REASONS FOR DECISION

Boucher J.

Overview

[1] The applicant is charged with second degree murder. He seeks a Rowbotham order -- an order for a conditional stay of proceedings pending the appointment of publicly funded legal counsel. The respondent Attorney General for Ontario had previously offered to settle his Rowbotham application, and in that context, proposed terms to the applicant and his counsel for the funding of his defence. The applicant refused the offer. He and his counsel objected to two of the proposed terms. The applicant then applied to this court for a Rowbotham order, requesting both a conditional stay and that the court impose specific terms of funding. He requests an order that would mirror the AG’s prior funding offer absent the terms he objected to.

[2] The respondent argues that this court’s jurisdiction is limited to granting a stay in accordance with the three-part Rowbotham test, and that the applicant fails the second branch of the test since the AG has agreed to fund his defence. The respondent argues this court has no jurisdiction to adjudicate the terms of the funding agreement, except to the extent that the terms would impact the applicant’s right to fair trial. Additionally, the respondent requests a sealing order over the communications related to settling this application and the terms of the offer made to the applicant to fund his defence because these items are subject to settlement privilege.

[3] This court conditionally orders a stay of proceedings pursuant to Rowbotham, pending the appointment of publicly-funded counsel. This court has no jurisdiction to impose specific terms on the funding arrangement, in the circumstances. At this stage, it is unknown whether the AG will propose to fund this defence. It is similarly unknown what terms of funding the AG would propose, and what impact those funding terms might have on the fair trial or other constitutional interests of the accused. Accordingly, I do not propose terms of funding, at this stage.

[4] The communications between the parties related to the proposed settlement of the Rowbotham claim are subject to settlement privilege, as well as the terms of the offer. However, based on the circumstances of this case, there is no settlement privilege attaching to the mere fact of the offer. Privilege in this case attaches only to the content of the communications about settlement, the offer itself, and any documents in this application that would reveal the content of those communications. Accordingly, I grant a sealing order limited to the items listed in appendix B of the respondent’s supplementary factum, to be drafted by the parties.

Procedural History

[5] The applicant is charged with the second-degree murder of his father. The offence is alleged to have occurred September 11, 2018.

[6] The applicant applied for legal aid on September 25, 2018. He was denied coverage because he did not meet the financial criteria: he had declared having a bank account that contained $12 000. His lawyer later supplemented the financial information as passed on to him from the applicant’s family. He explained that the bank account was held jointly with family members, and that the applicant’s mother told him only about $8000 belonged to the applicant.

[7] The applicant appealed the denial of coverage through to the end of the internal legal aid process. The final appellate decision from legal aid noted that his application could be reconsidered in the event that the applicant exhausted his assets prior to the completion of the matter and if he could verify that his assets were used for legal fees: application record, tab 6, Notice of Decision on Appeal (Provincial Office Appeals) / Reasons for Decision.

[8] Legal Aid Ontario supplied the applicant with information about making a Rowbotham application to the court, as well as instructions for applying to the AG’s Rowbotham application pilot project. The pilot project was described as a faster process for Rowbotham applications in pilot sites in the Superior Court of Justice: application record, Tab 6.

[9] The applicant completed the application form, and on November 27, 2018, the pilot project agreed to fund the applicant’s defence, subject to him entering into their “Confidential Funding Agreement”: application record, tab 1. The application materials show that the applicant’s funds had been depleted to less than $4000 at that time. Both the applicant and his lawyer refused the settlement offer because they objected to two of the terms of the proposed agreement. The applicant then continued with his application to this court.

Analysis

Rowbotham Test

[10] An accused is entitled to a fair trial in accordance with the principles of fundamental justice: Charter, ss. 7, 11(d). These Charter rights may, in certain cases, require that an accused person be represented by counsel. An indigent accused may apply for a stay of proceedings under s. 24(1) of the Charter where the accused does not qualify for legal aid, pending the appointment of publicly-funded counsel: R v Rowbotham, [1988] O.J. No. 271, 1988 147 (ONCA), at para. 156. A stay of proceedings is an exceptional remedy that may only be granted where an accused demonstrates, on a balance of probabilities, the following three conditions, as summarized in R. v. Williams 2011 ONSC 7406, at paras. 5-6:

(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

[11] The respondent conceded in oral argument that criteria (a) and (c) were met. The legal aid decisions and the applicant’s affidavit describing his circumstances support these concessions.

[12] The respondent argues however that the second criteria is not met because the applicant had been offered funding for counsel. Because he had an available funding option, the respondent argues he is ineligible for a Rowbotham order. At the same time, however, the respondent is also arguing that this prior funding offer is subject to settlement privilege.

[13] If the prior funding offer is indeed a settlement offer, and if the applicant has refused to settle on the terms proposed by the respondent, then logically the second Rowbotham criteria is satisfied since there is no funding arrangement in place at the time of this hearing. The court has no jurisdiction to require parties to settle a legal dispute – if a dispute does not settle on consent, the matter proceeds to hearing.

[14] Based on the evidence and the submissions characterizing the funding offer, I find that there is no funding available to the applicant since the matter did not settle. The statement of the applicant’s finances satisfies this court that he is indigent and cannot retain counsel privately. He has exhausted the appeal process for legal aid. The amount in his bank account would be far under the funding level necessary for the beginning of a second-degree murder case, with mental health issues potentially figuring into the defence.

Specific Terms

[15] The applicant requests that the court order specific terms of funding, in addition to granting a conditional stay. The applicant requests that the court order funding proposed by the respondent in its initial funding offer, but requests that the court omit the disputed terms. The applicant raises a number of objections to those terms: there is no reason, or no proper reason for the terms; the terms are overbroad; the terms could accidentally be breached; there is no time limit associated to the terms; and there is no rational connection between the disputed terms and the true purpose of the order.

[16] Courts have very limited authority to dictate the terms of public spending. This is due to our constitutional structure. Courts are part of the judicial branch, responsible for maintaining the rule of law by interpreting and applying the law in an impartial and independent manner to references and disputes. The legislative and executive branches are responsible for the spending of public funds, and for setting the policy directives and administration of those laws. The courts have jurisdiction to interfere with public spending and public policy only where constitutional rights require judicial interference. See Ontario v Ontario Criminal Lawyers 2013 SCC 43.

[17] I note that the Crown is not a standard party to litigation. The Crown has special obligations to act in the public interest as a minister of justice, to act fairly and to protect constitutional interests: see for example Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43. In the post-Jordan era, it is incumbent on the Crown to make good faith efforts to case manage files, and to resolve unnecessary litigation, where it is in the interests of justice and in the public interest to do so.

[18] Here, the applicant has not demonstrated that the court must interfere with any future funding agreements to preserve his Charter rights. While the applicant objects in a generalized way to the terms of the agreement proposed at the settlement stage, he has not framed the objections as Charter breaches in and of themselves, in the context of the “settlement offer” made to him.

Rowbotham Order

[19] The matter is conditionally stayed pending the appointment of publicly-funded counsel. I will not impose the funding terms requested by the applicant at this stage. As noted, I do not have jurisdiction to interfere with the specific terms of funding, absent a specific Charter requirement to do so, and I have no information as to the content of any future funding agreement for the applicant. I note however that in proposing terms of funding, the Crown would be advised to consider the impact on the applicant’s Charter-protected interests, including those under sections 7, 11(d) and 2(b).

Sealing order – settlement privilege

[20] The respondent also requests a sealing order with respect to items listed in its supplementary factum. The respondent argues that because the materials reference the settlement negotiations and the offer, a sealing order must issue to protect the privilege. The respondent submits that it was necessary to rely on the settlement offer to respond to the application, but that this reliance does not constitute a waiver of the privilege. The respondent claims privilege over everything in the application, but also takes alternative positions protecting just the communications around the offer and the disputed terms. The applicant agrees that settlement privilege applies to most of the materials, but disputes that his draft order for the court is privileged.

[21] As I explain below, I agree that settlement privilege applies in this case to the communications relevant to the attempts to settle this application. However, on the facts of this case, I do not agree that privilege applies to the mere fact of the offer having been made. The case law requires that the sealing order be as minimally impairing as reasonably possible in the circumstances. Here, the balancing of interests under the Sierra Club test favour sealing the settlement related communications as identified by the respondent in appendix B of their supplementary factum, as corrected by the parties.

Settlement Privilege

[22] Settlement privilege is a class privilege, designed to promote settlement of litigation, by wrapping a “protective veil” around the communications made in the course of negotiations: Sable Offshore Energy Inc. v Ameron, 2013 SCC 37 at para 2. The privilege promotes “honest and frank discussions between the parties” regarding settlement without fear of having those communications used against them in litigation, or admitted as evidence of concessions: Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 ; A. W. Bryant, S. N. Lederman and M. K. Fuerst, The Law of Evidence in Canada (3rd ed. 2009), at para. 14.315. The privilege applies whether or not settlement is reached, and covers admissions, offers, and compromises made in the course of negotiations: Sable at paras. 17-18.

[23] The Ontario Court of Appeal in R v Delchev, 2015 ONCA 381 held that settlement privilege applies if the following conditions are met:

(1) A litigious dispute must be in existence or within contemplation.

(2) The communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed.

(3) The purpose of the communication must be to attempt to effect a settlement.

[24] There is an exception to settlement privilege, if a “competing public interest outweighs the public interest in encouraging settlement”: Dos Santos (Committee Of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4 at para 20. The exceptions should be for purposes other than “illustrating the weaknesses of one party’s case”: Delchev, para. 31. Examples of countervailing interests include allegations of fraud, misrepresentation, or undue influence, and could include preventing a plaintiff from being overcompensated: Sable, para 19. In the criminal law context, an exception might be established for allegations of prosecutorial misconduct or abuse of process: Delchev, paras. 28-37.

[25] I accept that in communicating with the applicant, the respondent was attempting to avert a court hearing for the Rowbotham application. The documented communications between the parties resemble a negotiation and attempts to settle. The content of the communications strongly suggests that they were not intended to be later disclosed. As such, the communications to the applicant, including the proposed terms of the funding agreement, are covered by settlement privilege.

[26] In some case, even the fact of having made an offer might be subject to privilege, if for example, the fact of having made the offer would prejudice their interests in the matter. Here, the fact of an offer having been made does not appear to prejudice the respondent. Indeed, as I noted above, it is incumbent on the Crown to try to resolve matters, though those efforts should not normally count against the Crown in the determination of the matter. Crown policy manuals dictate the need to make speedy and appropriate offers to the defence. There does not appear, in this case, to be privilege attaching to the mere fact of the settlement offer.

Sealing Order

[27] The respondent requests a sealing order for the list of materials specified in their factum on the issue. The applicant agrees, but argues that his draft order on the motion should not be sealed.

[28] This court has common law jurisdiction to grant a sealing order in respect of documents subject to settlement privilege: see Hollinger Inc. (Re), 2011 ONCA 579; Magnotta Wine Corp. v. Ontario (Alcohol and Gaming Commission) 2015 ONSC 6234. The applicable test for determining the appropriateness of granting a sealing order regarding settlement privileged documents is that set out in Sierra Club v. Canada (Minister of Finance), 2002 SCC 41: see also Hollinger; Magnotta.

[29] In Sierra Club, the Supreme Court applied a modified Dagenais framework in determining whether a statutory confidentiality order should issue for documents that contained confidential, technical, commercial information in respect of an environment assessment. The Court held that a confidentiality order should be granted in similar cases only where

a) the order is necessary to prevent a serious risk to an important interest in the context of litigation and there are no reasonable alternatives available to prevent the risk, and

b) the salutary effects of the order, including the right to a fair trial, outweigh the deleterious effects, including the effect on freedom of expression and on the public interest in open and accessible courts.

[30] The Court added three additional criteria, as in Mentuk, to be subsumed under the first branch of the test. First, the risk in question must be real and substantial, in that the risk is well grounded in the evidence, and poses a serious threat to the commercial interest in question. Second, the interest should be a truly important interest, preferably one of a general nature, and not only the interests of the party requesting the order. Third, any order should be restricted as much as is reasonably possible while preserving the commercial interest in question. See Sierra Club at paras. 53-57.

[31] In applying the Supreme Court’s guidance to this case, I note that settlement privilege is a class privilege, and a “social value of superordinate importance”: Hollinger Inc. (Re), 2011 ONCA 579 at para. 20. Disclosure of the settlement communications and the offer to settle would erode the confidentiality normally associated with settlement discussions, potentially hampering litigants’ confidence in making settlement offers on a without prejudice basis, and thereby discouraging settlement. As noted, these interests are not specific to the AG, but rather a general public interest in promoting settlement. There is no intention by either party to make further use of the materials in the proceedings. As such, a sealing order would not negatively impact the fair trial interests of the accused. While a sealing order would have a deleterious impact on the interests in having open courts and transparency in proceedings, the order could be minimally impairing by sealing the materials to the extent suggested by the respondent in appendix B of the respondent’s supplementary factum. Appendix b lists specifically enumerated references in the materials for sealing, and is limited to the terms of the offer and information about the disputed terms.

[32] Accordingly, given the strong public interest in favour of protecting class privileged settlement communications, it is necessary to impose a sealing order with respect to the terms in the AG’s offer regarding this application and the documents listed in appendix b of the respondent’s supplementary factum. The applicant’s draft order falls under this sealing order as well because it was argued that it mirrored the settlement offer and would effectively reveal that offer. Additionally, given my reasons for this application, it was unnecessary to list the exact nature of the dispute about the settlement terms. The list in appendix b is a reasonable alternative to a complete sealing order for the entire record.

[33] A conditional stay and a sealing order will issue.

Boucher J.

Released: January 24, 2019

COURT FILE NO.: CR-18-50000279-00MO

DATE: 2019-01-24

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NOAH SAIB

Defendant/Applicant

REASONS FOR Decision

Boucher J.

Released: January 24, 2019

R. v. Saib, 2019 ONSC 645

Case Summary

REASONS FOR DECISION

Overview

Procedural History

Analysis

Rowbotham Test

Specific Terms

Rowbotham Order

Sealing order – settlement privilege

Settlement Privilege

Sealing Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 3