Court File and Parties

Court File No.: CR 22-0516 Date: 2024/05/31 Ontario Superior Court of Justice

Between: HIS MAJESTY THE KING, Respondent – and – Mark Savelli, Applicant

Counsel: Byron Taylor-Conboy, Counsel for the Respondent Charles O. Spettigue, Counsel for the Applicant

Heard: May 4, 2024

M.J. Valente J.

Preliminary ruling on Rowbotham application

Background to the Application

[1] On January 4, 2020, the Applicant was charged with aggravated assault. The alleged incident involved the Applicant’s former roommate.

[2] The Applicant has elected to be tried by judge and jury.

[3] At a judicial pretrial on May 1, 2024, Goodman J. approved seven to ten days for trial and five days for pretrial applications. The pretrial applications include challenges with respect to sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”), the voluntariness of the Applicant’s statement to police, the admissibility of post offence conduct and matters involving solicitor client privilege.

[4] The Crown disclosure is over sixty pages, and the Crown intends to call some five to seven witnesses, including a DNA expert. The Crown also intends to lead video-taped evidence, crime scene photos and medical evidence.

[5] If the Applicant is convicted, the Crown will be seeking a period of incarceration.

[6] The Applicant applies for state-funding of the cost of his defence based on the scale of the Legal Aid Ontario (‘LAO’) tariff pursuant to sections 7 and 11(d) of the Charter and the decision of the Court of Appeal in R v. Rowbotham (1988), (‘Rowbotham’).

[7] The decision in Rowbotham was considered by the Court of Appeal in its subsequent decision in R v. Rushlow, 2009 ONCA 461 (‘Rushlow’). In Rushlow, Rosenberg J.A. stated at para 19:

Because of the pervasiveness of legal aid, it will be the rare and exceptional case that the court will find it necessary to appoint counsel. This does not mean that counsel is only required in exceptional cases. Rather, it is the fact that legal aid is available for accused who cannot afford a lawyer that Rowbotham orders are exceptional.

The Test

[8] It has long been established that a court’s determination of whether to appoint publicly funded counsel is dependent upon the applicant establishing on the balance of probabilities that:

(1) his/her right to a fair trial will be materially compromised absent public funding for counsel;

(2) he/she is ineligible for or has been refused legal aid and has exhausted all appeals for reconsideration of his/her eligibility; and

(3) he/she is indigent and has no means to retain counsel otherwise (see: R v. J.S., 2020 ONSC 8112 (‘J.S.’)

The Evidence

[9] For the Applicant, the evidence consists of his affidavit, sworn May 1, 2024, and that of his counsel’s administrative assistant, Amber Boyle, sworn April 30, 2024, which includes the Applicant’s bank statements from February 2020 to and including March 2024. The Applicant was cross examined by Respondent’s counsel on the substance of those materials during the course of the Rowbotham hearing.

[10] For the Respondent, the evidence consists of a responding record, containing correspondence between counsel, correspondence between the Applicant and LAO and various Applicant bank statements.

[11] The Applicant testified in an articulate and forthright manner. I have no reason to question his credibility with respect to the issues canvassed on cross examination. Although the Applicant was unable to recall the details of several withdrawals and transfers from his bank account, I make no negative inferences from his lack of recollection given the date of the transactions and the entirety of his testimony.

[12] The Applicant is currently 30 years of age and single. He graduated from grade 12 but pursued no other formal education. He has no legal training and states that he is unable to represent himself on the pending pretrial applications and at trial.

[13] The Applicant’s parents are deceased. He has a half sister but interacts infrequently with her. The Applicant’s grandfather, Angel Savelli, with whom he lived until his grandfather moved to a long-term care facility, is his surety. The Applicant now lives in the basement of a friend’s home.

[14] As at May 4, 2024, the Applicant was not employed and was in receipt of Ontario Works monthly benefits in the amount of $733. In the past he was employed in call centres and in general labour type jobs. From 2017 to in or about 2019, the Applicant was employed at a Hamilton foundry as a welder until he experienced a work-related injury to his hand for which he received a modest compensation payment.

[15] The Applicant’s evidence is that he has sought employment during the last 3 years following his injury and secured employment with the Hamilton Wentworth District School Board as a casual assistant caretaker in October 2023, but his start date has been delayed pending a resolution of the offence for which he has been charged. Not surprisingly, the school board’s offer is conditional in part on a satisfactory police check. The Applicant also testified that he is currently registered with a temporary employment agency and through that agency received a provisional offer of employment as recently as March 2024 but was not offered permanent employment after a probationary period.

[16] In or about January 2020, the Applicant applied for legal aid and was issued a certificate for his defence of the pending charge. In response to a February 8, 2023 request from LAO that the Applicant complete a financial reassessment, he disclosed that on February 28, 2023 he received an inheritance from his grandmother’s estate in the amount of $18,846.72. The inheritance proceeds were in fact received by the Applicant on February 27, 2023, and caused LAO to cancel the Applicant’s legal aid certificate.

[17] In its notice of cancellation to the Applicant, dated February 28, 2023, LAO advised the reason for the cancellation of the certificate and confirmed that its decision was eligible for review.

[18] The Applicant’s LAO file includes an asset chart that outlines LAO’s financial criteria for certificates. The chart provides that for a family size of one, as in the case of the Applicant, the legal aid applicant may acquire assets with a maximum value of $3,007 and otherwise the Applicant is ineligible for a certificate. Given the Applicant’s inheritance, he exceeded the LAO asset value criteria by some six times.

[19] Notwithstanding the Applicant’s right to request a review of the cancellation of his certificate, he confirmed on cross examination that he chose not to do so.

[20] Apart from his Ontario Works monthly benefit, the Applicant has no other source of income. He does not own any real estate, motor vehicles or other assets. As of March 21, 2024, the Applicant’s bank account was in a debit position of $9.00.

[21] The Applicant’s monthly expenditures include $650 paid to his friend for room and board but they also include much discretionary spending on such items as alcohol, cannabis, online games and streaming subscriptions (collectively, “Discretionary Spending”).

[22] As for the Applicant’s inheritance of nearly $19,000, all of the money was spent by July 2023. The Applicant’s evidence is that the inheritance monies were spent to buy a computer at a cost of $1922.31 from Starspark Computers to assist with his job search and hobby of editing music videos. An invoice from the named computer supplier confirms this expenditure. The Applicant also testified that he spent between $3000 and $4000 on the purchase of classic collector T-shirts that have a current estimated resale value of $2,500. The applicant explained that the balance of the funds was spent on the repayment of pay day type loans in the range of $400 to $500 and smaller loans to friends as well as to support himself and his Discretionary Spending. Although the Applicant produced copies of demands for payment from collection entities, the record contains no evidence of the loans advanced to the Applicant by his friends.

[23] The Applicant further testified that given his current means, he is unable to borrow from any institution the necessary funds to privately retain defence counsel. It is also his evidence that he has no family or friends who have the ability and are willing to lend him the required money to retain counsel. Other than his grandfather and half sister, his only relatives are his uncles Michael Savelli and Jason Savelli. The Applicant stated that Michael Savelli “went missing for a while” and is currently in “a home”. While Jason Savelli did provide financial support in the past, in or about January 2023, he advised the Applicant that he would no longer help him financially. The record contains no evidence from any of the Applicant’s family members confirming their position with respect to advancing the necessary funds for a defence retainer.

[24] Finally, although not in evidence, it is the submission of Applicant’s counsel that given the matters at issue and the anticipated length of pretrial and trial proceedings, a reasonable estimate of defence counsel’s fees based on the LAO tariff is in the range of $25,000 to $30,000. In my opinion this fee estimate is realistic.

Position of the Parties

[25] The Applicant asserts that (i) he is unable to have a fair trial without legal representation; (ii) he has been refused legal aid and any appeal of the decision would have been futile; and (iii) he is indigent such that he is unable to privately retain a lawyer. He therefore submits that the Attorney General should be ordered to fund his defence.

[26] The Respondent submits that save and except the first branch of the test, the Applicant has failed to demonstrate on a balance of probabilities that he meets the second and third Rowbotham criteria.

Will the Applicant’s Right to a Fair Trial be Materially Compromised Without Legal Representation?

[27] What a fair trial requires in any particular case is contextual. The inquiry is fact-driven. The inquiry considers not only the length of the trial, the volume of disclosure, and any factual or legal complexity (see: R v. Rain (1998), 1998 ABCA 315) but also the personal characteristics of the applicant including his education, employment history, verbal and intellectual skills and experience with the criminal justice process (see: R v. J.S., 2020 ONSC 8 (‘J.S’)),

[28] As Goodman J. states in J.S. at para 36:

A court should begin from the premise that the trial judge can, to the best of the judge’s ability, ensure a fair trial. This presumption will only be rebutted where the applicant demonstrates the complexity of the case, the applicant’s lack of competence or other circumstances are such that, despite the best efforts of the trial judge, the trial would be unfair without representation.

[29] The Crown has conceded in this case that representation for the Applicant is essential to a fair trial (see: R v. Tang [2011] O.J. No. 6694, at para. 94) and that this branch of the Rowbotham test has been satisfied.

[30] I come to the same conclusion based on the nature of the evidence that will be before the court at trial such as video-taped, crime scene and medical evidence, together with the likelihood of DNA expert testimony. The trial is anticipated to be seven to ten days long and is to be preceded by five days of motions to include sections 8 and 10(b) Charter challenges, the admissibility of the Applicant’s statement to police and post offence conduct evidence as well as matters relating to solicitor client privilege. In addition, the Crown disclosure is voluminous.

[31] As to the Applicant’s personal characteristics, although he appeared articulate and capable, in spite of the fact his formal education is limited to grade 12, he has no legal training and it is also unclear whether he has had any prior experience with the justice system. He has no prior criminal record.

[32] Finally, I note that the Applicant faces a serious charge for which the Crown will seek a period of incarceration as a term of any sentence.

[33] In my opinion, the Applicant clearly requires legal counsel to make full answer and defence and to ensure that all of his rights under the Charter are protected. I find that on the balance of probabilities the Applicant has shown that his right to a fair trial will be materially compromised without public funding for counsel.

Is the Applicant Ineligible for Legal Aid or Has He Been Refused Legal Aid and Exhausted All Appeals for Reconsideration of His Eligibility?

[34] The Applicant’s legal aid certificate was cancelled in February 2023, and he did not appeal its cancellation. The Applicant submits there is no obligation for him to have done so because it is plain and obvious that any such appeal would be denied given that based on the LAO’s financial criteria, he exceeded the asset value limit sixfold.

[35] The Applicant’s submission is founded in the Court of Appeal’s decision in R v. Fournier, 2006 ONCA 20526 (‘Fournier’) where at para. 9, the court stated:

…the procedure that ought to have been followed in the circumstances of this case is the one set out in R v. Rowbotham (1998), 41 c.c.c. (3d) p.1 (Ont. C.A.) and confirmed in R v. Peterman, 2004 ONCA 39041, [2004] O.J. 1758. These stand for the proposition that, in criminal matters such as the present case, before seeking relief from the court in the nature of a funding order the defendants must apply to the Legal Aid Plan for available funding or demonstrate that would be futile.

[36] The Applicant submits that in the specific circumstances of this case, any appeal of the decision to cancel his certificate would be “futile.”

[37] The Applicant also relies on the decision of the Court of Appeal in R v. Rushlow 2009 ONCA 461 (‘Rushlow’) and that of this court in R v. Conklin 2012 ONSC 5259 (‘Conklin’) in support of his position. He argues that in each of these cases the Applicant was found to have satisfied the legal aid funding branch of the Rowbotham test without having appealed the decision to deny legal aid funding.

[38] In my opinion the facts of this case are distinguishable from those in Rushlow and Conklin and the Applicant has misinterpreted the Court of Appeal’s statement in Fournier.

[39] In each of Rushlow and Conklin, the Applicant had appealed the initial legal aid refusal to the local area committee which confirmed the earlier decision but had not exercised his final right of appeal of the area committee’s decision to the provincial office. On those facts and because in each instance the applicant’s financial situation remained static, the Court of Appeal in Rushlow, and this court in Conklin, concluded that the applicant would likely not qualify for legal aid and that “the existence of this last faint appeal hope did not prevent the court from granting the requested relief.” (see: Conklin at para. 30).

[40] Based on my review of jurisprudence, in order to advance a request for state-funded counsel by means of a Rowbatham application, the applicant must apply for legal aid and must be subsequently refused, and in that instance, must advance an appeal of the rejection to the local area committee. If the appeal is denied a further appeal is required to the LAO provincial office with the ultimate determination of a denial of funding unless this final review would be ‘futile’.

[41] In my opinion this procedure is the proper interpretation of the principle stipulated in Fournier upon which the Applicant relies. As made very clear by Goodman J. in R v. Cayuga, 2024 ONSC 1889 (‘Cayuga’), the jurisprudence is replete with direction that the Applicant must demonstrate that he or she has followed the “well-established process for state funded counsel through Legal Aid and be denied on appeal and review, as one of three fundamental criteria prior to seeking a Rowbotham application” (at para. 23) subject to the futility exception of the final review by LAO’s provincial office where circumstances dictate. In addition to those decisions cited by Goodman J. in Cayuga at para. 23, I also refer to R v. Bancroft, 2019 ONSC 1931.

Is the Applicant Indigent and Has No Means to Retain Counsel Otherwise?

[42] To obtain a Rowbotham order, the Applicant’s financial circumstances must be more than merely difficult, they must be extraordinary (see: R v. Crichton, 2015 BCCA 138, at para. 49). The court must be satisfied that notwithstanding the applicant is unable to pay for or otherwise contribute to his defence (see: R v. Coutts, 2018 ONSC 974, at para. 25). The court must be satisfied that the applicant has done everything possible to place himself or herself in situation of being able to fund counsel but still cannot do so (see: R v. Mosowy, 2014 BCSC 2479). As Goodman J. held in J.S. at para. 29:

The law does not require perfection, but rather a degree of financial prudence. It requires some sacrifice on the applicant’s part, not destitution. Reasonable and sincere efforts to save, borrow and raise funds for counsel will suffice.

[43] The Applicant states in his affidavit and testified in cross examination that he has no family members who “could lend [him] money for a lawyer.” He also testified, however, that his uncle Jason Savelli had until January 2023 assisted him financially but since the cancellation of his legal aid certificate, he has not requested further assistance from his uncle.

[44] I am of the opinion that the Applicant is obliged to adduce more evidence with respect to his resources than merely his own viva voce evidence and an affidavit containing a bald assertion that he is unable to borrow funds from family members. In other words, the record is deficient in this respect.

Conclusion

[45] For the reasons expressed in this ruling, I find that because the Applicant has not appealed the cancellation of his legal aid certificate, the appropriate conditions precedent for this Rowbotham application are not in place and the application is premature. I also find that the evidentiary record is deficient with respect to the Applicant’s ability to borrow funds to finance a private defence retainer. Accordingly, for those reasons and because the first branch of the Rowbotham application is wholly satisfied, the application is adjourned to a date to be set this day to provide the Applicant with an opportunity to forthwith:

(1) request a review of the cancellation of his legal aid certificate and in the event that he is out of time to request a review, make a fresh application to Legal Aid and undertake any necessary appeal to the local area committee should his application be denied. Because time is very much of the essence given the pending pretrial applications that are set to proceed on September 27, 2024, for 5 days, an ultimate review by the provincial committee may not be necessary and will be determined based on the circumstances on the return of this application; and

(2) file affidavit testimony from the Applicant’s family members, including but not necessarily limited to Jason Savelli, with respect to their ability and willingness to privately fund a defence retainer on behalf of the Applicant by way of loan or gift.

[46] The Applicant is to file a supplemental record addressing the Legal Aid issue and including the supplemental affidavit testimony on or before five days before the return of this application.

M.J. Valente J.

Released: May 31, 2024