CITATION: R. v. Madumelu, 2017 ONSC 7006
COURT FILE NO.: CR-17-10000120-00M0
DATE: 20171124
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
CHUKWUEMEKA MADUMELU
Jason Mitschele and Kiran Gill, for the Crown
Lisa Jørgensen, for Chukwuemeka Madumelu
HEARD: November 20 &22, 2017
M. DAMBROT J.:
BACKGROUND
[1] Chukwuemeka Madumelu is charged with nine drug offences relating to the importation and trafficking of heroin and faces the possibility of imprisonment for up to 15 years. He has been denied legal aid funding by Legal Aid Ontario (“LAO”), and is presently not represented by counsel for the purposes of trial. His trial is scheduled to begin in this court on March 14, 2018, and is expected to take four weeks to complete. He brings this application for a so-called Rowbotham order staying the proceedings unless he is provided with state-funded counsel. Counsel has acted for him on this hearing on a pro bono basis, and stands ready to represent him at trial if this application is granted.
[2] In order to obtain a “Rowbotham Order”, an accused must establish three things:
(1) that he is ineligible for, or has been refused, Legal Aid and has exhausted all available appeals;
(2) that he is indigent and has no means to retain counsel otherwise; and
(3) that his right to a fair trial will be materially compromised if he is forced to proceed to trial unrepresented by counsel.
[3] The applicant must establish all three prerequisites on a balance of probabilities. If any one of the prerequisites is not satisfied, the application will be dismissed.
[4] In this case, little issue is taken concerning the first prerequisite, and none with the third. The real contest concerns the second issue, indigency.
[5] With respect to the first prerequisite, there is no question that legal aid has been refused, but the Crown argues, in its factum, that the accused has not established that he has exhausted all available appeals. I am satisfied that he has.
[6] With respect to the second prerequisite, indigency, the Crown’s concern, and initially mine, flowed from the reasons that the accused was refused legal aid. Legal aid was refused in this case primarily because of the failure of the accused to make complete disclosure of his financial circumstances. Specifically, he failed to provide to LAO a statement of six months of transactions for the business accounts of a company he incorporated. In addition, LAO was of the view that the accused had failed to demonstrate that his family and friends would not support him in paying his legal fees.
[7] With respect to the former issue, the accused, belatedly, has provided to me documents from TD Canada Trust that satisfy me that there was no activity in these accounts. While his late disclosure of this information, which is unaccounted for, is surely at the root of his problems with obtaining legal aid funding, and the responsibility for this undoubtedly falls on him, I cannot punish him for this lack of diligence, or make an example of him as a result of it, by depriving him of his right to a fair trial.
[8] As for the question of his family and friends paying his legal fees, I am satisfied that they likely do not have the means to do so, and in any event, will not. The mere fact that they raised a far smaller sum to pay for a bail hearing early in this proceeding does not suggest to me that they could or would raise the far larger sum of money necessary to pay for the defence of the accused at trial.
[9] The Crown took issue with other aspects of the accused’s financial disclosure. I need not outline these. The points made by the Crown are well taken, but do not put into question the accused’s indigency. While it is true that he has engaged in some unnecessary spending for his own comfort, these amounts are insignificant. He meets the test of indigency.
DISPOSITION
[10] The application is allowed. The charges against him will be stayed on January 15, 2018, unless the Crown has agreed to provide funding at the Legal Aid tariff rates to enable Mr. Madumelu to retain counsel to defend him on these charges. An order will go in terms of the draft filed by the Crown, which I have signed.
M. DAMBROT J.
RELEASED: November 24, 2017
CITATION: R. v. Madumelu, 2017 ONSC 7006
COURT FILE NO.: CR-17-10000120-00M0
DATE: 20171124
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
CHUKWUEMEKA MADUMELU
REASONS FOR JUDGMENT
M. DAMBROT J.
RELEASED: November 24, 2017