Court File and Parties

COURT FILE NO.: CR-17-00000074 DATE: 20170428 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JOHN BRADLEY ATKINSON Applicant – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Respondent

Mr. John Bradley Atkinson, Self-Represented Applicant Mr. John Zarudny, for the Respondent

HEARD IN BARRIE: April 24, 2017

Reasons for Decision on Rowbotham Application

EDWARDS J. :

Introduction

[1] Mr. Atkinson (the “Applicant”) seeks an order conditionally staying the sentencing/criminal long-term offender (“LTO”) proceeding, returnable in July 2017 before Justice Meijers, until the Attorney General funds the costs of his representation pursuant to s. 24(1) of the Charter of Rights and Freedoms (the “Charter”). The relief that the Applicant seeks is in the nature of a Rowbotham application.

The Facts

[2] The Applicant was convicted on March 15, 2015 of assault with a weapon. The Applicant has been in custody since his conviction pending sentencing.

[3] The Applicant is 53 years of age with a grade 10 education. He speaks and writes English and was involved with his family in what he described as the biggest crane business in North America.

[4] After a trial before Justice Meijers, the Applicant was convicted on March 15, 2015 of a number of criminal offences, including assault with a weapon (a dump truck), impaired driving, driving while disqualified and mischief under $5,000.

[5] On January 6, 2017, with the consent of the Attorney General for Ontario, the Respondent initiated an application pursuant to s. 753.1(1) of the Criminal Code (the “Code”) to have the Applicant declared a long-term offender.

[6] The Applicant has been represented by a number of counsel in relation to the charges for which he was convicted. The evidence suggests that he has had five counsel funded through Legal Aid Ontario. The Applicant, in his evidence before me, notes that two of the lawyers who represented him terminated their relationship for reasons unrelated to any breakdown in the solicitor-client relationship. The Applicant’s most recent counsel, Mr. North, was removed from the record and I am told that he has now been appointed as amicus in connection with the LTO application.

[7] The Applicant sought Legal Aid subsequent to the termination of his relationship with Mr. North. The application for Legal Aid in connection with the LTO has been turned down. The Applicant appealed the decision to deny him Legal Aid. The appeal was also turned down.

[8] As to the Applicant’s assets, he conceded in his evidence before me that he recently received an inheritance from his mother. The net proceeds are in a trust account and comprise the sum of approximately $10,000. The Applicant does not want to use the inheritance received from his mother, as he is concerned that if and when he is released from custody he will not have any funds to provide for his basic necessities of life.

Analysis

[9] In determining whether or not to grant a stay of proceedings pending the appointment of a publicly funded counsel, the Court is guided by what is commonly referred to as the Rowbotham test. In that regard, the Applicant must establish:

a) that through no fault of his own he is ineligible for or has been refused Legal Aid and has exhausted all appeals for reconsideration of his eligibility;

b) that he is indigent and unable to privately retain counsel to represent him at trial; and,

c) that his right to a fair trial will be materially compromised absent public funding for counsel.

[10] As I indicated during the course of argument, my decision would not be determined by either the first or third condition of the Rowbotham test. Specifically, I am satisfied that on the evidence the Applicant has established that he has been refused Legal Aid and that all of his appeals have been exhausted. I make no determination as to whether or not the denial of Legal Aid was caused through any fault of the Applicant. I am also satisfied that the Applicant has established that his right to a fair hearing with respect to the LTO would be materially compromised absent public funding for counsel.

[11] The primary consideration that this Court must consider is the second aspect of the Rowbotham test; specifically, the determination of whether or not the Applicant is indigent and therefore unable to privately retain counsel to represent him in connection with the LTO. The evidence is uncontradicted that the Applicant has access to $10,000 that he received as a result of an inheritance from his mother. While I have considerable sympathy with the Applicant’s concern that if and when he is released he will have no access to monies to look after the necessities of life, the fact still remains that he has an obligation to use the funds that are available to him to fund a private retainer of counsel in connection with the LTO.

[12] The Applicant, in his evidence acknowledged that he had made enquiries of at least one counsel with respect to a private retainer, utilizing some of the monies he had inherited from his mother. I received no evidence from the Applicant that in his enquiries of various lawyers who might take on a private retainer in connection with the LTO, that the $10,000 available to him would be insufficient to fund defence counsel in connection with what is estimated to be a four day LTO hearing.

[13] The issue of indigency was reviewed by the Alberta Court of Appeal in R. v. Cai, 2002 ABCA 299, where at para. 33 Stromberg-Stein J. stated:

As the principles above suggest, indigency is an inability to pay or contribute to legal fees despite best efforts to prioritize payment of those legal fees by saving, borrowing or otherwise raising funds for such payment, and consequently being incapable of retaining counsel in ample time to ensure a fair trial. However, even where an Applicant is found to be indigent, if he is able to contribute to his legal fees, either in whole or in part, presently or in the future, then he has a legal obligation to do so. The provision of legal services at no cost to the Applicant is not a Charter right. As a result, where the province offers funding to an applicant for this purpose it can establish repayment requirements, consistent with an Applicant’s ability to pay.

[14] There was no evidence before me that the Applicant had disclosed to Legal Aid Ontario the existence of the $10,000 trust fund that he received as a result of the inheritance from his mother. One can only speculate as to what Legal Aid Ontario might have done, or for that matter what might now happen if the Applicant were to disclose the existence of the $10,000 and how that fund may be used in relationship to a repayment plan with Legal Aid Ontario.

[15] I am not satisfied, based on the evidence, that the Applicant has met the onus of establishing that he is indigent. The opposite is in fact the case given his own acknowledgement of the existence of the $10,000 trust fund, as well as his own evidence in connection with the use of those funds in connection with at least one defence counsel with whom he has consulted in connection with the LTO. If the evidence had been to the contrary, i.e. that the Applicant did not have access to the $10,000 trust fund, in my view this might very well have been a case where the Court would have accepted that the Applicant had exhausted all avenues with Legal Aid Ontario to obtain publicly funded counsel, and that this was an exceptional case where representation of the Applicant at the LTO hearing would be essential for a fair outcome. The Applicant has already been found guilty of serious charges and is now facing an LTO determination that obviously would have very significant consequences for him. The assistance of counsel in connection with that LTO hearing, in my view, is obvious. Amicus has been provided. Were it not for the fact that the Applicant has access to the $10,000 trust fund, his application might otherwise have been successful. I am, however, bound by the three part test in Rowbotham, and I am not satisfied that the Applicant has met the onus of establishing that he is indigent. The application is therefore dismissed.

Justice M.L. Edwards

Released: April 28, 2017