ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CJ8265
DATE: 2015-11-09

BETWEEN:

Her Majesty the Queen

Respondent

– and –

Dennis O’Neill Robinson and
Neisha Dorraine Thompson

Applicants

M. Hourigan, Counsel for the Crown/Respondent

E. Perchenok, Counsel for
Mr. Robinson/Applicant

A. Alawi, Counsel for
Ms. Thompson/Applicant

HEARD: November 4 and 5, 2015

REASONS FOR DECISION

THE HONOURABLE MR. JUSTICE D.J. GORDON

[1] The applicants are charged with a number of cocaine trafficking offences. Each has made application for a Rowbotham order, staying the proceedings pending state funding being provided by the Attorney General of Canada for their defence. Alternatively, Mr. Robinson requests the appointment of amicus curiae. Counsel for the applicants appear on a limited retainer, solely for these applications. Otherwise, the applicants are self-represented in this case.

Background

[2] Following a police investigation, referred to as Project Sandstorm, a number of individuals, including Mr. Robinson and Ms. Thompson, were arrested and charged with the alleged offences on or about June 21, 2012.

[3] Ms. Thompson was released from custody on the day of her arrest by the officer in charge on a promise to appear with conditions. Mr. Robinson was released on June 26, 2012 on a recognizance with a surety and on terms. Those terms were subsequently varied in July 2013 and in September 2014.

[4] The charges against all accused proceeded in the Ontario Court of Justice in the usual manner. At various appearances, all co-accused dealt with their charges. Mr. Robinson and Ms. Thompson elected to be tried by judge and jury. The preliminary hearing was completed on September 18, 2014. On this date, the applicants were committed to stand trial in the Superior Court of Justice.

Charges

[5] There are nine counts in the indictment. Mr. Robinson and Ms. Thompson are jointly or individually charged with the following offences, alleged to have occurred on various dates between April 27, 2012 and June 21, 2012:

(a) conspiracy to traffic cocaine, contrary to s.465(1)(c), C.C.C.;

(b) trafficking in cocaine, contrary to s.5(1), C.D.S.A.; and

(c) possession of cocaine for the purposes of trafficking, contrary to s.5(2), C.D.S.A..

Delay

[6] The first appearance in the Superior Court of Justice was for assignment court on September 26, 2014. Numerous appearances thereafter were required, for assignment court and pre-trial conferences, due to the delay in pursuing these applications, particularly by Ms. Thompson or her counsel.

[7] On November 10, 2014, Mr. Alawi advised that Ms. Thompson would be pursuing a Rowbotham remedy. Dates were set for a hearing and vacated when no application was filed. Directions for filing dates were provided on several occasions. Such were ignored. Finally, on June 26, 2015 a Rowbatham application, dated June 19, 2015, was served on behalf of Ms. Thompson.

[8] Mr. Robinson was represented by Ms. Rozier on a private retainer. On December 19, 2014, she was removed as counsel of record. On January 22, 2015, Ms. Rozier served a Rowbatham/amicus curiae application on behalf of Mr. Robinson. The hearing of his application was delayed awaiting Ms. Thompson’s application.

[9] At assignment court on March 27, 2015, Regional Senior Justice Turnbull set the trial date for November 30, 2015.

[10] Despite serving and filing the applications as mentioned above, at the pre-trial conference on June 26, 2015, counsel for the applicants reported further material was required. The presiding judge directed such to occur by July 17, 2015. Again, the direction was ignored. Hence, on September 3, 2015, a date was set for the hearing.

[11] The hearing was scheduled for October 20, 2015. I was assigned. On my review of the affidavits, the evidentiary foundation required for the applications was clearly insufficient. I so advised counsel at the outset of the hearing. They intended to call viva voce evidence to “supplement” the affidavits. I declined to allow such to take place. Crown counsel must be given proper notice of the purported evidence. A further adjournment was thus required.

[12] The applications came back before me for a hearing on November 4 and 5, 2015. The affidavit evidence remains deficient. Viva voce evidence was presented.

Rowbotham Principles

[13] In R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.), and in the many decisions since, the applicable principles are well settled. To succeed on an application for state funded counsel, the applicants must establish, on a balance of probabilities, that:

(i) he/she has been denied legal aid;

(ii) he/she lacks the financial means to retain counsel; and

(iii) representation by counsel is essential for a fair trial.

[14] A Rowbotham order is a rare and exceptional remedy. The applicant must meet the requisite test for each of the above.

[15] Both applicants sought funding for counsel by Legal Aid Ontario. Decisions made by the Area Director and others are based on criteria established by Legal Aid Ontario. On a Rowbotham application, the court does not conduct a judicial review of decisions made by legal aid authorities. While deference is owed to those decisions, the court must make an independent assessment to ensure the applicant receives a fair trial. See: R. v. Peterman (2004), 2004 39041 (ON CA), 185 C.C.C. (3d) 352 (Ont. C.A.).

Discussion and Analysis

A. Mr. Robinson

(i) Legal Aid

[16] Mr. Robinson applied for legal aid on December 12, 2012. The application was denied, as were subsequent appeals. The basis of the decision appears to be that Mr. Robinson’s girlfriend and surety, with whom he resided, had the financial ability to assist him in retaining counsel.

[17] Although he continues to reside with this individual, Mr. Robinson says their romantic relationship came to an end in September 2014. He also says he remains in the residence as such is a requirement of his recognizance of bail.

[18] Crown counsel does not take issue with respect to the denial of legal aid.

(ii) Financial Circumstances

[19] The evidence pertaining to the financial circumstances of Mr. Robinson is, at best, unclear. Despite the passage of time since his application was served little effort was made to assemble a documentary record. To the extent Mr. Robinson relies on cash, both for income and expenses, no real attempt was made to create a financial statement so as to permit the court to fully understand his financial situation.

[20] Mr. Robinson has worked as a painter, either as an employee or contractor, both before and since his arrest on these charges in June 2012. It appears he is involved in the underground economy, being paid in cash primarily. Some income was by cheque. Mr. Robinson has not filed an income tax return since 2011.

[21] In the relevant time period, Mr. Robinson worked for Pesada Painting until July 2013 and then for a subcontractor referred to as Titanic. No records were presented from these businesses. In March 2015, he established his own business, Colour Painting & Decorating. Mr. Robinson says he does not keep “detailed business records”. None were provided.

[22] At the time of his legal aid application in December 2012, Mr. Robinson reported being unemployed. In oral testimony he clarified his work schedule, saying painting only occurs in the warmer seven months, at best, and not in the winter. Mr. Robinson did not apply for employment insurance in the winter as, he said, there were no employment records.

[23] Mr. Robinson worked for Pesada from July 2012 to July 2013 and then for Titanic until October 2014. His income varied. With Pesada, Mr. Robinson said he earned $270 to $540 weekly, depending on hours worked. He received $1,500 to $2,000 biweekly from Titanic. As a result of a disagreement with the owner of Titanic, Mr. Robinson left in October 2014. The total income earned is unclear as Mr. Robinson did not provide any records nor attempt to re-create records from memory.

[24] Between November 1, 2014 and April 30, 2015, Mr. Robinson deposited $33,141 to his bank account. He was then unemployed. Mr. Robinson offered no explanation.

[25] In the factum presented on behalf of Mr. Robinson, reference was made to a vehicle being seized by the Public Prosecution Service of Canada. In March 2015, Mr. Robinson entered into a lease agreement for a 2009 Mercedes Benz for a two year term at $321.32 bi-weekly. The lease document, and the supporting bank approval, was not produced. At that time, Mr. Robinson reported being unemployed.

[26] The business started in May 2015. Mr. Robinson reports gross cash income received, after payment of employee wages, as follows:

May $1,500
June $2,000
July $3,300
August $1,900
September $2,840
October $3,000

Mr. Robinson conceded the actual amounts received were likely higher. He also reported receiving a cheque for $4,000 on October 30, 2015 (subsequent to the date of his sworn affidavit).

[27] The business expenses are said to include paint, brushes and other routine supplies. A 1997 Toyota 4Runner was purchased in July 2015 for $1,200. A paint sprayer was acquired for $890. Expenses are paid in cash. Mr. Robinson says all of his income is used for expenses.

[28] Mr. Robinson has a credit card with MasterCard through the Bank of Montreal. Until June 2015, his credit limit was $4,000. It then increased to $9,000. The supporting documents were not disclosed. On the limited statements provided, it appears the credit card is used for some business expense, such as gas and paint supplies, as well as personal use, including restaurants, L.C.B.O., cell phone and Tim Horton’s. While there is always a balance owing, payments are made each month, including those periods of time when Mr. Robinson said he was not working.

[29] Mr. Robinson reports child support obligations. In his first affidavit, sworn January 22, 2015, he refers to five children, ranging in age from 4 to 13, but that he had been recently notified that two were not his biological children. No support amounts are mentioned, the only reference being he was not financially able to support all of the children consistently each month.

[30] In his second affidavit, sworn October 23, 2015, Mr. Robinson identifies six children that he supports, ranging in age from 2 to 14. The oldest child lives in Jamaica with her grandmother. Mr. Robinson sends her approximately $380 monthly. The other children live in Kitchener with their mothers, including the child of his co-accused, Ms. Thompson. Child support, he says, is paid to each mother in the approximate amount of $150 per child monthly, save for Ms. Thompson who is paid $300. Mr. Robinson indicates he often purchases clothing and supplies for the children in addition to the financial support.

[31] In his oral testimony, Mr. Robinson confirmed the accuracy of his second affidavit, save that he sends $480 monthly for his child in Jamaica. He went on to say that support payments are dependent upon his income. The mothers do not press for payment, he says, as they “understand” his situation.

[32] Two Western Union receipts were provided regarding support payments sent to Jamaica, dated January 29, 2014 and May 9, 2015 in the amounts of $336.25 and $120. The payments were made to his cousin and his sister, not the child’s grandmother.

[33] Mr. Robinson did not attempt to obtain other receipts or records from Western Union. Nor did he request the other mothers to provide confirmation of support paid. Ms. Thompson essential corroborated Mr. Robinson’s evidence regarding her child, saying he provides child support “if he has money”.

[34] Mr. Robinson reports paying $400 monthly to his surety for household expenses as long as he is working.

[35] Mr. Robinson was represented by counsel during most of the Ontario Court of Justice proceedings, including a six day preliminary hearing. He was also represented by counsel in the Superior Court of Justice proceedings until December 19, 2014, when Ms. Rozier sought and obtained an order removing herself as counsel of record. As legal aid had been denied, Mr. Robinson retained Ms. Rozier privately. Mr. Robinson did not report the amount required but did say he “paid every penny” owed.

[36] Mr. Robinson went on to say he has been told what the lawyer’s fees will be for the trial. The estimate was not disclosed. Mr. Robinson states he cannot afford to pay the amount quoted.

[37] Mr. Robinson was not a credible witness. His evidence, both in affidavit form and orally, was inconsistent. No attempt was made to provide documentary disclosure or provide meaningful information regarding his financial circumstances as required on a Rowbotham application. Mr. Robinson had ten months to assemble the material required. He chose not to do so.

[38] Significant cash was received by Mr. Robinson monthly during the requisite time period, even in the winter when he was not working. No income tax returns were filed so the income was not subject to taxation. Since his arrest in June 2012, on his evidence, I calculate Mr. Robinson’s income to be in excess of $50,000 per annum.

[39] While such income, in part, may be considered gross business income, no attempt was made to identify expenses that ought be deducted, save for a vehicle and a paint sprayer. Despite paying cash for expenses, Mr. Robinson could easily have prepared a statement from memory as the business was only started in May 2015. It is not sufficient to simply say all money received is used to purchase supplies.

[40] Some of Mr. Robinson’s expenses are appropriate, such as rent. Child support obligations are a legitimate expense; however, it is impossible to ascertain what he has actually paid. Other expenses are excessive or unwarranted when considering state funding for counsel. A leased luxury vehicle, daily purchases at Tim Horton’s, a gym membership, regular L.C.B.O purchases and a monthly cell phone bill in excess of $150, are not expenses of an indigent person.

[41] I conclude Mr. Robinson only informed the court as to what he wanted it to hear. His evidence was not reliable. Nor was it believable. Mr. Robinson was able to pay counsel in excess of two years on a lesser income than at present. Mr. Robinson has not met the burden of proof. Indeed, in my view, Mr. Robinson enjoys a comfortable lifestyle and has the financial resources to retain counsel privately. His application cannot succeed. State funding for a person with Mr. Robinson’s financial resources would be a travesty.

B. Ms. Thompson

(i) Legal Aid

[42] Ms. Thompson applied for legal aid following her arrest on June 21, 2012. A certificate was issued on November 5, 2012. It was accepted by her then counsel, Sean Safa.

[43] On February 4, 2013, Ms. Thompson applied to Legal Aid Ontario to approve a change of counsel, reporting she was not happy with her present counsel and that there were problems in communication. Her request was denied on February 6, 2013 on the basis Ms. Thompson’s reasons to change did not meet the criteria of Legal Aid Ontario for “exceptional circumstances”. Ms. Thompson acknowledged there was no conflict of interest with Mr. Safa. She did not inform Mr. Safa that she was making the application. Ms. Thompson had already contacted Mr. Alawi in late January 2013. Notice of the refusal to transfer the certificate was delivered to Ms. Thompson, by mail, and to Mr. Alawi by fax.

[44] On March 1, 2013, Mr. Safa was removed as counsel of record for Ms. Thompson. At the time of this event, Ms. Thompson knew the request to transfer had been denied.

[45] On February 28, 2013, Ms. Thompson delivered a notice of appeal to the Area Committee of Legal Aid Ontario. Notwithstanding that she had already consulted Mr. Alawi, and that he received a copy of the original decision denying the transfer request, the appeal was not presented within the 15 day period as required. In result, the appeal was denied on March 4, 2013.

[46] On March 7, 2013, Ms. Thompson requested Legal Aid Ontario reconsider its decision. The Area Director responded to this request on March 27, 2013 indicating that following a review of her request the refusal stands. This decision was final, there being no further right of appeal under The Legal Aid Service Act. In his correspondence, the Area Director went on to suggest Ms. Thompson repair her relationship with Mr. Safa. The original certificate was still in place. Ms. Thompson was not prepared to continue with Mr. Safa as her counsel.

[47] On February 11, 2015 Ms. Thompson contacted Legal Aid Ontario seeking to reapply. She was advised to submit a letter. Ms. Thompson did so on February 20, 2015, again asking for a reconsideration for a change of counsel. On March 14, 2015 her request was denied.

[48] Legal Aid Ontario has limited resources and has a duty to protect the public purse. Changing counsel would result in further expense. Their criteria of exceptional circumstances is reasonable and appropriate.

[49] A legal aid certificate was granted. The only denial was to a change in counsel. While an accused person has the right to be represented by counsel of choice, there is no obligation on Legal Aid Ontario to provide funding for additional counsel of choice. There is no evidence to suggest that Ms. Thompson would only obtain a fair trial if represented by a particular counsel, Mr. Alawi, or that there is a concern with the competency of her initial counsel of choice, Mr. Safa. See: R. v. Peterman, supra, at paras 26-30.

[50] Ms. Thompson cannot succeed on the first branch of the test. A legal aid certificate was granted. Further, there being no evidence to support a finding Ms. Thompson’s right to a fair trial is at risk due to the certificate being granted to other counsel, there is no basis for the court to come to a different decision.

(ii) Financial Circumstances

[51] Ms. Thompson advised Legal Aid Ontario she had paid Mr. Safa $1,500 on July 6, 2012. This was long before her application was approved. She has been represented by Mr. Alawi since March 2013 in both appearances in the Ontario Court of Justice and in the Superior Court of Justice. Ms. Thompson has paid Mr. Alawi an undisclosed amount for his services pursuant to a payment plan. She reports still owing some amount.

[52] Ms. Thompson also says she has been informed of the estimated expense for trial, also undisclosed. She says it is beyond her financial ability.

[53] While Ms. Thompson’s financial circumstances are more modest than that of Mr. Robinson, I am not persuaded she has met the burden of proof required. Little documentation was provided.

[54] In her first affidavit, sworn January 30, 2015, Ms. Thompson provided minimal evidence. In summary, she said:

(a) she did not work from August 2010 to August 2014 due to her pregnancy and birth of her child;

(b) she completed the first portion of a personal support worker program in 2012;

(c) she was employed as a homecare worker, on call, at Premier Homecare from August 2014 to December 2014, earning $12.50 per hour; and

(d) her primary source of income was from Ontario Works.

[55] In her second affidavit, completed and sworn on November 4, 2015, prior to the hearing that day, Ms. Thompson reported:

(a) her primary source of income was from working part time as a homecare worker; and

(b) her monthly expenses are $1,399 for rent, $160 for utilities, $120 for hydro, $323 for car insurance, $213 for car payments and $100 for a cell phone.

[56] In her oral testimony, Ms. Thompson identified her current employer as the Red Cross. She earns $15.00 to $17.80 per hour and works 27 to 40 hours every 11 days, being $405 to $712 per pay period. She acknowledged receiving child support payments from Mr. Robinson. Ms. Thompson also receives a child tax credit payment, apparently ranging between $527 and $774 monthly in 2014 and 2015, such being calculated in accordance with her employment income. No income tax returns were provided; however, it appears Ms. Thompson’s income is approximately $30,000 per annum from all sources at present. Her prior income is unknown.

[57] Ms. Thompson’s expenses are clearly excessive. She rents a three bedroom townhouse for herself and her daughter. She acquired a new vehicle, the lease payments being $213.20 bi-weekly, in early 2015. Ms. Thompson’s bank statements reveal unnecessary expenses, given her stated income, indicating, at best, a greater lifestyle than she can afford.

[58] I am not persuaded Ms. Thompson could not have been working previously or that she is maximizing her employment potential at present.

[59] In result, I conclude Ms. Thompson has not met the test that she is indigent. Indeed, on her evidence, I am satisfied she has the financial ability to privately retain counsel on a payment plan.

C. Fair Trial

[60] Both applicants suggest the trial will be difficult and involve complex issues. Reference was made to a Garifoli application. Mr. Robinson and Ms. Thompson say they lack the education and ability to conduct their defence.

[61] Crown counsel, on the other hand, argues the charges are straightforward and the issues are not exceptionally complex. She says the conspiracy charges, for example, refer to conversations of the applicants with others, involving dealing drugs.

[62] Clearly, the charges are serious. A finding of guilty will invite consideration of incarceration on the sentencing hearing. However, there is no evidentiary foundation established by the applicants to establish complexity. All that they present is a bald allegation. Not every case involving judicial authorizations necessitates a Garifoli application. Counsel for the applicants have received significant disclosure from Crown counsel some time ago. If there was a basis for the Garifoli applications, it was incumbent on the applicants to demonstrate such at this time. They failed to do so. See: R. v. Rushlow, 2009 ONCA 461, paras. 21-22.

[63] Hence, I conclude a fair trial does not require state-funded counsel.

D. Amicus Curiae

[64] Mr. Robinson presents an alternative request, the appointment of amicus curiae. For the same reasons as above, I am not persuaded such relief is appropriate or necessary. In any event, this application is premature. See: Ontario v. Criminal Lawyer’s Association of Ontario, 2013 SCC 43, at para. 108. The request may only be considered by the trial judge.

E. Summary

[65] For the foregoing reasons, the applications of Mr. Robinson and Ms. Thompson are dismissed.

D.J. Gordon J.

Released: November 9, 2015

COURT FILE NO.: CJ8265
DATE: 2015-11-09

BETWEEN:

Her Majesty the Queen

Respondent

– and –

Dennis O’Neill Robinson and
Neisha Dorraine Thompson

Applicants

REASONS FOR DECISION

D.J. Gordon J.

Released: November 9, 2015