bracken in Crichton , at para. 38, was satisfied that the applicant in that case had made financial choices that clearly contributed to his indigent financial circumstances. In particular, he utilized the net proceeds of the sale of his home in the sum of $29,000 to repay a loan from his mother, rather than retaining those proceeds to fund the costs of his defence.

[25] Notwithstanding this finding, Justice Bracken observed, at para. 39, that the difficulty is that it cannot be in the public interest to have the applicant embark upon a 6 to 10 week complex trial without counsel to assist him.

[26] At paragraphs 41-42, Justice Bracken stated as follows:

An absence of financial prudence can disentitle an applicant to government-funded counsel in certain circumstances, particularly where the court concludes the applicant likely has the ability to access funds to provide his own counsel. However, where, as here, there is a finding that an applicant is indigent and not capable of paying for his own counsel, and where a fair trial is not possible without counsel, a lack of financial prudence should not, by itself, result in a refusal of a remedy.

In these circumstances, I am satisfied that a conditional stay of proceedings pending the availability of government-funded counsel is appropriate. To expect the applicant to conduct his own defence before a judge or judge and jury is unreasonable on the facts of this case. Leaving aside how the applicant ended up in his current financial circumstances, it is clear that he is without assets sufficient to fund counsel on a trial of this magnitude and without the current ability to earn enough money to do so.

[27] I find the same principles that guided Bracken, J. in Crichton to be applicable in this case. It is noted that, in Crichton, the applicant took an asset, being the proceeds of the sale of his home, to repay a loan from his mother who had not demanded repayment. In the present case, the Applicant simply took on new debt, by borrowing against his insurance policy, to partially repay a loan from his daughter who required the funds after exhausting her credit by earlier borrowing funds to pay rental arrears of the Applicant. Moreover, the evidence of the Applicant that the insurance company has refused to advance any further funds, short of forfeiting the policy, has not been successfully challenged the by the Crown. I find that it is not reasonable to require the Applicant to forfeit an insurance policy on his life providing for his burial costs, given his age and compromised health condition.

[28] I also find that, whatever interest the Applicant may have had in the past in the properties listed in the Legal Aid Memorandum of March 2, 1999, those properties are no longer available to him as resources that may be accessed to raise funds for his legal representation.

[29] In my view, the most important consideration, similar to that in Crichton, is the public interest in ensuring that the Applicant is not required to embark on a lengthy and complex trial without legal counsel to assist him. This consideration is particularly acute in this case, as it has already been demonstrated, by his first trial, that he is not capable of representing himself adequately, and the Court of Appeal remitted the matter back for a new trial due to the Applicant’s lack of legal representation.

[30] I am satisfied, based upon the evidence, that the Applicant is indigent and not capable of paying for his own counsel and that a fair trial is not possible without counsel. I find that any lack of financial prudence upon which the Crown relies, should not, by itself, result in a refusal of a remedy.

[31] Is therefore ordered that the charge against the Applicant be conditionally stayed in order to provide the Attorney-General of Ontario with a reasonable opportunity to arrange for funding of counsel to represent the Applicant in these proceedings. In the event that such funding is not provided 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: April 10, 2013