Endorsement

COURT FILE NO.: 12-G1063

DATE: 20131227

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. Temorshah Hafizi

BEFORE: R. Smith J.

COUNSEL: Catherine Galligan Counsel, for the Crown

Michael S. Purcell Counsel, for the Applicant

HEARD: December 17, 2013 (in Ottawa)

ENDORSEMENT

[1] The applicant, Temorshah Hafizi (“Hafizi”) seeks a stay of proceedings unless he is granted funding at Legal Aid Ontario (“LAO”) rates by the Attorney General of Canada (the “AG” or the “Crown”) on the grounds that he lacks the means to retain counsel and counsel is essential for him to have a fair trial.

[2] The AG submits that the applicant has not met his burden to show that he lacks the means to employ counsel because his 78-year-old father has assisted him by paying for his legal counsel on previous occasions and there is $70,000 of equity in the home registered in his wife’s name.

[3] The Crown acknowledges that Mr. Hafizi has met his onus of showing that counsel is essential to allow him to have a fair trial considering the seriousness of the charges, the complexity of the proceedings, and his ability to participate effectively in the proceedings against him.

[4] The Crown also does not dispute that the applicant has exhausted his appeals and been refused funding by Legal Aid on a final basis.

Analysis

[5] The test to apply was set out in the R. v. Rowbotham (On. C.A.), 1988 147 (ON CA), [1988] O.J. No. 271 page 49 as follows:

… 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…

[6] Legal Aid’s refusal to fund Mr. Hafizi’s defence was based on two reasons. Firstly, it found that there were not sufficient exceptional circumstances to allow Mr. Hafizi to change counsel. The second reason for denying funding was because the applicant’s wife, Najiba Hafizi, did not provide information concerning the $70,000 down payment for the house which was in her name or verification of the amount of legal fees paid to previous counsel.

[7] In R. v. Rushlow, 2009 ONCA 461, [2009] O.J. No. 2335, the Court of Appeal stated as follows at para 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 39041 (ON CA), 70 O.R. (3d) 481 (C.A.) at para. 22:

[W]hen a court makes a Rowbothom 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.

Does the Applicant Lack the Means to Employ Counsel?

[8] This is the real issue to decide in this application. The applicant has the onus of showing a balance of probabilities that he does not have the means to employ counsel to defend him on these changes.

[9] The applicant has been in jail since March of 2012, a period of approximately 20 months. In 2006 he was convicted of stabbing two individuals and spent 12 months in jail. On this occasion, his father paid legal fees on his behalf of $56,000 between 2006 and 2008.

[10] The applicant was diagnosed with Post Trauma Stress Disorder (“PTSD”) in 2008 and has received assistance from the Ontario Disability Support Program (“ODSP”) since 2008.

[11] The applicant was convicted of trafficking cocaine in December of 2012 and $35,000 of cash was seized from the applicant at this time.

[12] The applicant is currently charged with possession of 148 oz of heroin for the purpose of trafficking. The applicant faces a period in jail of 5 to 6 years if convicted on this charge.

[13] The applicant was able to obtain $20,000 to pay Mr. Webber, his new counsel, for the bail application, bail review and a preliminary inquiry. He testified that the funds came from his father who has also assisted him in the past by advancing funds to pay his legal fees.

[14] The Crown argued that the applicant is able to obtain money from family members, to fund his defence, more particularly his father Shahmahmood Hafizi (“Shahmahmood”). Shahmahmood is currently 78 years of age and testified that he has advanced $80,000 to Mr. Edelson, counsel, to assist his grandson with his defence to murder charges and that he is not able and not prepared to advance any more money to fund Mr. Hafizi’s legal costs.

[15] I find that the applicant’s father, does not have a legal obligation to mortgage his home to pay for his 40 year old son’s legal expenses to defend criminal charges, even if he has done so in the past.

[16] The other source of funding is the applicant’s wife. She testified that she sold her most recent home in 2012 and received net proceeds of $198,000. She testified that she used these proceeds to repay $126,000 to the applicant’s father, which he had advanced to pay legal fees for the applicant and his son. The remaining $70,000 was used as a down payment on her current home at 155 Lokoya Street, in Ottawa.

[17] The applicant’s wife testified that she has not worked outside of the home and has stayed home to care for her children. Her only income is the child credit from the government and part of the applicant’s ODSP benefits.

[18] The family home was initially held in both names until 2006 when it was sold and the next home was registered only in the applicant’s wife’s name. There was no equity in the home at the time it was registered in her name, other than the $70,000 down payment loaned to her by the applicant’s father. The applicant has not transferred his interest to his wife when there was equity in the home and, in any event, he has not transfered his interest in any property to avoid paying legal fees for these charges.

[19] The applicant was initially approved by LAO for these charges and a certificate was issued to Mr. Addelman. It was only when the applicant wished to change counsel to Mr. Webber that LAO refused to allow the change of counsel because they found there was no valid reason for the change. This appears to have been the main reason for the refusal of funding by LAO.

[20] The applicant gave the following reasons for wanting to change counsel:

(a) He believed he was not getting the best advice because his previous counsel recommended that he plead guilty in return for a reduced sentence;

(b) He had a hard time contacting him; and

(c) He believes Mr. Webber would do a better job of representing his interests.

[21] The applicant has also raised the issue of a potential conflict of interest as Mr. Addelman’s son, who is in the same firm as the applicant’s former counsel, represented the driver of the vehicle in which Mr. Hafizi and the heroin was found. The charges against the driver were withdrawn and he provided a statutory declaration to the police and may be a witness in the upcoming trial.

[22] The applicant has only requested one change of counsel and has not done so to delay matters. No delay will be caused by the change of counsel as the Charter motions are set for April of 2014, and the trial is set for the fall of 2014.

[23] The applicant testified that he does not have any funds to pay his lawyer and he has been in custody for almost 2 years and his only income is from a disability pension since 2008. I have no evidence of any funds available to the applicant that he may have obtained from drug trafficking. LAO did not request that a lien be placed on his wife’s house where there is $70,000 of equity. However, the applicant’s wife testified that no one would loan her any money given their financial and legal situation at this time. This evidence was not contested.

[24] As a result, I am satisfied that the applicant has met his onus to show that he does not have the means to employ counsel on these charges for the reasons given above.

Number of Counsel Required

[25] The applicant requests the approval of two counsel given that there will be a challenge to the Information to Obtain (“ITO”) related to wiretaps involved a murder investigation of the applicant’s son. The disclosure material in the murder investigation related to the ITO is extensive. The applicant seeks approval for two counsel for the Garofoli application under the Canadian Charter of Rights and Freedoms and only one counsel for all other motions and for trial.

[26] I find that using junior counsel to do the preparation related to the Garofoli application, which involves review of extensive disclosure, is reasonable provided there is no duplication of effort.

Disposition

[27] A stay of proceedings is granted pursuant to section 24(1) of the Charter unless and until the applicant is granted funding for legal representation in these proceedings by the AG, in accordance with Legal Aid rates in Ontario, for two counsel with regards to the Garofoli application and for one counsel for the balance of the motions and for trial.

Mr. Justice Robert J. Smith

Date: December 27, 2013

COURT FILE NO.: 12-G1063

DATE: 20131227

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen

AND

Temorshah Hafizi, Applicant

BEFORE: R. Smith J.

COUNSEL: Catherine Galligan Counsel, for the Crown

Michael S. Purcell Counsel, for the Applicant

ENDORSEMENT

R. SMITH J.

Released: December 27, 2013