COURT FILE NO.: 2/19
DATE: 20191212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PATRICIA SOUTH
Applicant
Anik Jodouin, for the Crown
Rhonda Fawcett, for the Applicant
HEARD: December 6, 2019
K.A. GORMAN
[1] The Applicant brings a motion for the funding of legal counsel – a Rowbotham application.
[2] On March 29, 2018 the Applicant was arrested and charged with possession of oxycodone for the purpose of trafficking and possession of hydromorphone for the purpose of trafficking. She was released from the Police station on a promise to appear.
[3] The Applicant has been self-represented throughout. A preliminary hearing was held on February 28, 2019 and she was committed to stand trial.
[4] The election is trial by judge alone. The Crown anticipates calling four witnesses at trial: police officers who conducted surveillance, police offices who processed the exhibits and arrested the Applicant, and an expert witness on the drug subculture. A routine s. 8 and 9 Charter application will likely be considered by the court.
[5] The Applicant applied to Legal Aid for funding. She reported an annual income of $24,406 from WSIB and CPP benefits. The Legal Aid plan income threshold for a family of one person is $16,728.00. The Applicant was accordingly refused funding. The Applicant appealed the decision and was again denied. She has no further course of appeal. An accordingly brings the within application.
[6] Where legal aid is denied to an accused person, and where the trial judge is satisfied that the accused cannot receive a fair trial without counsel because of the seriousness and complexity of the case, there is a right to be funded under the Charter in some cases. As the court stated in R. v. Rowbotham, 1988 CanLII 147 (ON CA), [1988] O.J. No. 271 (C.A.) at para. 183:
The right to retain counsel, constitutionally secured by s. 10(b) of the Charter, and the right to have counsel provided at the expense of the state are not the same thing. The Charter does not in terms constitutionalize the right of an indigent accused to be provided with funded counsel. At the advent of the Charter, legal aid systems were in force in the provinces, possessing the administrative machinery and trained personnel for determining whether an applicant for legal assistance lacked the means to pay counsel. In our opinion, those who framed the Charter did not expressly constitutionalize the right of an indigent accused to be provided with counsel, because they considered that, generally speaking, the provincial legal aid systems were adequate to provide counsel for persons charged with serious crimes who lacked the means to employ counsel. However, in cases not falling within provincial legal aid plans, ss. 7 and 11(d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require funded counsel to be provided if the accused wishes counsel but cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial.
[7] To succeed on a Rowbotham application, the Applicant bears the onus to establish, on the balance of probabilities that:
a) She has been denied legal aid from Legal Aid Ontario (“LAO”);
b) She cannot afford private counsel; and
c) Representation is necessary to ensure a fair trial.
[8] As the court stated in R. v. Montpellier, 2002 CanLII 34635 (ON SC), [2002] O.J. No. 4279 (S.C.J.) at para. 37:
[…]To make a determination, a judge must have a clear picture of the Applicant's finances. The picture must not only include his employment history, his prospects, his sources of income and access to assets. It also must include his access to other sources of financial support (see R. v. Pella, Sept. 13, 1996, unreported, Supreme Court and R. v. Lam, May 31, 1996, Supreme Court).
[9] In support of her Application, Ms. South swore an affidavit, filed her CIBC bank account statements (Mar. 1, 2018 – May17, 2018), and her LAO application and denial.
[10] It is conceded that the Applicant has been denied legal aid, and that her appeal was dismissed.
[11] The Applicant’s affidavit indicates her monthly expenses and income and attests that she believes her legal case to be complex.
[12] Then Applicant must demonstrate that she clearly lacks the means to retain counsel. The court in R. v. Sheikh, 2011 ONSC 4942, at para. 70 set out a number of factors that the court should consider:
There are several principles which guide the courts in considering an applicant's financial circumstances in Rowbotham applications. The principles relevant to the present application are:
• the inquiry into the applicant's financial circumstances go back to the time the applicant was charged; R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167(B.C. S.C. [In Chambers]) at para 222;
• the applicant's income (actual and available income) is to be considered. See R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167(B.C. S.C. [In Chambers]) at para 222 and R. v. Magda, [2001] O.J. No. 1861 (Ont. S.C.J.) at para 44;
• the applicant must provide detailed financial evidence of his/her financial circumstances. R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167(B.C. S.C. [In Chambers]) at para 222;
• the applicant must make efforts to save money, borrow money, obtain employment/additional employment and utilize any assets the applicant has. R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167(B.C. S.C. [In Chambers]) at para 222;
• the applicant must be prudent with his/expenses. R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167(B.C. S.C. [In Chambers]) at para 222;
• the applicant must show some attempt to plan his/her financial affairs to enable him/her to retain counsel. R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167(B.C. S.C. [In Chambers]) at para 222;
• the applicant must exhaust all reasonable efforts to make enquiries to find counsel to represent him/her. See R. v. Drury, 2000 MBCA 100, [2000] M.J. No. 457 (Man. C.A.) at para 48 and R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167(B.C. S.C. [In Chambers]) at para 222;
• whether the applicant had been offered a reasonable contribution agreement by LAO. See Drury supra at paras 59-63 and Martell supra;
• the law does not require that the applicant become destitute but that the applicant have a financial plan from the time of his/her arrest to plan for the cost of defending the charges. See Drury supra at para 58 and 65;
• the law requires some willingness to sacrifice on the part of the applicant. See Drury supra at para 58;
• if the applicant is not in a position to financially retain counsel, but this has been due to his/her voluntary choices, priorities and lack of foresight and planning, it is not an appropriate case to grant a Rowbotham order. See R. v. Nightingale, [2001] B.C.J. No. 2610(B.C. S.C. [In Chambers]) at para 9. In R. v. Pearen, [1998] O.J. No. 4119 (Ont. Prov. Div.) at para 19 Justice Nordheimer put it another way:
There is a limit to the government's resources to fund legal representation. Those funds ought not to be directed towards persons who simply choose to organize their affairs so that their ability to obtain counsel may be compromised. See R. v. Goba (2007), File No. 070/07 at para 7.
[13] The Applicant has provided limited documentation in support of her claim of impecuniosity. The monthly expenses are estimates, without documentation. The debts listed do not indicate what payments have been made, whether there are payment arrangements, or whether those debts have been written off by the creditor.
[14] Further, in the list of monthly expenses, the Applicant indicates $100 per month for medications. This would bring her yearly medication expense to $1200.00, yet she provided verification of prescription expenses to LAO totalling $404.00 annually.
[15] The Crown carefully reviewed the Applicant’s banking records for the period provided: March 1-29, 2018; April 1-30, 2018 and May 1-17, 2018. In each of these three banking periods there are substantial deposits to her account that are unrelated to her social assistance income. Further, in the same time periods, there is evidence of significant gambling expense.
[16] I agree with the assertion of the Crown: The Applicant has not made full and complete disclosure of her financial circumstances. It is not sufficient to simply state, “I have not been able to hire a lawyer because I cannot afford one” without providing complete, detailed and accurate financial information as to her income and expenses.
[17] There is no evidence that the Applicant has turned her mind to financial planning to accommodate the expense of hiring legal counsel. The law requires some willingness to sacrifice on the part of the Applicant. There is no evidence of this, particularly as the Applicant attests monthly expenses of $500.00 for cigarettes.
[18] There is insufficient evidence before the court to conclude that the Applicant lacks sufficient resources to retain counsel.
[19] The trial the Applicant faces is to be heard judge alone. As the court state in R. v. Breton, 2018 ONCA 753, at paras. 13-15:
13 It is well settled that where an accused is self-represented at trial, the presiding judge has a duty to ensure that the accused has a fair trial. To fulfill that duty, the trial judge must provide guidance to the accused to the extent that the circumstances of the case and those of the particular accused may require it. Within reason and without becoming counsel for the accused, trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him, as the trial unfolds, in such a way that the defence is brought out with its full force and effect: R. v. Richards, 2017 ONCA 424 (Ont. C.A.), at para. 110.
14 No one gainsays that the onus on a trial judge to assist a self-represented accused is a heavy one. It is not enough that the verdict at the end of the trial is or appears correct. What matters is whether the trial has been fair for the self-represented accused: R. v. Tran (2001), 2001 CanLII 5555 (ON CA), 156 C.C.C. (3d) 1 (Ont. C.A.), at para. 22.
15 The onus on a trial judge to assist a self-represented accused extends to an obligation to raise Charter issues on the judge's own motion, at the very least where there is admissible uncontradicted evidence of a relevant Charter breach. In those circumstances, the trial judge has an obligation to raise the issue; to invite submissions; and to enter into an inquiry into the infringement and its consequences: R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.), at p. 372; Richards, at para. 113. This onus remained despite the failure of prior counsel to advance this claim of Charter infringement as a discrete pre-trial application.
[20] The presiding judge will be mindful of the fact that the Applicant is self-represented, and will ensure that the trial proceeds in the fairest of manners and that the Crown is held to the strictest of burdens.
[21] The Applicant has failed to satisfy the court that her right to a fair trial will be compromised without counsel.
[22] The Application is dismissed.
“Justice K.A. Gorman”
K.A. GORMAN
Released: December 12, 2019
COURT FILE NO.: 2/19
DATE: 20191212
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Patricia South
REASONS FOR JUDGMENT
Justice K.A. Gorman
Released: December 12, 2019