R v Hafizi, 2017 ONSC 2742

COURT FILE NO.: 12-G10163 DATE: 2017/05/01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty The Queen v. Temorshah Hafizi

BEFORE: Mr. Justice James

COUNSEL: Ross C. Stewart, for the Applicant Howard L. Krongold, for the Respondent

HEARD: April 28, 2017

DECISION ON CHARTER APPLICATION

1The applicant seeks an order requiring the state to provide funding for his defence pursuant to section 7 of the Charter.

2On this application, Crown counsel admits that someone in the applicant’s circumstances, facing these charges, cannot have a fair trial without the benefit of legal counsel.

3The applicant is 44 years old. He emigrated from Afghanistan in 1991 with his parents at the age of 19 and has become a Canadian citizen. He is married and had has 5 children. His wife does not work.

4In 2007 he was convicted of aggravated assault and was sentenced to 1 year incarceration and 3 years’ probation.

5While in prison, he was diagnosed with ADHD and PTSD. Since about 2009 he has been receiving ODSP.

6While on probation in 2009, he was charged with several drug offences. Later, while on bail, he was arrested again when police found 150 grams of heroin in the vehicle he was driving.

7The applicant’s wife bought a house in 2012 which was placed in her name alone. Part of the equity from the sale of the previous house was used to repay a debt to the father of the applicant arising from a loan for legal expenses related to the murder trial of the applicant’s eldest son.

8The trial now pending is a re-trial of the drug charges against the applicant. The first trial resulted in an acquittal. In response to a Crown appeal, the Court of Appeal sent the charges back for a new hearing.

9In advance of the initial trial, the applicant brought his first application for state funding before Smith J. who examined the family’s finances and concluded that the accused had met the onus of establishing that the accused did not have the means to employ counsel.

10When the Crown appealed the acquittal of the accused, the accused applied for legal aid and was refused. Subsequently, Crown counsel consented to the funding application before the Court of Appeal.

11The accused applied for legal aid for his re-trial. The request for legal aid was granted subject to a requirement that his spouse execute a consent to place a lien against the matrimonial home which is registered in her name alone. The lien request is in the range of about $7,000 - $8,000 plus interest and 10% of the actual cost of representation at the retrial, estimated at $60,000 (see Ex. 1). The best evidence available at this stage is that the lien may eventually amount to about $15,000. This is a guesstimate which counsel did not disagree with. The wife of the applicant has refused the applicant’s request to consent to the placing of the lien.

12There are two issues. Firstly, should issue estoppel apply to prevent Crown counsel from challenging the finding by Smith, J. that the applicant had met his onus to show that he does not have the means to employ counsel? Secondly, is it reasonable, as is contended by Crown counsel, to require the applicant to request an order under section 23 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) authorizing the encumbrance of the matrimonial home to satisfy the conditions associated with the issuance of a legal aid certificate?

Issue #1

13The applicant says the issues have not changed since Smith, J. granted the funding application in 2013. The applicant remains reliant upon ODSP as his sole source of income. He does not have a registered interest in the matrimonial home. He has done everything in his power to obtain legal aid. His wife has refused to consent to the registration of a legal aid lien. Issue estoppel ought to apply to prevent Crown counsel from re-litigating the matter for a second time.

14Crown counsel responds by noting that the estoppel argument was raised by the applicant for the first time in his reply factum delivered a day or two before the hearing. Further, Crown counsel does not seek to re-hash the applicant’s financial history except to the extent that it buttresses his argument under the FLA and the availability of judicial authorization to encumber the family home.

15I am not convinced that precisely the same issues are in play in the present application. In the case before Smith, J., legal aid had refused to grant a certificate. Justice Smith specifically commented that “LAO did not request that a lien be placed on his wife’s house where there is $70,000 of equity”. (para. 23)

16In the present application, this is precisely what legal aid has requested. LAO will issue a certificate if this condition is met. This appears to me to be a reasonable request in the circumstances because of the equity in the family home but the reasonableness of the LAO position is not an issue on this application. The question is whether the applicant can meet his onus of establishing that he does not have the ability to meet this requirement. Is his wife’s refusal really beyond his control?

17In my view, issue estoppel does not apply to these facts.

Issue #2

18Section 23 of the FLA provides as follows:

23. The court may, on the application of a spouse or person having an interest in property, by order, (a) determine whether or not the property is a matrimonial home and, if so, its extent; (b) authorize the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required, (i) cannot be found or is not available, (ii) is not capable of giving or withholding consent, or (iii) is unreasonably withholding consent, subject to any conditions, including provision of other comparable accommodation or payment in place of it, that the court considers appropriate; (c) dispense with a notice required to be given under section 22; (d) direct the setting aside of a transaction disposing of or encumbering an interest in the matrimonial home contrary to subsection 21 (1) and the revesting of the interest or any part of it on the conditions that the court considers appropriate; and (e) cancel a designation made under section 20 if the property is not a matrimonial home. R.S.O. 1990, c. F.3, s. 23.

19The interest that Crown counsel seeks to have encumbered is only the applicant’s unregistered family law interest in the matrimonial home. In my view, this interest is not capable of being charged as security. Moreover, on my reading of the LAO requirements, LAO seeks a lien against the land, not a lien or charge on the applicant’s unregistered family law interest.

20There are other considerations. The property provisions of the FLA are aimed at addressing the economic consequences of the breakdown of a marriage. Here the parties are still in a relationship. There has been no separation. Also, the wife of the applicant may have a reasonable basis for not wanting to expose the family home to a legal aid lien (see s. 23 (b)(iii)).

21On these facts I conclude that the applicant cannot reasonably be expected to pursue an application under the FLA before being entitled to request state funding.

Is State Funding Available if the Applicant’s Family Refuses to Assist?

22This question was considered in R v. Sbrolla (2001), 83 C.R.R. (2d) 157 (Ont. Sup. Ct.) where Sedgwick, J. held that the refusal of both the applicant’s mother and wife to permit liens to be registered against their property should not disentitle the applicant from a funding order.

23In R. v. Eid, 2012 ONSC 7084, Blishen, J. held that she was not prepared to require the applicant’s family to contribute to the applicant’s defence. In that case, LAO refused a certificate because the applicant’s extended family declined to complete a financial statement.

24In R. v. Dadshani (2008), 76 W.C.B. (2d) 585 (Ont. Sup. Ct.), McKinnon, J. noted that the applicant was denied funding because his parents were “considered a financial source and persons responsible for funding his defence”. He held that the position taken by LAO was “unreasonable in the circumstances”. (para. 8)

25In Ontario the weight of authority appears to favour the principle that state funding will not be withheld when family members choose not to assist if the applicant demonstrates that he personally is without means to hire a lawyer. By way of comparison, in British Columbia the availability of family assets appears to be a more relevant consideration.

26I acknowledge that it is quite possible, if not probable, that the applicant’s wife will consent to the lien and the problem of lack of representation will fix itself if this application is refused.

27Balanced against this consideration, however, is the fact that I find it difficult to ignore that on two previous occasions the applicant was granted a conditional stay or a funding order on the basis that he did not have the means to employ counsel. His personal financial situation has not changed since then.

28In the result I am persuaded that a conditional stay should be issued. Defence counsel requested an opportunity to speak to the conditions that may be attached to the conditional stay and the parties may provide written submissions on this within 15 days if they are unable to agree.