ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1773/11

DATE: 2013/02/26

BETWEEN:

HER MAJESTY THE QUEEN

– and –

STEPHANE RICHER

Defendant

Jeremy Glick, for the Crown

V. Singh, for the Defendant

HEARD: February 12, 2013

Turnbull, J.

[1] The defendant has brought this application for a “Rowbotham Order”, which is essentially a court order requiring the Crown to fund the costs and disbursements of a lawyer to represent the defendant at his upcoming trial in the Superior Court of Justice at St. Catharines. It is scheduled to commence in April 2013, “with or without counsel.” He also seeks funding for counsel to represent him against another series of charges which are in the Ontario Court of Justice and in which a preliminary hearing has not yet taken place.

[2] This application arises because after twice discharging counsel retained under legal aid certificates on the eve of trial in Superior Court, Mr. Richer’s request for a third counsel to represent him was denied by Legal Aid Ontario (LAO). An amicus has already been appointed by the court to ensure that Mr. Richer receives a fair trial.

[3] In the Ontario Court of Justice, Mr. Richer has also discharged two counsel but no trial date has been set. As stated above, a preliminary inquiry date is pending.

[4] Mr. Richer claims that in both matters, he now meets the test for state funded counsel. It is clear law in this province that a court’s determination on whether it should stay proceedings pending appointment of publicly funded counsel, depends on the applicant satisfying the following three conditions:

a. The applicant is ineligible for or has been refused legal aid and has exhausted all appeals for reconsideration of his ineligibility through no fault of his own;

b. The applicant in indigent and unable to privately retain counsel to represent him at trial; and

c. The applicant’s right to a fair trial will be materially compromised absent public funding for counsel; R. v. Rowbotham 1988 147 (ON CA), [1988] O.J. No. 271 (ONCA.), at p. 44.

[5] The defendant must establish all three conditions on a balance of probabilities. R. v. Montpelier 2002 34635 (ON SC), [2002] O.J. No. 4279 (S.C.J.), at para 37.

[6] In his application, the applicant further requested a Fisher/Peterman order for the appointment of counsel at an enhanced rate. R. v. Fisher [1997] S.J. No. 530 (Sask. Q.B.); R. v. Peterman 2004 39041 (ON CA), [2004] O.J. No. 1758 (C.A.)

[7] At the outset of his submissions on this application, the applicant’s counsel Mr. Singh withdrew the application for a Fisher/Peterman order and indicated his client had instructed him to simply proceed with the Rowbotham order sought in the Superior Court of Justice and the Ontario Court of Justice.

Overview of the facts

[8] The applicant stands charged with 26 counts of sexually related offences in the Superior Court of Justice, at St. Catharines. He also stands charged with 18 counts of sexually related acts in the Ontario Court of Justice, at St. Catharines. In the Superior Court trial, there are three central complainants who will presumably testify to sexual assaults and other sexual misconduct perpetrated against them by the defendant. Some of these relate to historical sexual offences dating back to January 2003.

[9] The defendant was arrested on September 25, 2010 and has remained in custody since that time. Hence, he has spent in excess of 800 days in custody awaiting trial on the Superior Court trial matters. After a five day preliminary hearing he was committed for trial to Superior Court on April 21, 2011.

[10] His trial was to commence before a judge sitting without a jury on January 30, 2012. The trial was not able to proceed on this occasion because Mr. Richer, on the very eve of trial, discharged his counsel.

[11] Mr. Richer was originally represented in both the Superior Court and Ontario Court by John LeFurgey. It is clear from the transcripts of the preliminary hearing that Mr. LeFurgey was arguably in a position of conflict of interest and that it was the Crown who sought his removal as counsel of record. Mr. LeFurgey had previously represented one of the complainants in the charges proceeding before the Ontario Court and he removed himself as solicitor of record. That same woman was to testify as a witness against Mr. Richer in the Superior Court matter. The defendant on this application asserted that inasmuch as Mr. LeFurgey was aware of that conflict he ought to have removed himself as counsel of record in April 2011 and not waited until January 2012. Hence, it was suggested by the defendant that the termination of his first lawyer was partially due to the actions of counsel. However, on September 4, 2012, during submissions to the court at the time that he was explaining his reasons for terminating the services of his second lawyer, Mr. Richer explained to the court, at page 5 of the transcript of those proceedings, that he terminated Mr. LeFurgey because he had failed to disclose documents to him. There was no mention made of any alleged conflict of interest which Mr. LeFurgey had with respect to representing him.

[12] A second trial was set to commence September 4, 2012. Mr. Richer had been granted permission by legal aid to retain new counsel after terminating Mr. LeFurgey. Again, on the morning of this second trial date, Mr. Richer indicated that he wished to discharge his counsel on the basis of a number of perceived grievances, including an alleged friendship with the Crown. In the same transcript, on September 4, 2012, at page 6, Mr. Richer asserted that his second lawyer, Mr. Klumak, did not want to show any of the reports to him which he alleged he had been asking for. He further asserted at page 7 of the transcript that five key witnesses in the case had not been subpoenaed by Mr. Klumak despite alleged requests made on numerous occasions by Mr. Richer to Mr. Klumak.

[13] It is noteworthy that the Crown spoke on that occasion on the impact of a further delay of the trial on the complainants. It is important to note that the complainants are teenagers. The Crown stated,

This is the second request for an adjournment and, by Richer, the coming at a late date as it does, the Crown has already prepared its three complainants. The complainants themselves have, in essence, have their lives on hold since this matter began two years ago. There is family court proceedings that are being held up because of this criminal case that J. finds herself in and indeed simply the emotional weight of having the matter hang over these teenagers heads is telling on them.

[14] Mr. Klumak, former counsel for Mr. Richer, took issue with Mr. Richer’s submissions before the presiding judge on September 4, 2012 but provided no substantive response, anticipating the need to do so in writing at a later date. Mr. Klumak explained to the court why he was not in a position to proceed to represent Mr. Richer or to appear as amicus in the circumstances. The presiding judge accepted his reasons, I might say, with good justification.

[15] Mr. Richer advised the court that that would be the last adjournment he would seek.[^1] The court granted the adjournment finding that “in these circumstances, and although it is the second time Mr. Richer has discharged his counsel on the eve of trial, resulting in an adjournment of the trial, the only fair way to deal with this is to grant the order discharging Mr. Klumak and to order that the trial be adjourned.”[^2]

[16] On September 18, 2012, Mr. Richer’s case was spoken to in the assignment court before Justice Glithero who made the following endorsement:

Trial date set for April 8, 2013, at 10:00 a.m. Given the history of discharging the lawyers, Mr. Richer has been warned that the date is for trial with or without counsel.[^3]

[17] Amicus was appointed by the trial judge in this matter in October 2012 for the purpose of ensuring Mr. Richer receive a fair trial.

[18] Notwithstanding the appointment of amicus the applicant has now brought this application for a Rowbotham order appointing a third publicly funded counsel. The applicant’s counsel of choice is not prepared to proceed on the third scheduled trial date and if a Rowbotham is granted appointing them as counsel, the trial will again be delayed.

Ontario Court of Justice

[19] Mr. Richer was originally represented in both the SCJ and OCJ by John LeFurgey. Mr. LeFurgey had a conflict with one of the complainants in the OCJ matter (as indicated above) and was replaced by Mark Evans. Mr. LeFurgey remained as counsel in the Superior Court until the defendant terminated his services January 30, 2012. When Mr. Richer discharged Mr. LeFurgey on the eve of his first trial date in the Superior Court , Mr. Evans also had himself removed as solicitor of record in the OCJ. Mr. Klumak then took carriage of both matters. On the same date that Mr. Klumak was removed as counsel in the SCJ, both he and Mr. Richer attended in the OCJ where he also was removed as counsel.

[20] As noted, Mr. Richer is awaiting a preliminary hearing the OCJ matter.

[21] Mr. Richer, after discharging Mr. Klumak, applied to legal aid for a change of counsel. The legal aid file includes notes from a video conversation that took place on November 6, 2012. The notes indicate that Mr. Richer acknowledged that he was informed he would not receive further approval for a another change of solicitor at the time he switched his lawyer from Mr. LeFurgey to Mr. Evans. When asked why he changed his lawyer the first time, he asserted that his lawyer refused to allow him to see the evidence against him. He agreed that when he was terminating Mr. Klumak’s retainer he was doing so for the same reason save and except, according to him, that the Crown had found new forensic evidence and his lawyer, Mr. Klumak refused to allow him to see it. He also asserted in the conversation that the Crown and Mr. Klumak had had a prior relationship which was not just a professional relationship. Both Mr. Klumak and the Crown denied such a relationship and denied, as asserted by Mr. Richer, that they had worked together in Brampton.

[22] Legal aid denied the request for a change of solicitor. The decision of the director of appeals noted that legal aid had been advised that Mr. Klumak strongly disagreed with the applicant’s assertions. Mr. Klumak indicated to legal aid that he recognized that the applicant had fired his first lawyer, Mr. LeFurgey, in a similar fashion and that further representation would be in jeopardy. Mr. Klumak indicated to legal aid that he properly prepared with the applicant and sought instructions all along and he was ready to proceed when the defendant expressed to him and to the court his displeasure at his representation.

[23] Legal aid held that the change of counsel is allowed by legal aid policy only in exceptional circumstances because of the obvious duplication of legal expenses incurred in a new lawyer having the learn the facts and prepare for court appearances. The director of legal aid found that there were no exceptional circumstances shown at this time to warrant a change of counsel, and therefore no further legal aid authorization was granted in this matter.

[24] Mr. Richer provided a consent to the counsel for the Crown to obtain his full legal aid file and it is found at tab two of the factum of Her Majesty filed in these proceedings. No objection to reference to it was taken by counsel for the applicant.

Position of the Crown

[25] The Crown submits that in the Superior Court matter, Mr. Richer’s application does not meet two of the conditions for receiving state funded counsel. First, Legal Aid Ontario’s refusal to grant a third certificate was the result of Mr. Richer’s inability to maintain a solicitor/client relationship with his previous lawyers, both of whom were experienced criminal defence counsel. The Crown relies on case law which states that a defendant cannot rely on a denial of legal aid funding to support an application for a Rowbotham order where the denial is caused by the defendant’s own conduct.

[26] Secondly, the Crown argues that Mr. Richer’s fair trial rights in the Superior Court will not be materially compromised absent state funded counsel. The court has appointed amicus for the purpose of ensuring that Mr. Richer has a fair hearing, specifically because he has twice discharged counsel on the eve of his trial. The Crown again relies on case law which has held that an accused in this circumstance will not be able to demonstrate that his fair trial rights will be infringed absent a Rowbotham order being made.

[27] With respect to the Ontario Court matter, the Crown argue that Mr. Richer’s application is premature. In support of that contention, the Crown relies on case law which has stated that a Rowbotham order is only available for a preliminary inquiry in exceptional circumstances, none of which are present in this case.

[28] The Crown has fairly agreed that Mr. Richer is indigent and unable to fund his own legal defence.

Position of the Defence

[29] In his able submissions on behalf of Mr. Richer, Mr. Singh argued that Mr. Richer was not solely responsible for the breakdown of the solicitor/client relationship with Mr. LeFurgey. He argued that Mr. LeFurgey should have known that he would be in a position of having to cross-examine his former client in the Superior Court trial. Mr. Singh asserted that had Mr. LeFurgey moved earlier to remove himself as solicitor of record before the opening of trial, that would have avoided the necessity of Mr. Richer terminating his retainer.

[30] I reject that submission. Mr. Richer could have brought a motion to have Mr. LeFurgey removed at any time from April 2011 to the time of his trial. When he ultimately did ask to have him removed as solicitor of record, he did not complain at all to the court about any alleged conflict of interest. As noted above, his complaint centred around the alleged failure of Mr. LeFurgey to share evidence with him.

[31] With respect to the termination of Mr. Klumak’s retainer, Mr. Singh referred to the transcript of proceedings of September 4, 2012 at which time Mr. Klumak was removed as solicitor of record. Mr. Singh argued that the grievances communicated by Mr. Richer were very clear and specific including demands that Mr. Klumak properly reviewed materials and produced materials to him in a timely way. The essence of the defendant’s position that he did not have full disclosure of the Crown’s case made available to him for his review and input prior to the commencement of trial.

[32] The defendant further argued that the trial is undoubtedly going to be a relatively complex, which will require Mr. Richer to have counsel. In that respect, Mr. Singh identified some of the complex issues relied upon by his client in this application,

a. The identity of the accused in the historical charges may be important. I disagree with that submission because the three youthful complainants are all related to and/or known to Mr. Richer;

b. He noted that expert’s reports have to be reviewed and in particular two forensic reports dealing with DNA findings. However, the Crown has advised the court that the entire disclosure file including the two forensic reports with respect to DNA have been forwarded to Mr. Richer at the Niagara Detention Centre. To this stage, the defence has brought no further applications with respect to those reports.

c. There are third party record applications that need to be heard to obtain prior inconsistent statements from the complainants. I do not find that submission has any merit as the issue of third party records was dealt with by Justice MacPherson in November 2011. She dismissed the defendant’s application with respect to third party records from the Province of Ontario. As for the records from Quebec, that issue was dealt with at a judicial pre-trial and Mr. LeFurgey has indicated to the court that he would not be bringing a motion with respect to any records in Quebec. No appeal was taken from the decision of Justice MacPherson.

d. The Crown will be relying on similar fact evidence which in a case such as this can be complicated for the defendant. I am satisfied under the terms of the amicus order that the amicus is directed to “advise the accused on relevant points of law and legal issues as amicus believes relevant or as this court orders.” I am satisfied that the necessary submissions on the facts in law in that respect can be made by the amicus pursuant to the order appointing him.

Analysis

[33] The evidentiary burden of proof requires the applicant to demonstrate that this is a case where publicly funded counsel is required to ensure Mr. Richer his right to a fair trial.

[34] I am satisfied Mr. Richer has not satisfied the test to obtain a Rowbotham order in the context of the Superior Court proceedings. Legal aid was denied as a result of his own conduct in discharging counsel on two occasions prior to trial. Furthermore, amicus has been appointed by the court for the purpose of ensuring a fair trial. I have reviewed the ambit of that order and consider it to be adequate to assure that Mr. Richer has a fair trial with adequate legal advice and assistance available to him.

[35] Mr. Richer has not demonstrated to this court on a balance of probabilities that his right to a fair trial will be materially compromised absent a Rowbotham order being granted.

[36] I have taken into account that he has a limited education (approximately grade 9) and that these are serious charges which will result in an extensive penitentiary term in the event he is convicted. On the other hand, the trial will take place before a judge alone. Hence, the judge will have significant leeway in being able to make sure the defendant understands the process which is taking place, the procedures involved, and will be able to instruct amicus to inform Mr. Richer of any procedural issues and/or legal issues which concern the court.

[37] The case law is clear that that defendant cannot come to court and rely upon a legal aid refusal when the defendant’s actions or failure have caused the refusal. R. v. Montpelier, supra, at paras 34-35.

[38] In the case of R. v. Imona-Russell, [2008] O.J. No. 5405 (S.C.J.), the applicant fired three different lawyers, whom he had retained by means of legal aid certificate. With respect to each of the three lawyers, LAO gave the applicant permission to change solicitors. Another certificate was issued for a fourth lawyer who did not sign the certificate before she and the applicant parted ways. The applicant then designated a fifth counsel and new certificate was issued for that counsel. However, the applicant once again sought to discharge the fifth counsel but LAO denied this request to change counsel. Months later LAO reconsidered its position and permitted the third counsel then be re-retained notwithstanding that the court had already appointed amicus curie. In denying the application for state funded counsel, the court reaffirmed that an applicant cannot come to the court relying on legal aid refusal when his action or inaction has been the cause thereof.

[39] On two occasions, Mr. Richer dismissed his lawyer on the eve of trial, requesting an adjournment. This timing has maximized the delay in this case. Now Mr. Richer is requesting funding for new counsel who is unable to appear at his scheduled trial, a fact which will cause further delay.

[40] I have no doubt that the defendant has terminated his retainer with Mr. Lafurgey and Mr. Klimac in order to delay his trial as long as possible. It is evident on the record before this court that both those lawyers are competent and experienced counsel in criminal cases.

[41] A trial must be fair for the accused but there is no absolute right to representation by counsel of one’s choice in every case. Where the administration of justice is being impeded by undue delays, which naturally are stressful to the complainants in a sensitive case such as this, the Court must do all possible to ensure the defendant receives adequate representation at trial while assuring that the process of the court is not subverted by unacceptable and intentional delays.

[42] In my view, the appointment of Mr. Starr as amicus will assure that the defendant receives a fair trial. The trial judge will be aware that the defendant is self-represented and will, as he/she is bound to do with all self-represented parties, take all appropriate steps to assure a fair trial is held and that the defendant is given every opportunity to present his defence to these serious charges.

[43] With respect to the matters pending before the Ontario Court of Justice, I find that the application is pre-mature. As stated by Justice Fuerst in R. v. Valenti, [2010] O.J. No. 1689 (S.C.J.) at para 17, the availability of a Rowbotham order at the preliminary hearing stage is a remedy only available in exceptional circumstances. This decision has been followed by our courts on other occasions[^4] and I concur with that decision. There is not anything exceptional with respect to the circumstances of the charges or the complexity of the procedures or the amount of productions which has been presented to this court which have been presented to this court to warrant the issuance of a Rowbotham order in the Ontario Court of Justice proceedings at this time.

Conclusion

[44] The application of the defendant is dismissed.

Turnbull, J.

Released: February 26, 2013

[^1]: Transcript of proceedings, September 4, 2012, at page 14.
[^2]: Transcript of proceedings, September 4, 2012, at page 17.
[^3]: Transcript of Proceedings dated September 18, 2012 at p.8.
[^4]: Transcript of oral reasons of Frank J. in R. v Ryan, May 3, 2011 found at tab 11 of the Crown’s Book of Authorities.
Transcript of oral reasons of Desotti, J. dated Dec. 21, 2011 found at tab 12 of the Crown’s Book of Authorities.