ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: M252/13
DATE: 20140801

B E T W E E N :

HER MAJESTY THE QUEEN
Respondent

– and –

HUU HAT LE
Application

Christopher Bundy
for the Respondent

Robert N. Morris
for the Applicant

THEN J.:

[1] The applicant seeks an order under s.462.34(4) of the Criminal Code for the release of monies and property that has been restrained to pay for his reasonable legal expenses on current drug charges or for an order allowing his application pursuant to a Rowbotham application directing the Attorney General of Canada and/or the Legal Aid Plan to pay for his legal defence.

[2] The charges against the accused date from 2009 and involve two separate major grow operations, one involving 2600 plants and the other 4306 plants. The Crown will be calling evidence from an undercover RCMP officer, other police officers and relying on wiretap evidence, search warrants and production orders.

[3] The Crown position on sentence as outlined in the Pretrial Conference Report in the event of conviction is to seek a 7 year penitentiary term. The trial on these charges is to begin on September 8, 2014.

[4] On 2013, the accused was charged with 72 new charges relating to the possession of proceeds of crime and mortgage fraud involving himself and various family members. I wish to make clear that these reasons deal only with the application under s.462.34(6) and the Rowbotham application as it relates to the drug charges.

[5] Mr. Morris, counsel for the accused, requested disclosure in 2012 with respect to the drug charges and was provided with a portable hard drive and three DVDs containing 2,202 PDF files with 17,030 pages of materials. Further disclosure has increased the disclosure to 3,848 PDF files and 31,192 pages. It is anticipated that counsel will pursue an entrapment defence.

[6] I agree with Mr. Morris that the case is legally complex with voluminous disclosure and that the accused potentially faces a substantial prison term.

[7] Mr. Morris is an experienced criminal practitioner with 32 years’ experience as a Crown Attorney and certified as a specialist in Criminal Law by the Law Society of Upper Canada. In my view, the accused requires an experienced defence counsel in the circumstances of this case, especially in view of the work that he has already done in preparing this case for trial.

[8] A legal aid certificate was issued to the accused on August 14, 2012 as he was found financially eligible at that time. Given the complexity of the case Mr. Morris applied for Big Case Management. Legal Aid approved 200 hours for preparation time prior to the trial as well as coverage for the trial of which 185 have been utilized by Mr. Morris to prepare for the trial.

[9] However, the accused`s certificate was cancelled on August 9, 2013 on the basis that he no longer qualified financially for legal aid based on an assessment of his income or assets, as Legal Aid was not satisfied he had fully disclosed his financial situation. This cancellation has been upheld on appeal by the Director of Legal Aid. This review of the accused’s financial situation leading to cancellation of the certificate was precipitated by numerous proceeds of crime and mortgage fraud charges against the applicant and several of his family members.

[10] The accused brought an unsuccessful application under s.462.34(6) of the Code on January 18, 2014, before Quigley J. because of insufficiency of material. The accused filed his own affidavit regarding his impecuniosity on February 4, 2014, in support of this application. The only assets that the accused owns have been restrained by Court order in 2009. These assets include a RRSP and two motor vehicles. The RRSP is in the amount of $22,809.22. The motor vehicles are a 1997 Porsche and a 2005 Mercedes. The book value for the Porsche was approximately $6,000 in 2009 and the updated book value for the Mercedes is approximately $7,000, although each vehicle is subject to a storage fee of $2,684.50 and $2,685.61 for the Porsche and Mercedes respectively. In his affidavit he asserts he has no other assets or means available to meet obligations of reasonable legal expenses. He is unemployed and is collecting Ontario Works and some Ontario Trillium benefits. He lives in his mother’s home with his daughter and pays rent of $700 per month. He is $65,000 in debt. There is no evidence that he has money owing to him.

[11] The accused was subjected to extensive and probing cross-examination. I am persuaded that the accused, who testified with the aid of an interpreter, has nevertheless more than a functional facility with the English language. The accused attained a Grade 11 education in Canada. He has worked in various jobs requiring the use and understanding of the English language including that of a real estate agent. Moreover, his involvement in all of the charges before the court involve a measure of sophistication, and an ability to communicate in the English language.

[12] However, I am also persuaded that apart from the assets that have been restrained, he has no other assets as property to meet the obligations of reasonable legal expenses.

[13] The statutory scheme under ss.462.34(4), 462.34(5) and 462.34(6) provides a means by which an accused person, with a proprietary interest in seized property may apply to a judge for an order that the property, as a part thereof, be returned to the applicant for the purpose of meeting reasonable legal expenses.

[14] By way of summary, the applicant is required to satisfy three requirements on a balance of probabilities

(a) the applicant must have no assets as means to pay his legal costs (s.462.34(4));

(b) the applicant must possess an interest in the property. The issue is not whether the possession of the funds or property is lawful but whether the applicant has possessory interest in the property (s.462.34(4); s.462.34(6)) Wilson v. Canada,1993 8665 (ON CA), [1993] O.J. No. 2523 (Ont. C.A.) at para. 45.

(c) The legal costs must be reasonable (s.462.34(4); s.462.34(5)).

[15] With respect to factors (a) and (b) as indicated above, I am satisfied on a balance of probabilities the accused has no assets or means to pay his legal costs and that he has a possessory or proprietary interest in the seized and retrained property.

[16] With respect to factor (c) the reasonableness of the legal costs s.462.34(5) reads as follows:

(5) Hearing – For the purposes of determining the reasonableness of legal expenses referred to in subparagraph (4)(c)(ii), a judge shall hold an in camera hearing, without the presence of the Attorney General, and shall take into account the legal aid tariff of the province.

[17] Mr. Morris made his representations in camera with respect to the nature of reasonable funding sought for the trial anticipated to take 3 to 4 weeks as well as what he considers to be a reasonable hourly rate.

[18] In open court, the Crown relies upon material in the possession of the accused that explains Legal Aid’s normal regime which is an hourly rate of $117.84 for a lawyer with the experience of the accused’s counsel i.e. 5.5 hours of court time for each day of trial and 4.0 hours of preparation for each day of trial which as a weekly projection on that formula amounts to $5,597.40.

[19] For the reasons outlined above in the matter of the application pursuant to s.462.34(4) I am prepared to issue an order in terms of paragraphs 1-4 of the draft order filed as amended and appended to these reasons.

[20] I would excise paragraphs 5 and 6 of the draft order. In lieu of paragraph 5 of the draft order I would make the following order:

Fees to be charged by Robert Morris for his services are as follows:

(a) for Robert Morris $117.84 in accordance with the formula of 5.5 hours of court time for each day of trial and 4.0 hours of preparation for a weekly projection of $5,597.40;

(b) fees to include services already rendered in bringing a Rowbotham application and restoration of property application.

[21] I make this order for a number of reasons. First, s.462.34(5) requires the court to take into account the legal aid tariff of the Province. Secondly, until legal aid was cancelled Mr. Morris was prepared to prepare and try this case at the legal aid rate and had been approved and budgeted at 200 hours for preparation and trial of which he has already utilized 185 hours for preparation alone prior to the cancellation of the certificate. Thirdly, the fees allotted conform reasonably with the monies available. The fees for services rendered for the bringing of the 462.34(4) application and the Rowbotham application should also be calculated on a legal aid fees basis.

[22] The Rowbotham application is dismissed as the order made pursuant to the application under s.462.34(4) is sufficient to provide for counsel of choice for the accused’s trial. If unforeseen circumstances, such as a dramatic lengthening of the trial, should arise it will be open to the accused to pursue a further Rowbotham application.

[23] For these reasons the application pursuant to s.462.34(4) is granted with respect to the drug charges. The Rowbotham application with respect to those charges is dismissed.

THEN J.

RELEASED: August 1, 2014

COURT FILE NO.: M252/13
DATE: 20140801

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Respondent

– and –

HUU HAT LE
Application

REASONS FOR JUDGMENT

THEN J.

RELEASED: August 1, 2014