ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
TEKLE OGBAMICHAEL
Jack Douketis, for the Attorney General of Ontario
Kristen Dulysh, for Mr. Ogbamichael
HEARD: March 9, 2026
REASONS FOR JUDGMENT ON FISHER/PETERMAN APPLICATION
R.F. GOLDSTEIN J.
1On March 16, 2026, at the end of oral submissions, I granted Tekele Ogbamichael’s “Fisher” application, with reasons to follow. What follows are my reasons (although this application was decided in March 2026, I will use past and present tense where the context seems appropriate).
2On January 8, 2025, I found Mr. Ogbamichael guilty of one count of assault and four counts of sexual assault: R. v. Ogbamichael, 2025 ONSC 566. The convictions related to four incidents of sexual touching of young women on public transit in December 2022 and January 2023. The assault conviction related to an incident where I found Mr. Ogbamichael not guilty of sexual assault but guilty of simple assault. Mr. Ogbamichael was arrested on February 6, 2023. After the convictions the Crown brought an application for an assessment pursuant to s. 752.1 of the Criminal Code. The defence did not contest the application. Dr. Arjay Prakash was designated as the assessor. He completed an assessment report on October 3, 2025.
3Defence counsel, Ms. Dulysh, retained a defence expert, Dr. Mark Pearce, to review Dr. Prakash’s report. Dr. Pearce, like Dr. Prakash, is a forensic psychiatrist. Mr. Ogbamichael had been in custody since his arrest on February 6, 2023. He had no means to privately retain a forensic psychiatrist. Ms. Dulysh sought and received Legal Aid approval to retain Dr. Pearce. He conducted a review of Dr. Prakash’s report at a Legal Aid rate of $200 per hour. That review was completed in December of 2024.
4In January 2025, Ms. Dulysh contacted Dr. Pearce in order to retain him to do a separate assessment of Mr. Ogbamichael. Dr. Pearce advised Ms. Dulysh that he was extremely busy at that time. He had other work that would pay him more. As a result, he was unwilling to undertake an assessment for Legal Aid rates. The Legal Aid rate for psychiatrists of $200 per hour has not changed since 2011. He indicated that he would require $400 per hour to conduct the assessment. Ms. Dulysh sought the enhanced rate from Legal Aid. Legal Aid refused.
5As a result, Ms. Dulysh brought a “Fisher” application. A “Fisher” application is one where a specific counsel (as required by the accused) is funded by the state and receives an enhanced rate of compensation: R. v. Fisher, [1997] S.J. No. 530, 1997 CarswellSask 821 (Q.B.). The authority to make the order arises from the court’s inherent jurisdiction to ensure that an accused person receives a fair trial: R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1, 63 C.R. (3d) 113, [1988] O.J. No. 271, 1988 CarswellOnt 58 (Ont.C.A.) at para. 197; R. v. Peterman (2004), 2004 CanLII 39041 (ON CA), 70 O.R. (3d) 481, [2004] O.J. 1758 (Ont.C.A.) at paras. 21-22. The principle is that the court has the inherent authority to stay proceedings where the continuation of the prosecution would result in an unfair trial – as an unfair trial would be an abuse of the court’s process. The court enters a “conditional stay”. In practice, this means that a “Rowbotham” order or “Peterman” order (or its derivative, a “Fisher” order) gives the government the choice to either fund counsel (or, in this case, an expert) or end the prosecution.
6Ms. Dulysh argued that this Court should order that the state pay Dr. Pearce at the enhanced rate of $400 per hour.
7The Attorney General opposed the application. Mr. Douketis, for the Attorney General, argued that Mr. Ogbamichael’s application did not meet the requirements for a conditional stay. His position was that the Mr. Ogbamichael had not:
Exhausted all Legal Aid reconsideration mechanisms;
Made any attempts to obtain another expert at Legal Aid rates;
Demonstrated that his fair trial rights will be jeopardized without state funding;
Demonstrated that this proceeding is sufficiently unique to warrant rates above the regular Legal Aid rates; and
Demonstrated that the psychiatric assessment must be done by the expert of his choice, specifically psychiatrist Dr. Pearce.
8A Fisher application, as we have seen, is one where a specific counsel is required at a specific rate. A Rowbotham, or Peterman application is one where an accused person is not covered by a provincial legal aid plan but nonetheless cannot receive a fair trial unless they are represented by counsel (I will refer to this application as a Fisher/Peterman application: R. v. Dieckman, 2012 ONSC 6779, 2012 CarswellOnt).
9The points made by Mr. Douketis had merit, but I found myself in respectful disagreement.
10In R. v. Dieckman at para. 33, Durno J. noted that the applicant must establish the following on a balance of probabilities:
They have applied for legal aid funding and exhausted all avenues of appeal within legal aid or demonstrated that an application would be futile.
Under the first Peterman exception where they have been denied legal aid funding: that their case involves a unique situation and he or she can only obtain a fair trial if represented by a particular lawyer. The applicant would also be required to establish why fees in excess of the legal aid tariff were justified in all the circumstances.
Under the first Peterman exception where they have been granted legal aid funding: that their case involves a unique situation and that he or she can only obtain a fair trial if represented by a particular lawyer. The applicant would also have to establish why that counsel cannot be retained under the legal aid plan and why fees in excess of the legal aid tariff are justified in all the circumstances.
Under the second Peterman exception where legal aid coverage has been granted: that they cannot find competent counsel to represent him or her on the conditions imposed by legal aid, that a specific counsel will act at rates above those paid by legal aid and why rates in excess of the legal aid tariff are justified in all the circumstances.
That they do not have funds with which to pay counsel and have exhausted all means other than legal aid to obtain a private retainer.
11I accept that a Rowbotham order is exceedingly rare. I also agree that the hearing is not a judicial review of Legal Aid’s actions but rather a determination of whether the accused person can receive a fair trial: Peterman at paras. 22,29-30. It is true that Ms. Dulysh did not appeal the Legal Aid ruling; it is also true that no other expert was sought at Legal Aid rates. I also agree that the mere fact that funding was sought for a complex proceeding is not enough, on its own, to justify a Fisher order appointing a specific lawyer: R. v. C.R., 2014 ONSC 5005 at para. 35-36. However, when I apply the criteria set out in Dieckman, I find that the application meets the requirements, for the following reasons (the Peterman exception outlined in bullet 2 of para. 33 does not apply):
12The exhaustion of legal aid alternatives: In my view, the application would be futile. The Attorney General’s own material notes that Legal Aid has never funded a forensic psychiatrist beyond $200 per hour. Although no Legal Aid appeal was taken, it would have been futile to continue down a Legal Aid avenue because it would almost certainly have resulted in a further adjournment of the hearing. As I will explain, it would have been unfair, at that point, to delay Mr. Ogbamichael’s hearing further.
13This was a unique situation where the higher fees were justified (first Peterman exception): Dr. Pearce had already done work for Mr. Ogbamichael. He would have been “up to speed” on doing an assessment. He was already familiar with Dr. Prakash’s opinion and work. Finding a new expert would only have duplicated the process. While this could have been done, again, it likely would have required adjourning the hearing.
14Another expert cannot be found and higher fees are justified (second Peterman exception): Again, finding another expert would be duplicative. Moreover, finding another expert would, again, have resulted in the adjournment of the hearing.
15Lack of means: I was satisfied, based on the fact that Mr. Ogbamichael had been in custody for three years, as well as his general circumstances, that he did not have funds.
16My primary reason for granting the order was that it would undoubtedly would have delayed the hearing. That is based on my understanding of the evidence as well as my experience as a judge sitting on criminal matters in the Superior Court in Toronto. Under the circumstances, with Mr. Ogbamichael in custody for over three years, it would have been unfair to delay this hearing any further. I mean no criticism of Mr. Douketis, but all the actions suggested by the Attorney General would have had that result. There was no suggestion that the defence failed to take timely and reasonable steps to obtain Dr. Pearce’s review of Dr. Prakash’s report, as well has his scoring materials. Rescheduling the hearing might have added months, given the schedules of counsel and the court, before the hearing could be accommodated again. As it was, due to Ms. Dulysh’s schedule – and as with Mr. Douketis I mean no criticism when I say this – the evidentiary portion of the hearing finished in March, and submissions could not be scheduled until June. Moreover, the defence position was that Mr. Ogbamichael was either in or soon would be in a time-served position. While I did not necessarily agree (I had yet to hear the full argument), it was certainly not an unreasonable or frivolous position to take.
17Mr. Douketis points out that no case has been cited where a Rowbotham order has been granted to pay expert witnesses. The one Provincial Court case cited from British Columbia dealt with the question of whether that statutory court could order the payment of costs under s. 809 of the Ciminal Code: R. v. Suggitt, 2002 BCPC 290, [2002] BCJ No. 1733..
18In R. v. S.(B.L.)., 2003 CanLII 64241 (ON SC), 2003 CarswellOnt 2155, 107 C.R.R. (2d) 165 (Sup.Ct.), the accused was charged with various sexual offences. He retained counsel privately and had no funds left over for the retainer of expert witnesses. Ms. Dulysh relies on the following statement at para. 8 of that case:
In my opinion, this application amounts to nothing more than a "variation on the theme" of a standard "Fisher" application. I see no practical difference between the appointment of counsel and the appointment of expert witnesses.
19It is true that McIsaac J. ultimately dismissed the application because the accused had not exhausted his funding avenues under Legal Aid. He was the author of his own misfortune because he had decided to use his resources to privately fund counsel. Mr. Douketis argued that Mr. Ogbamichael is in the same position.
20Respectfully, I again found that I could not agree. Like McIsaac J., I see no principled reason why an expert witness should be treated differently from counsel where a Rowbotham or Fisher application is concerned. The real question on a Rowbotham application is ultimately about whether an accused person can receive a fair trial. The right to counsel is predicated on the “fair treatment of an accused in the criminal process”: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151 at para. 36. See also: R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914 at para. 30. In my view, the fair treatment of Mr. Ogbamichael in the criminal process required granting of the application. Fair treatment included, in this case, having a properly qualified expert who could – crucially – do the work in a timely manner.
21That was enough to find that it was appropriate to grant the application.
22I feel compelled to make another point about the fairness of this proceeding. Realistically, as a judge sitting in downtown Toronto, in proximity to large law firms and major hospitals, I don’t need expert evidence to find that $200 per hour – a rate unchanged in 15 years – is unrealistic and unworkable for highly skilled and educated forensic psychiatrists. To become a forensic psychiatrist requires first becoming a qualified physician, a process that takes four years of medical school, typically after four years of undergraduate study. According to the University of Toronto Medical School, a residency in psychiatry requires five years of training.1 That will only qualify a person to enroll in the forensic psychiatric sub-specialty. That sub-specialty takes a further year of training, according to the Royal College of Physicians and Surgeons of Canada.2 In other words, a forensic psychiatrist has something like 14 years of higher education and training – far more than any lawyer. Forensic psychiatrists are among the most highly trained and educated professionals in our country. I recognize that there are many competing demands on the government purse and that judges manifestly ought not to be making decisions that set the public budget. That said, responsible authorities should consider whether a rate unchanged in 15 years (15 years in which there has been a global pandemic and significant inflation) is appropriate compensation for these highly trained professionals. I am aware from my experience as a judge sitting on criminal trials that some psychiatrists have refused to accept the current Legal Aid rate.
23Properly qualified medical professionals are indispensable to the functioning of the criminal justice system. Under s. 752.1 of the Criminal Code a person subject to an assessment for the purpose of a dangerous offender or long-term offender application must be remanded to “the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence…” See also: R. v. Boutilier, 2017 SCC 64 at paras. 39 and 93. Forensic psychiatrists are critical for the purpose of determining whether an offender is not criminal responsible under s. 16 of the Criminal Code. And clearly psychiatric evidence is critical for Ontario Review Board hearings. These are all procedures where the safety and security of the public is potentially at risk.
24There is another fairness issue to consider. According to Ms. Dulysh’s factum Dr. Pearce was aware of a junior colleague who had been funded by Legal Aid at the rate of $400 per hour. The affidavit of James King, a lawyer manager at Legal Aid Ontario, stated that a search of the legal aid accounting and disbursement system could find no record of any forensic psychiatrist being paid $400 per hour by Legal Aid. The only approved amount is $200 per hour. Under the circumstances, I think it is likely that Dr. Pearce was misinformed.
25Ms. Dulysh’s factum, however, also stated that the Crown rate for forensic psychiatrists on dangerous offender assessments is $450 per hour and the hours are unlimited. Unlike the $400 per hour Legal Aid assertion, the Crown did not dispute that amount although it could easily have done so. As a result, I infer that the assertion in Ms. Dulysh’s factum is correct.
26There is nothing inherently wrong or unusual with the state having more resources than an accused person. One could argue that the whole point of the rights accorded to an accused person in a criminal proceeding is to try and balance that advantage in order to ensure a fair trial. That said, it may be that there are cases where the Crown is able to secure the services of a forensic psychiatrist, and due to the differential rates paid by Legal Aid, the defence is not. Again, it is not for a judge to set government budgets or priorities. That is for public officials, who have better information and are accountable through the mechanism of elections. It is, however, for the courts to determine whether trials are fair where the Crown can retain experts, but the defence cannot. Although that unfairness did not arise in this case, it may do so in others.
R.F. Goldstein J.
Released: July 20, 2026
CITATION: R. v. Ogbamichael, 2026 ONSC 4164
COURT FILE NO.: CR-23-70000573-0000
DATE: 20260720
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
TEKLE OGBAMICHAEL
REASONS FOR JUDGMENT ON FISHER/PETERMAN APPLICATION
R.F. Goldstein J.