ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(F) 777/15
DATE: 2015 09 15
BETWEEN:
HER MAJESTY THE QUEEN
Sabrina G. Montefiore, for the Crown
- and -
PRINCE MUNROE
Marianne Salih, for Prince Munroe
HEARD: August 31, 2015
REASONS FOR DECISION
FAIRBURN J.
[1] Prince Munroe was charged on June 12, 2013 with possession of cocaine and possession for the purpose of trafficking. Earlier this year, following a preliminary inquiry, he was committed to stand trial on both charges.
[2] While Mr. Munroe had a privately funded lawyer in the court below, he says this was provided through the financial generosity of his loved ones. According to Mr. Munroe, this generosity has come to an end. Legal Aid Ontario [“LAO”] has denied him assistance. He has exhausted all appeals and had a request for reconsideration refused.
[3] He now seeks a conditional stay of proceedings until such time as the state funds his defence.
Applicable Legal Principles
[4] It is the responsibility of the Attorney General to remunerate a number of participants in the criminal justice system: Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, at para. 36 [CLA]. When it comes to impecunious accused in Ontario, defence counsel are typically funded by LAO. When funding is refused, an accused may apply to the court to stay proceedings until such time as the Attorney General provides for such funding: R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.), [Rowbotham]. A Rowbotham order is “consistent with the Attorney’s responsibilities” and achieves a level of “public accountability”: CLA, at para. 36.
[5] While the Charter does not grant a constitutional right to state funded counsel, it does guarantee a fair trial to everyone charged with a criminal offence. The right to a fair trial is embedded in the broad s. 7 Charter right not to be deprived of liberty and security of the person except in accordance with the principles of fundamental justice. Fair trial interests are also protected under s. 11(d) of the Charter, which provides for a more specific articulation of the right to a “fair … hearing”: R. v. McGibbon (1988), 1988 149 (ON CA), 31 O.A.C. 10, at paras. 25-26; Rowbotham, at p. 66.
[6] In certain “narrow circumstances”, to promote trial fairness, courts have been prepared to grant s. 24(1) Charter remedies by staying criminal proceedings until such time as the Attorney funds counsel for an indigent accused: R. v. Caron, 2011 SCC 5, at para. 6; New Brunswick (Minister of Health & Community Services) v. G.(J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, at para. 36; Rowbotham, at p. 66; R. v. C.(P.) , 2014 ONCA 577, at para. 20. In Rowbotham, the court set out the relevant considerations for making such as order:
… a trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided.[^1] [emphasis added]
[7] As above, three criteria are to be considered on a Rowbotham application. The accused holds the burden of proof and must establish on a balance of probabilities that:
(1) he is ineligible for, or been refused, legal aid and all available appeals have been exhausted;
(2) he is indigent and has no means to pay for counsel; and
(3) his right to a fair trial will be “materially compromised” if he is required to proceed without a lawyer.
These criteria act conjunctively. See: R. v. Williams, 2011 ONSC 7406, at para. 5; R. v. Ramji, 2015 ONSC 445, at para. 4.
[8] When considering an accused’s financial picture, it is important to hold the individual to a standard of prudence. He cannot expect the tax payer to fund his defence simply because he chooses to make himself indigent by refusing to work in circumstances where he is capable of doing so, or by directing his financial resources elsewhere. In an already heavily cash strapped criminal justice system, it is the obligation of accused individuals to make all reasonable efforts to fund their own defence when legally aided assistance has been denied.
[9] Where legal aid has been refused, the trial judge is not to engage in a review of the authorities’ decision to deny funding: Rushlow, at para. 18; R. v. Peterman (2004), 2004 39041 (ON CA), 186 O.A.C. 83, at para. 22 [Peterman]. Regardless of what has come before, and whether the legal aid decision was right or wrong, the trial judge’s role is not to judicially review these decisions. Rather, the focus must be trained on whether legal assistance has been denied, the accused is indigent, and his fair trial interests are at risk without a lawyer. As Rosenberg J.A. held in Peterman, at para. 22:
[W]hen a court makes a Rowbotham order, it is not conducting some kind of judicial review of decisions made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial.
[10] When considering whether the fair trial prong of the Rowbotham application has been met, the trial judge must have regard to a number of factors, including the following non-exhaustive list of considerations:
(a) the seriousness of the charges;
(b) the potential length and complexity of the proceedings, including any pre-trial motions and rulings;
(c) the accused’s ability to participate meaningfully in his or her own defence;
(d) the accused’s facility for the language of the trial;
(e) the accused’s level of education and ability to read and write; and
(f) the likelihood of imprisonment if a conviction results.
See: Rushlow, at paras. 19-20; R. v. Gibb, 2014 ONSC 5684, at para. 5; R. v. Sheikh, 2011 ONSC 4942, at paras. 56, 70; R. v. Wood, 2001 NSCA 38, at para. 24.
Has Legal Aid Ontario denied Mr. Munroe funding?
[11] I am satisfied that Mr. Munroe has been denied legal aid. He has exhausted all of his rights of appeal. Indeed, he has gone so far as to ask for reconsideration of the final appeal decision. LAO has provided its decision. They will not reconsider his application.
[12] Mr. Munroe will not be receiving legal aid. The first prong of the test has been met.
Is Mr. Munroe indigent?
[13] There is an almost inevitable tension that arises between a decision by LAO to refuse a certificate to fund a defence and a finding of indigence on a Rowbotham application. After all, if an accused is indigent, one would think that LAO would issue a certificate to furnish the accused a lawyer. At the same time, if the refusal of a certificate by LAO precluded a finding of indigence, there would be no Rowbotham orders. As noted in Rushlow, it is important that the court make its own assessment of whether an accused is indigent.
[14] Based on the financial records provided to LAO back in the summer and fall of 2013, it was determined that Mr. Munroe had not provided “complete and credible financial information” to LAO. According to LAO, he had deposits into his bank account that were not adequately explained. He also made some iTunes, Netflix and other unexplained purchases. As such, LAO concluded that he may have a non-disclosed source of income. His application was refused, his appeal was denied and his request for reconsideration rejected.
[15] I have had the benefit of reviewing his 2013 bank records. In his viva voce testimony on this application, while he was unable to be precise, Mr. Munroe explained that what appear as a few large deposits to his bank account, primarily in March to June of 2013, reflect a few different things. Some of them were to pay for things on behalf of his mother. Mr. Munroe explained that, from time-to-time, his mother would give him cash and he would pay her bills because his bank card was also a Visa card. This assisted his mother who did not have a Visa card.
[16] He pointed to a few clear examples of where this had occurred. One in particular had to do with a car that he rented on his mother’s behalf when her family had come to visit. On one of these occasions, the records reflect a “retail purchase” of $500 to “Action Car”, followed by two cash deposits the same day for a total of $500.
[17] Mr. Munroe testified that some of the cash deposits also reflected money he had earned on part-time jobs he held back in the spring of 2013. Notably, while Mr. Munroe had some payments toward products such as iTunes and Netflix back in 2013, I find that these were minimal. While the respondent focussed on some iTunes purchases back in 2013, they amount to about $10. The Netflix purchases were equally limited. What is clear is that by June 2013, the applicant’s bank account went into a debit situation and never rose above zero.
[18] While a detailed assessment could be made of Mr. Munroe’s 2013 financial picture, the one that LAO was focussing on, the reality is that it is now September of 2015, two years removed from the original LAO decision. It is important to focus on today’s circumstances.
[19] Mr. Munroe testified that he held a part-time job for a short while in and around the summer of 2014. He worked between 18 and 24 hours per week and made about $300 per week. He did not deposit the money into the bank as he had a negative balance and he says that it would have gone to pay off the debt that had accrued in his overdraft.
[20] Other than two brief stints of part-time work in 2013 and 2014, Mr. Munroe has not worked since the charges were laid. Instead, he has been going to school. He had left school during his grade 11 year and did not return until the fall of 2013. He enrolled at Peel District School Board’s adult learning program. He has been endeavouring to get his high school diploma since that time. While he has failed a few courses along the way, and has been required to attend summer school, he expects to graduate with his grade 12 diploma in December of this year.
[21] The documentation from the Peel District School Board was filed with the court. I accept that he has been enrolled since the fall of 2013 and remains enrolled today. On the documents provided, it appears that his school schedule has fluctuated somewhat since the fall of 2013. At times he has started the school day at 8:30 a.m. and at other points 10:05 a.m. He appears to be finished his school day sometime around 3:20 p.m.
[22] At one point he was also enrolled in the “PLAR” program at the Adult Education Centre. This is an additional course that runs later in the day, following the regular courses he attends. While Mr. Munroe has failed a few courses, and been required to repeat them, he is nearing the end and says that he wishes to attend community college.
[23] In addition to the time spent at school, Mr. Munroe has been under a bail curfew. Since he was released on bail on June 13, 2013, he has been required to be in his residence, where he resides with his mother, from 9:00 p.m. until 6:00 a.m.
[24] As for the preliminary hearing, his mother, father and sister loaned him money to pay for his defence. He testified that his mother gave him $1,500, his sister provided him with $250 and his father provided $1,500. These are loans and, while he must pay each of his family members back, he has paid nothing as yet.
[25] Mr. Munroe testified that his family members are not prepared to advance any further funds for his defence. I accept this to be so. His sister is a stay-at-home mother and his mother is currently in school and not working. He has lost track of his father and does not know where he resides. While the applicant reached beyond his immediate family in an effort to find money from other family members, including some who reside in New York, he has not been successful.
[26] While Mr. Munroe could be working instead of attending school, I am not prepared to hold that he is required to do so. The documentation establishes that he is in school and I accept that he is completing his high school diploma. Regardless of what his future holds in terms of the charges he faces, obtaining his high school diploma will benefit him and society.
[27] Bearing in mind that he is in school full time, and having regard to his curfew, I find that Mr. Munroe is currently impecunious and unable to fund his own defence.
Will Mr. Munroe’s right to a fair trial be materially compromised if he is required to proceed without a lawyer?
[28] Mr. Munroe is charged with having possession of 52 grams of cocaine and trafficking in this substance. These are serious charges. If convicted, the conduct would merit a jail sentence. The potential consequences of a conviction are serious for him.
[29] He has no criminal record and, as such, has no experience with the criminal justice system.
[30] I had the advantage of listening to and watching Mr. Munroe testify. Most importantly, I had the advantage of watching him cross-examined. He was asked to read on a few occasions. He was very slow. When asked during cross-examination to read aloud, he had obvious difficulty. He even had difficulty reading his own handwriting. When counsel was directing him to various locations in documents, he was slow finding them and uncertain of himself.
[31] As above, he has not yet graduated from high school. He is a 26-year old man who seems to be experiencing challenges in obtaining his grade 12 year. He testified about a number of courses that he has failed and is being required to repeat.
[32] While Crown counsel characterized the trial as being one that is about a simple hand-to-hand drug transaction that was followed by a search warrant, defence counsel suggests it is more complex. Counsel suggests that the validity of the search warrant, which rests on confidential informant information, may be challenged. While facts provided by confidential informants do not necessarily make litigation surrounding a search warrant complex, there is no question that it has the potential to increase the complexity of litigation. I am also informed that Mr. Munroe provided a statement to the police and that voluntariness will likely be in issue.
[33] While many accused would undoubtedly be in a position to handle such issues on their own, particularly with the assistance of the trial judge and Crown counsel acting in their quasi-judicial role, Mr. Munroe is not one of them. Having had the benefit of watching him testify, and having regard to his limitations, as well as the issues likely to be litigated in this matter, I find that his fair trial interests may be adversely impacted if he does not receive the benefit of counsel.
Conclusion
[34] I order the proceedings temporarily stayed until the Crown has a reasonable opportunity to arrange for funding of counsel to represent the accused in these proceedings.
FAIRBURN J.
Released: September 15, 2015
COURT FILE NO.: CRIMJ(F) 777/15
DATE: 2015 09 15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
PRINCE MUNROE
REASONS FOR DECISION
FAIRBURN J.
Released: September 15, 2015
[^1]: This passage makes reference to “exceptional” cases. The use of this term is a simple recognition of the pervasiveness of legal aid and the fact that impecunious accused will typically be the recipients of legally aided assistance. As such, the need for an accused to bring a Rowbotham application will be “exceptional” or rare: R. v. Rushlow, 2009 ONCA 461, at para. 19.