ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 15-4910

DATE: 2015-08-12

B E T W E E N:

MATO JOSIPOVIC

S. Smordin and T. Mimnagh, for the Applicant

Applicant

• and -

HER MAJESTY THE QUEEN

J. Glick, for the Respondent

Respondent

HEARD: July 31st, 2015

REASONS FOR JUDGMENT

1On November 18th, 2013, the Applicant was arrested for the first degree murder of James Louis Malone. He was denied bailed and has remained in custody since that date.

2On February 6th, 2015, following a preliminary inquiry before the Honourable Mr. Justice Campling of the Ontario Court of Justice, the Applicant was committed to stand trial on the charges on which the Crown sought committal. His brother, John Josipovic, was also committed to stand trial on the same charge.

3Pretrial motions are scheduled to commence on September 8th, 2015, for two weeks. The trial proper is scheduled to begin on November 16th, 2015, for four weeks.

4The Applicant is seeking an order pursuant to Section 7 of the Charter of Rights and Freedoms directing that the Attorney General of Ontario pay for such funding as may be necessary for the Applicant to make full answer and defence to the charge. The Applicant also seeks an order granting a stay of proceedings until the Attorney General provides funding for counsel.

5In January of 2014, the Applicant applied for Legal Aid funding for this matter but was refused because Legal Aid was of the opinion that he had the means to fund his own defence. He subsequently appealed to senior counsel at Legal Aid Ontario and was denied.

6It is the Applicant’s position that as between the time of the original Legal Aid application and June 2015, his financial situation has changed significantly.

7The accused attempted, as a result of his change of circumstance to again apply for Legal Aid funding but was advised by way of letter dated June 15th, 2015, that he had exhausted all avenues of funding with Legal Aid as his original application had been appealed to senior legal counsel and that his decision was final.

8The Applicant has been incarcerated since his arrest. He was terminated by his employer and, as a result, he has no income. His counsel argues that any financial resources previously available have been exhausted.

9The Applicant and his wife separated in June 2015, thereby altering his financial resources.

10At the time the Applicant was charged, he was employed with Karmax Heavy Stamping, a division of Cosma International. The Applicant was earning $25 an hour. In 2012 he earned $53,900.

11The Applicant’s employment was terminated on January 8th, 2014. On January 24th, 2014, the Applicant cashed in over $49,000 from the retirement savings program managed by Sunlife, and these funds instead of being used to pay legal fees were used to pay off a line of credit.

12In addition to liquid assets, at the time of the charge the Applicant and his wife owned a home at 529 Kemp Road, Grimsby, Ontario. The house was purchased in 2004 for $300,000. In January 2014, the assessed value of the home was $358,000.

13As of January 2014, the mortgage owed on 529 Kemp Road was approximately $150,000. The mortgage was owed to the Bank of Nova Scotia. In December 2013, Scotia Bank advised its intention to terminate its relationship with the Applicant. Scotia Bank advised that the Applicant’s mortgage matured on April 28th, 2014, and that they would not be prepared to accept a further renewal. They suggested that the Applicant and his wife seek alternative financing well in advance of the maturity date. At the same time the bank advised that all revolving credit and/or reborrowing privileges under the Scotia Total Equity Plan were terminated and no further credit or advances would be made available. In addition, credit privileges on the Scotia Line personal line of credit were terminated.

14Prior to applying for Legal Aid, on January 28th 2014, and after the charge had been laid, the Applicant and his wife sold their home to the Applicant’s mother and sister. The price paid was $150,000 in cash which was used to discharge the mortgage and the forgiveness of 3 promissory notes in the amount of $35,000, $15,000 and $85,000 respectively. In total, assuming the legitimacy of the promissory notes, the home was sold for $285,790.64. This was about $70,000 less than the assessed value as of 2012.

15Notwithstanding the sale of the home, the Applicant’s wife and daughter were allowed to continue to reside in the home.

16The Applicant’s application for Legal Aid was refused on the basis that the Applicant had transferred title to his property for a value less than fair market value, because of his spouse’s income, and because he had used his pension payout to pay various debts and did not make the payment of legal fees a priority.

17On June 10th, 2015, three weeks before commencing this Rowbotham application, the Applicant and his spouse separated. The separation agreement purports to make the parties financially independent of each other. The parties acknowledge ownership of a 2006 Harley Davidson motorcycle and a 2007 Dodge Ram truck which are described in the separation agreement as of nominal value. They agree to divide the vehicles to their mutual satisfaction, with the truck going to the spouse.

18The jeopardy the Applicant faces is significant. Upon conviction for first degree murder, he faces a mandatory sentence of life in prison.

19The Applicant has been unable to plan and organize his affairs since the time of his arrest because of his incarceration and because he has not been earning an income. He testified that his wife had been looking after the family finances.

Issues and the Law

20It is now well settled that, as part of their inherent power to ensure a fair trial, both at common law and pursuant to the Charter, Superior Court judges may make an order to ensure that counsel is available to defend an indigent accused. As the Court of Appeal stated in Rowbotham, the trial judge has power to stay proceedings until counsel for the accused is provided, R. v. Rowbotham, (1988) 1988 147 (ON CA), 41 C.C.C. 3rd 1(ONT. C.A.).

21The issue in this application is whether, on a balance of probabilities, the test for the appointment of a publicly funded counsel for trial has been met.

22Rowbotham orders may be granted where all of the following criteria have been established on a balance of probabilities:

I) Legal Aid has been denied and the Applicant has exhausted all appeals;

II) The Applicant is indigent and unable to pay for counsel privately; and

III) The Court concludes that counsel is nevertheless necessary to preserve the fair trial interests of the accused. This would include a determination of whether the Applicant faces serious consequences and whether the case is too complex for the Applicant to defend himself bearing in mind both the complexity of the case itself and the abilities of the Applicant.

R. v. Rowbotham supra at pages 52-53; R. v. Barna, 2013 ONSC 5954,[2013] O.J. No. 4252 at para 4; R. v. Montpellier,2002 34635 (ON SC), [2002] O.J. No. 4279 (ONT SUP. CT.) at para 37.

23The Respondent agrees that the Applicant had been denied Legal Aid and has exhausted his appeals. The Respondent also acknowledges the severity and complexity of the charge of first degree murder. It is the position of the Respondent that the Applicant has not established indigence and as such has not met the test for state funded counsel.

Analysis

24I have heard evidence that the Applicant’s home was transferred to his mother and sister so that they might not lose the value of the promissory notes held from the accused totaling $120,000 to the Applicant’s mother and $15,000 to his sister. The transfer of the property also involved the payout of the mortgage in the amount of approximately $150,000.

25I am satisfied that had the sale not taken place, the accused would have been unable to make the mortgage payments, that the mortgage would have gone into default, and the property disposed of by the bank.

26Based on the evidence of the accused’s sister, the property was in a state of disrepair and needed an injection of funds to make it marketable. A number of photographs were filed at the hearing of this application in support of that position.

27It is most unlikely that any disposition by the bank would have yielded any more by way of proceeds than the transaction between the accused and his mother and sister.

28After the sale transaction, and after their promissory notes were paid off, the accused’s parents provided some money towards his defence, namely $15,000.

29The evidence before me satisfies me that the comparables used by Crown counsel to value the house were for properties that were superior to that owned by the accused. The estimated value using those comparables was given in affidavit form by a summer student in the Crown office based on comparables that were not relevant and therefore bears no weight.

30I find that given the circumstances, the house was sold at fair market value under conditions where there was little chance that not going through with the transaction would have yielded more money to the accused. A benefit of the transaction was that it provided a residence for the applicant’s wife and daughter who had limited income.

31A consideration of the Applicant spouse’s income in my view should not disqualify the accused from assistance. The evidence before me is that the gross income attributed to the spouse is actually income from a barber shop run by their daughter. That income is about $10,000 per year net which is paid to their daughter. Whatever the Legal Aid rules are, this income could not contribute significantly to the funding of a legal defence.

32Crown counsel argues that another reason why the accused cannot claim indigence is because his spouse, while he was incarcerated, used his pension payout of approximately $49,000 to pay various debts, including his line of credit and credit card. The amount actually paid out was about $57,000 which seemed to indicate that about $8,000 in additional resources were applied to paying off this indebtedness.

33Crown counsel argues that having failed to use the funds received from the pension payment toward legal fees, the Applicant fails to qualify financially for legal assistance. It should be noted, however, that funds of about $50,000 have been paid on the accused’s behalf toward legal fees, presumably by his spouse.

34The Applicant spouse in her correspondence to Legal Aid explains that when the pension was paid out, their bank had indicated that it no longer wished to do business with them or with the accused, and had the debts not been paid the bank could have got at the funds by putting the accused and his spouse into bankruptcy with the result that the pension fund could not have been made available to fund a legal defence in any event.

35I have heard evidence and accept the evidence that the snowmobiles and motorcycle considered assets by Legal Aid are in fact junk with only nominal value.

36The Concise Oxford English Dictionary 10th Edition defines “indigent” as being “poor or needy”. Applying this definition, I do not read the Rowbotham test as requiring the applicant and his family to use every last penny of the family resources to fund his defence without allowing some provision to be made for meeting the needs of daily living, albeit on a modest scale, particularly in a case such as this where, because of his incarceration, the applicant has not been able to work for over 1.5 years.

37There’s no evidence that the money available after the accused’s arrest was spent on lavish lifestyle or for anything other than on the necessities of life. I am not satisfied that this is a case where the accused with his family has made a considerate effort to diminish the value of his estate.

38The Ontario Legal Aid Plan has its own unique set of rules to determine eligibility for legal aid. Decisions by the legal aid authorities are not dispositive of the issue of whether a criminal defendant may be entitled to a court order that the state provide funding for counsel because different considerations apply (i.e. courts have an independent obligation to ensure that an accused person’s inability to retain counsel will not jeopardize their right to a fair trial).

39The case against the accused is that he and his brother following an altercation pursued the deceased around the streets of the east end of Hamilton and eventually gunned him down on the street. Identification evidence is most important and I am advised that there are a number of witnesses on this issue.

40The defence is not one that the accused can embark upon on his own, where Amicus might be engaged for some part of the trial, or one where full time counsel is not required.

41If convicted, the accused faces incarceration for the rest of his life. Representation by full time counsel is essential to a fair trial. The accused has a Grade 10 education and no experience with legal matters.

42In summary, I find that it is in the best interests of justice for the Applicant to be represented at trial on the charges he is facing, and that he is not in a financial position to fund counsel privately.

43I find that the applicant has satisfied all of the criteria of the Rowbotham test. To force him to trial without funding for his defence would amount to a violation of his Section 7 Charter rights.

44Order to go directing that the Attorney General of Ontario provide such funding as may be reasonably necessary for the accused to make full answer and defence to the charges he faces.

45It is also ordered that the proceedings against the accused be stayed until the Attorney General provides such funding, including the costs of this application.

Lofchik, J.

Released: August 12th, 2015

COURT FILE NO.: 15-4910
DATE: 2015-08-12

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

Mato Josipovic

Applicant

• and –

Her Majesty The Queen

Respondent

REASONS FOR JUDGMENT

TRL (vt)