CITATION: R. v. Moodie 2016 ONSC 3469
COURT FILE NO.: M087/16
DATE: 20160526
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
C. Otter, for the respondent
Respondent
- and -
TYRELL MOODIE
S. Pearl, for the applicant
Applicant
HEARD: May 24, 2016
Nordheimer J.:
[1] Mr. Moodie brings this application for an order staying the charges that he faces until such time as state-funded counsel is provided to him – a so-called Rowbotham order. At the conclusion of the argument, I granted the application with reasons to follow. I now provide those reasons.
[2] The applicant faces various drug charges including trafficking in cocaine, possession of cocaine for the purposes of trafficking, possession of cocaine, possession of marijuana and possession of property obtained by crime. The charges arise out of two separate events on separate dates. They involve the undercover purchases of drugs, although not directly from the applicant. Rather, the applicant is alleged to be what is commonly referred to as the “back end” or supplier of the drugs. Apparently, the investigating officers observed the supplier interacting with the person who sold the drugs to the undercover officer. They identified the applicant as the supplier through the use of a photographic lineup.
[3] The Crown fairly concedes that the charges that the applicant faces are serious ones. The Crown also concedes that the case is complex, such that the applicant requires the assistance of counsel. The sole issue raised by the Crown is whether the applicant has demonstrated an inability to privately fund his defence.
[4] The applicant is twenty-three years old. He graduated from high school and has a diploma from George Brown College in social work. He has no prior criminal record. For the past few years, the applicant has worked for the St. Alban’s Boys and Girls Club on a part-time basis. In 2014, the applicant’s gross income was $12,547.48. In 2015, the applicant’s gross income was $16,211.42. The applicant has little in the way of savings and does not own any assets. He lives at home with his mother. He contributes $300 - $400 per month to household expenses. The applicant’s chequing account is overdrawn and he also owes money on his credit cards.
[5] The applicant was denied legal aid. He appealed that decision and the appeal was denied. He asked for reconsideration of those decisions and the reconsideration was denied. In refusing legal aid to the applicant, I am advised that Legal Aid Ontario cited its threshold income levels of $9,000 per year for a boarder (as they initially characterized the applicant) and $12,000 per year for a single income person (as they latterly characterized the applicant). Because the applicant’s income exceeded these thresholds, legal aid was denied.
[6] It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country. As just one comparator, in a report issued last year, Statistics Canada calculated the low income cut-off, before tax, for a single person living in a metropolitan area (more than 500,000 people) for 2014 at $24,328, or more than twice the figure that Legal Aid Ontario uses[^1]. The low income cut-off is the level of income below which persons are paying a disproportionate amount of their income for basic necessities (food, shelter and clothing). Some people equate this figure with the “poverty line” although Statistics Canada expressly states that this is not a measure of poverty. The reason for that is simple. There is no accepted definition of “poverty”. As Statistics Canada says “Decisions on what defines poverty are subjective and ultimately arbitrary”[^2]. Nevertheless, the fact that a person, below the low income cut-off, has his or her income largely consumed by those basic necessities obviously means that they do not have sufficient income to allow for extraordinary expenses, such as the fees necessary to retain a criminal defence lawyer to provide representation in a criminal jury trial.
[7] The Crown submitted that the applicant had failed to take adequate steps to try and find other sources of funds to pay defence counsel. Obtaining a bank loan, having a family member co-sign for a loan, getting a second job, borrowing against credit cards and other suggestions were made. None of those suggestions are, in my view, realistic ones. No financial institution is going to loan the applicant money given his income level, his lack of exigible assets, and his outstanding credit card debt. The applicant’s father has made it clear that he is not going to assist his son in any way. Unfortunately, the applicant’s mother is no better situated financially, than is the applicant, in terms of co-signing for a loan. The applicant has looked for a second job but he has been unable to find one, at least in part because of his bail conditions that include a curfew. There is no realistic prospect that the applicant could borrow any further amounts against his credit cards, certainly not the amounts necessary to fund a retainer. The costs of the trial were estimated by counsel for the applicant, using the lowest hourly rate permitted by Legal Aid Ontario, at more than $11,000. The applicant has asked family members for monies to fund counsel but, save for $500 he received from his godmother, nothing has been forthcoming.
[8] The Crown says that the mere fact that an accused person is denied legal aid, because they are above the income thresholds established by Legal Aid Ontario, should not automatically entitle them to state-funded counsel. To a certain extent, I agree with that submission, although it would be a more persuasive submission if the income thresholds utilized by Legal Aid Ontario were realistic ones. In any event, I accept that a denial by Legal Aid Ontario, based on income levels alone, would not be a sufficient basis for the court to intervene and order a stay of proceedings. The Province is entitled to set income thresholds to qualify for legal aid, even if those thresholds are arbitrary ones. That means that if the charge that an accused person is facing is less serious, or if the factual circumstances are straight forward, it may well be that an accused person, in that situation, will be compelled to proceed to trial unrepresented.
[9] But that is not this case. The Crown has conceded that this is a complex case that requires the applicant to have counsel. There are Charter applications to be argued involving the admissibility of evidence. There is a severance application to be argued. The Crown intends to rely on the co-conspirator’s exception to the hearsay rule regarding certain statements made by the person who actually sold the drugs to the undercover officer. Given the Charter issues and the fact that it is a jury case with a challenge for cause, the trial itself will take, at a minimum, five to seven days. Of course, if the severance application is granted, then there will be two trials to contend with. There is no dispute that the applicant would face a term of imprisonment, if convicted, that could range from a high reformatory term to a low penitentiary term.
[10] With those realities identified and largely acknowledged, this case falls within that category of cases that warrants a Rowbotham order, as described in R. v. Rushlow (2009), 2009 ONCA 461, 96 O.R. (3d) 302 (C.A.), where Rosenberg J.A. said, at para. 24:
The authorities hold that the case must be of some complexity, but a requirement of unique challenges puts the threshold too high. It is enough that there is a probability of imprisonment and that the case is sufficiently complex that counsel is essential to ensure that the accused receives a fair trial.
[11] It is necessary for the applicant to have counsel in order to have a fair trial. The applicant has satisfied me that he does not have access, on any reasonable basis, to other sources of funds in order to retain counsel. It is therefore necessary that he be provided with state-funded counsel.
[12] It is for these reasons that I made an order staying the charges pending state-funded counsel being provided on appropriate terms.
NORDHEIMER J.
Released: May 26, 2016
Court File No.: M087/16
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
TYRELL MOODIE
Applicant
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: The after tax figure was $20,160. [^2]: Income Research Paper Series – Research Paper Low Income Lines, 2013-2014: Update, Statistics Canada, release date: December 17, 2015