Davidson v. Her Majesty the Queen, 2015 ONSC 2655

Davidson v. Her Majesty the Queen, 2015 ONSC 2655

CITATION: Davidson v. Her Majesty the Queen, 2015 ONSC 2655

COURT FILE NO.: 7483/14

DATE: 20150422

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Bradley Davidson

Applicant

– and –

Her Majesty the Queen

Respondent

E. McCooeye, for the Applicant

J. Chapman, for the Respondent

HEARD: April 20, 2015

A. D. KURKE J.

1Accused Bradley Davidson requests that this Court make an Order pursuant to ss. 7, 11(d), and 24(1) of the Canadian Charter of Rights and Freedoms, so that he can obtain state-funded counsel to assist him on the Indictment that is before this Court. This Application is commonly called a Rowbotham Application, deriving its name from the Ontario Court of Appeal decision that clarified the principles and criteria at play for deciding whether such an Order should be granted: R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271 (C.A.).

2A funding order pursuant to Rowbotham should only be granted where it is established by the Applicant on the balance of probabilities that all of the following criteria are met in the circumstances of his or her case:

a. The accused has been denied Legal Aid;

b. The accused lacks the means to retain counsel, and

c. Representation of the accused by counsel is required for a fair trial.

See R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271 (C.A.), at 45 (QL); R. v. Peterman, 2004 39041 (ON CA), [2004] O.J. No. 1758 (C.A.); R. v. Fournier, 2006 20526 (ON CA), [2006] O.J. No. 2434 (C.A.), at para. 9. If these criteria are met, then to continue the prosecution with the accused unrepresented would constitute a violation of the accused’s Charter rights, and permit the fashioning of an appropriate remedy, pursuant to s. 24(1) of the Charter.

3It is common ground on this Application that Legal Aid Ontario has denied Mr. Davidson a certificate, as his income of some $13,200 per year, derived from a WSIB pension, exceeds Legal Aid’s financial cut-off. At issue are the other two criteria.

4Mr. Davidson is charged with trafficking in cocaine and oxycodone on four occasions in Elliott Lake, Ontario in 2013. He is also charged with Possession of the Proceeds of Crime as a result of those same transactions.

5Mr. Davidson has a grade 9 education, and entered the workforce as a labourer when he was 14. He has never held a management position. He has received disclosure, and says that he cannot make much of it. His counsel on this Application suggests that the allegations, involving sales of drugs to undercover operators, may permit of the difficult defence of entrapment, and also potentially Charter claims. The federal Crown has indicated to Mr. Davidson that his offences should attract a four-year sentence in the penitentiary.

6Although the charges arose September 2013, Mr. Davidson was not arrested until July 3, 2014 in Simcoe County. He was brought to Sault Ste. Marie, where he was denied bail on August 19, 2014 after a contested bail hearing, and he appears to have remained in custody at the Algoma Remand Centre from his arrest until the present time.

7Mr. Davidson initially had counsel on a Legal Aid certificate, but his lawyer got off record when the certificate was revoked. By that point, Mr. Davidson had waived his right to a Preliminary Inquiry, and elected to be tried by a judge of this Court, sitting without a jury. Mr. Davidson has wanted a review of the bail decision, but does not want to conduct it, or his trial for that matter, without counsel.

8The federal Crown estimates that the trial is very simple, and will take three days. There are seven potential Crown witnesses, but the case could be conducted with only three. No expert witnesses would be required. Counsel for Mr. Davidson estimates a slightly longer hearing, as the defence, potentially involving entrapment and Charter issues, would take some additional time. Complexity also arises from tactical decisions involving the possibility of calling co-charged individuals as witnesses on the trial.

9Mr. Davidson’s extensive criminal record was filed as an Exhibit at this hearing. It shows prior involvement in the same kind of conduct as now charged, many convictions for failing to attend court or being unlawfully at large, and breaches of bail and probation orders, among many other things. He indeed would appear to be a poor candidate for judicial interim release.

10Mr. Davidson’s uncontradicted testimony on this hearing was that prior to arrest, he was living in a tent in someone’s yard in Barrie, with his personal possessions stored in the home’s garage. Upon his arrest, Mr. Davidson, with the assistance of his girlfriend and son, rented an apartment in Elliott Lake, where he stored his belongings, and intended to reside if he was granted bail. The rent was $800 per month. First and last month’s rent and moving costs exhausted nearly all of Mr. Davidson’s savings of some $2100.

11Mr. Davidson’s only income comes from WSIB payments of $1100 per month received as a result of a workplace accident in about 1994. His family is unable or unwilling to assist him in financing a lawyer. He quite reasonably points out that he is unlikely to be able to secure credit, a claim of which I require no further proof than his criminal record. Mr. Davidson’s bank records for several months in 2014, filed with Legal Aid Ontario and forming part of Exhibit 1 on this hearing, do not demonstrate any significant savings or other regular source of income.

12Even while in custody, Mr. Davidson has maintained his apartment at $800 per month, and used much of the rest of his WSIB payments at the jail canteen or on long distance phone calls. He has not managed to save any money, but he has paid off over time some $1100 owing to Legal Aid as his required contribution on past certificates.

13Mr. Davidson estimates that the personal possessions that he has stored in his apartment in Elliott Lake have a total value of about $1000. That property consists of clothing, tools, a 55” television, and some furniture. He keeps the apartment now only to store his possessions and to have a potential residence to present to the Court as part of a bail plan at a bail review. He has a girlfriend, herself on bail for a drug charge, who resides elsewhere in Elliott Lake. Mr. Davidson could not reasonably present the option of residing with her to save expenses as part of a viable bail plan.

Means to retain counsel

14The defence submits that Mr. Davidson clearly does not have the means, on his meagre income, to support himself and pay a lawyer. I am amply satisfied, on the evidence before the Court, that Mr. Davidson receives about $13,200 per year from WSIB, that he has no savings, no credit, and no other sources of assistance. He owns nothing of any value.

15The Crown argues that it is only because of Mr. Davidson’s foolish choices that he does not have the means to fund a short trial in Superior Court.

16It is the Crown’s position that Mr. Davidson has squandered thousands of dollars on an apartment in Elliott Lake that is being used only to store possessions that are virtually worthless. Following his detention in custody after he was denied bail, Mr. Davidson should have sold his possessions and given up the apartment, and used the money for a lawyer. The Crown explained that Legal Aid likely lowered Mr. Davidson’s qualifying income for a certificate to below the level of his WSIB income based on its recognition that he had no rent to pay while in custody after being denied bail. The Crown suggests that Mr. Davidson should recognize the same thing.

17Thus, Mr. Davidson is said to have the means to pay counsel, but refuses to allocate his own money properly for that purpose. In essence, the Crown urges on the Court the following, from R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271 (C.A.), at 41 (QL):

As a matter of common sense, an accused who is able to pay the costs of his or her defence is not entitled to take the position that he or she will not use personal funds, but still to require Legal Aid to bear the cost of his or her defence. A person who has the means to pay the costs of his or her defence but refuses to retain counsel may properly be considered to have chosen to defend himself or herself.

18Respectfully, I cannot agree with that assessment. While logic would appear to indicate that Mr. Davidson’s chances for bail on a review are low, it cannot be said that they are non-existent. And indeed, as counsel points out, the difficulties to be overcome in achieving success on a bail review illustrate that Mr. Davidson is all the more in need of legal assistance if he is to have that chance. To apply for review, Mr. Davidson will need to put forward a plan that includes a stable residence; certainly, the fact that he has continued to maintain the apartment while in custody shows some determination on Mr. Davidson’s part to stay put in a location close to Sault Ste. Marie.

19I also cannot accept that Mr. Davidson should be required to sell his little all, and give up everything he has, including his apartment, in order to satisfy a Court that he is doing everything he can to fund a lawyer. It is one thing to require some personal sacrifices in order to obtain legal assistance, it is quite another to require a person to become destitute, and dispose of everything they have in order to defend criminal charges.

20In addition, there is evidence that Mr. Davidson has over time satisfied outstanding accounts owing to Legal Aid, so it cannot be said that he has not been mindful of his duty to contribute financially to his own defence when that has been required of him.

Fair Trial

21Counsel to Mr. Davidson notes several factors going to the complexity and seriousness of the current charges: Mr. Davidson’s limited education, his evidence that he does not understand a lot about the disclosure that he has been given, Mr. Davidson’s lack of sophistication even if he knows some legal terms, and the fact that the Crown is seeking a sentence of four years incarceration. Counsel reasonably points out the potential pitfalls for Mr. Davidson in trying to run an entrapment defence or a Charter argument. He notes that Mr. Davidson’s waiver of preliminary through experienced counsel, when Mr. Davidson had counsel, has left Mr. Davidson in an even more difficult position, as he did not therefore have that vehicle to discover the case against him.

22The federal Crown argues that the trial in this matter will not be particularly complicated, and that the trial judge will have a duty to offer Mr. Davidson reasonable assistance to ensure that he has a fair trial. He argues that Charter issues arise less often in cases of this sort than where search warrants are involved, and illegal searches can be alleged.

23In my view, the complexity of a case must be understood from the vantage point of the particular accused person who is facing the possibility of representing himself at trial. Mr. Davidson, with his level of education, may find this case more difficult to defend than would someone with a University education. But given Mr. Davidson’s modest level of education and his working background as a labourer, the difficulties inherent in mounting an entrapment defence, and the likelihood of a significant sentence of imprisonment upon conviction, I am prepared to find that this prosecution would be complex for Mr. Davidson to defend, and carries serious consequences for him: R. v. Rushlow (2009), 2009 ONCA 461, 96 O.R. (3d) 302 (C.A.), at para. 20.

24Trial fairness must have as a component an objective aspect. Not only must justice be done, but it must be seen to be done. “It is enough that there is a probability of imprisonment and that the case is sufficiently complex that counsel is essential to ensure that the accused receives a fair trial”: R. v. Rushlow (2009), 2009 ONCA 461, 96 O.R. (3d) 302 (C.A.), at para. 24. And how much more must that be the case when an indigent accused faces a lengthy period of incarceration, as here?

25Suppose that, at the end of a trial at which Mr. Davidson represents himself, with the judge offering assistance as the matter goes along, Mr. Davidson is convicted. Suppose a fit sentence is four years in the penitentiary. How can the public be assured that there was trial fairness when an indigent man, living below the poverty line, is denied representation, convicted when compelled to represent himself, and then sentenced to the penitentiary? On what calculus could such a proceeding be called “fair”?

Decision

26I am satisfied, on the balance of probabilities, that Mr. Davidson does not have the means to retain counsel. I am satisfied, on the balance of probabilities, that for Mr. Davidson not to have counsel on the trial of this matter, if he desires counsel, would result in trial unfairness. Mr. Davidson would not be able sufficiently to understand the case he has to meet or to present any defences available to him, and would be subject to very serious consequences upon conviction.

27I conclude that this is one of those rare cases in which “legal aid is denied but the trial judge, after an examination of the means of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial”: R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271 (C.A.), at 45 (QL).

28Accordingly, I order that this matter be remanded to May 13, 2015 to allow for arrangements to be made for state-funding of a legal representative at Legal Aid rates for Mr. Davidson, so that he may defend these charges. Should that funding not be arranged by that date, I direct that the charges on the Indictment before the Court be conditionally stayed until the funding is arranged.

A. D. Kurke J.