COURT FILE NO.: 1092/15 DATE: 20161017

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN WENDY HOUTMEYERS, for the Public Prosecution Service of Canada/Respondent Respondent

• and -

MICAHEL ODUH CATE MARTELL, for the Applicant Applicant

RULING ON ROWBOTHAM APPLICATION

DURNO, J.

[1] Michael Oduh and two other men are charged with possessing 70 kilograms of cocaine for the purpose of trafficking and conspiracy to possess the cocaine for the purpose of trafficking. One of the co-accused has counsel. The other does not at this time.

[2] Mr. Oduh applied to Legal Aid Ontario (LAO) for coverage and was denied. Two appeals within LAO were also denied. LAO concluded that he did not qualify for coverage because his income was above their cut-off level after his claimed business deposits to his personal bank account were included in his income and because he had failed to provide full and candid disclosure of his financial situation. Of particular importance to LAO and on this application, in 2013, the applicant deposited $96,590 into his personal bank account. When that figure is compared to his claimed income for 2013 of $11,387 LAO determined that he had not provided complete and credible information about his finances.

[3] Relying on R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont.C.A.), Mr. Oduh applies to stay the proceedings until state-funded counsel is granted. He contends that he requires counsel to have a fair trial and has no funds available to pay counsel nor does he have access to any funds or to anyone who would pay his legal fees. He submits that by the end of the application he had supplied financial records of all the bank accounts he currently has and they reveal he does not have funds to pay counsel. That he has irregular income is consistent with the nature of his business, his wife being ill for many months before her death, and his motor vehicle accident.

[4] Ms. Houtmeyer for the Public Prosecution Service of Canada (PPSC) opposes the application contending the case is not complex so that the applicant does not require counsel to have a fair trial. She also submits that he has failed to meet his onus as he has not provided complete or credible financial information. The PPSC submits that he advances an “unsupported claim of poverty.” He is neither destitute nor indigent as defined in law.

[5] In effect, Ms. Houtmeyer submits that he has been selective in what information he has provided. He had $3500 cash on him when arrested. His incremental disclosure of his bank accounts, including producing the bank records for three account while in the midst of cross-examination, casts serious concerns regarding his credibility and the reliability of his claims on the application. His evidence is not capable of belief. That he told LAO in 2013 that he had no debt and now claims to be $27,000 in debt shows that he has deliberately accumulated debt. Accordingly, the application should be dismissed. He has not shown that he cannot pay counsel. He paid counsel in installments in the past and he can do so for his trial.

The Law

[6] The procedures and issues to be addressed on Rowbotham applications have been outlined by the Court of Appeal in the following cases: Rowbotham, R. v. Rushlow, (2009), 2009 ONCA 461, 96 O.R.(3d) 302 and R. v. Peterman, (2004), 70 O.R. (3d) 481. By way of summary, where the applicant establishes the following factors on a balance of probabilities he or she has a constitutional right to be provided with counsel at state expense:

i) he or she has been denied LAO coverage, ii) he or she lacks the means to employ counsel, and iii) he or she requires counsel in order to have a fair trial

[7] When conducting a Rowbotham application the judge is not conducting a judicial review of LAO’s decisions: Peterman, at para. 22 and Rushlow at para. 18. While the pervasiveness of legal aid will result in it being the rare and exceptional case that the court will find it necessary to make the order, this does not mean that counsel is only required in exceptional cases. It is the fact that legal aid is available for accused who cannot afford a lawyer that makes Rowbotham orders exceptional: Rushlow, at para. 19. The threshold for appointing counsel is not “very high,” nor is it limited to an extreme case where legal aid’s decision is perverse and there is a substantial likelihood of a lengthy jail term: Rushlow, at para. 24. To meet the threshold, there is no need to establish that the applicant is destitute or indigent: R. v. Sheikh, 2011 ONSC 4942, [2011] O.J. No. 4435 (S.C.J.), at para. 70.

Has the applicant been denied legal aid?

[8] There is no dispute the applicant has been denied legal aid coverage. That precondition to making an order is satisfied.

[9] However, before leaving legal aid’s refusal, as a result of the applicant’s submissions which included that he had only been asked to provide his personal bank statements to LAO and other criticisms of LAO’s decision, some comments regarding LAO’s decisions and Rowbotham applications will help place the ruling in context. The findings of LAO are important and entitled to “appropriate deference” Peterman, at para. 22. However, a Rowbotham application is not a review of LAO’s decision or their procedures.

[10] In addition, there are three fundamental differences between the applications. First, LAO’s legislated income financial eligibility thresholds bear no reasonable relationship to what constitutes poverty in Canada: R. v. Moodie, 2016 ONSC 3469, at para. 6. For a family of five, eligibility is denied if the applicant has an income of $26,714 where there is no contribution towards legal fees by the applicant or $33,961 with a contribution. The LAO eligibility figures have to be viewed in this context on a Rowbotham application.

[11] Second, LAO applies a “one-size-fits all” cases financial assessment based on income. While for contributory certificates there would be an assessment of the anticipated costs of the case and the total costs of the case are relevant for Big Case Management at LAO, the financial eligibility is the same regardless of the offence and anticipated trial length. The financial eligibility is the same if the applicant is charged with his or her fourth shop-lifting charge or first-degree murder and whether the anticipated length of trial is one half day or a four-week preliminary inquiry and three-month trial. On a Rowbotham application the question is whether this applicant has funds to defend his or her trial. It is a case-specific analysis. The tests are very different. All legal fees are not the same regardless of the offence.

[12] Third, the applicant’s financial situation is assessed as of the date of this application, not his LAO application.

[13] No doubt, a failure to provide full and frank financial disclosure to LAO or providing materially different information on the court application will be relevant on the Rowbotham application. The onus is on the applicant and a finding that he or she failed to provide full and frank financial disclosure to LAO has the potential to impact on his or her credibility and/or reliability on the Rowbotham application.

[14] In addition, the applicant’s financial status at the time of arrest and her or his financial dealings between the arrest and the Rowbotham application will be relevant. If the applicant has dissipated his or her funds, deliberately become unemployed, underemployed, deliberately incurred debt so as to make their financial picture worse or otherwise prioritized their financial obligations in a manner that left no funds for counsel, their conduct would be relevant on the application: R. v. Sheikh, 2011 ONSC 4942, at para. 70.

Does the applicant have the means to privately retain counsel?

The Evidence

[15] The applicant is 52 years old. He has four children, ages 12, 17, 18 and 21. The two oldest children are in college and the two youngest in high school. His youngest child is in Nigeria with his family. He sends $300 monthly to Nigeria for his care. The applicant has applied for a visa for a family member to bring his son to Canada from Nigeria.

[16] Mr. Oduh’s wife died in July, 2014, of ovarian cancer. This was after he was charged. He currently lives in subsidized housing in Toronto. His living expenses are roughly $500 per month in addition to paying $700 rent.

[17] For the past seven years he has been self-employed in the shipping business and is currently the only employee of his business. His tax returns show his income was $11,357 in 2013, $6250 in 2014 and $24,000 in 2015. Currently, he is unable to work full-time because of a motor vehicle accident in November, 2014 in which he injured his shoulder and back. As a shipper of heavy machinery, his work generally involved heavy-lifting. For the past seven months, he has only been able to take on occasional light jobs where no lifting was involved. As of the date of his first affidavit, he was considering applying for Employment Insurance benefits but had not done so as he was awaiting accident benefits.

[18] He is just under $27,000 in debt from his credit cards and bank loans. He filed letters from collection agencies to illustrate his current financial situation. The applicant submits that he is dependent upon his friends and family in Nigeria to meet his monthly expenses. In addition, church friends will deliver food to the family.

[19] With regards to the $96,950 deposited to his personal account in 2013, he swore the vast majority of the funds did not belong to him. He was a broker who held the funds in trust for customers in order to buy heavy equipment. From those funds he received only a “few hundred dollars” per purchase. He testified that he had been using his personal account to receive and pay out funds from his business because he did not realize the importance of having a separate business account and because customers sometimes paid him with personal cheques.

[20] He had not provided full financial statements for his bank accounts because the bank was going to charge him $5 per page. It was only after he learned how to access the records on line that his daughter was able to print them so he could provide them to the court. He submits that the records filed in the midst of his cross-examination show that he does not have extravagant spending with purchases from the Salvation Army, No Frills and Costco as well as two entries when his account was overdrawn.

[21] When given an opportunity to produce evidence of the relationship between the receipts he provided to LAO and the $96,590 deposits, he submitted that the receipts account for almost all of the deposits when the entire year was examined. He told LAO that the receipts were “most” of his business expenditures for 2013. When confronted in cross-examination with what appeared to be inconsistencies between the records and the banking entries, he responded in written submissions that they are “somewhat difficult to reconcile.” However, there is substantial consistency over the year between the total deposits and the total amount accounted for in receipts. The receipts, totaling $91,755, account for all but roughly five percent of the total deposits. This is consistent with the applicant’s evidence that he only earned a few hundred dollars for each transaction although for the most part, it is not possible to match the receipts with the deposits or withdrawals. He submits that it is not possible to determine his net worth in 2013 simply by comparing his bank statements with the receipts.

[22] However, the applicant notes the following: two receipts are for cash in US funds which would involve currencies of different values, he also received a commission on each sale which would account for discrepancies, and each receipt is for several different bookings so that it does not necessarily originate from a single deposit into his account.

[23] The applicant also submits that at the time he applied for legal aid he had business bank accounts for which he did not provide statements and for which he was never asked. Some of the receipts could represent payments from those bank accounts. He disclosed to LAO that his company had two business accounts, now shown to have $200 in one and $100 in the other. He was not asked to produce statements for either of those accounts to LAO.

[24] He testified that he no longer had any of the bank accounts he held in 2013. Two were passed on to collection agencies. Accordingly, it is not possible to gain a complete picture of his 2013 finances. He submits that he has now provided accurate and complete financial records as of this time.

[25] While in submissions, the PPSC argued that the receipts were suspect as they are not on letterhead and there is no evidence from the company that the receipts are legitimate, given that the applicant was not cross-examined on this point, it would be unfair to permit the respondent to advance that argument: R. v. Sutherland, 2016 ONCA 674. However, the PPSC maintains that the inconsistencies between the receipt amounts and the deposits are relevant. I agree subject to examining the explanations.

[26] Finally, the applicant has paid counsel (not Ms. Martell) $5000 towards his legal fees for the six-day preliminary inquiry.

Analysis

[27] There are aspects of the financial component to the application that are troubling. I agree with Ms. Houtmeyers that the piecemeal disclosure of his finances has been confusing. It would or should have been made abundantly clear to the applicant at the outset of this application that he had to make full disclosure – not on the instalment plan as the hearing went along, producing records for additional accounts in the midst of cross-examination. He did not provide full disclosure to LAO. However, the records that were produced mid-hearing, provided some explanation and did not generally show problematic entries. Those records related to two RBC accounts and the entire transaction history of 2016 for his Scotiabank account.

[28] After reviewing the evidence, counsels’ submissions and the documents filed, by the slightest of margins, I find the applicant probably has insufficient funds to retain counsel privately for this trial. I reach that conclusion for the following reasons. First, this is going to be a very costly trial to defend. It is not a one or two-day trial. The trial is estimated to take one month and with few cases being completed within counsels’ and the pre-trial judge’s estimates, it will likely be longer. There appears to be no dispute that the trial will take roughly twenty court days and approximately 200 hundred preparation hours. The Crown will call roughly 30 witnesses including experts.

[29] While regrettably the applicant did not provide what a private retainer would be for this trial, [1] the LAO rates would generate a $44,400 account. That would likely translate into at least a $50,000 to $60,000 or more private retainer. I am unable to find any way that this applicant would be in a position to pay those fees.

[30] In reaching that conclusion, I appreciate that there can be payment agreements with installments made and that the trial is currently scheduled for 2017. However, the reality of a criminal law practice is that for many clients the incentive to maintain a payment agreement after the trial often ranges from diminished to non-existent. In a case like this one, if the applicant is convicted he will have no income for many years. For some, if not many, after an acquittal the incentive disappears and counsel is left to chase the client for funds or take a loss. For that reason, counsel are understandably and appropriately reluctant to go on the record at the start of an installment plan retainer.

[31] Second, I accept that he has provided the bank statements for the accounts he currently has as well as the day-to-day living expenses and payments he currently experiences.

[32] Third, the receipts for 2013 provide at least a partial explanation for the $96,590 deposits. All the receipts were for more than one transaction, he was entitled to his commission and there were US funds. I do not accept his explanation for all of those funds and find he has not provided a complete picture of his finances in 2013, when he was engaged in what would be, at least in part, a “cash business” where detailed accounting is not necessarily the most prominent element of the business. However, I find that at this time he does not have the funds nor access to any sources for the fees for this case. Further, I find that there is nothing from which I could conclude that he deliberately dissipated his funds or is lying about his limited employment in the recent past. In reaching that conclusion, I take into account that he had expenses from his wife’s death and burial in 2014 and his car accident which has limited his employment. The relatively recent acquisition of debt is adequately explained.

[33] Fourth, he produced his personal bank account to LAO. No doubt, he was required to do so, but the fact remains that he gave them the records about his deposits, putting them “on the table.” He did not try to hide them.

[34] Fifth, while he has $3500 on him when arrested he also had receipts which eventually resulted in the money being returned to him and ultimately to his customers.

Is the case complex?

[35] When determining whether counsel is essential in view of the complexity and seriousness of the case, courts look at the personal abilities’ of the applicant, such as their education and employment backgrounds, their ability to read and facility in the language of the proceedings, the complexity of the evidence, the procedural, evidentiary and substantive law that applies in the case, the complexity of procedures such as voir dires, the seriousness of the charges, the expected length of trial and the likelihood of imprisonment: Rushlow, at para. 20. It is also relevant whether the applicant has any familiarity with the criminal justice system, regardless how that familiarity was acquired.

[36] It is not necessary that the case pose unique challenges. There must be some complexity. It is enough if there is a probability of imprisonment and the case sufficiently complex that counsel is essential to ensure the applicant receives a fair trial: Rushlow, at para. 24.

[37] I am persuaded the trial will be of sufficient complexity that the applicant requires counsel to have a fair trial. While the assistance of the trial judge is an important consideration as the PPSC contended, it is not the answer to all or even most Rowbotham applications where the charges are serious, the trial will be before a jury, the risk of a lengthy jail term upon conviction is a certainty, and complex issues arise. I reach that conclusion for the following reasons.

[38] First, the applicant is 52 years old. He has no criminal record or anything that would indicate he has any familiarity with the criminal justice system. While he is a Canadian citizen, he was born in Nigeria.

[39] Second, the charges are extremely serious. The Court of Appeal has held that those who possesses slightly above a pound of cocaine for the purpose of trafficking should go to jail for 5 to 8 years: R. v. Bryan, 2011 ONCA 273. This case involves 70 kilograms. The Crown’s sentencing positions are 13 years on a guilty plea and 18 years after trial.

[40] Third, the trial is anticipated to take one month. It will be a jury trial with a challenge for cause. The preliminary inquiry lasted six days.

[41] Fourth, the Crown seeks to establish the applicant’s statement to the police was voluntarily given. I appreciate that his trial counsel if he is retained would not dispute the admissibility of the statement, but that does not equate with a self-represented accused conceding voluntariness. It may very well be a prudent course for the trial judge dealing with a self-represented accused to conduct the voluntariness voir dire regardless of the accused’s position because it may not be legally well-informed.

[42] Fifth, the Crown seeks to rely upon the co-actors’ exception to the hearsay rule and one of the charges is a conspiracy count, far from straightforward areas of law for a layperson.

[43] Sixth, while it is inappropriate to assume counsel for the co-accused will assist the applicant, only one of the two other accused has retained counsel as of this date.

[44] In all those circumstances, I conclude the applicant probably requires counsel to have a fair trial.

Conclusion

[45] The application is allowed. The proceedings are stayed pending state-funded counsel being provided to the applicant. The draft order provided by counsel for the PPSC will be signed so that counsel will be provided to the applicant.

[46] In regards to the applicant’s request that I set the legal aid rate, I have no jurisdiction to do so: R. v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3.

Durno J.

Released: October 17, 2016

[1] This should be mandatory in all Rowbotham applications