Court File and Parties
Court File No.: CR-17-50000074-00MO Date: 2017-04-03 Superior Court of Justice - Ontario
Re: R. v. Anthony Magiri
Before: Molloy J.
Counsel: Eric Wagner, for the Crown (Responding Party) James Mencel, for the Applicant
Heard: March 31, 2017
Endorsement
The Issue
[1] The applicant, Anthony Magiri, seeks an order staying the charges against him unless the Attorney General pays the fees for his lawyer for a preliminary hearing that has already been completed, essentially a retroactive Rowbotham order.
Background Facts
[2] In early 2015, Mr. Magiri was arrested and charged with sexual assault. He applied for Legal Aid, and a Legal Aid Certificate was issued. Mr. Magiri retained Mr. Lyons to represent him. Unfortunately, due to oversight, the Legal Aid Certificate was never acknowledged by counsel and it expired in December 2015.
[3] Mr. Lyons continued to act on Mr. Magiri’s behalf, not realizing there was no valid certificate in place. He did not realize the certificate was no longer active until August 2016, midway through the preliminary hearing. In accordance with his professional responsibilities, Mr. Lyons completed the preliminary hearing, which lasted a total of nine days. Mr. Magiri was committed for trial, which is scheduled to commence in this court on May 15, 2017.
[4] Mr. Magiri reapplied for Legal Aid. However, by this time he had found new employment at an annual income of $33,155.54, which exceeded the Legal Aid eligibility cut-off of $14,888. If he had been granted a Certificate at that time, it would likely have been back-dated to when the first services were rendered, provided he had been eligible at that time. However, because he was not eligible at the time he made the second Legal Aid application, his request for funding was denied in its entirety, both going forward and going backward. He has exhausted his avenues of appeal from that decision.
[5] Mr. Magiri brought a Rowbotham application. The Crown agreed that, going forward, state-funded counsel would be appropriate for Mr. Magiri in order to protect his Charter right to a fair trial. The parties have entered into an agreement to provide funding for counsel for the trial. However, the Crown has refused to pay counsel for the previous work done, including representing Mr. Magiri for the preliminary hearing.
Analysis
[6] I have no jurisdiction to grant the order sought.
[7] In R. v. Rowbotham, (1988), 41 C.C.C. (3d) 1, 63 C.R. (3d) 113 (Ont.C.A.) the Ontario Court of Appeal held that in “an exceptional case” where the trial judge is satisfied that representation of the accused is essential to a fair trial, charges against the accused may be stayed until the necessary funding of counsel has been provided. It is clear from Rowbotham, and the many cases that have followed and applied it, that to obtain such an order the accused must establish that without counsel he cannot have a fair trial.
[8] It is not necessary for me to determine whether the funding of counsel at the preliminary hearing stage would have been essential to the fair trial rights of Mr. Magiri. Neither is it necessary for me to determine whether a Rowbotham application would have been successful if he had brought one prior to or during the preliminary hearing. There was no Rowbotham application at that stage.
[9] Mr. Magiri no longer has any fair trial rights to representation at the preliminary hearing; he was represented by counsel throughout. It is only counsel’s right to be paid for services previously rendered that is now at issue. That was never the focus or intent of a Rowbotham application and provides no jurisdiction to the court to stay charges until counsel is paid. At this point in time, Mr. Magiri’s right to a fair trial is not in jeopardy as the Attorney General has agreed to provide funding for his counsel for the trial.
[10] Accordingly, in my view, I am wholly without jurisdiction to make the order sought and the application is dismissed.