Court File and Parties

CITATION: R. v. Metcalfe, 2017 ONSC 6337

COURT FILE NO.: CR-16-0000559-0000

DATE: 20171025

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. William Metcalfe

BEFORE: Carole J. Brown, J.

COUNSEL: Julia McRandall, for the Crown

Bob Richardson, Ian S. McCuaig, Counsel, for the Applicant

HEARD: October 10, 2017

Ruling on Rowbotham Application

Endorsement

[1] The applicant, William Metcalfe, brings this application for a stay of the charges against him pending provision of government-funded counsel (“Rowbotham Order”). Mr. Metcalfe was charged with 11 counts of indecent assault and gross indecency on July 31, 2014. The charges are historical in nature and date back to 1978 at a group home he helped to found and operate. The trial involves multiple complainants, complex issues and is expected to also involve third-party record applications. It is estimated to take 3 to 4 weeks, plus one week of pretrial motions.

[2] Mr. Metcalfe had previously privately retained Bob Richardson to represent him for the preliminary hearing. He now alleges that he has no financial means to also retain Mr. Richardson for the trial. His application for legal aid was denied on the ground that he was not financially eligible, and the decision was upheld on appeal.

The Law

[3] On a Rowbotham application, a court must consider and determine the following:

1. Whether the applicant is ineligible for, or has been refused legal aid, and has exhausted all available appeals;

2. Whether the applicant’s right to a fair trial will be materially compromised if he is required to proceed to trial unrepresented by counsel;

3. Whether the applicant is indigent and has no means to retain counsel otherwise.

[4] The onus is on the applicant to establish all three factors on a balance of probabilities before the court will grant that order. If any one of these conditions is not satisfied, the application will be dismissed: R v Williams 2011 ONSC 7406, [2011] O.J. No. 5862.

[5] In R v Rushlow, 2009 ONCA 461, the Court of Appeal described the considerations to be applied on a Rowbotham application, as follows:

In R v Rowbotham (1988) 1988 CanLII 147 (ON CA), 41 CCC (3d) 1, at para 69, the court held as follows:

A trial judge confronted with an exceptional case where legal aid has been refused and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided.

[6] Whether the issue is financial ability or the necessity for counsel, the trial judge in considering whether to appoint counsel is not engaged in reviewing the decision of the legal aid authorities. As this Court said in R v Peterman (2004), 2004 CanLII 39041 (ON CA), 70 O.R. (3d) 481 (C.A.) at para 22:

When a court makes a Rowbotham Order, it is not conducting some kind of judicial review of decisions made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial.

[7] It must be recognized at the outset that there is no absolute right to counsel in order for a trial to be considered “fair” within the meaning of the Charter or at common law. In determining whether an applicant’s right to a fair trial would be materially compromised if he is required to proceed without counsel, the court must consider “the seriousness of the charges, the length and complexity of the proceedings, and the accused’s ability to participate effectively and defend the case”: R v Williams, supra, para 9.

[8] The Crown concedes that, in the circumstances of this case, the first two tests, set forth at para 3, above, have been met. It is the position of the Crown that Mr. Metcalfe has failed to meet the third test, i.e. that he is indigent and lacks the means to retain counsel. More precisely, the Crown argues that he has failed to prioritize the saving of funds for his defence.

[9] The applicant’s financial circumstances must be extraordinary in order to receive government-funded representation. The applicant must make efforts to save money, borrow money, including from children or family members, and obtain employment. The applicant must be prudent with his expenses and show foresight and planning of financial affairs, to enable financing of counsel. An applicant who claims to be indigent is not entitled to state-sponsored funding where they have made themselves indigent. An applicant may be obliged to repay the Attorney General for all or a portion of the legal costs: R v Malik, 2003 BCSC 1439, 2003 B.C.J. No. 2167, para 22.

The Evidence

[10] The applicant had filed a financial brief. He testified on this application, with the assistance of an adaptive hearing device, as he is hard of hearing. He was examined and cross-examined on his affidavit in support of this application and on the documentation set forth in the financial brief. Mr. Metcalfe is 74 years old. He graduated from Toronto Teachers College in 1969 with a Permanent Elementary Certificate and a Vocal Music Certificate. He completed an Integrated Studies Program at the University of Waterloo and graduated in 1984. He graduated from Ontario Institute for Studies in Education (OISE) in June 1986 with a M.Ed. in Adult Education and Counselling.

[11] He taught from 1969 to 1973, was Director and Coordinator of the Sagamore Foundation which operated Sagamore Farm, a group home for disturbed/delinquent youth in Parham, Ontario from 1973 to 1980, continued teaching through 1984 and became a personal counsellor/psychotherapist in private practice in Ontario from 1985 onward.

[12] His current monthly income is $1020 per month, consisting of his CPP and OIS. He is applying for a Guaranteed Income Supplement from the federal government, which he anticipates to be approximately $500 per month. He estimated his monthly expenses to be about $1600 per month, without detailing those expenditures. A significant amount goes to transportation, as set forth below, and to his food. The tax assessment for the taxation year 2016 indicates that he had total taxable income of $12,091.

[13] His financial status from the time the charges were first laid in July 2014 are as set forth below.

[14] He had purchased a home, which needed significant renovation and repair. He took out a mortgage. He was in significant debt by the time of the mortgage. He had an adult son, Jason, who from an early age had been left with him by Jason’s mother who would then disappear for a while, come back, take Jason for a while and then leave him with Mr. Metcalfe again. Mr. Metcalfe finally decided that he should keep Jason with him to give him some stability, and became his guardian. Jason suffered from a number of issues as a result of being a premature birth and being a “blue baby”. Jason had significant learning challenges and also ADD. He was poor at managing his finances.

[15] Jason had inherited $750,000 in 2004 from a good family friend, Diane Martin, who had probably considered Jason to be the child she never had. Due to his poor management of finances, Jason spent $250,000 in the first year after inheriting the monies. Mr. Metcalfe discussed with Jason the issue of the inheritance and the importance of not spending it all. Thereafter, Jason handed the money over to Mr. Metcalfe to keep for him. With Jason’s approval, Mr. Metcalfe put a significant amount of money, approximately $480,000, into the house on 653 Pape Ave., which amount was to be paid back to Jason when the house was sold. Mr. Metcalfe testified that he did not document the loan from his son with a loan agreement or other document.

[16] Mr. Metcalfe had purchased the house, which needed substantial renovations. There were delays with approvals, building permits and the renovations cost more than anticipated. The house became a burden and the goal was to sell it and to pay off the substantial debts that had accumulated.

[17] After the house was sold, he paid $120,000 to Jason on September 8, 2014 and another $120,000 on September 22, 2014, in partial repayment of the loan, as documented in the TD Canada Trust statement of account for August 29 to September 30, 2014. When asked in cross-examination if he had asked Jason if he could keep some of the money from the sale of the home to pay legal fees to defend himself, he testified that he had not paid all of the monies back yet and if he had not paid back the money he could to Jason, it would have been tantamount to stealing.

[18] He put all other expenses for the house and his personal expenses on his credit cards, including additional purchases for renovation of the house. He was significantly indebted when the house was being renovated. He also borrowed money from personal friends, including Chris Greene, Bob Tocchet and Ken King.

[19] He was advised that he would be charged on a number of offences approximately one week before the house went on sale in July 2014. He was charged with the sexual assault of David Loft and David Freeman. He testified that he knew David Loft, who he considered to be “crazy”, and believed he could well manage the charges being brought against him.

[20] The house sold about two weeks after it was listed for $695,000, $20,000 of which had been paid as a deposit. After the payment of the mortgage and other expenses related to the sale of the house, he received $391,414.38. Of that, he reimbursed his son for $240,000. He still owes his son $240,000. He also paid off his outstanding bills, credit cards and other personal debts.

[21] He testified that in September 2014, he sold his share of the cottage which he owned with another couple for $46,000. He had been receiving $700 per month which he had received from the couple, who were paying him a monthly amount for purchase of his share. In February 2015, he inherited approximately $13,000 from his mother’s estate.

[22] He paid a lawyer to represent him regarding the charges in the amount of approximately $55,000 of which $17,000 had been raised by his friends to assist with his legal representation.

[23] In October 2014, he was charged with additional offences concerning another individual. Further charges were laid in early 2015.

[24] After the house was sold, he moved into the condominium owned by his partner of 12 years, Raymond Siguenza, in Regent Park. They had originally lived in his house, but due to the renovations ongoing at the house, Raymond purchased a condominium, as he did not like living in ongoing renovations. Mr. Metcalfe downsized and sold furniture and other assets in contemplation of the move to the condominium. Raymond subsequently terminated their personal relationship in January 2015. They nevertheless remain best of friends. As Mr. Metcalfe had no home, Raymond agreed that he could continue to live in the condominium if he paid for the necessary renovations to convert the office/den used by Raymond (6’10” by 7’8”) into a second bedroom which Mr. Metcalfe would occupy. The agreement was that he would be able to remain there for the rest of his life or until the condominium was sold, rent-free. He was required to buy numerous “built-ins” for the condominium, given its small size and the conversion needed. He testified that he paid approximately $35,000 for the renovations. He testified that he felt that this was a reasonable and reasoned expense, given that he would be able to live there for many years to come, and that the amount spent would be much less than paying rent in Toronto over many years. He pays for his own food.

[25] He now resides, rent-free, in the condominium part-time and also at the home of his son, Jason and Jason’s wife, Trina, and their two sons in Barrie, Ontario, on a part-time basis. Their home was purchased after he paid Jason and Trina back in part for the loan of the inherited money. He testified that they are expecting a third child, and he is unsure what will happen to the living arrangement when the third child is born. When he started living with his son and daughter-in-law, he believes that he gave his daughter-in-law $1200 for rent for the first year. While he is in Barrie with them, he takes care of the grandsons, as Trina and Jason both work. He testified that Jason’s employment as a caregiver at a group home is at night, so that he drives Jason to and from his work, which is located outside Barrie. Jason does not drive, as he is unable to get a driver’s license.

[26] He stated that given the charges against him, as well as his age, he is unable to find any employment at present. He is not paid for babysitting his grandsons. He does this and driving his son and grandsons in exchange for living with the family part-time.

[27] In cross-examination, he was taken through his bank statements. As regards withdrawal of $14,822.26 on October 20, 2014, he testified that he had purchased, jointly with Raymond, a 2012 Toyota. His vehicle was very old and was given away. Raymond traded in his Corolla and Mr. Metcalfe paid the rest for the Toyota. He explained that the car was in his name as the insurance is less for seniors. He paid Raymond $2000 as he uses the vehicle most of the time to drive to Barrie. The ownership is in his name, but the car is still jointly owned. Also in cross-examination, he was taken to a Bank of Montréal account dated March 2, 2017 which listed a RRSP, with a zero balance. He testified that this was a complete mystery to him as he did not have a RRSP.

[28] He testified that he also purchased a keyboard from Long and McQuaid for $1000. He testified that he had had, in his home, a piano, a Wurlitzer, and a keyboard. There was no room for these in the condominium. He gave the Wurlitzer away and sold the piano and keyboard. When he got to the condo, he had no instrument, although he continues to conduct a choir. Accordingly, he purchased the Yamaha keyboard. He testified that the choir is his one ongoing social outlet.

[29] When asked about a PC account, which he had disclosed in the legal aid statement, but not on this application, he testified that it was a small account which had been drained, but then he deposited $100 to keep the account alive, as he believed he would have to account for it regarding these proceedings.

[30] It appears from the legal aid file regarding the application by Mr. Metcalfe for legal aid, that funding was denied as he had assets above the asset guideline. The assets of $41,000 were in his name, and were in trust for a cousin. He testified that he managed an account for a cousin who is on ODSP. He testified that the monies were in his name to facilitate cashing the investment funds as needed to pay for bills and expenses for the cousin. He further stated that he cannot use any of the money for himself, as this would be a criminal offence. Legal aid denied funding on the ground that he apparently did not have power of attorney and, therefore, the assets were considered to be in his name, thus putting him over the asset guideline.

Positions of the Parties

Position of the Applicant

[31] It is the position of the applicant that he had made full disclosure on this application, and there was no evidence or indication that he had hidden any money.

[32] His income was $1020 per month and, pending making an application for a Guaranteed Income Supplement from the federal government, anticipated that income would be approximately $1500 per month. His expenditures are approximately $1600 per month. These amounts are limited for an adult person and not extravagant.

[33] He spends a fair amount on transportation travelling between Toronto and Barrie, and transporting his grandsons and his son when he is in Barrie.

[34] Was he prudent with his money since the charges were laid? It is the position of the applicant that he was clear regarding distribution of the monies from the proceeds of disposition of the home, cottage and the small inheritance from his mother. The funds that were available to him from these sources were not his money. The monies were distributed to those who were owed the monies.

[35] Counsel for the applicant argued that while it may have been better to save some of the money for his defence, that is not how families work. The proceeds of disposition from the sale of the home were monies owing to his son, Jason and were not his to use. Indeed, the money was needed by his son to purchase a home to care for his growing family. His son was vulnerable and did not well manage funds. It was the position of the applicant that with or without an agreement regarding the loan of the $480,000, Mr. Metcalfe was in a position of trust and to keep the money or some of the money owing to the son would have been, as Mr. Metcalfe described, tantamount to stealing from a vulnerable person. Further, there were credit card debts for the renovations to the house which were paid off. There were further personal loans taken from friends who also needed to be reimbursed.

[36] When the applicant was first arrested, he retained counsel and used the funds that were at his disposal to do so. As regards the charges, they were laid at a time when he had one understanding of the charges, laid by one person he testified that he knew well. He proceeded on that understanding to make decisions regarding the prosecution, to retain counsel and to provide a substantial retainer of $55,000. The additional charges came thereafter in late 2014 and early 2015, thus increasing the complexity of the matter.

[37] As regards the expenditures related to renovation of the condominium, the applicant submits that the expenditures were seen as a long-term investment in order to have a place to live after the personal relationship between himself and Raymond ended. The longer he remains in the condominium, the lower the cost of his living becomes. It is the position of the applicant that in comparison to renting a room in a rooming house, the amounts expended on the condominium, given the arrangement between Mr. Metcalfe and Raymond cannot be seen as imprudent.

[38] As regards the expenditure of the Yamaha keyboard in order to continue his music and his choir conducting, it is the position of the applicant that again this was a practical decision to maintain social connections.

[39] It is the position of the applicant that Mr. Metcalfe is not a young person with a history of criminal activity, but is a 74-year-old man who had never been involved in the criminal justice system prior to these charges.

Position of the Crown

[40] It is the position of the Crown that the applicant has failed to establish indigence.

[41] The Crown submits that the court cannot look simply at the current financial status of the applicant, but that disclosure must be done back to the charges laid.

[42] After the charges were laid, the applicant retained counsel, but failed to ask what the cost of trial would be. The Crown submits that the applicant did not make reasonable efforts to save or borrow money or to organize his affairs to use some funds in order to pay counsel.

[43] The applicant sold his home after the charges were laid; thereafter received $46,000 from sale of the cottage property and inherited $13,000-$14,000 from his mother. Therefore, he received approximately $450,000 after the charges were laid. As the applicant had estimated that $55,000 was spent on legal fees, $400,000 was, therefore, not spent. The applicant admitted to transfer of $240,000 to his son after he was charged, although there was no documentation as regards a loan or a requirement to pay the son back. There is no evidence that the applicant attempted to borrow some money back from the son in order to pay for his defence.

[44] It is the position of the Crown that the applicant was not prudent with his expenditures. The applicant admitted to purchasing a car, spent $35,000 on condo renovations, spent money for custom closets for the condo and a keyboard. The Crown submits that it is not reasonable for someone who has to prioritize payment of a legal defence to have made such expenditures. The Crown relies on the cases of R v Sheikh, 2011 ONSC 4942, para 70; R v Pearon [1998] O.J. No. 4119, paras 21-22, and R v Crichton, 2015 BCCA 138, para 52.

[45] The Crown raised certain issues as regards the financial brief and documentation contained therein. It was the position of the Crown that one entry on a monthly statement listed a RRSP, although the applicant stated that he had never had a RRSP, and also failed to disclose an account held with PC, although the applicant stated that there was $100 in that account and it was never used.

[46] It is the position of the Crown that the applicant had significant funds, transferred $240,000 of that to his son, renovated his partner’s condominium and purchased a car and keyboard after the charges were laid. The Crown submits that the applicant made the choice to spend the money he had on matters other than his defence and, accordingly, the application should be dismissed.

Analysis

[47] This was a difficult decision from the outset. At first blush, based on the documentation and case law, it appeared that Mr. Metcalfe spent or divested himself of a considerable amount of money from the time the charges were laid against him, that his expenditures lacked in prudence and foresight given the charges he faced and the defence he would need.

[48] However, based on his testimony, which I found to be forthright, he explained the reasons for his expenditures and what appeared to be divestitures or gifts.

[49] He was in significant debt before the charges were laid and the house and cottage were sold. He considered himself in a position of trust vis-à-vis his son who had learning deficiencies and testified that he was or felt obliged to repay the considerable monies he had used from his son’s inheritance regarding the repairs and renovations to the house once the house was sold. Of the amount owing to his son in the amount of $480,000, he has only paid back one half of that amount, $240,000. He paid his significant outstanding bills, credit cards and paid back the loans made by his friends to him.

[50] He found himself without a home as at January 2015 and on an agreement between himself and his best friend and former partner, Raymond, spent $35,000 to renovate Raymond’s condominium to convert it from a one-bedroom to a two-bedroom condominium so that they could both reside there on the understanding that these expenditures would permit him to reside in the condominium rent-free thereafter. He calculated that this would be much less expensive over the long run than trying to find another rental in Toronto.

[51] He purchased a used car jointly with his friend, Raymond, as both of their cars were old. I do not find this purchase to be extravagant or a luxury, given his testimony and explanation, above. Finally, he spent $1000 on a keyboard after the house was sold and he had to sell his piano and keyboard before moving to the condominium, as he was a choir conductor, which was his one social outlet. I note that he had graduated in 1969 from Toronto Teachers College with, inter alia, a Vocal Music Certificate. While he testified that this was his one social outlet, this is one expenditure which may be viewed as a luxury. This amount alone would not have assisted in retaining counsel for a four week trial plus one week of pretrial motions.

[52] After paying off his debts, he was left with no significant assets or savings. His income is small, totaling $1020 per month and consists of CPP and OIS.

[53] When he was charged, which was just before his house sold, he retained counsel privately using his own funds, as well as some smaller amount raised by friends, and paid a retainer in the total amount of $55,000. He testified that he considered that, given that he knew the person who had initially laid the charges against him, he would be able to manage the cost of disposal of the charges. However, more unforeseen charges were laid in late 2014 and additional charges in 2015, which increased the complexity and cost of his defence. While he had originally prepared for his defence and paid his counsel a significant amount in advance, he had not prepared for the additional charges.

[54] At the time that the charges were laid against Mr. Metcalfe, it had already been decided that the house would be sold. The plan was for Mr. Metcalfe to move into the condominium with his partner, Raymond. After the initial charges, he had paid off his significant debts and made other arrangements as regards his circumstances.

[55] Mr. Metcalfe intended, when the house was sold, to reimburse his son for the amounts that had been used for the house from his son’s inheritance from Ms. Martin. $480,000 had been used from the inheritance for renovations to the home. It had been agreed with his son, Jason, that once the home was sold, Jason would be reimbursed. Mr. Metcalfe testified that he was very aware of the fact that the monies in the home were not his, but were his son’s. While there was no loan document as regards the $480,000 used from Jason’s inheritance, nor how nor when it would be repaid to Jason, I am satisfied, given the circumstances and the fact that Mr. Metcalfe was handling his son’s inheritance, given his son’s challenges and need for financial management as set forth above, that he felt obliged to repay his son once the house sold as they had agreed. I did not find Mr. Metcalfe to obfuscate or misrepresent things in his testimony, but found him forthright.

[56] Mr. Metcalfe also testified as regards his significant debts from the time that he had first purchased the home. I accept his testimony as regards the use of the funds from the proceeds of disposition of his share in the cottage, and also as regards his small inheritance from his mother. It is clear that he wished to divest himself of his debts to credit card companies, other companies and to personal friends who had loaned him money when he was unable to meet mortgage and other payments.

[57] Mr. Metcalfe did have money shortly after the first of the charges were laid in July 2014. However, these funds were, as he described, earmarked for the payment of steep debts which he owed. Those debts have not all been paid as yet.

[58] I do not find that he has lived an extravagant lifestyle since 2014, when the charges were laid. Indeed, reviewing the financial documentation and his expenditures, I find that his lifestyle is relatively spare.

[59] I have considered the case law. I have considered the principles as succinctly set forth in R v Sheikh, 2011 ONSC 4942, [2011] O.J. No 4435 at para 70. I am not persuaded that the applicant’s inability to financially retain counsel for the trial is due to his voluntary choices, priorities, lack of foresight and planning. Nor do I find it was due to a deliberate attempt to divest himself of assets, nor because he lived or lives an extravagant lifestyle.

[60] I am satisfied that the tests as set forth in Rowbotham and the cases thereafter, have been met by the applicant in this case.

[61] I am satisfied on a balance of probabilities that the applicant will not have a fair trial, given the complexity and multiple parties involved, without representation. I am further satisfied on a balance of probabilities that he has established that he is unable to pay for counsel for a four week trial with one week of pretrial motions. Accordingly, I order that the charges against Mr. Metcalfe be stayed until such time as government-funded counsel is provided to Mr. Metcalfe.

Carole J. Brown, J.

Date: October 25, 2017