Reasons for Judgment - Rowbotham Application

COURT FILE NO.: CRIMJ(F) 1092/15 DATE: 2017 05 26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN M. Gaspar, Counsel for the Respondent

- and -

LEGAL AID ONTARIO

- and –

OLANREWAJU LISBOA J. Shanmuganathan, Counsel for the Applicant

HEARD: May 12, 2017

Trimble, J.

[1] Mr. Lisboa seeks a Rowbotham Order.

[2] He, along with two others, are charged with importing 70kg of cocaine for the purposes of trafficking and conspiracy to possess cocaine for the purpose of trafficking. The trial is scheduled for 4 weeks beginning 11 September, 2017. All three accused are to be tried together, although the Pre-Trial form indicates that someone will bring a motion to sever. The preliminary hearing took 6 days.

THE PARTIES’ POSITIONS

[3] The parties agree that Mr. Lisboa applied for Legal Aid and was denied. He appealed, unsuccessfully. Further, they agree that this matter is complex enough that Mr. Lisboa’s right to a fair trial will be compromised, in a material way, without state funded counsel.

[4] The parties disagree that Mr. Lisboa has done what is necessary to establish that he is indigent and does not have the financial means to retain the services of counsel. His financial status and whether he has met his onus is the only issue before this Court.

Mr. Lisboa

[5] He says that he is indigent. He applied for and was denied Legal Aid both at first instance and at appeal. He has provided evidence that since the charge was laid he earns very little and cannot afford a lawyer. His evidence is uncontradicted as the Crown did not cross examine on it. Therefore, he says, I must accept his evidence without question. He says that he should be given the Rowbothom order, just like his co-accused, Mr. Odha, to whom Durno, J. gave a Rowbotham order.

The Crown

[6] The Crown says that Mr. Lisboa has not met his onus under the case law, and that, based on statements and documents in his Legal Aid file, Mr. Lisboa’s evidence, even though not cross examined on, cannot be accepted.

DISPOSITION

[7] Mr. Lisboa’s application is dismissed for the reasons stated below.

EVIDENCE

[8] Mr. Lisboa is 48. He was born in Nigeria, but immigrated to Canada on December 31, 2000 and became a permanent resident in July, 2010. He is separated from his common law wife but has three children who are 22, 20 and 14. The eldest two are in post-secondary education on OSAP, and the youngest, in high school. He lives with his current common law partner, Edmonde Severe and her two children 17 and 12.

[9] In his affidavit, Mr. Lisboa indicates that he works for Dolly Hair and Cosmetics, earning $350 per week. He pays $120 every two weeks to his former partner as child support. He also pays $80 “to contribute to the cost of their travel expenses and lunches.” He does not state in his affidavit how frequently he makes this payment, but his Legal Aid file contains information that the payment is made weekly two weeks, as well. With the remaining money each pay, he buys groceries for his new family. His partner, Ms. Severe, is unemployed. She receives EI, and pays the rent on their apartment. Mr. Lisboa has cash in two bank accounts of approximately $275. He does not own a car. He declared to the CRA that he earned $7,511.85 in 2013 and $12,454 in 2015. He did not file income tax returns in 2014 and has not produced his return for 2016.

[10] Mr. Lisboa spent $4,000 in legal fees on his preliminary inquiry, which he borrowed from his (now late) mother. He estimates that legal expenses for the trial will be $50,000 to 60,000. He has no estimate from a lawyer but indicates that this estimate is that Durno J. estimated in his co-accused’s Rowbotham application (*R. v. Odha*, 2016 ONSC 6370) and notwithstanding that Durno, J. held that an estimate of legal fees from a lawyer should be mandatory in all Rowbotham applications.

[11] Mr. Lisboa was charged on 16 November, 2013. He applied for Legal Aid on December 2. On 8 May, 2014, Mr. Lisboa was asked for further financial information. By the end of July, 2016, his application (decision 21 June, 2014), his appeal (decision 13 July, 2016), and his request for reconsideration were all denied. His application at first instance was denied because:

a) He advised in March 2014 that since 2007 he owned a business assisted people in buying and selling used cars. He did not advise of this in his initial application nor did he provide complete financial statements as required. b) He failed to provide a complete client profile from his bank listing all accounts. c) He lived with his common law spouse and did not provide a financial statement from her.

[12] Two years later, when he filed his appeal, he told Legal Aid that at the time of the offence he was employed earning $350 per week, but paid $120 every two weeks and $100 weekly to his ex-partner for support. He did not provide the other information requested. The appeal decision said “The financial issues affecting the applicant does not alter in this matter just by the mere passage of time. In the circumstances, I am not satisfied that the applicant has provided complete and credible information.”

[13] In paragraphs 14 to 20, of his Affidavit, Mr. Lisboa addressed LAO’s concerns, for the first time. With respect to his business, he said it was not operating or did not make any revenue in 2014, and produced an HST filing as confirmation. With respect to information from his ex-partner, he said “it was my belief that my ex-common law partner was not able to help me financially …” and by April, 2014 they had separated. He did not state the source of that belief. With respect to the failure to provide information from the business and banking statements, he produced personal income tax returns for 2013 and 2015, and bank account statements for accounts with BMO (8 February to 10 April, 2017), and CIBC (1 March to 31 March, 2017).

ISSUES

[14] There are two issues before this court:

a) Has the Applicant met the test for a Rowbotham order? b) If the Applicant has met the test for a Rowbotham order, has he disentitled himself because of his conduct?

LAW

[15] In *R v. Rowbotham*, [1988] O.J. No 271 (CA), the Court of Appeal established a three part that the accused must meet in order to a stay charges until state-funded counsel are provided (The Rowbotham test):

a) he has applied for financial aid, been refused aid and exhausted all appeals from that refusal; b) he is indigent and does not have the financial means to retain the services of counsel; and c) his right to a fair trial will be compromised, in a material way, without state funded counsel.

[16] An Applicant has the onus of proving that they meet all three criteria. Failure to meet any one of the three parts means that the application must fail: *R v. Montpelier*, [2002] O.J. No 4279 (SCJ), at para. 37. The standard of proof is the balance of probabilities: *R. v. Rushlow*, 2009 ONCA 461, 96 O.R. (3d) 302 (C.A) at para. 17-21. As Rowbotham says, the three part test is not something that applies only in extreme cases.

[17] In *R. v. Sheikh*, 2011 ONSC 4942, Ricchetti, J. surveyed the case law and identified the following principles that are relevant to a determination whether an applicant meets the financial criteria to be successful on a Rowbotham application:

• The inquiry into the applicant’s financial circumstances goes back to the time the applicant was charged; *R. v. Malik*, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;
• the applicant’s income (actual and available income) is to be considered. See *R. v. Malik*, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222 and R. v. Magda, [2001] O.J. No. 1861 at para 44; the applicant must provide detailed financial evidence of his/her financial circumstances. *R. v. Malik*, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;
• the applicant must make efforts to save money, borrow money, obtain employment/additional employment and utilize any assets the applicant has. *R. v. Malik*, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;
• the applicant must be prudent with his/expenses. *R. v. Malik*, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;
• the applicant must show some attempt to plan his/her financial affairs to enable him/her to retain counsel. *R. v. Malik*, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;
• the applicant must exhaust all reasonable efforts to make enquiries to find counsel to represent him/her. See *R. v. Drury*, 2000 MBCA 100, [2000] M.J. No. 457 (Man. C. A.) at para 48 and *R. v. Malik*, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;
• whether the applicant had been offered a reasonable contribution agreement by LAO. See Drury supra at paras 59-63 and Martell supra;
• the law does not require that the applicant become destitute but that the applicant have a financial plan from the time of his/her arrest to plan for the cost of defending the charges. See Drury supra at para 58 and 65;
• the law requires some willingness to sacrifice on the part of the applicant. See Drury supra at para 58;
• if the applicant is not in a position to financially retain counsel, but this has been due to his/her voluntary choices, priorities and lack of foresight and planning, it is not an appropriate case to grant a Rowbotham order. See R. v. Nightingale, [2001] B.C.J. No. 2610 (B.C.S.C.) at para 9.

[18] To this we add further criteria from more recent cases:

• There must be credible and relevant disclosure in support of any claim of indigence. Unsubstantiated claims are insufficient to warrant a Rowbotham Order: R. v. Edrissi, [2013] B.C.J. No.1562 (B.C.S.C.), at para. 7; *R. v. Kizir*, 2014 ONSC 1676, [2014] O.J. No.1276 (S.C.J.), at para. 46; R. v. James, [2011] O.J. No. 4651 (S.C.J), at para 46.
• an estimate of legal fees from a lawyer should be mandatory in all Rowbotham applications (*R. v. Odha*, 2016 ONSC 6370);
• The circumstances of each case will dictate the degree of detail required.

[19] Finally, in circumstances where an Applicant has discharged his onus for a Rowbotham Order, the Applicant may be disentitled to state funding where the absence of Legal Aid funding is due to the Applicant’s own conduct: R. v. Imona-Russel, [2008] O.J. No. 5405 (S.C.J.), at para. 17, 20, 22; R. v. Richer, supra, at para.41.

ANALYSIS:

[20] The parties agree that the first and third of the Rowbotham test have been met. The issue is whether the second has been met.

[21] The Applicant has not met his onus under the case law. Addressing the items identified by Ricchetti, J. in *R. v. Sheikh*, I find as follows:

a. The Applicant has not provided the financial information required from the date of the charge forward. He says in paragraph 17 of his Affidavit that he failed to do so as “this is my first time navigating the criminal justice system… this is my first time having deals with Legal Aid.” While this may be Mr. Lisboa’s “first time navigating the criminal justice system”, he has done so with the aid of counsel. He had counsel for this hearing and preparing for it. The LAO file, which the Applicant submitted as part of his evidence on this Application, indicates that he had a lawyer with whom LAO was corresponding. b. Mr. Lisboa says that when he went and tried to obtain records for this application, he was told that they no longer existed. He had counsel with whom Legal Aid was corresponding during the initial application in 2014. It appears his first inquiry concerning obtaining records was immediately before his Legal Aid Appeal. c. With respect to his TD account, specifically, he approached TD to obtain its records of his account only 14 days before swearing his affidavit for this Application. If those records are unavailable it is because he did not ask for them in a timely way. Even in the LAO file, he produced TD records for an account from May 16, 2014 to March 31, 2015. d. The applicant did not provide his income information for all years since the charge. 2014’s income tax return is missing. He did not indicate whether he filed his return for 2016. He did not demonstrate that he sought this information from CRA. If he filed, it should be available. He merely said that if he receives it he will file a supplementary affidavit. e. The applicant must make efforts to save money, borrow money, obtain employment/additional employment and utilize any assets the applicant has. He indicated that his mother loaned him $4,000 for legal fees for the preliminary hearing, but has since died. He has not addressed, at all, what steps he has taken to borrow money, obtain financing or find additional employment. He has had some ability to raise funds. The LAO file indicates that his 3 sureties posted $75,000. His ex-partner, with whom he was still living in early 2014, only posted $4,000. $70,000 was posted by someone by the name of Adetokunbo Gbadebo. f. The applicant must be prudent with his/expenses. Mr. Lisboa, other than saying what his income is today, what he pays in support (at least in part), and that he buys groceries, has not provided information about his expenses. At minimum, he should produce a budget to show his monthly expenses since being charged. What are these expenses? Does he have pocket money? Does he carry a cell phone? Does he buy a monthly transit pass? How are these financed? g. The applicant has provided no information about efforts to obtain counsel to represent him. h. The applicant has not provided a defence budget for the defence of the case, from a private retainer. As Durno, J. said in Oduh, this should be mandatory. i. The applicant has provided no plan from the time of his arrest to pay for or contribute to the cost of defending the charges.

[22] The applicant submits that because the Crown did not cross examine Mr. Lisboa, that I should accept his evidence, unquestioningly. I agree, but only in part. Because of credibility issues that arise from Mr. Lisboa’s evidence and the documents he produced, I accept his evidence only when it is specific and not controverted by other documents.

[23] Mr. Lisboa’s credibility issues include:

1. Employment: Mr. Lisboa swore his Affidavit on April 13, 2017. He said “I currently work in retail at Dolly Hair and Cosmetics. I make $350 per week.” In support of this, he attaches a letter dated April 07, 2017 (six days earlier), signed by Edmonde Severe. He produced no T4 slips or pay stubs. Two stubs were included in the LAO file. Mr. Lisboa’s employer is his common-law spouse. He said nothing about this in his Affidavit, nor to LAO. He produced no information about her financial circumstances and produced only three pieces of paper concerning his employment. In paragraph 8 of his affidavit, sworn a mere 6 days after the letter confirming his employment, Mr. Lisboa says that his common law partner is unemployed and paying rent from her EI cheque. How does she qualify for EI a mere six days after certifying that she is was his employer at the time.
2. Income: In the employer’s letter, the applicant is said to have been employed since May, 2015 at $350/week. This is approximately $6300 (18 x $350) for the balance of 2015. Mr. Lisboa reports no other source of income in his Affidavit. His 2015 Income Tax Return, however, shows no earned income. He reports only net business income of $12,452.04. He has produced no income documents with respect to 2016, although his employer should have provided T4’s by the time the Affidavit was signed, and, by the time the Application was heard, Mr Lisboa should have filed his personal return.
3. What Does Policy Auto Recycle do? Mr. Lisboa said he operated this company as a sole proprietorship. His description as to its activity has varied. In his Affidavit, Mr. Lisboa said that PAR’s activity was “… to buy and sell cars at auctions.” In his 2013 Income Tax Return, Mr. Lisboa listed PAR’s activity as “Auto Spare Parts”, and in 2015 as “courier & delivery services”.
4. Disclosure to LAO: Mr. Lisboa knew when he applied for Legal Aid in December, 2013 that he owned a business and earned income from this business. He declared $7,511 in business income in his 2013 Income Tax Return which Return he sent to LAO in April, 2014. He also declared that he earned income from it in 2012. In para. 14 of his Affidavit, Mr. Lisboa said that “… although I had a business, it was not in operation at the time of my initial application to Legal Aid” and supported this statement with his 2014 HST statement. While I accept that the business stopped operating in 2014 (because of the HST form and the fact that Mr. Lisboa was not cross examined), I do not accept that when he applied for Legal Aid that the company was not in operation. The evidence suggests just the opposite.
5. His Payments to his Former Partner: Mr. Lisboa earns $700 every two weeks. He said in his Affidavit that he paid $120 per week to his former spouse and another $80 in an unspecified period, for lunches and bus fare. In his Legal Aid file, he is purported to have said that he pays $120 every two weeks and another $100 per week. If I accept his Affidavit evidence, he pays $200 every two weeks to his former spouse, or 30% of his bi-weekly pay. If I accept what is contained in his Legal Aid file, he pays $320 every two weeks, or almost 50% of his bi-weekly income. With an income as limited as Mr. Lisboa asserts his is, I cannot believe that he does not remember the extent of his weekly payments to his ex partner.

[24] Accordingly, I am not satisfied that Mr. Lisboa has discharged his obligation to show with credible evidence that he is indigent.

[25] Mr. Lisboa argues that I should be guided in my decision by the Rowbotham order made by Durno, J. in Mr. Odha’s case. Mr. Odha has similar facts. It does not, other than Mr. Odha is Mr. Lisboa’s co-accused.

[26] It is clear from Durno, J.’s reasons for decision that Mr. Odha made much more, and more detailed disclosure of his financial circumstances that did Mr. Lisboa, which allowed Durno, J. to hold that Mr. Odha met the indigence test under Rowbotham. This included near complete income information between charge and application, bank statements, business records (he too was self-employed), and details of expenses.

[27] Mr. Lisboa, on the other hand, did not make anything near to full disclosure.

[28] Further, because of the production Mr. Odha made, Durno, J. accepted Mr. Odha’s explanations when his production was incomplete.

[29] Given Mr. Lisboa’s credibility issues, I was not prepared to forgive Mr. Lisboa his production shortcomings. There were too many of them and the explanations inconsistent and unreliable.

[30] Finally, as indicated above, the Applicant may be disentitled to state funding where the absence of LAO funding is due to the Applicant’s own conduct. Had I decided that Mr. Lisboa was indigent, I would still have denied his Rowbotham application. It is clear from LAO’s file that LAO denied Mr. Lisboa’s application for Legal Aid because of his own actions or inaction. He failed to produce documents required. When he made further production, it was only because it was demanded of him. The demands were clear. His production, however, was piecemeal and incomplete. The case notes of June 10, 2014 (at the appeal level) indicate that “… the information that he has provided is so confusing that it is not know[n] what income and assets the client has.” Not getting LAO finding arises from what, how and when he made his production to LAO.

Trimble J. Released: May 26, 2017