ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 793/10
DATE: 20130131

BETWEEN:

HER MAJESTY THE QUEEN

B. Linley, for the Crown

• and -

CODY CROCKER

P. Cornish, for the Defendant

Defendant

HEARD: January 23, 2013

REASONS FOR RULING ON THE ROWBOTHAM APPLICATION

Conlan J.

INTRODUCTION

1Cody Crocker (“Mr. Crocker”) was tried before a Jury on numerous criminal offences. The Jury found Mr. Crocker guilty of all counts.

2Convictions have been entered on some of the counts. Others were conditionally stayed pursuant to the Kienapple principle.

3Mr. Crocker has not yet been sentenced.

4Mr. Crocker has brought an Application for an Order that the state fund his legal representation with regard to the sentencing and any other Applications that may precede the sentencing, including a request for a stay of proceedings on the basis of abuse of process and a challenge to the Constitutionality of the minimum mandatory penalty of imprisonment that Mr. Crocker is facing as a result of the firearm conviction. Such a request is commonly referred to as a Rowbotham Application.

5This Application was heard in Walkerton on 23 January 2013 in the presence of Mr. Crocker, his counsel of record Mr. Cornish, Mr. Fok as counsel for the Ontario Ministry of the Attorney General, Crown Law Office Civil, Mr. Jenkins as counsel for Legal Aid Ontario and Mr. Linley of the Walkerton Crown Attorney’s Office.

6In addition to having considered the oral submissions by counsel, I have reviewed and considered carefully all of the materials filed including the Application Record, the Affidavits sworn by Mr. Crocker, the Factum and Book of Authorities on behalf of Mr. Crocker and the Factum and Book of Authorities on behalf of the Attorney General.

THE FACTS

7There is no need to belabour the factual background. Near the conclusion of what was a lengthy jury trial, Mr. Crocker received notification that his Legal Aid Certificate was going to be cancelled.

8On September 28, 2012, which was the same day that the jury returned its verdicts of guilty on all counts, Mr. Crocker’s Legal Aid Certificate was cancelled.

9Mr. Crocker did not appeal the cancellation of his Legal Aid Certificate.

10Mr. Cornish remains counsel of record for Mr. Crocker. There is no request that Mr. Cornish be removed as counsel for Mr. Crocker.

THE LAW

11The Court of Appeal for Ontario has clearly stated the law, not only in R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1, but also in subsequent decisions such as R. v. Rushlow (2009), 2009 ONCA 461, 245 C.C.C. (3d) 505.

12The burden of proof is on Mr. Crocker. The standard of proof is on a balance of probabilities. Mr. Crocker must establish that, first, legal aid has been refused; second, that legal representation is essential to ensuring that he receive a fair sentencing; and third, that he lacks the means to employ counsel.

ANALYSIS AND CONCLUSION

13On the first stage of the analysis, Mr. Crocker has demonstrated on balance that legal aid has been refused. In the circumstances of this case, I consider the cancellation of the Certificate to be the same as refusal at first instance.

14As 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.

15I 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.

16I 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.

17Mr. Cornish relies upon the decision of the Court of Appeal for Ontario in R. v. Okafor, [2009] O.J. No. 3897. With respect, that decision amounts to no such authority. The Court of Appeal did not decide whether the Application was properly brought while the accused had counsel of record. The appeal was argued and determined on a different issue altogether, namely, whether the defence counsel ought to have been removed from the record.

18The Application is therefore dismissed.

19If I am wrong in that regard, I will address the third and final factor. Mr. Crocker has failed to establish on balance that he lacks the means to employ counsel. It is true that there is sworn evidence from Mr. Crocker that he cannot financially afford a lawyer, but there is a complete lack of any evidence as to what steps Mr. Crocker took to appeal or challenge the cancellation of his Legal Aid Certificate (he took no steps after 28 September 2012), and there is a complete absence of any evidence as to what Mr. Crocker has done to try to retain, privately, Mr. Cornish or any other lawyer of his choice.

20Although not necessarily determinative in every case, those are very relevant considerations in assessing the third criterion. I disagree with Mr. Cornish that they are “of no moment”. At paragraph 28 of its decision in Rushlow, supra, the Court of Appeal for Ontario made it clear the relevance of those items.

21The burden is on Mr. Crocker. The evidence is limited to his Affidavits. He elected not to testify. He had no obligation to do so. But on the evidence, the third factor has not been proven on balance.

22The Application is dismissed on that ground as well.

Conlan J.