R. v. Michael Coutts

COURT FILE NO.: 76/17

DATE: 2018/02/08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Coutts

BEFORE: Justice A. K. Mitchell

COUNSEL: C. Demelo, Counsel for the Applicant A. Armstrong, Counsel for the Attorney General for Ontario

HEARD: February 1, 2018

ENDORSEMENT

Overview

[1] The applicant, Michael Coutts, seeks a Rowbotham[^1] Order. Relying on ss. 7 and 11(d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, the applicant seeks an order in which the charges against him would be stayed until such time as the Attorney General for Ontario provides funding to him to retain counsel.

Background

[2] The applicant is charged with four offences contrary to the Criminal Code, namely: one count of theft over $5000, one count of possession of property or thing exceeding $5000 by crime, one count of uttering a forged document and one count of fraud over $5000.

[3] The applicant is jointly charged with these offences with his spouse, Sharon Coutts. It is alleged that between March 1, 2009 and January 8, 2015 the co-accused committed these offences.

[4] The applicant and his spouse were employed by the Middlesex Condominium Corporation as building managers of property located in London, Ontario. As a building manager the applicant was responsible for collecting rent cheques and depositing them into the bank account of the corporation that owned the rental units. It is alleged that instead of depositing the rent cheques into the corporate account, the applicant kept a total of $65,320 from the rent deposits.

[5] The applicant was charged with these offences in June 2015. On January 4, 2016, the applicant applied for a Legal Aid certificate. On February 2, 2016, Legal Aid made a request for further information from the applicant.[^2] In response, Mr. Coutts provided bank statements for the period November 5, 2015 through February 2, 2016 and a complete ROE issued by Ro-Buck Contracting Limited for the period May 6, 2015 through December 11, 2015. This information was received by Legal Aid on February 5, 2016.

[6] A notation in Mr. Coutts’ Legal Aid file dated February 9, 2016 states: “client failed to provided (sic) three months banking and complete ROE and explanation as re-requested following incomplete and minimal ROE that was provided. Cannot verify FIN at this time, client’s eligibility is unclear.” This notation is not accurate in light of the information received by Legal Aid on February 5, 2016.

[7] On February 11, 2016, the applicant’s application for legal aid funding was denied. The reasons given for refusing Mr. Coutts’ application were:

Based on Legal Aid Ontario’s financial eligibility policies, you have failed to meet our financial requirements. Your income or assets exceed the amount necessary to qualify for legal aid assistance.

[8] In this same correspondence was provided instructions for review or appeal of denial of certificate services. Contained in these instructions was the following:

LEGAL AID ONTARIO WILL NOT CONSIDER APPEALS THAT ARE RECEIVED AFTER 15 days from the date of this notice.

[9] Despite this notice, the applicant did not appeal the decision of Legal Aid refusing his application.

[10] In late 2016/early 2017 the applicant attempted to retain Ms. Demelo. She was counsel of record for Mr. Coutts for a short period of time and due to a lack of ability to fund her services she was removed from the record on March 3, 2017.

[11] A preliminary inquiry was conducted on May 29, 2017. Mr. Coutts was unrepresented at the preliminary inquiry.

[12] After again speaking with Ms. Demelo, on July 31, 2017, the applicant attempted to appeal the decision of Legal Aid denying his application.

[13] On August 22, 2017, Mr. Coutts contacted Legal Aid by phone inquiring as to his right to submit a fresh application for a legal aid certificate. He advised Legal Aid of his current financial situation and at the end of the call believed Legal Aid would contact him. Legal Aid took no further steps. A financial case note contained in Mr. Coutts’ file with Legal Aid Ontario of the same date reads: “client is calling to apply for the same matter/Clients FIN has changed/Client will call back to complete a FIN RA”. (emphasis added)

[14] On January 9, 2018, the applicant was formally notified by Legal Aid that its decision (of February 11, 2016) was final having not been appealed within the 15 day appeal period.

Financial Position of the Applicant

[15] The applicant resides with his spouse. He has no children.

[16] The applicant is currently employed at Heavy Haul Ontario Inc. where he has worked since February 2016. He works approximately 35-50 hours per week and earns $20 per hour. In 2017 his aggregate income from all sources was $51,075.96. In 2016 his employment income from Heavy Haul totalled $39,943.90.

[17] His spouse receives social assistance through the Ontario Works program. Her annual income in 2016 was $10,498.45. Presumably, her income was similar in 2017. Based on these figures, the aggregate gross household income in 2016 was approximately $50,000 and in 2017 this figure was in excess of $60,000.

Analysis

[18] On a Rowbotham application, the applicant must satisfy the following three conditions on a balance of probabilities:[^3]

i. the applicant has been refused legal aid and has exhausted all appeals for reconsideration of his eligibility;

ii. the applicant is indigent, that is, he lacks the means to privately retain counsel to represent him at trial; and

iii. it is necessary for the applicant to have counsel to ensure a fair trial.

[19] It must always be borne in mind that it is a rare and exceptional case that requires publicly funded counsel to ensure an accused’s right to a fair trial.[^4]

[20] This application cannot succeed. It fails on all 3 prongs of the test.

Has the applicant been refused legal aid and has he exhausted all appeals for reconsideration of his eligibility?

[21] The applicant did not “exhaust all appeals” because no appeal was ever taken with respect to the decision of Legal Aid. The merits of any appeal that could have been launched will remain unknown. Mr. Coutts did not proceed with any semblance of diligence to appeal the decision of Legal Aid to deny him a certificate. The applicant does not suggest he did not receive notification of the denial of his application in or about February 11, 2016 or that he did not receive notice that he had 15 days to appeal the decision. Mr. Coutts took no steps to consult with a lawyer with respect to the decision of Legal Aid to deny him a certificate until July 31, 2017 – 475 days later. He has a high school education. He is able to read and understand the English language. No explanation was provided for the applicant failing to “exhaust all appeals for reconsideration of his eligibility”.

[22] In addition, Mr. Coutts provided no satisfactory explanation for not submitting a fresh application for a legal aid certificate after speaking with Legal Aid on August 22, 2017.

[23] Last, there is no evidence that Mr. Coutts was prepared to make a contribution towards funding to reduce the burden on Legal Aid.

Is the applicant indigent, that is, does he lack the means to privately retain counsel to represent him at trial?

[24] Mr. Coutts submits that he lacks the means to privately retain counsel despite his many efforts to do so since being charged. He lives paycheck to paycheck. He has no assets. He has no lines of credits or credit cards available to him.[^5]

[25] Indigency is an inability to pay or contribute to legal fees despite best efforts to prioritize payment of those legal fees by saving, borrowing or otherwise raising funds for such payment, and consequently being incapable of retaining counsel and ample time to ensure a fair trial.[^6] The evidence filed with the court does not support a finding of indigency. Quite the opposite. Mr. Coutts’ gross annual household income far exceeds the eligibility requirements for legal aid. The gross income of Mr. Coutts in 2016 far exceeds the financial threshold for an applicant with a two-person household applicable in February 2016 of $20,993. By August 2017 when Mr. Coutts purported to re-apply for funding, his gross annual income was more than double the financial threshold of $22,253.

[26] There are no known debt obligations. A monthly income and expense statement would have been of assistance but was not provided. Mr. Coutts acknowledged that he no longer pays for his spouse’s medication since her medications are now covered by social assistance. A review of his 2017 bank statements evidence a substantial amount of income spent on fast food, cigarettes, beer and liquor.[^7] Amounts spent on such discretionary items could, instead, be paid to counsel as an ongoing retainer. As was noted in R. v. Crichton[^8] at para. 52:

… the judiciary should not be spending taxpayer money in cases where an accused chooses not to spend the money he has on his lawyer, and instead comes to the court cap in hand, expecting counsel to be appointed for him. In those circumstances, the cap will remain empty.

Is it necessary for the applicant to have counsel to ensure a fair trial?

[27] This prong of the test requires the court to consider a number of factors including the seriousness of the charges, the length and complexity of the proceedings and the accused’s ability to participate effectively and defend the case.[^9] Ms. Demelo argues this is a complex matter necessitating representation of Mr. Coutts by legal counsel at trial. In support of this position, Ms. Demelo submits the following:

iv. the applicant faces numerous charges which are proceeding to trial by way of indictment and if convicted will result in a jail sentence;

v. this is a jury trial anticipated to last three weeks;

vi. there is a co-accused; and

vii. there has been voluminous disclosure (four binders).

[28] Conversely, the Attorney General argues the case is not complex and points to the following:

i. no expert witnesses will be called;

ii. there is a single complainant/victim;

iii. the evidence is fact-based and straightforward;

iv. there are no anticipated Charter applications or pretrial motions; and

v. the trial is estimated to last only 8 days.

[29] The Attorney General referred me to the decision in R. v. Pilon[^10] where the accused’s Rowbotham application was dismissed. The facts in Pilon are remarkably similar to the facts before me. Ms. Pilon was charged with 3 counts relating to an alleged fraudulent invoicing for goods and services not provided. She applied for and was refused legal aid. She did not appeal within the appeal period, however her file was subsequently reviewed by legal aid who maintained she continued to fail to meet the eligibility requirements. Ms. Pilon’s gross annual income was $30,000. She provided documents to the court confirming indebtedness of $18,000. The court noted that there was an absence of information indicating the applicant had looked at ways of reducing her living expenses and making changes to her lifestyle which would make her able to fund or contribute to the funding of counsel. In addition the court held that the nature of the evidence anticipated at trial, the length of trial and the nature of the charges supported a finding that the matter was not complex.

[30] The evidence before me is less persuasive than the evidence before the court in Pilon. This is not a complex matter. There is one alleged victim. The evidence is straightforward and fact-based. As such, the trial judge will be capable of assisting Mr. Coutts at trial. The allegation is a re-direction of rental monies received by the co-accused. The charges may lead to jail time but this, of itself, is not enough to support an order for public funding of counsel.

[31] The applicant’s affidavit sworn February 1, 2018 contains more argument and conclusory statements than it does evidence. His affidavit contains bald statements unsupported by the evidence. The applicant argues that because he is not a trained lawyer and therefore “does not have sound legal judgment”[^11] he will be denied a fair hearing and the right to make full answer and defence, denied the right not to be compelled to be a witness against himself, denied the right not to disclose his defence prematurely, denied the right to security of the person, all in breach of his Charter rights. Legal training is not a prerequisite to an accused receiving a fair trial if self-represented. As noted above, Mr. Coutts has a high school education and is able to read and understand English.

[32] The common law does not support the applicant’s position. The court in Rowbotham did not find that ss. 7 and 11(d) of the Charter guaranteed the right to have counsel provided at the expense of the state rather it was an exceptional remedy. Subsequent cases have affirmed that representation by counsel is not a prerequisite to a fair trial nor required by the principles of fundamental justice:

Representation by a lawyer is not a prerequisite for a fair trial. A person is entitled to represent himself or herself and when he or she does so, there are other means which are intended to protect the right to a fair trial, the foremost being the duty of every trial judge to ensure that all persons received a fair trial.[^12]

[33] For a prospective or an anticipated breach of the right to a fair trial, publicly funded counsel will be made available only on proof there is a sufficiently serious risk that the alleged violation will in fact occur. The courts have held that the evidentiary burden on the applicant is very heavy and requires the applicant to demonstrate that all aspects of the application for publicly funded counsel are properly supported on the record.[^13]

[34] The applicant has failed to meet the evidentiary burden. Application dismissed.

“Justice A.K. Mitchell”

Justice A.K. Mitchell

Date: February 8, 2018

[^1]: R. v. Rowbotham, 1988 CanLII 147 (ON CA), [1988] O.J. No. 271 (C.A.). [^2]: Up to date bank statements showing 2-3 months of transactions and a complete ROE showing the full period during which the applicant was employed. [^3]: Supra, at page 39. [^4]: Ibid. [^5]: There is no evidence of any efforts made to obtain loans or credit. [^6]: R. v. Malik, 2003 BCSC 1439, [2003] BCJ No. 2167 (SC) at para. 32. [^7]: By way of example, during the month of August 2017, the applicant spent $1,134.90 on alcohol, tobacco and restaurants. [^8]: 2015 BCCA 138, leave to appeal refused, [2015] S.C.C.A. No. 432 (S.C.C.). [^9]: R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302 (C.A.) at para. 19. [^10]: Unreported decision of Parfett J. of the Superior Court of Justice (Ontario) dated June 5, 2015. [^11]: Paragraph 22 of the Fresh Affidavit of Michael Coutts sworn February 1, 2018. [^12]: R. v. Rain, 1998 ABCA 315, [1998] AJ No. 1059 (C.A.) at para. 36. [^13]: R. v. Cai, 2002 ABCA 299, [2002] A.J. No. 1521 (CA) at paras. 6-7, 13 and 32; and R. v. Malik, supra, at para. 22.