ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 9-158/15
DATE: 20151113
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABDULLAHI ABDI RAGE
Jennifer Briscoe, for the Crown, Respondent
Deniz Sarikaya, for Abdullahi Rage
HEARD: October 13, 2015
r.f. goldstein j.
REASONS FOR JUDGMENT
[1] Abdullahi Rage is charged with various drug offences. The Crown alleges that he was the “back end” on sales of crack cocaine to an undercover officer. The Crown also alleges that he was in possession of a considerable amount of powder cocaine.
[2] Mr. Rage was initially granted Legal Aid. On a trial date, his counsel, Brian Weingarten, asked the Court to remove him from the record. He cited a breakdown in the solicitor-client relationship. He was removed. The trial was adjourned. Mr. Rage then applied to Legal Aid for permission to change lawyers. Legal Aid refused. Mr. Rage’s appeals through the Legal Aid system were dismissed.
[3] Mr. Rage now faces a new trial date of April 11, 2016. The date is set with or without counsel. He now asks this Court to supply state-funded counsel. Mr. Sarikaya, on Mr. Rage’s behalf, argues that he needs a lawyer to defend himself. I agree. For the reasons that follow, a conditional stay is entered until he is granted state-funded counsel.
BACKGROUND
[4] An undercover police officer purchased crack cocaine from one Ali Ahmed on September 21 and September 27, 2011. On October 5, 2011 the officer again contacted Mr. Ahmed by phone in an attempt to buy drugs. Mr. Ahmed told the officer that he might have to obtain some cocaine from his “boy” as he did not have enough of the drug immediately available. Police officers observed Mr. Ahmed meet with Mr. Rage in Mr. Rage’s car after the call and before Mr. Ahmed met the officer. The Crown alleges that Mr. Rage supplied Mr. Ahmed with an ounce of cocaine. Mr. Ahmed then sold it to the undercover officer.
[5] On October 27, 2011 the undercover officer contacted Mr. Ahmed by phone in order to buy drugs. Mr. Ahmed indicated that he would get the cocaine from his “boy”. Police officers observed Mr. Ahmed meet with Mr. Rage at Mr. Rage’s apartment building. The Crown alleges that Mr. Rage supplied Mr. Ahmed with cocaine. Mr. Ahmed then sold to the officer.
[6] On November 10, 2011 the undercover officer again contacted Mr. Ahmed by phone in order to buy drugs. Mr. Ahmed again said that he needed to get the cocaine from his “boy”. Police officers then observed Mr. Ahmed and Mr. Rage meet in Mr. Rage’s car. The Crown alleges that Mr. Rage supplied cocaine to Mr. Ahmed. Mr. Ahmed in turn sold the cocaine to the undercover officer. Mr. Rage was immediately arrested. He had $1860 on him and 250 grams of powder cocaine in his car. Police officers then searched his residence where they found another 2.5 grams of cocaine and $3850.
[7] After arrest Mr. Rage applied for and received Legal Aid. Mr. Scaramuzza represented him at his preliminary inquiry. He changed counsel to Mr. Weingarten when the matter proceeded to Superior Court. The change of counsel was approved by Legal Aid.
[8] An indictment was filed charging both Mr. Ahmed and Mr. Rage. Mr. Ahmed pleaded guilty on the first trial date of February 15, 2015. Mr. Rage was left on the indictment facing three counts of trafficking cocaine, one count of possession of cocaine for the purpose of trafficking, and one count of possession of marijuana for the purpose of trafficking. On the same date Mr. Weingarten asked Madam Justice Thorburn, the scheduled trial judge, to be removed from the record. He said that confidence had been lost between himself and Mr. Rage. Mr. Weingarten quite properly did not go into the nature of the issue between himself and his client but gave the Court what information he could. Madam Justice Thorburn also questioned Mr. Rage on the record. She granted the motion, adjourned the trial, and made the following endorsement on the indictment sheet:
Mr. Weingarten brought a motion to be removed as solicitor of record for Mr. Rage. Mr. Rage indicates he has lost confidence in counsel and intends to retain new counsel. He is aware that his Legal Aid certificate may not be renewed.
[9] Mr. Rage said in his affidavit that as his trial date approached on February 15, 2015 Mr. Weingarten gave him some “advice that made me uneasy.” He decided to get a second opinion. He sought advice from John Christie, a criminal lawyer. Mr. Christie had represented a friend of his. Although it is not clear from the record exactly what the advice was that was making Mr. Rage uncomfortable, it seems a reasonable inference that Mr. Weingarten advised him that the Crown had a strong case and he should consider a plea of guilty.
[10] Mr. Christie told Mr. Rage that he could represent him for $30,000.00. It is not clear whether Mr. Christie provided an opinion as to the strength of the Crown’s case and the course of action Mr. Rage should take. It is also not clear whether Mr. Christie had access to the disclosure.
[11] While Mr. Rage was in Mr. Christie’s office Mr. Christie contacted Mr. Weingarten. According to an email written by Mr. Weingarten to Mr. Rage, Mr. Christie made a number of allegations about Mr. Weingarten’s handling of the case. He accused Mr. Weingarten of never fully reviewing the disclosure. He also accused Mr. Weingarten of ignoring Mr. Rage in court, and that he only advised Mr. Rage of the strength of the Crown’s case very late in the day. Mr. Christie also contacted Susan Adams. Ms. Adams represented Ali Ahmed, the co-accused. Mr. Christie wished to discuss the case with Ms. Adams.
[12] In that email Mr. Weingarten said that the relationship had broken down. Mr. Rage tried to apologize to Mr. Weingarten. He wanted Mr. Weingarten to continue representing him. He testified that he felt Mr. Christie had acted very unprofessionally. Mr. Weingarten was adamant, however, that he could no longer represent Mr. Rage.
[13] I note that Mr. Christie did not testify at this hearing and has had no opportunity to respond to Mr. Rage’s allegations of unprofessionalism. It is, however, clear that it was his intervention with Mr. Weingarten and Ms. Adams that precipitated the breakdown between Mr. Weingarten and Mr. Rage. All this occurred about two weeks before the scheduled trial date.
[14] After the adjournment, Mr. Rage applied to Legal Aid for a change of solicitor. Legal Aid refused. Mr. Rage appealed. The appeal was dismissed. Legal Aid’s policy is that a change of counsel will not be approved absent exceptional circumstances. There were no exceptional circumstantial circumstances in Mr. Rage’s case.
[15] Legal Aid was aware of the cause of the breakdown. The circumstances of the falling out were fully reviewed in the refusal letter. Legal Aid took the position that Mr. Rage was, in essence, the author of his own misfortune by unreasonably failing to consider the advice of counsel.
[16] Mr. Rage now brings this application. Mr. Sarikaya, on his behalf, argues that he must have a lawyer to represent him. The issues, he says, are complex. Mr. Weingarten was planning a Charter motion and an application to cross-examine the search warrant affiant. Mr. Rage faces a significant amount of jail time if he is convicted. He argues that Mr. Rage does not have means to retain private counsel. Accordingly he asks for a conditional stay of proceedings until state-funded counsel is provided.
ISSUES
[17] A Rowbotham order, as these orders are routinely called, is an exceptional remedy. The Charter of Rights enshrines the right to counsel. It also enshrines the right to have a fair trial. That does not mean that the Charter of Rights enshrines the right to have the government pay for a lawyer for indigent people: R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 at p. 36. The real issue is whether the lack of a lawyer will prevent an accused person from having a fair trial. In order to breath life into the right to a fair trial, the court will grant a conditional stay until the government pays for counsel where an applicant can show:
• That he or she has been denied legal aid;
• That he or she cannot afford a lawyer; and,
• That he or she needs a lawyer in order to have a fair trial.
[18] In Rowbotham the Court of Appeal also noted that the need for state-funded counsel would ordinarily arise only in serious and complex cases.
[19] In circumstance of this case, I frame the questions this way:
• Did Legal Aid refuse Mr. Rage?
• Has Mr. Rage exhausted all available means to retain private counsel?
• Does Mr. Rage require counsel in order to have a fair trial?
[20] I turn to each of these questions.
ANALYSIS
(a) Did Legal Aid refuse Mr. Rage?
[21] Although Legal Aid refused Mr. Rage, I find that it was not because of something he did or failed to do.
[22] Ms. Briscoe, for the Crown, relies on my colleague Nordheimer J.’s decision in R. v. Imona-Russell, [2008] O.J. 5405 (Sup.Ct.). She argues that where the applicant is the author of his or her own misfortune, it is not incumbent on the government to provided counsel. I agree with Ms. Briscoe’s legal position, but I think Mr. Rage’s case is distinguishable from Imona-Russell. In that case, the accused changed counsel six times. Legal Aid finally refused another change of counsel. The Crown had applied for and received an amicus order. Nordheimer J., following R. v. Montpellier, 2002 34635 (ON SC), [2002] O.J. No. 4279 (Sup.Ct.) pointed out that an accused person cannot come to the Court seeking a remedy where Legal Aid has refused him when it has been his own failure or inaction that has caused the refusal. To hold otherwise would allow an indigent accused to determine when and how the government pays.
[23] In this case, Legal Aid refused Mr. Rage because there were no “exceptional circumstances” for the change of counsel. Legal Aid found that Mr. Rage acted unreasonably and failed to consider the advice of counsel. Legal Aid further found that Mr. Rage caused the breakdown in the solicitor-client relationship.
[24] No doubt Legal Aid’s rule is meant to deter people from gaming the system by changing lawyers on the eve trial. Legal Aid has a responsibility to safeguard public funds. Legal Aid also has a responsibility to prevent manipulation of the process. I do not in any way wish to be taken as criticizing or second-guessing Legal Aid’s decision, or criticizing Legal Aid’s policy. This Court, however, is required to apply a different test. As Nordheimer J. put it, the denial of Legal Aid must not be caused by something the accused “did or failed to do” in order for a Rowbotham order to be made. Legal Aid applies an “exceptional circumstances” test.
[25] It is not at all clear to me that Mr. Rage was actually the agent of destruction of the solicitor-client relationship. I can understand Mr. Rage obtaining a second opinion on a matter of such great importance to him. I can also understand Mr. Rage coming under pressure from his family and experiencing great anxiety about a matter that might send him to jail for a very long time. But how far did he go in instructing Mr. Christie? Mr. Rage testified that he did instruct Mr. Christie to contact Mr. Weingarten to let him know that he was in his office. It is not clear that Mr. Rage specifically instructed Mr. Christie to call Mr. Weingarten and make the allegations that led to the breakdown. Obviously the source of the allegations was Mr. Rage, but Mr. Rage testified that he was out of the room when Mr. Christie spoke to Mr. Weingarten. It is also not clear to me whether Mr. Christie simply called up Mr. Weingarten and made these unfounded allegations (and all agree that they are unfounded) or whether Mr. Christie simply called up Mr. Weingarten as a matter of courtesy to tell Mr. Weingarten that Mr. Rage had sought a second opinion and the discussion escalated. Given Mr. Weingarten’s reaction, it seems at least possible that it was the former. In any event, Mr. Rage testified that he did not instruct Mr. Christie to contact Ms. Adams, counsel for the co-accused. There was no evidence at this application from Mr. Weingarten, Mr. Christie or Ms. Adams. As I have already noted, it would be unfair to Mr. Christie to make a specific finding of fact about his actions when he has had no opportunity to respond. That said, there is nothing to contradict Mr. Rage’s evidence on these points. He was forthright in testifying about matters that hurt him. I accept his evidence.
[26] One thing that is clear is that Mr. Rage immediately regretted what had occurred. He emailed Mr. Weingarten shortly after the discussion with Mr. Christie. He apologized. He indicated that he still wished Mr. Weingarten to represent him. At that point, however, Mr. Weingarten was understandably unwilling to continue on with Mr. Rage. It was apparent that there was a mutual loss of confidence.
[27] I am satisfied that this case is not like Imona-Russell. To put it another way, I am not satisfied on a balance of probabilities that Mr. Rage was completely responsible for the breakdown between himself and Mr. Weingarten.
(b) Has Mr. Rage exhausted all available means to retain private counsel?
[28] I am satisfied that Mr. Rage does not have the means to retain counsel. I am also satisfied that he has exhausted all available means to retain counsel.
[29] Mr. Rage is unemployed at the moment. He has been unemployed since he was charged. He is on Ontario Works. He testified that his family members are not in a financial position to assist him. He has three children – two are his biological children and one is his wife’s child from a previous marriage. His wife has a job as an airport security screener but she is currently on maternity leave and not scheduled to return to work until April 2016. She is currently receiving a child benefit. Some $8000-9000 in cash seized from his home was assigned to Legal Aid. He has significant debts. Going forward, Mr. Rage is apparently in an applicant pool where he may be accepted as a driver for the TTC.
[30] I note that Legal Aid refused to approve a new certificate for reasons that have nothing to do with Mr. Rage’s financial circumstances.
[31] Mr. Rage appears to have failed to disclose two things to Legal Aid. He did not tell Legal Aid he was married and that he had two children. He also did not tell Legal Aid that he worked for 12 to 14 months.
[32] Mr. Rage testified that he does not have a marriage certificate because he went through a form of community marriage that is not recognized under Ontario law. He also says that Mr. Weingarten advised him that Legal Aid would not consider a marriage certificate. Mr. Rage was employed for about 12-14 months with York Region Transit. As I understand it, he continued to be paid by Ontario Works rather than York Region Transit. I infer that this was part of the program. Mr. Rage did disclose to Legal Aid that he was on Ontario Works. Although he probably should have told Legal Aid that he was working as part of the program, I do not think that this disqualifies him. There is no evidence that he received more money or benefits.
[33] At the end of the day, while Mr. Rage probably should have made more disclosure to Legal Aid, I am not satisfied that these were significant failures. Even if they were, as Mr. Sarikaya points out, they do not impact on his financial situation.
[34] Ms. Briscoe argues, reasonably, that we do not know what Mr. Rage’s financial situation will be going forward. He may find work with the TTC. His wife may go back to work earlier. I accept that both of those statements are true but I cannot accept that they are a reason not to grant the order. It is his financial situation today that counts. As I understand the process, the order will require the government to pay but Legal Aid will administer payment. That means that all of the usual financial disclosure will be required from Mr. Rage. If his wife finds employment Legal Aid may require co-payments. If the TTC hires him Legal Aid may also require co-payments.
[35] In any event, it would make no sense to dismiss the application, and have it revisited prior to trial when there might be no time for Mr. Rage to find a lawyer with sufficient time in his or her schedule.
(c) Does Mr. Rage require counsel in order to have a fair trial?
[36] Mr. Rage does require counsel in order to have a fair trial. The case is sufficiently complex and the probability of imprisonment sufficiently high if he is convicted.
[37] In determining whether appointing counsel is required, the Court must examine several factors:
• What are the personal abilities of the accused?
• What is the accused’s, employment history, and facility with the English language?
• What is the procedural, evidentiary, and substantive law that applies?
• Are there any complex procedures, such as a voir dire?
• How serious are the charges?
[38] See: R. v. Rushlow (2009), 2009 ONCA 461, 96 O.R. (3d) 302 (C.A.) at para. 21.
[39] Mr. Rage has a diploma in operations management from Centennial College. He has worked for Toronto Parks and Recreation managing a facility after programs were finished. He has also worked at Avis Car Rental as a supervisor and an insurance specialist. From 2010 until his arrest he worked as an apprentice mechanic. I observed that Mr. Rage speaks well and is intelligent.
[40] Ms. Briscoe argues that this case is a routine matter and not particularly complex. Ms. Briscoe is a very able and experienced drug prosecutor and I give her assessment great weight. That said, while I agree that the case is routine, I find that there are sufficient complexities to require counsel. The Crown intends to call the undercover officer, the surveillance officers, and an expert witness. The Crown also intends to call the evidence seized from Mr. Rage’s home and car. Some of the things that make this case somewhat complex include:
• The undercover officer never dealt directly with Mr. Rage. The trafficking counts depend on proving that Mr. Rage was the “back end” of the drug deals. I assume that the Crown intends to rely on some of the statements of Mr. Ali that it sets out in the factum. Those statements point to Mr. Rage. The statements thus engage the “in furtherance” exception to the hearsay rule.
• There are two searches at issue. One is the warrantless search of Mr. Rage’s car incident to arrest. The other is the warranted search of his home. Both engage issues under s. 8 of the Charter. Each involves a different burden and different presumptions. There will also be an application for leave to cross-examine the search warrant affiant.
• Mr. Rage will be required to cross-examine an expert witness. Although it is tempting to observe that he may well know as much or more about the subject matter than the Crown’s expert, that is irrelevant, of course. Cross-examining an expert witness is a daunting proposition even for experienced counsel.
• The trial is not overly long, but it is currently scheduled as a 10 to 12 day jury trial. Obviously a jury trial raises the level of complexity significantly.
[41] In my view, these factors point to a sufficient level of complexity that Mr. Rage requires counsel in order to have a fair trial. Furthermore, Mr. Rage is accused of trafficking cocaine and possessing a very large quantity of cocaine. He very likely faces a significant period of imprisonment if he is convicted. As Rosenberg J.A. put it, all that is required is that there is a probability of imprisonment (and I assume Rosenberg J.A. meant a probability of imprisonment if there is a conviction) and that the case is sufficiently complex to require counsel: Rushlow at para. 24.
DISPOSITION
[42] A conditional stay is entered until state-funded counsel is provided.
R.F. Goldstein J.
Released: November 13, 2015
COURT FILE NO.: 9-158/15
DATE: 20151113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABDULLAHI ABDI RAGE
REASONS FOR JUDGMENT ON ROWBOTHAM APPLICATION
R.F. Goldstein J.