ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-116-00M0
DATE: 2015-09-29
B E T W E E N:
ROBERT VANIER
Louis P. Strezos/Melissa Austen, Counsel for the Applicant
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Christopher A. Wayland/Jeffrey Claydon, Counsel for the Respondent
Respondent
HEARD: September 25, 2015
Varpio J.
REASONS ON EVIDENTIAL MOTiON
OVERVIEW
[1] Mr. Vanier brings a Rowbotham Application seeking to have the state pay for his lawyer’s services. Prior to hearing the Application, however, Mr. Vanier seeks an Order allowing him to file his Legal Aid Ontario (“LAO”) file with the Court for its consideration without serving the Crown with same. For the reasons that follow, I dismiss Mr. Vanier’s procedural motion and Order Mr. Vanier to serve the Crown with any materials he wishes the Court to consider (subject to both his right to redact the LAO file for privileged information and the undertaking made by the Crown at this hearing).
FACTS
[2] The facts underlying this portion of the motion are simple. Mr. Vanier was charged with multiple counts surrounding, inter alia, improper disclosure on public filings for a company for which he and his spouse were officers. Mr. Vanier’s wife is also charged.
[3] The indictment was preferred against Mr. Vanier. Mr. Vanier applied for legal aid and LAO denied Mr. Vanier’s application. Currently, Mr. Vanier has a lawyer assisting him with the instant application but not the trial.
[4] A Rowbotham application typically requires the applicant to prove that:
a. He is unable to retain counsel;
b. Without the assistance of counsel he cannot receive a fair trial; and
c. He has exhausted all possible routes to retain counsel.
[5] Accordingly, one common issue in such applications is the accused’s ineligibility for legal aid.
[6] In support of his application, Mr. Vanier has filed an affidavit with the Court containing his LAO file attached as an exhibit. According to counsel, this filing is in response to case law, which I need not fully explain here, that effectively states that an accused has the burden of showing that she/he is in fact impecunious and that LAO’s rejection of his/her application was not the result of the accused’s own doing.
[7] The Crown has been served with the affidavit but its copy of the affidavit does not contain the exhibit.
POSITION OF THE DEFENCE
[8] Mr. Vanier’s counsel suggests that it would be inappropriate for the Crown to possess Mr. Vanier’s LAO file for the following reasons:
The information contained within the LAO file is presumptively privileged. Counsel directed the Court towards a discussion of the difference between communications and documents and how privilege affects each; and
Disclosure of the LAO file to the Crown would unduly prejudice Mr. Vanier’s trial fairness since the Crown could potentially gain a deeper understanding of Mr. Vanier’s personal financial circumstances. Such an understanding is germane to the charges before the Court since Mr. Vanier is charged with fraud-related activities.
[9] In support of the second point above, counsel provided the Court with R. v. Singh, 2014 ONSC 2848. At paragraphs 1, 53-56, Skarica J. indicated as follows:
On February 7, 2014, I ordered a mistrial in a jury trial involving serious criminal charges relating to the three accused listed above. In my ruling, R. v. Singh 2014 ONSC 897 (SCJ), I found that the numerous breaches of section 7 of the Charter, due to the negligence of both the Crown and the police, necessitated a mistrial order (see paragraphs 89, 96). ... Accordingly, I made a further order, as an appropriate and just remedy pursuant to section 24(1) of the Charter, that the Crown pay costs to the defence due to Crown misconduct in making very late disclosure of material and crucial evidence (see paragraph 96).
The Crown submits that a court must take a contextual approach in deciding whether or not the retainer relationship is privileged in the same manner as solicitor-client communications -- see R. v. Cunningham, 2010 SCC 10, [2010] S.C.J. No. 10 (S.C.C) at paras. 28-31, Re Kaiser 2012 ONCA 838, [2012] O.J. No. 5601 (C.A.) at paras.16-38 and Ministry of the Attorney General v. Mitchinson 2004 13070 (ON SCDC), [2004] O.J. No. 1494 (S.C.J. -- Divisional Court) at paras. 48, 49.
Justice Blair in Re Kaiser summarizes the contextual approach, regarding information as to who is paying the legal bills, as follows at paras. 27- 31:
Accordingly, the fact that someone is legally aided is presumptively privileged. In order to rebut this presumption, the party -- the Crown in this case - seeking disclosure needs to call evidence and /or demonstrate that Mr. Singh would not be prejudiced by the disclosure. No such evidence was called. The Crown submitted that it would not use that information at trial. In this case, the victim was extorted for money. It seems to me, in crimes involving greed, that any information regarding an accused's impecunious circumstances -- i.e. lack of assets, lack of income, fact that accused is legally aided, etc., could be useful information for the prosecution regardless of whether the Crown introduces it into the trial as motive. ...
The only relevance would be that, in the event that Mr. Singh is legally aided, the ultimate costs award is the property of Legal Aid and Legal Aid should receive the costs award pursuant to section 46(4) of the Ontario Legal Aid Services Act. Any costs award granted by this court could account for that eventuality by directing that the monies be paid to Mr. Singh's lawyer in trust with a direction that the award be paid to Legal Aid in the event that Mr. Singh does indeed have a Legal Aid certificate.
[emphasis added]
[10] Counsel suggested that the proper balancing of disclosure and trial fairness demanded that the accused file his LAO file with the Court for its consideration. However, given the foregoing, counsel indicated that trial fairness demanded that the Crown not receive same. As such, the Court could examine the contents of the file and use those portions which were relevant without the benefit of cross-examination or submissions. Counsel conceded that this was a novel approach to a Rowbotham Application but indicated that such a procedure would ensure that:
The accused would not be prejudiced by his disclosure to the Crown; and
The appropriate balance would be struck between the right of the accused to not furnish potentially incriminating information against himself versus the needs of justice to ensure that an accused is not able to profit by misleading LAO.
POSITION OF THE CROWN
[11] The Crown submitted that the accused has the ability to redact those portions of the LAO file whose contents disclosed privileged information. As such, any concern that the accused may have regarding disclosure of his/her defence can be addressed by his/her counsel on the Application. The Crown indicated that, while the accused’s redactions may ultimately hurt the accused’s position on the Rowbotham Application (the burden on Rowbotham applications is on the accused), any concerns regarding prejudice and trial fairness were greatly attenuated since it was the accused who made the redactions.
[12] Secondly, in this instance, the Crown undertook not to use the contents disclosed only in the LAO file at trial. This was not an ongoing undertaking (ie. the Crown did not want to set a precedent) or a blanket undertaking (ie. the Crown did not make a derivative uses undertaking) but the Crown submitted that such a position again attenuated the concerns regarding trial fairness to the point where the Court should have no concerns that the disclosure made by Mr. Vanier would adversely impact trial fairness.
[13] Thirdly, the Crown submitted that the inability to cross-examine the accused on the LAO file and make submissions thereon heightens the risk that the trier of fact would have a distorted view of important evidence. The parties would not be able to test evidence crucial to the Application via the adversarial process, which is one of the lynch pins of our Anglo-Canadian legal system.
[14] As such, the Crown posited that Mr. Vanier ought to fully disclose the LAO file (subject to privilege redactions) and that he should be subject to cross-examination on any portion of the file that was so disclosed.
ANALYSIS
[15] While the accused’s position has some merit, I nonetheless accept the Crown’s position with respect to the need for disclosing the LAO file and the uses that can be made of same. Firstly, the Court has recognized that, although an accused’s communications with LAO are privileged, portions of the LAO dossier are not necessarily privileged and are both relevant and necessary considerations to a Rowbotham Application. In R. v. Imona-Russel [2008] O.J. 5405, Nordheimer J. stated:
Under s. 89(1) of the Legal Aid Services Act, 1998, S.O. 1998, c. 26, all legal communications between Legal Aid Ontario and an applicant for legal aid services are privileged "in the same manner and to the same extent as solicitor-client communications". Absent the applicant's consent, therefore, no reference could be made to the contents of those communications. That conclusion does not mean, however, that the court cannot have reference to the plain facts arising from the dealings between the applicant and Legal Aid Ontario. Specifically, the court is entitled to know, and the record before me demonstrates, that the applicant has had a number of counsel of his choice funded by Legal Aid Ontario. The court is also entitled to know the stated reasons of Legal Aid Ontario for its refusal to permit a further change of counsel that gives rise to this application. There is nothing privileged in any of that information.
[16] Secondly, the balancing implicitly undertaken by Skarica J. in R. v. Singh arose as a result of Crown in making very late disclosure of important evidence. Clearly, Skarica J. was indicating that the Court would not force the accused to divulge their Legal Aid status in a situation where the probity of said disclosure was limited and relevance of that status was necessitated by Crown misconduct. In such a case, the Crown would be profiting from its own misconduct. In the instant case, there is no suggestion that LAO has engaged in any misconduct. Indeed, it is possible that LAO acted properly within the scope of its mandate (although the opposite may yet turn out to be true). As such, while Skarica J.’s analysis regarding trial fairness and disclosure of an accused’s LAO status provides some insight, a Rowbotham Application has different considerations and Skarica J.’s statements must be viewed in that light.
[17] Given this legal background, it is important to look at the factors that drive this particular case. Firstly, the Crown has indicated that it is not opposed to the accused redacting those portions of the LAO file that contain privileged information. As a result, the Crown’s undertaking makes it highly unlikely that Mr. Vanier will prejudice his defence by disclosing unredacted portions of the LAO file to the Crown.
[18] Secondly, the Crown will not use any “fresh disclosure” made by Mr. Vanier on this application at trial by cross-examining him regarding same. This too is an important consideration since it helps ensure some protection to Mr. Vanier.
[19] Given these two concessions, I agree that the possibility of Mr. Vanier’s defence being prejudiced by production to the Crown is quite limited. Mr. Vanier and his counsel appear to have the ability to put their best foot forward on the Application while protecting their trial interests. Since the accused and counsel can protect their interests in this fashion, the risks associated with filing the LAO material is very limited.
[20] Conversely, the trier of fact could easily have a distorted view of the LAO file if she/he were to consider “untested” evidence without the benefit of cross-examination or submissions. I need not go into the need for “testing” evidence save to say that such “testing” is fundamental to our adversarial process and that I would be very hesitant to consider evidence without the assurances afforded by cross-examination and submissions save and except in the rarest of circumstances. Given Mr. Vanier’s ability to redact his LAO file coupled with the Crown’s undertaking, this case is not the rarest of circumstances.[^1]
CONCLUSION
[21] For the foregoing reasons, I reject the Applicant’s position that I ought to be able to consider the LAO file without same being disclosed to the Crown. Therefore, the Applicant shall serve the Crown with any materials he wishes the Court to consider (including the LAO file, if he chooses to rely upon it), subject to both the undertakings made by the Crown at this hearing and the accused’s right to redact the LAO file for privileged contents.
Varpio J.
Released: September 29, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
ROBERT VANIER
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
REASONS ON APPLICATION
Varpio J.
Released: September 29, 2015
[^1]: I do not wish to be seen as giving an opinion with respect to a situation where no Crown undertaking is given. That is not the case before me and I leave that discussion for another day.