R. v Fairbarn, 2017 ONSC 3101

Court File and Parties

COURT FILE NO.: CR-15-4125 DATE: 20170519 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – TRACY FAIRBARN Applicant

Counsel: Sébastien Lafrance, for the Crown Self-Represented Applicant

HEARD: May 15, 2017

Ruling on Rowbotham Application

EDWARDS J.:

Overview

1Ms. Fairbarn seeks an order for state-funded counsel. She had previously been unsuccessful in what is commonly referred to as a Rowbotham application. On June 10, 2016, Mullins J. released her Ruling denying Ms. Fairbarn’s Rowbotham application, but in so doing stated at para. 20 that her Ruling was “without prejudice…to a further application on a better evidentiary basis should her circumstances change”.

2Ms. Fairbarn is charged with nine counts which include charges of conspiracy, forgery, fraud and trafficking in fentanyl. Ms. Fairbarn is charged with two other individuals. There are a total of 118 counts on the indictment. The trial will be anything but uncomplicated.

The Facts

3Ms. Fairbarn is alleged to have conspired to traffic in fentanyl between June 1, 2013 and December 4, 2013.

4Ms. Fairbarn applied for legal aid and was turned down. She appealed a decision denying her legal aid and she pursued an appeal. In the decision of Maureen Murphy, Senior Legal Counsel, Appeals, Legal Aid Ontario, dated May 29, 2015, the appeal was denied in part on the following basis:

Although the applicant states that she has been separated for more than one year, there is no verification confirming this either in the form of a separation agreement or court documents. In the absence of verification that the applicant and her spouse formally separated in January, 2014, I have concluded that the applicant’s separation is not bona fide and the applicant’s spouse should be considered part of the applicant’s family unit. His income and assets are considered available to assist the applicant with legal fees.

5In dealing with Ms. Fairbarn’s first application for a Rowbotham order, Mullins J. stated in para. 16 of her Reasons that she was satisfied that representation by counsel was a prerequisite to a fair trial. It had previously been conceded by the Crown that Ms. Fairbarn had exhausted the process to obtain legal aid funding, and that if she was convicted she likely faced a term of imprisonment.

6As for the question of whether or not Ms. Fairbarn was indigent, the evidence before Mullins J. was to the effect that she earned $15,000 annually and that she had no assets. It was also noted in para. 18 of her Reasons that Ms. Fairbarn’s husband had an income of between $80,000 and $100,000 per year and that he had a “legal obligation to support his wife and that she has an entitlement to support”.

Position of Ms. Fairbarn

7Ms. Fairbarn self-represented herself on this application. She had filed an affidavit to which was appended a separation agreement that she had entered into with her husband, which is dated March 31, 2017. The separation agreement provides for child and spousal support. The agreement provides that Mr. Fairbarn will pay the monthly rent of the matrimonial home in the sum of $1,400, as well as the utilities “in lieu of child and spousal support”. Ms. Fairbarn agreed to pay for the food for herself and the children, as well as any extra-curricular activities for the children.

8There is no evidence before the Court that would suggest that the separation agreement is anything other than an arms-length transaction entered into between Mr. and Ms. Fairbarn. Whether or not the child and spousal support provisions would pass scrutiny in a Family Law proceeding where the parties will have to make financial disclosure is not for me to determine. The evidence on this Rowbotham application, however, is such that I am satisfied that the separation agreement does provide for child and spousal support that, in essence, provides for the subsistence of Ms. Fairbarn and her children. It certainly does not provide Ms. Fairbarn with any additional support that would enable her to retain legal counsel in these proceedings.

9In Ms. Fairbarn’s most recent affidavit she also deposes to her present financial situation. At the time of her initial Rowbotham application Ms. Fairbarn was employed, and as noted in the Reasons of Mullins J. she had an annual income of approximately $15,000. Since the hearing of the application before Mullins J., Ms. Fairbarn deposes in her recent affidavit that she is no longer employed where she was at the time of the hearing before Mullins J., and that her only source of income now is unemployment insurance benefits in the amount of $512 bi-weekly. Ms. Fairbarn goes on to depose that she has no savings, nor does she have any assets. She deposes that she does not own a car and that her chequing account has been in overdraft since 2016. The essence of Ms. Fairbarn’s argument is that she does not have any financial means by which she can retain legal counsel to assist her with respect to the charges that are presently before the Court. She indicates that “…I understand that the cost of my trial, even at discounted legal aid rates is expected to be in excess of $40,000. I have no way to obtain this amount of money”.

10Crown counsel did not cross examine Ms. Fairbarn on her most recent affidavit. Her evidence regarding her marital situation, her income and her assets is therefore unchallenged.

Position of the Crown

11Crown counsel acknowledges that the first two parts of the Rowbotham test have been met as a result of the decision of Mullins J.; specifically that Ms. Fairbarn has been denied legal aid and that representation by counsel is essential to a fair trial. The only issue from the Crown’s perspective is that Ms. Fairbarn has not satisfied the question of whether she is indigent and, therefore, unable to retain counsel utilizing her income and assets.

12It was argued by Crown counsel that this Court may be estopped by the decision of Mullins J., and that her decision is res judicata. In that regard, I was referred to a decision of Wright J. in R. v. Daniel Innocente, 2002 NSSC 91, where the principle of res judicata in the context of a Rowbotham application is discussed. I agree with the comments of Wright J. at para. 7, where it is noted:

I am not prepared to go so far as to say on this application that res judicata can never be available to the Crown under any circumstances. I think the application of the principle has to be considered in the context of the facts of the individual case. I am mindful that counsel have been unable to refer the court to any authority where it has been judicially recognized that the Crown can avail itself of that defence. Nevertheless, as I indicated in my exchanges with counsel this afternoon, if this were a case where Mr. Innocente was attempting to bring a second Rowbotham application which involved the very same parties, and very same issue based on the very same facts, that is to say, a position unchanged from that which was before Justice Robertson, then I would agree that he would not be entitled to re-litigate the same application.

Analysis

13In my view there are, in fact, new facts presented to this Court as a result of Ms. Fairbarn’s most recent affidavit to which is attached the separation agreement. There has been a material change in circumstance from two perspectives. First of all, Ms. Fairbarn has lost her position of employment that she had at the time when she appeared before Mullins J. Her only source of income now is unemployment insurance benefits. As well, a formal separation agreement has been entered into between Mr. and Ms. Fairbarn, dated March 31, 2017, in which the parties have agreed to child and spousal support. The child and spousal support provisions, in my view, provide Ms. Fairbarn and their children with subsistence living that do not avail Ms. Fairbarn of any additional income that would be available to retain legal counsel for these proceedings.

14The onus is on Ms. Fairbarn to establish that she does not have the financial ability to retain counsel. I agree with Crown counsel’s submission that Ms. Fairbarn could have done a better job in providing financial documentation to the Court that evidences what she deposes to in her affidavit, specifically that she has no assets or income and that her bank account is in overdraft. I do, however, take note of the fact that the Crown did not seek leave to cross-examine Ms. Fairbarn on her affidavit. Her evidence with respect to her financial wherewithal is therefore unchallenged. The separation agreement, in my view, makes abundantly clear that the support Mr. Fairbarn is presently providing to his wife and children only allows for bare subsistence, i.e. a roof over their head. There is nothing that Mr. Fairbarn is contributing by way of child and spousal support that would be available to fund Ms. Fairbarn’s defence.

15I am satisfied that on the basis of the evidence now presented to the Court; evidence that was not available at the time the matter initially came before Mullins J., that Ms. Fairbarn is indigent and without an ability to obtain private counsel to defend her with respect to the charges pending before the Court.

16I therefore find on the balance of probabilities that Ms. Fairbarn cannot have a fair trial unless she is provided with financial assistance which is necessary to retain counsel. Without the necessary funding for legal counsel, a continued prosecution of this case against Ms. Fairbarn will result in a violation of her s. 7 and s. 11(d) Charter rights. The only remedy for this Charter breach is to enter a conditional stay of the proceedings pursuant to s. 24(1) of the Charter. The conditional stay shall remain in effect until such time as the Attorney General provides the necessary funding for the retention of legal counsel to represent Ms. Fairbarn at her rapidly approaching trial.

17On the assumption that the necessary funding is in fact provided, thus lifting the conditional stay, I have made it abundantly clear to Ms. Fairbarn that any counsel that she intends to retain pursuant to this order must be available for the commencement of trial as previously scheduled.