Court File and Parties

Court File No.: 45-2015 Date: 2016/09/27 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent And: Max Bourdeau, Applicant

Counsel: Judy Bielefeld, for the respondent Andrew Bigioni, for the applicant

Heard: September 14, 2016

Before: George J.

Amended Reasons for Decision on Rowbotham Application

[1] This is a Rowbotham application. Pending the provision of state-funded counsel for his upcoming trial, the applicant seeks an order staying the charges again against him. He wants the Attorney General of Ontario Canada (AG) to pay his legal fees at the applicable legal aid (LAO) rate.

[2] The applicant is charged with four counts of trafficking methamphetamine, and four counts of trafficking marijuana. The Indictment contained 17 counts, but all those which allege simple marijuana possession and possession of stolen property have been withdrawn at the request of the Crown.

[3] He obtained his release and is currently in the community subject to bail terms. He had a preliminary inquiry, after which he was committed to stand trial. Counsel assisted him at the bail stage, and at his preliminary inquiry. Counsel represents him on this application.

[4] The current trial estimate is three to six days.

[5] The applicant has been denied LAO coverage. His appeal of that decision was unsuccessful. To this point counsel has been funded privately, largely from funds loaned the applicant by his father.

[6] The charges against him are very serious. It is alleged he trafficked in significant quantities of methamphetamine and smaller quantities of marijuana to undercover (UC) officers. Upon an early guilty plea the Crown has signalled an intention to seek a jail sentence in the upper-reformatory range. A finding of guilt after a contested hearing would likely attract a penitentiary sentence.

[7] The applicant contends this is a complex matter. I am told the disclosure is voluminous, with over 1400 pages, including a search warrant and ITO, UC officer notes, a surveillance video, and a series of photographs depicting the various alleged drug transactions. The evidence will consist of the testimony of four to six officers, including those UC, the surveillance video, and the drugs (or related certificates). 22.8 grams of marijuana and 292.9 grams of methamphetamine were seized.

[8] He says he lacks the capacity to defend himself. He has a grade 10 education and a college certificate in computer support work. He has only ever been employed in manual labour positions and has not worked in years.

[9] The applicant pleads he cannot afford to retain a lawyer privately to defend himself. He claims he is physically unable to work, and that he supports himself by way of one monthly disability payment, and one monthly pension payment.

[10] The Crown opposes the application. It contends he is able to work and raise the funds. It suggests he has the present means to fund his own defence, evidenced by the fact that he has, on these very charges, twice been released on a $15,000 recognizance, at which time he must have assured the court he could satisfy it. He was able to retain counsel for each of his two bail hearings and for a preliminary hearing, not to mention the fact his annual income is in excess of $27,000. Moreover, before his arrest he had received from the UC officers, for the drug sales, approximately $12,000.

[11] It argues the matter, while serious, is straightforward. There are a series of transactions between the applicant and UC officers, as well as a subsequent search, seizure and arrest. There are no complex legal issues. It submits there are no anticipated Charter challenges respecting the search, and that any suggestion statements the applicant provided the UC officers are inadmissible as they were to persons in authority, is without merit.

[12] In terms of complexity, and available defences, it is not entirely clear what the applicant’s position would be at trial. Indeed there is no obligation he disclose this beforehand, unless he has an alibi, or if he is alleging a Charter violation. And, of course, he could simply wish to put the Crown to its onus. There is some reference in the LAO appeal materials, that the applicant believes he was “set up”, which suggests an entrapment argument. I don’t know if this forms part of the defence, but if it does notice would have to be given, which he has not yet done.

[13] After considering the written materials, and after hearing counsel’s submissions, I conclude this matter, while serious, is not complex. It is a straightforward case, and counsel would not be required to ensure a fair trial.

[14] The applicant relies upon this passage from the Ontario Court of Appeal in R v. Rushlow, 2009 ONCA 461:

… 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.

[15] As indicated, there is a probability of jail. If convicted, it’s almost a certainty. But this case is not complex. The applicant can meaningfully participate without counsel. The trial is not going to be particularly lengthy. He is modestly educated. I presume from the evidence, and from his affidavit, that he can read and write, and could formulate questions for witnesses who will likely testify against him.

[16] Should I be wrong, and even if this is a ‘complex’ case, there is another branch to the test. This could be the most complex case, necessitating a lengthy hearing, involving significant procedural issues, pretrial motions, and a voir dire, but the applicant must still establish he “lacks the financial resources to retain counsel”. Is he unable to retain counsel, or has he made a calculated decision not to?

[17] In R. v. Peterman, [2004] O.J. No. 1758 (C.A.), the appeal court panel wrote this:

In some cases, LAO has been refused because in accordance with LAO guidelines, the person does not qualify financially for LAO. Where the accused seeks a Rowbotham order, the court, while giving appropriate deference to the decision of LAO, must reach its own decision about whether the accused can afford counsel. As was said in Rowbotham at p. 69, “there may be rare circumstances in which LAO is denied but the trial judge, after an examination of the means of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial”. However, when a court makes a Rowbotham order, it is not conducting some kind of judicial review of decisions made by LAO authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial.

[18] It is true that I am to undertake a distinct assessment of the applicant’s means, apart from LAO, but this is not simply a financial exercise. While someone must be indigent to receive state-funded counsel, to be indigent doesn’t necessarily mean they will receive it. This is what I believe the court means in Peterman. The question remains, is the applicant indigent?

[19] He is not. The applicant bears the onus and he has not met it.

[20] There is no evidence he’s made any efforts to work or borrow funds, beyond the money his father advanced, which by all accounts he has made no attempts to pay back. The applicant contends the mere fact he is a disability support recipient, should allay any concerns in this respect. The problem is this; that fact alone does not mean he is indigent. He is a single man, with no dependents, with no significant liabilities (according to his evidence), with a yearly income of over $27,000.

[21] What has he done to secure a loan from a bank, friends or family? His evidence in this respect is two-fold; first, he simply asserts he cannot obtain a loan, with no description of how he has attempted to get one. Second, he says his dad can no longer lend him money. The evidence establishes he has other family members, including grown employed children, and I took from his evidence that, without asking them, he has determined they’re unable to assist.

[22] He has twice assured the court he could pay $15,000 were he to breach a term of his bail. As his bail was approved, the inescapable inference is that the court accepted he has access to significant funds, which it surely wouldn’t have unless the applicant advised, or left the impression, that he did.

[23] Also, while the applicant is presumed innocent until proven guilty beyond a reasonable doubt, there is evidence he was involved in a drug enterprise, on the officers’ version receiving approximately $12,000 in cash prior to his arrest. I can consider this factor at this stage.

[24] The applicant has failed on the two most important arms of the test. While he has been denied LAO and has pursued all of his appeal options, which is one element he must satisfy, he is not indigent. Beyond his financial circumstances, legal representation is not essential for him to receive a fair trial. His evidence is a collection of vague assertions about his financial circumstances, and generalities about how, because he doesn’t have legal training, he is incapable of defending himself.

[25] Rowbotham orders should be rare, granted only where there is compelling evidence, and when the applicable test is clearly met. This is the case for good reason. This is not to suggest exceptional circumstances are required, but I must be mindful of the remedy sought, which is an extraordinary one. If granted, a stay would remain in effect unless and until funding flows from the AG. It could result in thousands of dollars in taxpayer money being expended, or in the prosecution ending altogether. This remedy should only result in the “clearest of cases”.

[26] It would surely be preferable for the applicant to have trial counsel. This would be in everyone’s interest and would in all likelihood ensure a smoother process. However, this is not the test. An accused is not entitled to a perfect trial. The test is not whether I am satisfied all risk of any potential unfairness has been eliminated. The trial judge will have a duty to assist the applicant including “the provision of reasonable assistance…in the presentation of evidence and in putting any defences before the court and guide the accused in such a way that his….defence is brought out with its full force and effect”; see R. v. Rain, 1998 ABCA 315.

[27] In applying the principles in R. v. Rowbotham, [1988] O.J. No. 271 (C.A.), and after considering the factors set out in Rushlow, I have no choice but to dismiss the application.

“Justice J. C. George” Justice J. C. George Released: September 27, 2016