ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-102
DATE: 2013/04/16
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
IAN GORDON CONKLIN
Applicant
Steven White, Counsel for the Respondent
Jeffrey Langevin, Counsel for the Applicant
HEARD: April 2 and 5th, 2013
reasons for judgment on an application
for a stay of proceedings
pending the attorney general for canada’s undertaking
to pay counsel’s fees and required disbursements
in connection with a charge
under section 32(1) OF THE EXCISE ACT
PELLETIER, J.
[1] Mr. Conklin, the Applicant, is charged under section 32(1) of the Excise Act in connection with the events of May 30th, 2010. He is presently without counsel. He brings the present application for an order under section 24(1) of the Canadian Charter of Rights and Freedoms seeking a judicial stay of proceedings pending the Attorney General of Canada’s undertaking to fund his defence.
[2] The Respondent federal prosecution service opposes the application on two grounds – that Mr. Conklin has not established his own lack of funding, and that he has not established his inability to defend the charge without state funding.
[3] I have concluded that the issue of Mr. Conklin’s inability to fund his own defence has been litigated in separate though similar proceedings. That issue has previously been resolved in Mr. Conklin’s favour. The principle of issue estoppel established in R. v. Mahalingan 2008 SCC 63 prevents the Respondent Crown, and this Court from reconsidering the question of Mr. Conklin’s ability to fund his own defence and his eligibility to obtain a Legal Aid Certificate.
[4] In separate proceedings involving Mr. Conklin, a similar Rowbotham application was brought and granted.
R. v. Conklin [2012] O.J. No. 4404. The headnote reads as follows:
“Application by the accused for a stay of proceedings until he was granted state-funded counsel. He alleged his rights under ss. 7 and 11(d) of the Charter would be breached if state-funded counsel was not appointed for him. The accused was charged with several drug offences and participation in a criminal organization. The accused had been in custody since May 2010. A six-week jury trial was scheduled for 2013. It was anticipated that disclosure would be voluminous and numerous legal issues could arise at trial. The accused indicated that he had no assets to fund his legal representation. The accused had been refused Legal Aid several times for lack of proper financial disclosure. Although the accused once owned four properties, three of the properties had been sold under powers of sale and one property he transferred to his father to repay a debt.
HELD: Application allowed. It was unlikely that the accused had the capacity to adequately defend the case without counsel, considering the nature of the evidence that would 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 the accused to persons in authority. His right to a fair trial would be materially compromised absent public funding for counsel. The private funds that had paid for his legal representation to date had dried up. The accused had no other assets or bank accounts and no source of income since his incarceration in 2010. The accused’s request that the Government retain the two named defence counsel of choice for him or to pay such counsel any particular hourly rate, or to provide for any specific preparation time was dismissed.
S.C.J. Linhares de Sousa J.”
[5] On the issue of Mr. Conklin’s available funds, his eligibility for a Legal Aid Certificate, and the interplay between the two issues, Madam Justice Linhares de Sousa arrived at the following conclusions:
“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 39041 (ON CA), [2004] O.J. No. 1758 at paragraph 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.”
[6] Mr. Conklin was in custody when his Rowbotham application was brought on the charges in Ottawa. He remains in custody. The evidentiary record before me on the present application is no different than the facts upon which Madam Justice Linhares de Sousa made her determination.
[7] I have therefore concluded that the issues of Mr. Conklin’s means and his resort to the Ontario Legal Aid Plan have been fully litigated and determined. The principle of issue estoppels prevents the re-litigation of the same issue on the same facts.
[8] The second question to be determined is whether Mr. Conklin has the ability to confront the issues at his trial without the assistance of counsel.
[9] On its face, the charge of possession of unstamped tobacco products under the Excise Act does not give rise to particularly complex issues. A judicial pre-trial held on April 5th, 2013 has revealed that the defence does not contemplate, at the present time, relief under section 24 of the Charter in relation to any purported breaches of the enumerated constitution rights and protection.
[10] Mr. Conklin testified in the present application and, while he stated not being able to define “possession” in the legal sense, the rudimentary examples provided to him by the court of possession representing both knowledge and control seemed to have been understood by him.
[11] His testimony revealed that he had experienced some difficulties in gaining access to both the disclosure materials and any legal texts of legislation.
[12] It is as a result of the cumulative effect of the implication of three factors that this Court has determined that Mr. Conklin cannot receive a fair trial absent proper legal representation.
[13] Firstly, the Prosecution intends on adducing statements attributed to Mr. Conklin during the course of the investigation. The law on the admissibility of statements made by an accused, though not extremely complex, does involve certain legal principles that are not generally within the knowledge of lay persons.
[14] The determination of whether inducements, in the form of promises or threats, were resorted to often requires skilful cross-examination of the authorities with a view to revealing evidence favourable to the accused, and quite often, contradictions that may cast doubt on the Crown’s case, bearing in mind the prosecution’s onus to establish voluntariness beyond a reasonable doubt.
[15] The decision whether to call evidence including the decision whether to testify on such a voir dire is one that can have significant consequences on the merits of the voir dire and one which is not typically fully understood by persons unacquainted to the law of the admissibility of statements made to persons in authority.
[16] Secondly, Mr. Conklin is jointly charged with Yvon Menard on the same facts. This raises a panoply of legal, evidentiary and tactical implications. Their defences may well become contradictory. Mr. Menard is represented by very competent criminal counsel. Left to his own devices, Mr. Conklin’s interests run the very real risk of being severely compromised.
[17] Finally, the simple notion of possession, in the criminal law, as knowledge of an item’s “illegalness” and control over it, is not a particularly complex one. That said, I do not disagree with Mr. Langevin, who represented Mr. Conklin at this Application, that Mr. Conklin did not seem to grasp the full meaning of co-incidental knowledge and control as representing possession. Mr. Conklin seemed to maintain that control or knowledge alone could suffice. I did not conclude that Mr. Conklin was feigning his inability to completely grasp the very specific definition of possession in the legal sense.
[18] On the issue of the possible consequences, the Crown concedes the possibility of a jail sentence. The issues of the complexity of the case and consequences of a finding of guilt are accordingly resolved in the Applicant’s favour.
[19] For these reasons therefore, the Application is granted. I will address the issue of remuneration if I am required.
[20] The granting of the application was communicated to counsel on April 8th, 2013 with reasons to follow in order for this trial to be able to proceed as scheduled this week, from April 15th to 19th, 2013.
Justice Robert Pelletier
Released: April 16th, 2013
COURT FILE NO.: 11-102
DATE: 2013/04/16
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
IAN GORDON CONKLIN
reasons for judgment
on an application
for a stay of proceedings
pending the attorney general
for canada’s undertaking
to pay counsel’s fees and required disbursements
in connection with a charge
under section 31(1) OF THE EXCISE ACT
Justice Robert Pelletier
Released: April 16th, 2013