CITATION: R. v. Eid, 2013 ONSC 7084

COURT FILE NO.: 13080

DATE: 20131115

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ROLAND EID

Applicant

Catherine A. Galligan, for the Crown

Richard Addelman, for the Applicant

HEARD: September 3, 4 and 5, 2013

REASONS FOR JUDGMENT

Madam Justice Blishen J.A.

Introduction

[1] Roland Eid is facing 11 serious fraud and fraud related charges under the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Criminal Code”) and the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”).

[2] He and his wife, Marlene Eid, were arrested on June 20, 2012. Mr. Eid was detained until a contested bail hearing on June 25, 2012, after which he was released on strict conditions. Mr. Eid’s brother, Eid Eid agreed to act as surety with a bond of $150,000. Eid Eid subsequently withdrew as surety and, with the consent of the Crown, Roland Eid’s other brother, Jean Eid, was substituted with a bond in the same amount. The conditions upon which Roland Eid was released include: not leaving the City of Ottawa without permission; providing monthly statements of bank accounts; and not participating in any business, profession or enterprise involving the handling of money, soliciting money or items of value.

[3] All the charges against Marlene Eid were eventually withdrawn at the request of the Crown.

[4] Although a date was set for a preliminary hearing, Mr. Eid waived the preliminary and a 6 week trial on all charges is set to begin on September 9, 2014.

Rowbotham Application

[5] Mr. Eid has brought what is commonly known as a Rowbotham Application. He argues he cannot afford to retain counsel and that counsel is essential for his right to a fair trial. The application is brought pursuant to Sections 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”) for the proceedings against him to be conditionally stayed until state funded counsel is provided for his trial.

[6] In R. v. Rushlow, 2009 ONCA 461, 66 C.R. (6th) 245, the Ontario Court of Appeal outlined the considerations for the Court on a Rowbotham Application as follows at paras. 17-19:

17 In R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1 at 69, this court held that:

[A] trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided. [Emphasis added.]

18 Whether the issue is financial ability or the necessity for counsel, the trial judge in considering whether to appoint counsel is not engaged in reviewing the decision of the legal aid authorities. As this court said in R. v. Peterman (2004), 2004 CanLII 39041 (ON CA), 70 O.R. (3d) 481 (C.A.) at para. 22:

[W]hen 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.

19 In considering whether to appoint counsel the trial judge is required to consider the seriousness of the charges, the length and complexity of the proceedings and the accused's ability to participate effectively and defend the case. Because of the pervasiveness of legal aid, it will be the rare and exceptional case that the court will find it necessary to appoint counsel. This does not mean that counsel is only required in exceptional cases. Rather, it is the fact that legal aid is available for accused who cannot afford a lawyer that Rowbotham orders are exceptional.

[7] The three issues for this Court to consider on Mr. Eid’s Application are:

1. Has Mr. Eid been refused Legal Aid?

2. Is it essential for him to have counsel in order to have a fair trial, considering the complexity and seriousness of the case and Mr. Eid’s personal abilities?

3. Does Mr. Eid lack the financial means to retain counsel?

[8] The onus is on Mr. Eid to establish all three factors on the balance of probabilities: see R. v. Montpellier 2002 CanLII 34635 (ON SC), 2002, 55 W.C.B. (2d) 509, [2002] O.J. No. 4279 at para. 37.

Positions of the Parties

[9] The Crown concedes this is a complex case dealing with a number of serious charges. There are complicated procedural and evidentiary issues such as a potential voir dire on a warned statement provided by Mr. Eid. In addition, the Crown will be seeking a lengthy jail term if Mr. Eid is convicted. Although the case is serious and complex, the Crown argues Mr. Eid has not met the burden of proving on a balance of probabilities he does not have the ability to defend himself nor that he lacks the financial ability to retain counsel.

[10] The defence argues that, given the complexity and seriousness of the case and Mr. Eid’s limited education and background, his right to a fair trial would be jeopardized if he did not have counsel to represent him during the six week trial. In addition, it is argued he does not have the financial means to pay for defence counsel and has exhausted all his avenues of appeal through the Ontario Legal Aid Plan.

[11] The focus of the evidence and argument on this Rowbotham Application was on the third part of the Rowbotham test: Has Mr. Eid proven on a balance of probabilities that he lacks the financial means to retain counsel?

Evidence

[12] The evidence on this application consisted of:

1. two affidavits filed by Roland Eid and his cross-examination by the Crown;

2. transcripts of excerpts from the bail hearing on June 25, 2012;

3. viva voce testimony of Marlene Eid;

4. the affidavit evidence of Constable Manuel Beauregard and his cross-examination by defence counsel;

5. the affidavit of Sergeant Nancy Roberge with numerous attachments including: Mr. Eid’s recognizance and amended recognizance, bank statements for the joint account of Mr. and Mrs. Eid, surveillance reports and income tax information for Mr. and Mrs. Eid for 2002-2011, and her cross-examination by defence counsel;

6. viva voce testimony of Eddie El-Saikali, who Mr. Eid assisted in setting up Green Construction Management from September 2012 – February 2013;

7. the Legal Aid file with respect to Mr. Eid’s application of July 11, 2012 (Exhibit 1);

8. an RBC Visa Statement of Jean Eid dated September 4, 2013 (Exhibit 2);

9. a proposal drafted by Mr. Eid regarding necessary steps to launch Green Construction Management, dated September 14, 2012 (Exhibit 3);

10. Scotiabank Visa Statements of Mr. Eddie El-Saikali (Exhibit 4); and

11. Emails from Mr. Eid to Mr. El-Saikali (Exhibits 5 and 6).

Background

[13] The charges in this case relate to an alleged scheme conceived of and executed by the applicant, to flee Canada for Lebanon in December 2007 with $1.7 million dollars that belonged to ICI Construction Management (“ICI”). It is further alleged that when he left Canada, Mr. Eid left ICI bankrupt and creditors claiming losses in the range of $10,700,000.

[14] It is undisputed that in late December 2007, Mr. Eid and his wife Marlene Eid left Ottawa and travelled to Lebanon with $1.7 million dollars which they allege was from the sale of ICI. These funds were transferred into Mr. Eid’s bank account in Lebanon.

[15] Mr. and Mrs. Eid spent approximately four and one half years in Lebanon returning to Ottawa in March 2012. It was Mr. Eid’s evidence that while in Lebanon, he expended all the resources at his disposal on various business ventures which ultimately proved unsuccessful. These included producing a movie in Syria and other investments in that country. Coinciding with his alleged financial difficulties was the continuing political upheaval in Lebanon which Mr. Eid testified presented considerable danger to himself and to his family, including his two young children.

[16] It is undisputed that with the assistance of the Canadian Embassy in Beirut, Mr. Eid was able to obtain passports for his family on an emergency basis and returned with them to Ottawa in March 2012. The airfare for their flight was paid for by Marlene Eid’s sister.

[17] At the time Mr. Eid returned to Ottawa, there were no criminal charges pending against him or his wife, although he was aware of civil judgments registered against them with respect to ICI.

[18] Marlene Eid and the children resided temporarily with her parents while in late March 2012, Mr. Eid travelled to Qatar in an attempt to find some form of employment in the construction industry there. These efforts were unsuccessful and Mr. Eid returned to Ottawa in early June 2012.

[19] In the meantime, Marlene Eid rented a two bedroom apartment in Ottawa for the family at a rent of $1,275.00 per month. She applied for social assistance as she had no other financial means.

[20] Upon his return to Ottawa in June 2012, Mr. Eid again began looking for employment using his contacts in construction. Mr. Eid had a tentative offer of employment with Traugott Construction in Calgary, Alberta and testified he was to meet with the President to finalize a contract when he and his wife were arrested by the RCMP on June 20, 2012.

[21] Mr. Eid was detained in custody until a contested bail hearing on June 25, 2012. His arrest and detention ended his employment prospects with Traugott Construction. Mr. Eid’s release conditions included a requirement to appear personally for every court appearance, a weekly reporting condition and a condition that he not leave the City of Ottawa without the approval of the RCMP.

[22] Subsequent to his release, Mr. Eid continued to try to find employment in the construction industry. Marlene Eid, who was also facing charges, was able to secure part-time employment three days a week as a dental assistant. Mr. and Mrs. Eid had a joint TD Canada Trust bank account into which Mrs. Eid’s salary was directly deposited along with the funds received from Social Assistance. Extended family members assisted the Eid’s from time to time with a few hundred dollars for groceries and other necessities. One of Mr. Eid’s brothers also provided the family with an old model Pontiac Montana.

[23] Eventually, Mr. Eid was able to secure employment with Claridge Homes as a Project Manager. Unfortunately, he worked for only a few days in September 2012 and was then terminated. Mr. Eid understood the reason for his dismissal was the outstanding criminal charges against him.

[24] As it appeared to Mr. Eid he was not going to be employable within the construction industry, he agreed to become a consultant without pay for Imad (Eddie) El-Saikali to assist him in setting up a new general contracting construction company in Ottawa – Green Construction Management. The arrangement was that Mr. Eid would assist in getting the company started and would share in the profits but would not receive a salary.

[25] Mr. El-Saikali provided Mr. Eid with a credit card to use for business purposes and a vehicle. Mr. Eid acknowledged that from time to time, he used the credit card for personal items such as clothing for his children, a gym fee and also for some cash advances, which had not been approved by Mr. El-Saikali. Both Mr. Eid and Mr. El-Saikali testified as to an arrangement whereby the personal expenses would be deducted from Mr. Eid’s share of the profits. Mr. Eid worked in assisting Mr. El-Saikali from September to February 2013 without payment.

[26] Since that time, Mr. Eid has been unable to secure employment. His wife continues to work part-time for a dentist three days a week. The family maintains itself on Mrs. Eid’s salary, which varies depending upon the number of hours she works in a week, social assistance, the child tax benefit and some funds provided from time to time by the extended family. Mr. and Mrs. Eid continue to have one joint bank account at TD Canada Trust. The bank statements for that account have been provided on an ongoing basis to the RCMP as per one of the release conditions.

[27] In February 2013, at the request of the Crown, the RCMP conducted surveillance on Mr. and Mrs. Eid in preparation for a pending Rowbotham Application, in order to confirm their daily activities and lifestyle. It was confirmed that Ms. Eid was travelling back and forth to her employment, driving an older model Pontiac Montana. At that time, Mr. Eid was driving a car provided to him by Eddie El-Saikali.

Legal Aid

[28] After his release on June 25, 2012, Mr. Eid immediately applied for Legal Aid. Counsel, Mr. Addelman, acted for Mr. Eid on the bail hearing without a retainer on the understanding that Mr. Eid would make an immediate application for Legal Aid, which he did on July 11, 2012.

[29] In the course of his application, Mr. Eid provided financial disclosure including records from his bank accounts in Lebanon and proof of two businesses in which he was involved in Lebanon. Legal Aid requested copies of unaudited financial statements, a balance sheet and a statement of income and expenses for those businesses but that information was not forthcoming. Mr. Eid indicated to Legal Aid it was impossible to get that information, as further attempts by family members to obtain the documentation from Lebanon could put them at risk if discovered by Hezbollah. On October 4, 2012, the Local Area Director of Legal Aid Ontario refused Mr. Eid’s application.

[30] Mr. Eid then appealed to the Area Committee and on October 23, 2012, he received notice that his appeal was unsuccessful as he did not qualify financially. No reasons were given.

[31] Finally, Mr. Eid appealed the decision of the Area Committee to Legal Aid Ontario. The Appeals Director in Toronto requested that Mr. Eid provide information as to the income and assets of his wife’s family members who were assisting at that time with her legal fees. The Director noted “...those family members are considered part of the assessment unit in accordance with Legal Aid policies. Their income and assets are considered available to assist with your legal fees.”

[32] On December 4, 2012, Marlene Eid’s brother forwarded a letter to the Appeals Director in Toronto indicating that his family had neither the intention nor the capability to pay for her future legal fees or those of her husband.

[33] On February 8, 2013, a notice was forwarded to Mr. Eid indicating that Legal Aid Ontario refused his appeal from the decision of the Area Committee.

[34] The earlier decisions of the Legal Aid Area Director and the Area Committee indicated Legal Aid was refused due to Mr. Eid’s failure to provide full financial information, in particular, regarding his bank accounts and businesses in Lebanon. However, in the reasons of Legal Aid Ontario, the following is noted:

On appeal to the Area Committee, the applicant indicated that he did obtain his bank statements which he provided, but in doing so, it put his family at great risk. Also, the applicant indicated that his business partner who has all of the company’s bank statements, detailed information and legal documents is one of the official translators for Hezbollah. Hezbollah has great influence on the Lebanese Government and most, if not all, of its government agencies. Because it is forbidden to send help or information from Lebanon, the applicant is not able to obtain these documents or even ask for them.

In light of the applicant’ fears regarding his ties to Lebanon, his failure to provide the requested financial information from Beirut will not be taken into account when assessing his financial eligibility.

[35] In assessing his financial eligibility, Legal Aid Ontario focused on the availability of support from family members including those of Marlene Eid, as well as the financial circumstances of Mr. Eid’s brother, Eid Eid, who originally acted as Mr. Eid’s surety and posted a $150,000 bond.

[36] The conclusion of Legal Aid Ontario was as follows:

I have concluded in this case that the applicant’s spouse’s family members and the applicant’s brother are considered part of the assessment unit for legal aid assessment purposes, based on the family relationship, the assistance with bail and the assistance with legal fees for the applicant’s spouse. This is so under Legal Aid policies, despite the information that the applicant’s spouse’s family members have indicated that they are unwilling to assist the applicant with legal fees. As the applicant’s spouse’s family members failed to complete a financial assessment, the applicant has failed to establish his financial eligibility for legal aid assistance. Legal Aid financial policies are applied uniformly to all legal aid applicants.

Accordingly, I am upholding the decision of the Area Committee.

[37] The reasons provided by the Legal Aid Ontario Appeals Director demonstrates she was satisfied adequate financial disclosure had been provided by Mr. Eid and, given Mr. Eid’s fears regarding the situation in Lebanon, failure to provide further financial information from Beirut was not considered in assessing financial eligibility.

[38] March 4, 2013 was the first date set for the Rowbotham Application which was adjourned to March 21 and then ultimately heard by myself on September 3, 2013. Mr. Eid was represented by Mr. Addelman on the application who indicated, if the Application is successful, he may request retroactive funding.

[39] Mr. Addelman estimates that for a six week trial, the fees would be approximately $100,000. There is no evidence as to the hourly rate nor as to Mr. Eid seeking estimates from other counsel or making inquiries as to a payment plan through Legal Aid.

Analysis

Has Mr. Eid been refused Legal Aid?

[40] The Crown did not argue this issue.

[41] Having reviewed the decisions of the local Area Director, the Area Committee and ultimately Legal Aid Ontario, I am satisfied that Mr. Eid was refused Legal Aid not due to lack of financial disclosure on his part nor due to his personal financial circumstances. He was denied a Legal Aid Certificate as his wife’s family would not complete a financial assessment and based on Mr. Eid’s brother posting a $150,000 bond. Based on Legal Aid’s policies, Mr. Eid’s spouse’s family members and his family members are considered part of the assessment unit. Therefore, it was concluded Mr. Eid had failed to establish financial eligibility.

[42] I find Mr. Eid was refused Legal Aid not due to his personal financial circumstances nor due to a deliberate choice to arrange his financial affairs in order to avoid making a contribution to his legal expenses. The refusal or denial of Legal Aid was not due to Mr. Eid’s conduct but was due to the inferred income and assets of his brother and his wife’s family’s refusal to complete a financial assessment.

Is counsel essential for Mr. Eid to have a fair trial?

[43] In considering the test to be met in determining that counsel is essential to a fair trial, Mr. Justice Rosenberg in Rushlow stated at para. 24:

24 ...This court has never said that a Rowbotham order is limited to an extreme case where Legal Aid's decision is completely perverse and there is a substantial possibility of lengthy imprisonment.... Nor need the case be one posing "unique challenges". The authorities hold that the case must be of some complexity, but a requirement of unique challenges puts the threshold too high. It is enough that there is a probability of imprisonment and that the case is sufficiently complex that counsel is essential to ensure that the accused receives a fair trial.

[44] Crown counsel concedes this is a complex, serious case. Mr. Eid faces eleven complicated fraud related charges. If convicted, the Crown will be seeking a lengthy prison term. The documentary disclosure is voluminous and the evidentiary and procedural issues complex, including a potential voir dire on the admissibility of Mr. Eid’s sworn statement. This will be a lengthy, complicated trial of approximately six weeks. In Rushlow, Rosenberg J states at paras. 20 and 21:

20 Courts have considered a number of factors in determining whether appointing counsel is essential in view of the complexity and seriousness of the case. Generally, the courts look at the personal abilities of the accused such as their education and employment background, their ability to read and their facility with the language of the proceedings. The courts will also consider the complexity of the evidence; the procedural, evidentiary and substantive law that applies to the case; the likelihood of especially complex procedures such as a voir dire; the seriousness of the charges; the expected length of the trial; and the likelihood of imprisonment: see R. v. Wood (2001), 2001 NSCA 38, 191 N.S.R. (2d) 201 (C.A.); R. v. Wilson (1997), 1997 NSCA 204, 163 N.S.R. (2d) 206 (C.A.); R. v. Hayes (2002), 2002 NBCA 80, 253 N.B.R. (2d) 299 (C.A.); R. v. Drury (2001), 2000 MBCA 100, 150 Man. R. (2d) 64 (C.A.); R. v. Rain (1998), 1998 ABCA 315, 223 A.R. 359 (C.A.) and R. v. Chemama, 2008 ONCJ 31.

21 In considering whether counsel is essential, the court will also take into account the prosecution's duty to make full disclosure and the trial judge's obligation to assist the unrepresented accused: see R. v. Wilson and R. v. Keating (1997), 1997 NSCA 135, 159 N.S.R. (2d) 357 (C.A.).

[45] In all the circumstances, I am satisfied that in applying the considerations outlined by the Ontario Court of Appeal in Rushlow at para. 20 and 21, this case is indeed complex and serious.

[46] The Crown argues Mr. Eid is sophisticated, clever and able to defend himself, despite the seriousness and complexity of the case.

[47] Roland Eid is 44 years old. He has a high school diploma and attended Algonquin College. He began working in the construction industry as a high school student. He worked as a carpenter, a foreman, a project manager and eventually a superintendent. He started his own construction management company, ICI, in 2005 and became highly regarded in the construction industry. All of Mr. Eid’s experience and expertise is in construction. He is not a highly educated individual and has no legal training. He has never conducted a trial on his own, nor has he represented himself in any of the preliminary matters before the Court in this case. In addition, he suffers from diabetes and is bipolar for which he takes medication.

[48] To expect Mr. Eid to conduct a complex, difficult, lengthy trial on his own would prejudice his right to a fair trial. I find Mr. Eid would be seriously disadvantaged and would not be able to effectively prepare for and defend this case without the assistance of counsel. As previously noted, there is voluminous disclosure. The trial judge, although required to ensure a fair trial, will not be able to assist in the extensive necessary trial preparation.

[49] I am satisfied on a balance of probabilities that for Mr. Eid to have a fair trial in this case, assistance of defence counsel is essential.

Does Mr. Eid lack the financial means to retain counsel?

[50] As previously noted, this was the focus of the argument on the application.

[51] In Rushlow, Mr. Justice Rosenberg indicates at para. 19

... Because of the pervasiveness of legal aid, it will be the rare and exceptional case that the court will find it necessary to appoint counsel. This does not mean that counsel is only required in exceptional cases. Rather, it is the fact that legal aid is available for accused who cannot afford a lawyer that Rowbotham orders are exceptional.

[52] The Court goes on to emphasize that the trial judge is not to review the Legal Aid decision but is to make his or her own determination. Justice Rosenberg states at para. 18:

18 Whether the issue is financial ability or the necessity for counsel, the trial judge in considering whether to appoint counsel is not engaged in reviewing the decision of the legal aid authorities. As this court said in R. v. Peterman (2004), 2004 CanLII 39041 (ON CA), 70 O.R. (3d) 481 (C.A.) at para. 22:

[W]hen 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.

[53] In this case, the Crown argues that Legal Aid refused Mr. Eid’s application as he did not make full financial disclosure. It is argued that when the actions of the accused foreclose Legal Aid funding, the Courts should not provide state funding as an alternative.

[54] As noted above, it was not Mr. Eid’s lack of financial disclosure that led the Appeals Director to refuse Legal Aid. The conclusion was, as Marlene Eid’s family members failed to complete a financial statement and Mr. Eid’s brother would likely not qualify for Legal Aid, Mr. Eid had failed to establish his financial eligibility for Legal Aid assistance.

[55] The Crown argues Mr. Eid has the financial support of family members whose income, assets and ability to fund his defence should be considered.

Personal Financial Circumstances

[56] Mr. Eid and his family have resided in a two bedroom apartment on Kilborn Avenue in Ottawa since June 2012 after they fled Lebanon and returned to Ottawa. Mrs. Eid was able to secure employment as a dental assistant three days a week and is paid by the hour. Her average income per month from this employment is approximately $1,535.00. This is supplemented by: Social Assistance which averages approximately $250.00 per month, the child tax benefit and, from time to time, funds provided by the family.

[57] As previously noted, Mr. Eid has no income despite his efforts to obtain employment. The fact that Mr. Eid has been charged with 11 fraud and fraud-related offences makes it difficult if not impossible for him to obtain work in his field. In addition, his release conditions prohibit him from participating in any business, profession or enterprise involving handling money, soliciting or items of value, which also limits his ability to obtain employment in the construction field.

[58] The parties have one joint bank account and no other assets. The bank records provided by Mr. Eid for the joint account up to and including June 2013 show reasonable monthly expenses, including $1,377.60 for rent. They drive an older model Pontiac Montana loaned to them by Mr. Eid’s brother.

[59] There is no evidence of any other assets, business interests or income in this country, other than those disclosed to the RCMP including some jewellery and furniture.

[60] Mr. Eid also provided Legal Aid with bank statements from accounts he held in Lebanon along with some financial disclosure regarding his business interests there. Legal Aid accepted that to produce any further information would place his family members, who were attempting to secure such information, at risk.

[61] On the basis of all the evidence that I have before me at this point in time, I find on a balance of probabilities, that Mr. Eid has not taken steps to hide any significant assets or income from the Court. Based on the disclosure provided, I find this to be a case where Mr. Eid does not have the personal financial ability to retain counsel for a complex, serious six week trial.

Family Finances

[62] Mr. Eid comes from a large family of nine children. Five of his siblings reside in the area. At the bail hearing, his brother, Eid Eid, agreed to act as a surety and to post a $150,000 bond. Eid Eid testified he is currently the Chief Operating Officer of Acuity Software in Ottawa, lives in a mortgage free home worth approximately $900,000 and has an annual income in the last 12 months of approximately $110,000.

[63] Mr. Eid’s other brother, Jean Eid, is the co-owner of two hair salons and works as a computer salesman. When Jean Eid returned to Ottawa, he became the surety for Roland Eid as Eid Eid did not wish to continue, given family pressures. Although he had previously loaned the applicant money and was paid back, Eid Eid was reluctant from the outset to post even a $50,000 bond. He stated: “$50,000 is very large for me. I’ll tell you why: because this is the threshold at which my wife will consider leaving me, if I were to sacrifice for my brother $50,000.” He indicated the same would go for his brother, Jean.

[64] Although Mr. Eid has some successful family members in the area who have provided loans to him in the past and continue to provide some funds for him at times for necessities of life, in reviewing the bail transcript of Eid Eid’s evidence, it is clear he is reluctant to make any form of significant financial commitment in order to assist his brother with his defence.

[65] The requirement for family members to contribute to the costs of counsel for an accused person was dealt with by Justice McKinnon in R. v. Dadshani (2008), 76 W.C.B. (2d) 585, [2008] O.J. No. 455 (Ont. Sup. Ct.). In that case, an accused person’s parents had mortgaged their home in order to fund his defence. The accused was at odds with his parents largely because of the financial burden it placed on them. His parents made it clear they were not prepared to further fund his defence despite the fact that Legal Aid Ontario refused funding because Mr. Eschrif’s parents were “considered a financial source and persons responsible for funding his defence.” In that case, Justice McKinnon concluded Legal Aid’s finding was unreasonable and held that Mr. Eschrif was entitled to a state funded defence.

[66] Although the facts and the circumstances of Mr. Eid’s family members are different than those of Mr. Eschrif’s parents in the Dadshani case, the principle is the same. Although I take no issue with the policies of Legal Aid Ontario, I am not prepared to require Mr. Eid’s family members or for that matter, Marlene Eid’s family members, to contribute to Mr. Eid’s defence. There is no obligation on them to do so, and it is clear from the bail hearing that Mr. Eid’s brother, Eid Eid, was reluctant to even post a bond. Assistance by family members should be voluntary. I cannot impose a significant financial obligation on them when I find that Mr. Eid himself has no income nor assets in this country and is unable to fund his own defence. Given his current circumstances, there would be no reasonable prospect of Mr. Eid paying back any loans from family members in the foreseeable future, if ever.

[67] Therefore, under all the circumstances, I find Mr. Eid has established on a balance of probabilities he does not have the financial ability to retain counsel.

Conclusion

[68] I find on a balance of probabilities that Mr. Eid cannot have a fair trial unless provided with financial assistance necessary to retain counsel. Without funding for legal counsel, the continued prosecution of the charges against Mr. Eid will result in a violation his Section 7 and 11(d) Charter Rights. The only remedy for the anticipated Charter breach is to enter a conditional stay of the proceedings pursuant to Section 24(1) of the Charter.

[69] Therefore, pursuant to Section 24(1) of the Charter, I enter a conditional judicial stay of proceedings in respect of the charges against Roland Eid to remain in effect until such time as the Attorney General of Canada provides the funding necessary for the retention of legal counsel to represent Mr. Eid at his trial.

Blishen, J.

Released: November 15, 2013

CITATION: R. v. Eid, 2013 ONSC 7084

COURT FILE NO.: 13080

DATE: 20131115

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

ROLAND EID

Applicant

REASONS FOR JUDGMENT

Blishen, J.

Released: November 15, 2013