R. v. Tracy Fairbarn, 2016 ONSC 4308

R. v. Tracy Fairbarn, 2016 ONSC 4308

CITATION: R. v. Tracy Fairbarn, 2016 ONSC 4308

COURT FILE NO.: CR-15-04125

DATE: 20160629

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

TRACY FAIRBARN

Applicant

COUNSEL:

Maria Gaspar, for the Crown

Ryan Handlarski, for the Applicant

HEARD: June 10, 2016

RULING ON FUNDING APPLICATION

MULLINS J.:

1The applicant has been charged with nine counts. These include charges of conspiracy, forgery, fraud and trafficking fentanyl (one count is to be withdrawn). She is charged together with two others. There are a total of 118 counts on the indictment. The charges relate to allegations of a scheme to obtain fentanyl by way of forged medical prescriptions. It is anticipated that trial will take many weeks. There will be a voir dire regarding the voluntariness of statements given by applicant. The admissibility of evidence obtained from her alleged co-conspirator’s cell phones will likely be litigated.

2Ms. Fairbarn is 41 years old. She has been in a spousal relationship for eighteen years. She and her husband have two children, aged 16 and 15 respectively. The family lives in rental accommodation in Georgina, Ontario.

3The applicant was employed as a medical office receptionist and earned $34,026 per year, until terminated following her arrest in 2013. She had no criminal record. Having left high school in grade 11, she completed an equivalency program and completed training at Success Business College in 1993. She has been working as a waitress, between 25 and 40 hours per week, since some time after June of 2015 when her bail conditions were relaxed. She deposes that she earns $1,200 to $1,400 per month.

4Between January 1, 2016 and May 2016 her earnings, exclusive of gratuities, was $7,977.22. She has no assets or savings and a modest debt. She estimates that the cost of a lawyer for these proceedings will be $40,000, a sum well beyond her reach to save, borrow or otherwise acquire, she explained.

5At paragraph 15 of the affidavit sworn in support of this application the applicant explains what monthly expenses she pays. These are $90 for her cell phone, a payment towards a furniture cost of $600, and $300 towards groceries. She contributes to the costs of her children’s activities, though these are not specified. She explains that her husband pays for the rent, heat, hydro and gas.

6In the respondent’s record there is a copy of the household budget the applicant submitted to Legal Aid. The monthly expenses she listed there included $1,350 for rent, $220 for hydro, $120 for gas, $100 for phone and internet, $140 for cable, $500 for a car payment, $220 for car insurance, $500 for furniture, $240 for gas for the car and $800 for food for the family of four

7From this evidence, such as it is, I conclude that the costs for housing, food and household technology are about $3,230 for the applicant’s family of four and $960 for transportation, a monthly total of $4,190.

8The applicant’s husband is employed. In 2015 he earned $100,000. His income fluctuates, he says. He expects it to be about $80,000 this year. He has $20,000 in debt, though he does not specify what the costs are to meet his debt servicing.

9Mr. and Mrs. Fairbarn each deposed that their marriage has been enormously strained by the events relating to these criminal charges. They have physically separated at times and though they have resumed living under the same roof, he considers them to be separated. She remains hopeful of reconciliation.

10Mr. Fairbarn refuses, he says, to pay money towards the applicant’s defence. He deposes that he pays almost all of the household bills. His finances are separate from those of his wife.

11It may be estimated, or perhaps more accurately ‘guesstimated’ on the evidence, such as it is, that the applicant’s after tax income (without including gratuities) is about $1,126 per month and the respondent’s $5,874, for a total household after tax income of some $7,000 per month. (Taking the husband’s income at $100,000). Net of expenses, there would be some $2,817 monthly available to meet other costs. If the husband’s income is a low as $80,000, the surplus drops to $1,817. 00 per month. No doubt there are other expenses in a household which includes two teen-aged children, but these were not in evidence.

12Counsel agrees as to the principles to be applied on this, an application for state funding of the applicant’s defence costs. Among the applicable considerations are whether the applicant has access to counsel and the necessity of counsel.

13In the Rowbotham decision, the Ontario Court of Appeal established that sections 7 and 11(d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require that state-funded counsel be provided where the accused wishes counsel but lacks the means to pay a lawyer, and his or her representation by counsel is essential to a fair trial. Where legal aid has been refused and the judge is satisfied of both criteria, but the prosecution insists on proceeding with the trial in breach of the accused’s Charter right to a fair trial, the remedy under s. 24(1) is a stay of proceedings until funded counsel is provided.

14The onus is on the applicant to establish on a balance of probabilities that he or she was refused legal aid, that he or she lacks the means to pay a lawyer, and that his or her representation by counsel is essential to a fair trial: R. v. Sheikh, 2011 ONSC 4942.

15The Crown concedes that the applicant likely faces a term of imprisonment if she is convicted and that she has exhausted the process to obtain legal aid funding.

16The trial will be of a multi-count indictment, with co-accused. The trial will involve some, somewhat complex evidentiary issues, at the very least having regard to the use that may or may not be made of the evidence and statements of co-accused who are alleged co-conspirators. Having regard to Ms. Fairbarn’s formal education and life experience, the procedural, evidentiary and substantive law which applies to the charges and given the expected length of the trial, I am satisfied that representation by counsel is a pre-requisite to a fair trial.

17The critical issue in this application is whether Ms. Fairbarn, to co-op defence counsel’s terminology, will she be able or not to retain competent counsel, due to her financial circumstances. This calls for consideration of her income, assets and her efforts to find counsel.

18The evidence filed on behalf of the applicant was not challenged in cross-examination. I accept that she earns about $15,000 annually. She has no assets. The consequences of being charged are such that she likely wasn’t able to earn what she did before being charged. It would not be reasonable to infer that she can borrow money. Given that the household expenses of the applicant are met to a significant degree by her husband, however, the applicant has some means and opportunity to save a portion of her earnings and use her savings to retain counsel. As well, the applicant has a spouse with an income of between $80,000 and $100,000 per year. He has a legal obligation to support his wife and she has an entitlement to support. Thought he asserts that he intends to save for his children after he pays his current debts, payment of debt to third parties must yield to his spousal support obligations. The family income and expenses appear to be sufficient on the material that was presented for a surplus to be available. I note there is no evidence of any effort to engage counsel on any terms.

19The applicant has not, even informally, asserted her right to monetary support from her spouse. Her need for state funding is not, therefore, fully made out on these facts and in these circumstances.

20To date there is no trial date scheduled. I do not find that it is established, as yet, that the applicant will not be able to obtain competent counsel before trial through the financial means available to her as considered above. I make this ruling without prejudice, it perhaps need not be said, to a further application on a better evidentiary basis, should her circumstances change.

21Wherefore this application is dismissed.