R. v. Ighedoise, 2016 ONSC 5623

CITATION: R. v. Ighedoise, 2016 ONSC 5623

COURT FILE NO.: M219-16

DATE: 20160913

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

AKOHOMEN IGHEDOISE

Applicant

Andi Jin, for the Respondent

Joelle Klein, for the Applicant

HEARD: September 6, 2016

R. F. GOLDSTEIN j.

[1]

Overview

Mr. Ighedoise is charged with multiple offences. He is currently in custody. He is charged with membership in a criminal organization, laundering the proceeds of crime, fraud over $5000, and breach of a recognizance. He seeks what is commonly known as a “Rowbotham” order. That order would stay the charges against him unless and until the government agrees to pay for a lawyer. He argues that he needs a lawyer because the case is complex, the material voluminous, and the consequences serious. He says he cannot afford a lawyer because he indigent. Legal Aid turned him down because, they said, he was not forthcoming with his financial information.

[2]

Background

The Crown alleges that Mr. Ighedoise laundered money for the “Black Axe” criminal gang. The police seized paraphernalia from his residence allegedly showing his involvement and role with that organization. Mr. Ighedoise also faces charges of fraud. The Crown alleges that he was involved in a “romance” fraud case. The victim was bilked out of around $600,000.00 during the course of an online romance. The police seized electronic devices from Mr. Ighedoise allegedly showing that he was in contact with the victim. The devices also allegedly show the movement and direction of the funds. Mr. Ighedoise initially received bail but he allegedly breached his recognizance. His bail was revoked and he remains in custody. The preliminary inquiry on all of his charges is scheduled to commence in March, 2017.

[3]

The Legal Framework

A person applying for state-funded counsel must demonstrate the following:

• 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.

4See: R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 at p. 36.

5A Rowbotham order is an exceptional remedy. It may only be granted where an accused person has demonstrated that he or she meets the three criteria set out in Rowbotham.

[6]

Analysis

In this case, it is clear that Mr. Ighedoise has been denied Legal Aid. It is also clear that he needs a lawyer, as it is a complex case. As the Court of Appeal noted in Rowbotham, the need for state-funded counsel would ordinarily arise only in serious and complex cases.

7The only issue is whether Mr. Ighedoise has demonstrated, on a balance of probabilities, that he is indigent. In my view, he has not.

8Mr. Ighedoise’s evidence primarily consists of an assertion in his affidavit that he is indigent. The Legal Aid file is appended to his affidavit. It is clear that the main reason he was denied Legal Aid funding is that he was not forthcoming with documents or other evidence. He has been no more forthcoming on this application. His argument was that he was in custody and therefore unable to obtain assistance from the banks. With great respect, I do not find that convincing. Being in custody, while certainly difficult, has not stopped many others from obtaining the documents they need to demonstrate their indigence. There is nothing special about Mr. Ighedoise’s situation in that regard.

9Mr. Ighedoise has made a bald assertion that he is indigent. He has provided one document to back up his claim – a statement for a tax-free savings account with a balance of $90.00. None of his other bank accounts have been provided. He has argued that the banks would not actually provide him with accounts that are closed. I am sceptical that the banks are actually unable to provide him with statements, although I accept that they told him that. Unfortunately, a few bank statements would not matter. Mr. Ighedoise did not provide any other documents. He swore in his affidavit that worked part-time and ran a small consulting business in the years before his arrest. He testified before me that he never made more than about $12,000.00 per year. Unfortunately, that assertion is also not backed up. There were no financial statements or tax returns or any other documents in relation to his business activities. He did not provide even a pay stub or a letter from his former employer.

10A person seeking state-funded counsel must go further than merely asserting indigence. There must be some supporting documentation: R. v. Woods, 2016 ONSC 2374.

11A person seeking state-funded counsel must also show that he has exhausted his ability to pay for a lawyer and has no further resources: R. v. Kizir, 2014 ONSC 1676. There is no evidence about the efforts Mr. Ighedoise has made to retain counsel, other than his efforts to obtain bank statements.

12What is most troubling is that Mr. Ighedoise did not disclose to Legal Aid or in his affidavit that he sold his home in October 2013 and realized proceeds of $380,000.00. There had been a TD Bank mortgage that was discharged in favour of another lender but the amount of equity in the house is unclear. Mr. Ighedoise testified that he did not realize anything from the sale, as any proceeds went to his ex-wife. He further testified that his ex-wife holds the money in trust for their child.

13Unfortunately, there are no documents to back up this claim either. The only documents we do have show the sale and the proceeds and those documents were obtained by the Crown. There is no statement of adjustments, direction as to funds, or lawyer’s reporting letter that would show what happened to this substantial sum of money. On the face of it, Mr. Ighedoise would have been entitled to some. In my view, there is an evidentiary burden on him to show that he did not. His credibility is suspect given his answers to Legal Aid, and his answers when testifying before me. Surely the documents in relation to the sale of the house are available, given then record-keeping requirements on his lawyer – assuming that he had one for that transaction, which he has not disclosed one way or the other. In the absence of documents, I do not accept that he received nothing from the sale of the house.

14Furthermore, Mr. Ighedoise testified that he has an ex-wife. Presumably he was required to exchange financial statements with her. He could have provided that to the Court, or to Legal Aid – or at least indicated on his Legal Aid application that he didn’t have one. In fairness, nobody mentioned a financial statement during the hearing before me, but surely even basic inquiries would have revealed whether there was one.

[15]

Conclusion

Accordingly, Mr. Ighedoise has failed to show that he is lacking the funds to retain counsel. The application is dismissed.

R.F. Goldstein J.