ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-0024, CR-11-0013 and CR-12-0024
DATE: 2014-07-25
B E T W E E N:
HER MAJESTY THE QUEEN,
Vern Brewer, for the Respondent
Respondent
- and -
MARCEL DONALD BRETON,
Paul Erskine, for the Applicant
Applicant
HEARD: January 29, 2014,
at Thunder Bay, Ontario
Platana J.
Reasons On Application Under s. 462.34(4)(c)(ii)
[1] This Application, brought pursuant to s. 462.34(4)(c)(ii) of the Criminal Code of Canada is a request to grant the Application for an order of restoration of such seized property as the court deem necessary to meet Mr. Breton’s reasonable legal expenses and make full answer and defense of the charges against him. I have earlier indicated orally that the application is dismissed, but here are my reasons.
[2] The facts put forth by the Applicant and accepted by the Respondent, for this Application, are:
On December 1, 2009 the Applicant, along with a co-accused, was arrested and charged with unauthorized possession of a firearm. This charge was subsequently dropped however following a search of his premises the Applicant was charged with four counts of possession of a controlled substance contrary to the Controlled Drugs and Substances Act; two counts of possession of property exceeding $5,000.00 contrary to the Criminal Code of Canada; one count of possession of property with intent to conceal or convert contrary to the Criminal Code of Canada and one count of possession of a prohibited weapon, also contrary to the Criminal Code of Canada.
The Applicant intents to plead not guilty and to contest the charges against him.
In the period following his arrest the Applicant has either been incarcerated or has been subject to an interim judicial release order with conditions which have made it unrealistic to assume he would be able to gain employment. Consequently the Applicant is indigent. He has recently been issued a Legal Aid Certificate for the purposes of retaining counsel to defend him on these charges.
As a consequence of the legal and factual complexities of the charges, the Applicant requires experienced and competent criminal counsel and has secured the services of Mr. Paul Erskine of Brampton, Ontario, to represent him on these charges. Mr. Erskine has undertaken not to abandon the Applicant should the court choose not to grant the relief sought, however, the Applicant respectfully seeks an order from the court for the restoration of such property as the court sees fit to allow him to meet his reasonable legal expenses and make full answer and defence to the charges against him.
The Applicant respectfully submits that the inadequate funding provided to defence counsel through the Legal (Aid) Services Act, and its accompanying Regulations and Schedules combined with the fact that counsel for the Applicant has only recently accepted this case and that the Crown has dedicated four years and a number of lawyers and paralegals, places the Applicant in a position where the playing field is drastically uneven and creates a serious and imminent risk that the Applicant will be deprived of his right to a fair trial as guaranteed under sections. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
The Applicant further submits the grossly inadequate level of legal aid funding risks bringing the reputation of justice into disrepute by detracting from the reliability and finality of the potential verdict if the Applicant is not provided with adequate funding sufficient to allow him to make full answer and defence to the charges against him.
[3] Section 462.34 of the Criminal Code sets forth three pre-conditions that must be met by the Applicant when seeking an order returning seized funds that are subject to possible forfeiture as proceeds of crime for the purpose of meeting his or her legal expenses: the applicant must have an interest in the seized funds, the applicant must satisfy the court that he or she has no other assets or means available for the purpose of meeting his or her reasonable legal expenses, and the applicant must satisfy the court that no other person appears to be the owner of or lawfully entitled to the possession of the funds.
[4] Mr. Watkins, appearing as agent for Mr. Erskine, has framed the issue directly as whether the granting of the legal aid certificate provides an absolute bar to the granting of the order sought. The Crown acknowledges that the applicant has met two parts of the test, however, takes the position that the granting of legal aid to the applicant means that one of the statutory conditions, that the applicant has no other assets or means available for the purpose of meeting his or her reasonable expenses, has not been met.
[5] Mr. Watkins argues that although legal aid has now been granted and the applicant has retained counsel who has committed to act, the legal aid rate is not reasonable to cover the anticipated fees and expenses of counsel. He submits that the nature of the case is such that it will require much more preparation time than the standard legal aid tariff will allocate and will result in counsel having to perform a considerable number of hours doing work for no remuneration while still having to continue to pay overhead costs associated with his law office.
[6] As the Crown has acknowledged that the money is available to the applicant, and that he has established sole entitlement to it, I accept that the sole issue for me to determine is whether now having obtained legal aid, the applicant is barred from bringing this application as he has not met the third element under s. 462.34(b).
[7] Mr. Watkins, on behalf of Mr. Erskine for the applicant, argues that this is a complex case which would require significant preparation time as Mr. Erskine has only come into this matter after the applicant was unable to find other counsel who would be prepared to act on a legal aid certificate. He argues that the Crown has had four years to prepare this case and that places the applicant in a position where the playing field is even and that creates a serious and imminent risk that the applicant will be deprived of his right to a fair trial as guaranteed under ss. 7 and 11(d) of the Charter.
[8] Counsel argues that decisions made by legal aid authorities are not dispositive of a discussion as to whether a criminal defendant might be entitled to an order pursuant to s. 462.34(4). He submits that in the same way that a court is not bound by the refusal of legal aid to grant state-funded assistance, a court is not relieved of its obligation to protect an accused’s right to a fair trial as a consequence of legal aid having been granted.
[9] As noted in the factum, counsel submits that while the case law is conflicted as to the necessity of a legal aid application as a prerequisite to an application pursuant to s. 462.34(4), there is nothing in the case law to suggest that a successful legal aid application serves as a bar to the granting of relief in this case. Counsel submits that the courts have made clear that any consideration of the balance between legal aid and an application under this section must be guided by reference to the term “reasonable” in assessing legal fees available. They quote Hill, J. in R. v. Murtaza, 2011 ONSC 7577 (S.C.J.), where Justice Hill stated, “the key is reasonableness in all circumstances not presumptive default Legal Aid tariff rates.”
[10] Mr. Watkins has also cited the decision in R v. Love,[1990] A.J. No. 1290 (Q.B.), where the court notes at para. 30:
“ if it was the intention of parliament to curb the ability of the accused to engage counsel of his choice, provided such choice involves only reasonable expenses parliament would have said so. The fact that they have included “reasonable” legal expenses, in my view, indicates, that they mean exactly that. He can have access to funds to pay for reasonable legal expenses. The legal aid tariff is not, in my view, determinative of what is reasonable.”
[11] Counsel further references in his factum the decision R. v. Ro, [2006] O.J. No. 3347 (SCJ), where Riley, J. stated “I’ve taken into account the legal aid tariff of the province, and I say without reservation and as strongly as I can, that it is woefully inadequate in the circumstances of this case or a case of any complexity to reflect or even form the beginning of consideration for what would constitute reasonable legal fees”. I note that Riley, J. made such a comment in considering s. 462.34(5).
[12] Mr. Watkins has cited several cases, including R. v. Wilson 1993 8665 (ON CA), [1993] O.J. No. 2523, R. v. Peterman 2004 39041 (ON CA), [2004] O.J. No. 1758, and R. v. Paryniuk 2001 O.J. No. 4410 (SCJ), where courts have commented on what is a reasonable rate of compensation and that the legal aid rate is not necessarily to be considered reasonable. Courts have also noted that in applications of this nature, the funds to which access is sought are in fact the property of the applicant and are not state-funded.
[13] The Respondent Crown does not dispute that the Applicant is the owner of the seized funds and that no other person has an interest in or is lawfully entitled to the funds.
[14] The Crown submits that the granting of legal aid to the applicant constitutes “other means” available to the applicant to fund his legal expenses within the meaning of s. 462.34(4). The Crown states as there are “other means” available, one of the pre-conditions of the granting of the order sought by the applicant has not been met. The Crown references the decision in R. v. Kaleniuk 2004 9176 (ON SC), [2004] O.J. No. 2122, where at paragraph 2 Justice Dambrot states:
“As I have noted, before an applicant can secure the release of seized funds to pay legal expenses that applicant must satisfy the judge that he or she has no other assets or means available meeting those legal expenses. In my view, this language is broad enough to include legal aid funding.” [emphasis added]
[15] In the same case, Justice Dambrot referred to the Ontario Court of Appeal decision in R v. Wilson (1993), 1993 8665 (ON CA), 86 C.C.C. (3d) 464, where the court stated that the applications judge in proceedings such as these must balance the need for the applicant’s legal assistance against the possibility that the seized funds which will turn out to be proceeds of crime will be used to benefit a person who may be shown to have obtained the funds through criminal activity.
[16] In R. v Murtaza [2011]No. 6034, Hill, J. references R. v. Su, Ont. SCJ (unreported, July 9, 2007) where Karakatsanis J. (as she then was) notes:
“The Criminal Code permits me to return money to the accused for the purposes of meeting his reasonable expenses if I am satisfied that he does not have other assets or means available for that purpose. I have no doubt that a legal aid certificate can qualify as means to meet legal expenses.” [emphasis added]
[17] The Crown also relies on R. v. Cheng 2011 ONSC 4479 at paragraph 40, where Then R.S.J. in referencing Kaleniuk, states:
“I agree with the analysis of Dambrot, J. based on the broad interpretation of the word “means” found in s. 462.34…”
[18] Further, in Cheng, Justice Then further notes the appropriate procedure was to have applied for legal aid on the authority of Kaleniuk, supra, and if refused to bring an application under s. 462.34 of the Criminal Code.
[19] The Crown Respondent also argues that R. v. Grant, 2010 MBQB 258, is a case where the accused had counsel funded by legal aid. The court determined that it is only if the accused can establish that his right to a fair trial was imperiled due to the level of funding provided by legal aid that the court should examine the adequacy of that funding.
[20] The Crown also refers me to Peterman, supra, where in dealing with legal aid policies and funding rates, the court noted at para. 21 that “a criminal trial court has no jurisdiction to review those policies and, having determined that they are unreasonable, impose other arrangements of Legal Aid Ontario. A criminal courts jurisdiction rests solely on the obligation to ensure that an accused person receives a fair trial.”
[21] I agree with the submission of the Respondent that, the Applicant having been granted Legal Aid, the only circumstances in which the court might consider granting this application is if it can be shown that the accused’s right to a fair trial has been imperiled. Beyond a bald assertion that this is the case here, there is no evidence before me to permit me to come to that conclusion.
[22] This application is dismissed.
Mr. Justice T. A. Platana
Released: July 25, 2014
COURT FILE NO.: CR-10-0024, CR-11-0013 and CR-12-0024
DATE: 2014-07-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN,
Respondent
- and -
MARCEL DONALD BRETON,
Applicant
REASONS ON APPLICATION
UNDER s. 462.34(4)(c)(ii)
Platana J.
Released: July 25, 2014
/nf