SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 4181/14

DATE: 2014-04-07

RE: R. v. Donald Christopher Taylor

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
A. Jodouin, Counsel, for the Crown/Respondent

M. Peterson, Counsel, for the Accused/Applicant

HEARD: March 14, 2014

ENDORSEMENT

[1] This is an Application by the accused for an order pursuant to sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms staying the prosecution of the charges against him pending the Attorney General of Canada providing funding for his defense. This type of application is known as a Rowbotham application after the case of R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.).

[2] The applicant is charged with two counts of possession of a controlled substance, namely cocaine, for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act and one count of possession of the proceeds of crime under $5,000 under s. 355(b) of the Criminal Code.

[3] The applicant filed an affidavit in support of the Application and also testified viva voce and was cross-examined on the hearing of the Application.

[4] The applicant deposed in his affidavit that he works as a self-employed painter and resides with his common-law spouse and three teen-aged children. Virtually all of the family income is derived from his spouse’s employment at the Fallsview Casino. The applicant’s 2013 income from his painting business was $1,600.00. He states that the family’s combined monthly income is $3549 (or $42,588 per annum) and their monthly expenses are $4033, leaving a shortfall of $484 per month. He deposed that, although neither he nor his spouse are on title to the home that they live in, they pay the expenses of the home including the mortgage. Title is held by his parents. He says that his equity in the home is essentially zero. The applicant and his spouse have a 2005 Chrysler 300 sedan with an estimated value of $3,500 as well as a 2007 Chevrolet Uplander Minivan. They pay $400.00 per month on the loan to acquire the Uplander. The applicant says he and his spouse require two vehicles in order to properly maintain their household schedules, with his spouse working evenings or nights and with much of his work conducted for customers after 5:00 p.m.

[5] The applicant deposed that his adoptive parents live on pension income and are unable and unlikely to be willing to fund a defence for him at the level that it would cost. He states that he has no immediate or extended family which would be willing or able to lend or give him funds to pay for a lawyer.

[6] The applicant applied to Legal Aid Ontario for funding which was refused on the basis that he did not meet the plan’s financial eligibility policies. He appealed to the area committee and the appeal was denied. His further appeal to the provincial office of Legal Aid Ontario was also denied.

[7] Based upon consultation with his proposed counsel the cost of his defense was estimated in the sum of $10,000 to $15,000. One lawyer he consulted proposed a payment plan of $1,700 per month which he says he cannot afford.

[8] The applicant deposed in his affidavit that as he has no post-secondary education, criminal law and procedure are beyond his abilities and he requires counsel to properly explore the potential for conviction of the charges against him in order to properly and competently hold the prosecution to its duty to prove him guilty beyond a reasonable doubt.

[9] On an application such as this, the onus is on the applicant to show, on a balance of probabilities, that:

1. he has been refused legal aid and has exhausted all appeals in that regard;

2. he lacks the means to employ counsel; and

3. his representation by counsel is essential to a fair trial.

(See R. v. Rushlow, 2009 ONCA 461 (Ont. C.A.) at para. 17)

[10] The Crown concedes that the first requirement has been satisfied, in that the applicant has exhausted his attempts to obtain legal aid funding for his defence. However, it submits that the applicant has failed to satisfy the onus on him to show that he lacks the means to retain counsel.

[11] The Crown also argues that the circumstances do not show that the applicant's fair trial rights will be breached in the absence of representation by counsel.

[12] Setting aside the question of whether the applicant has demonstrated an inability to retain counsel, it is useful to consider whether the third ground, namely that representation by counsel is essential to a fair trial, has been made out by the applicant.

[13] The applicant argues that he requires counsel to explore the potential for conviction and to hold the prosecution to its duty to prove him guilty beyond a reasonable doubt. He does not suggest that the case is extraordinarily complex, that the disclosure is voluminous or that Charter or other complex pre-trial applications are likely or even a possibility. The Crown’s case is based upon the applicant being observed attempting to smoke a crack cocaine pipe in his car, his being arrested and found, on the basis of a search incident to arrest, to being in possession of three packages of cocaine. A search warrant was subsequently executed at the accused’s home. A safe was found in the home containing 63 grams of cocaine, a digital scale and numerous empty small baggies. The applicant provided the police with a key to open the safe. $625 was seized as proceeds of crime. The Crown expects to call 6 witnesses. It is therefore not expected that the trial will be lengthy.

[14] The Crown says that the applicant is not a stranger to the criminal justice system, having been before the criminal courts multiple times over a 14 year period, including for drug offences. The applicant did state on examination that, although he has been before the criminal courts on numerous occasions, he did not give evidence on any them, nor did he ever represent himself, having been granted legal aid certificates in respect of the previous prosecutions.

[15] The law is clear that representation by a lawyer is not a prerequisite to a fair trial. Where an accused represents himself or herself, there are other means by which his or her rights to a fair trial may be protected, the foremost being the duty of every trial judge to ensure that all persons receive a fair trial (see R. v. Rain, 1998 ABCA 315 (Alta. C.A.) at para. 36).

[16] The Court in Rain, at para. 87, made the following important observation:

In considering whether a charge is so serious and complex that court-ordered counsel is required the basic premise must be that the trial judge will do everything appropriate to ensure a fair trial. Counsel should be ordered only in cases where, notwithstanding the fullest use of the trial judge's authority, the complexity or length, and the seriousness of the case alter the trial process so as to make it unfair.

[17] While the prospect of a sentence of incarceration is real if the applicant is convicted of the offence, the authorities make it clear that the possibility, or even probability, of incarceration following conviction does not, by itself, justify the making of an order for state funding. It is necessary to examine the nature of the charges in carrying out an analysis of the seriousness and complexity of the trial. In the case of Manitoba v. Legal, 2009 MBPC 26 (Man. Prov. Ct.) at para. 60, the Court cited a number of cases in which an accused had been denied state-funded counsel when facing incarceration, but the charges had nonetheless been found not to be sufficiently serious to put the accused's section 7 Charter right to security of the person at risk. Justice Carlson, in that case, noted that the distinction between these situations and cases like Rowbotham and others, where state funding has been ordered, is that in the latter cases the offences carry the possibility of long-term incarceration and restriction on the accused's physical liberty.

[18] In R. v. Tang [(September 29, 2011), Nordheimer J. (Ont. S.C.J.)] 2011/09/29 Endorsement of Nordheimer, J. (Ont. SCJ), in a case relating to alleged fraud involving over 200 investors and $50 million, Justice Nordheimer made the following comment at para. 10:

While all criminal charges are by definition serious, the charges here are not the most serious ones known to the law. [The accused] does face possible incarceration if he is convicted, but any such penalty, if imposed, would likely not be in the most serious range of possible sentences of incarceration.

[19] From the evidence, it appears that the trial relating to the charges faced by the applicant in this case will be relatively brief and the issues discrete. The desirability and benefits of representation of an accused by counsel is acknowledged generally, however, that is not the test for a Rowbotham order. As indicated above, the authorities establish that it must be shown that representation by counsel is essential to a fair trial. I am not satisfied that this is a case of sufficient seriousness or complexity that this factor is present.

[20] The applicant has failed to discharge the onus on him to show, on a balance of probabilities, that his representation by counsel is essential to a fair trial of the charges against him.

[21] In light of this is not necessary for me to make a determination as to whether he lacks the means to employ counsel, or has arranged his affairs or taken appropriate steps to retain counsel privately in relation to the second prong of the test. However, in the event I am in error on whether he has satisfied the onus on him under the third prong of the test, it is useful for me to consider the second prong.

[22] In my view, the applicant’s evidence respecting his ability to fund his defence without state assistance is vague and unsatisfactory. Although he says that there is a shortfall in his family income, he provides no particulars of his income and that of his spouse, including income tax returns and notices of assessment. Neither does he provide full particulars of their expenses supported with relevant documentation. The only financial documents produced by the applicant were a joint bank statement from Meridian Credit Union for the period May 25, 2013 to June 25, 2013 and his spouse’s Mastercard statement with PC Financial for the period May 24, 2013 to June 20, 2013.

[23] The ownership arrangements between the applicant and his spouse and his parents respecting the residence are left vague. He states that he does not know what the equity on the home currently is, although he thinks or assumes that there is none. He admitted that he has made no enquiries of his parents respecting utilizing whatever equity there is to partially fund his legal defence. He provided no statement of net worth. Although he states in his affidavit an assumption that his adoptive parents would be unwilling to provide assistance to fund his defence, he has not approached them for assistance. He testified that he has given no consideration to selling one of the vehicles to reduce expenses and to generate funding towards the cost of his defence.

[24] It has been eleven months since the applicant was arrested on the charges. He has not indicated in his evidence any rearranging of his affairs in order to plan for the cost of his defence. No changes have been made in his family’s lifestyle nor has there been any reduction in their expenses other than cancelling cable television service.

[25] The onus is on the applicant to satisfy the court that he has exhausted all possible routes to obtain counsel to the extent necessary to ensure a fair trial in the particular circumstances of the case (see R. v. Drury, 2000 MBCA 100 (Man. C.A.) at para. 33). This would include, among other things, efforts to save for the costs of counsel and to exercise prudence with expenses and prioritization of payment of legal fees (see R. v. Malik, 2003 BCSC 1439 (B.C. S.C. [In Chambers]) at para. 23).

[26] The authorities indicate that the evidentiary burden of proof on an applicant on an application of this nature, respecting each prong of the test, is high, described as “a very heavy burden” (see Malik at para. 22, and R. v. Gour (July 29, 2011) Barrie 10-0187 (S.C.J.) at p.9).

[27] In my view the applicant has failed to satisfy the onus on him to show that he is unable to obtain legal representation without state funding, as required by the second prong of the Rowbotham test.

[28] For the reasons set forth above, the application is dismissed.

D.A. Broad J.

Date: April 7, 2014