COURT FILE NO.: CR-18-1353
DATE: 2019 08 16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Amber Pashuk for the Respondent
- and –
DAMIAN ROSE
Ayderus Alawi for the Applicant
HEARD: June 7, 12, 2019
ROWBOTHAM ENDOSEMENT
D.E HARRIS J.
[1] I allowed a Rowbotham application in this criminal prosecution: see R. v. Rowbotham (1988) 41 C.C.C. (3d) 1, 63 C.R. (3d) 113, 1988 CarswellOnt 58. These are my reasons.
[2] The applicant is charged with two counts of conspiracy to import cocaine contrary to the Controlled Drugs and Substances Act.
[3] The applicant states that he cannot afford counsel for the trial itself. He applied for Legal Aid for the trial but was refused. His appeals have how been exhausted. A 10 week trial is scheduled to commence on October 15, 2019. Four other accused are being tried along with him. Prior to this, during this summer, pre-trial applications including a Garofoli motion are to be heard.
[4] Upon conviction, the Crown is seeking a sentence of 10-12 years in custody. The applicant does not have a criminal record.
[5] There are three pre-conditions to a Rowbotham order: 1. Legal Aid must have been refused; 2. The trial must be of sufficient complexity that representation is essential to a fair trial; and 3. The applicant cannot afford to fund counsel independently.
[6] Crown counsel originally challenged all three pre-conditions. At the hearing, however, she narrowed her opposition to the financial requirement. This was an appropriate decision. If there was any lack of clarity previously concerning the Legal Aid situation, counsel was able to demonstrate that assistance has been finally refused.
[7] With respect to the second criteria, the complexity of the matter is obvious from the length of the trial, the trial of multiple accused (5) and from the two conspiracy allegations, some of the most complex factually and legally in the Criminal Code.
[8] The somewhat interesting aspect of this case was with respect to the financial criteria. The applicant has agreed to pay $12,000 towards his legal fees. This is not unlike the contribution agreements that Ontario Legal Aid (OLA) is known to offer accused persons. Funding is granted by OLA, but the accused must participate to some degree with his or her own funds.
[9] The court in Rowbotham was aware of the use of contribution agreements. Laura Kononow who, along with her husband, launched the constitutional argument that led to counsel being constitutionally required to ensure a fair trial in some circumstances, stated that she was willing to accept a contribution agreement (see paragraphs 189-190, Carswell).
[10] Such an arrangement is a good compromise between individual and community interests. The accused obtains funding for legal representation for a complex trial with potentially serious consequences to him or her upon conviction. The public is not solely responsible for paying for counsel. The accused partially defrays the cost if able to do so.
[11] It is well-known that criminal trials over the last decades have become lengthier and more complex. This was noted in the Rowbotham judgment itself over three decades ago (para. 193, Carswell). At the same time, income inequality between rich and poor has grown significantly. These two factors, and others as well, have often made it more difficult for accused persons to fund their own trial defence. Partial payment of fees by the accused with the Attorney General paying the remaining portion, is a development which is responsive to this reality. They are likely to become more common in the future.
[12] It may appear unfair that the state bears so much of the financial burden of the criminal process. The government funds law enforcement personnel who investigate the allegations of wrongdoing. The government pays prosecutors to try the allegations before judge or jury. The final element, perhaps galling to some, is that with some frequency, Legal Aid programs and Rowbotham orders lead to the government also paying for an accused’s defence to the charges. Cynics might see the burden of funding the accused’s defence as exploitative of the public purse. But for cases which do not meet Legal Aid funding criteria, it was decided over 30 years ago in Rowbotham (paras. 188-197, Carswell) and never questioned since that when necessary to a fair trial, there is a constitutional right to defence counsel. The very decision to prosecute may bring with it the obligation to fund a defence to the accusation.
[13] In this case, while there was some cause for concern on the financial front, the evidence ultimately showed that the accused could not fund counsel on his own for a trial of this length and complexity.
[14] The applicant is 39 years old and has always been gainfully employed. He currently works as a machine operator and makes somewhere in the neighbourhood of $70,000 per year. He has four children: an 18-year-old son, a 15-year-old son and twins, one a girl, the other a boy, age 4 years old. The applicant’s common law wife works as a dental assistant at about $18 per hour and working 25-30 hours a week. He has tried to obtain financial help from his sister, his mother and his father. But there has been no substantial help forthcoming.
[15] It is true that the applicant privately funded counsel for the multi-day preliminary hearing. It was not revealed how much the cost was to the applicant.
[16] Although the applicant and his wife bring in a gross income of over $100,000 pre-tax, they have substantial expenses. In the end, there is little disposable income remaining. His counsel estimates that his billings at the legal aid rate would be $71,000 and agrees that on a private retainer would be approximately twice that, roughly $140,000. Ability to pay must be measured with that context in mind.
[17] In my view, it is not feasible that the applicant could fund such a defence, even if his payments are spread out over time. In view of the disparity between the likely fees and the applicant’s ability to pay, the contribution agreement although relatively small, is a satisfactory compromise in all of the circumstances.
[18] There will be an order to go imposing a conditional stay of the prosecution against Mr. Rose subject to the Attorney General funding counsel on the terms indicated.
D.E HARRIS J.
Released: August 16, 2019
COURT FILE NO.: CR-18-1353
DATE: 2019 08 16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Amber Pashuk for the Respondent
- and –
DAMIEN ROSE
Ayderus Alawi for the Applicant
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: August 16, 2019