SUPERIOR COURT OF JUSTICE
File No. 14-13587
R. v. Lutczyk, 2014 ONSC 5673
HER MAJESTY THE QUEEN
Respondent
- and -
ROBERT LUTCZYK
Applicant
ROWBOTHAM APPLICATION
REASONS FOR RULING
BEFORE THE HONOURABLE JUSTICE GILMORE
on Friday, August 22, 2014,
at OSHAWA, Ontario
APPEARANCES
N. YOUNG Counsel for the Crown
C. MURPHY Counsel for Mr. Lutczyk
Friday, August 22, 2014
U P O N R E S U M I N G :
REASONS FOR RULING
GILMORE,J. (Orally):
These are my reasons and ruling in relation to Mr. Lutczyk’s application for state funded counsel.
Overview:
This is the accused, Robert Lutczyk’s application for state funded counsel, often referred to as a Rowbotham application. He requests this order pursuant to section 7 of the Charter of Rights and Freedoms, granting him funding for his trial and directing that the Attorney General of Ontario or Legal Aid Ontario pay for such funding as may be necessary for the applicant to make a full answer and defence.
The respondent, Her Majesty the Queen, whom I shall refer to as “Ontario”, submits that the applicant has not satisfied the onus of showing that he cannot afford counsel and that counsel is essential to endure a fair trial. Ontario submits that the applicant has not satisfied the preconditions of the Rowbotham test, and accordingly, Ontario submits that the application be dismissed in its entirety.
Background:
The accused is charged with the following:
(a) kidnapping;
(b) using a restricted firearm;
(c) bodily harm;
(d) forcible confinement;
(e) failure to stop for police;
(f) dangerous operation of a motor vehicle
(g) use of a firearm for commission of offence;
(h) pointing a firearm;
(i) possession of a restricted firearm with ammunitions (X3);
(j) possession of firearm knowing its possession is unauthorized (X5);
(k) unauthorized possession a firearm (X3);
(l) explosives with intent to cause death or harm;
(m) explosives – placing or walking;
(n) explosives – possession without lawful excuse;
(o) possession of property obtained by crime under $5,000. (X4)
The allegations relating to Mr. Lutczyk are serious and extensive.
It is alleged that he kidnapped the solicitor for the city of Oshawa, Mr. Potts, on October 15, 2012. Mr. Potts was known to Mr. Lutczyk, who drove into Mr. Potts’ driveway, it is alleged, at 11:00 p.m. on the evening in question, grabbed him by the arm and showed him a gun. He put Mr. Potts into the rear seat of his vehicle and threatened to shoot him in the leg if he did not comply. The allegations continue that while driving, Mr. Lutczyk had a gun in his hand and drove to an industrial area of Whitby, where Mr. Lutczyk chained Mr. Potts wrists together, and after unlocking a gate, they drove into a compound.
At one point, Mr. Potts convinced Mr. Lutczyk to remove the chains on his hand and suggested they go to a Tim Hortons’s drive through. While there, a marked police cruiser stopped Mr. Lutczyk, at which point he drove his car over the curb and fled with police following. Police pursued him back to the compound where he crashed through the locked gate.
Mr. Potts exited the vehicle after being pushed out by Mr. Lutczyk, who then pointed the gun at Mr. Potts’ head and used him as a shield against the officers. Shortly thereafter, Mr. Potts was able to break free and was not harmed in the alleged kidnapping.
It is further alleged Mr. Lutczyk then entered the industrial unit and barricaded himself for approximately twenty-four hours before surrendering to police. While in the unit, he stated he had a bomb.
After being placed in custody, his vehicle was found to have two different licence plates, not registered to it. Inside the industrial unit, another two licence plates were found, both of which had been reported stolen. It is further alleged that Mr. Lutczyk was in possession of several restricted firearms and homemade explosive devices.
The applicant was then arrested on October 17, 2012 and has been in custody ever since. He is currently incarcerated a Central East Correctional Centre in Lindsay.
The applicant’s trial is scheduled to proceed during the weeks of January 26, February 2, 9 and 16, 2015.
The applicant originally applied for Legal Aid on February 2, 2013. He was refused funding by Legal Aid on the basis that he had failed to provide complete and credible information regarding his financial circumstances. The rejection of his application by Legal Aid occurred on April 29, 2013. The applicant appealed this decision to the area committee of Legal Aid on May 13, 2013, and on May 24, 2013, the Area Committee upheld the decision to refuse the certificate based on financial ineligibility.
The applicant appealed the Area Committee’s decision to the Provincial Office on June 1, 2013. The Provincial Office upheld the Area Committee’s decision on June 20, 2013.
After Legal Aid’s denial of his request for funding, the applicant became self-represented with the court appointing an amicus curie, Mr. Murphy, on or about May 29, 2013. Mr. Murphy attended on behalf of the Applicant to argue this application.
The argument of this application including evidence took the entire day on August 19th, 2014.
Evidence of the Applicant
The applicant filed two affidavits to support his application. His first affidavit outlines that he is forty-seven years old and has an Honours B.A. in urban planning from Carleton University and a Bachelor of Education from Trent University. He was a city counsellor in Oshawa from 1994 to 1997 and again from 2003 to 2010. He worked as a teacher from 2010 to 2012 at Brookside Secondary School in Cobourg, where he taught construction technology, technical drawing and math. His affidavit evidence was that he was married from 1998 to 2012, but separated in March 2012. He advised that he has a separation agreement in place.
Mr. Lutczyk initially retained counsel Sevag Yeghoyan with a retainer of approximately $3000. That retainer ran out after his bail hearing on March 25, 2013. Mr. Lutczyk was denied bail. At that point, he applied for a certificate to fund his defence from Legal Aid on February 21, 2013. The application was rejected on April 29, 2013 on the basis that he was financially ineligible. As indicated above, all avenues of appeal to Legal Aid were exhausted and in each case the applicant was found to be financially ineligible.
Since his bail hearing Mr. Lutczyk has been self-represented, other than the court appointing Christopher Murphy as amicus curiae to assist him in his defence on May 29, 2013.
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FORM 2
Certificate of Transcript
Evidence Act, subsection 5 (2)
I, Janice Zufelt, certify that this document is a true and accurate transcript of the recording of R. v. Lutczyk in the Superior Court of Justice held at 150 Bond St. E., Oshawa, Ontario taken from Recording No. 2812-203-20140822-091402-10-Gilmore Certified on Form One
August 30, 2014
Janice Zufelt
Certified Court Reporter
Transcript ordered.....................August 22, 2014
Transcript completed...................August 30, 2014
Transcript approved for release........September 29, 2014