The Applicant had been denied Legal Aid Funding for a charge of Theft Over $5000. All her appeals were exhausted and she could not afford to pay a lawyer herself. She brought an application to stay the charges until her defence could be publicly funded. The authority for such an application comes from a case called Rowbotham, where the court found that an accusedâ€™s rights to counsel and to a fair trial under the Charter of Rights and Freedoms can be compromised if they do not have access to a publicly funded lawyer.
To establish that the government should pay for their lawyer, an Applicant needs to prove that:
In this case, the first step was not contentious - the Applicant had not qualified for Legal Aid and had exhausted all appeals.
The judge also found that the second step of the test was satisfied. The Applicant demonstrated that she had insufficient funds to pay for a trial. The court accepted that she only made a few hundred dollars more than the upper limit on eligibility for Legal Aid funding.
In the third step, the judge considered the seriousness of the charge, which was eligible for a term of imprisonment if the Applicant was found guilty. The judge further considered the complexity of the matters to be dealt with at trial, including challenging evidence from the Crown prior to the trial. In the end, the judge granted a stay of proceedings so that the Applicant could get legal funding for the pre-trial motions regarding evidence. The rest of the trial was considered straightforward enough that the Applicant could represent herself with the limited assistance of the judge.
R. v. [REDACTED]
Her Majesty the Queen, Respondent, and
 O.J. No. 6176
2015 ONSC 5042
Court File No.: 53/15
Ontario Superior Court of Justice
Heard: July 31, 2015.
Judgment: August 10, 2015.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, s. 7, s. 11(d)
[REDACTED], Counsel for the Attorney General of Ontario.
[REDACTED], Counsel for the Applicant.
1 [REDACTED]:-- [REDACTED] is charged with Theft Over $5,000 alleged to have occurred between December 1, 2011 and February 1, 2014. [REDACTED] intends to have her trial in the Ontario Court of Justice. She applies for a stay of proceedings pursuant to ss. 7 and 11(d) of the Charter until such time as the Ministry of the Attorney General provides funding for her to retain legal counsel.
2 Counsel on behalf of the Attorney General opposes a stay.
3 The authority to make such an order stems from the Ontario Court of Appeal decision in R. v. Rowbotham  O.J. No. 271:
... a trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided.
4 It is well recognized that in order to obtain a "Rowbotham Order", an accused must establish:
1) that she is ineligible for, or has been refused, Legal Aid and has exhausted all available appeals;
2) that she is indigent and has no means to retain counsel otherwise; and,
3) that her right to a fair trial will be materially compromised if he is forced to proceed to trial unrepresented by counsel.
The applicant must establish all three conditions on a balance of probabilities. If any one of the conditions is not satisfied, the application will be dismissed. R. v. Williams  O.J. No. 5862 (S.C.J.) at paragraphs 5 and 6.
5 In this case counsel for the Attorney General conceded that the first branch of the test has been met.
6 Counsel for the Attorney General submits that the second branch of the test has not been met as there is only one indication in the material before the Court that [REDACTED] has explored the cost of retaining counsel to represent her at trial.
7 That material, indicating a retainer of $25,000 would be required for trial is clearly beyond [REDACTED]â€™s means, given the information provided regarding [REDACTED] income.
8 [REDACTED] has additionally approached [REDACTED]â€™s firm. While there is nothing in the Application record to indicate the cost of retaining [REDACTED] firm, I do note that [REDACTED] missed the financial "cut-off" for Legal Aid by a few hundred dollars. Counsel have indicated that the trial including the pre-trial motions is expected to take two full days.
9 I am satisfied that [REDACTED] has met the second branch of the test.
10 The allegation in support of the charge is that [REDACTED] used funds belonging to her mother for her own purposes. The evidence against her rests principally in bank records obtained by way of production orders and [REDACTED] own statement to police.
11 Counsel for [REDACTED] submits that the charge against [REDACTED], involving an allegation of a breach of trust, is a serious charge with the potential for lengthy prison term if [REDACTED] is found guilty.
12 Counsel submits that the case against [REDACTED] is sufficiently complex that to force her on without counsel would render the trial unfair. Counsel submits that the trial would be complex, in particular, with respect to a challenge to the validity of the production orders and the admissibility of [REDACTED]â€™s statement to police.
13 Counsel for the Attorney General concedes that the charge is serious one with a potential for serious consequences if the accused is found guilty. He concedes that [REDACTED] is a person of average intelligence with no prior experience representing herself in court and no particular familiarity with legal jargon. He submits however, that the case is not sufficiently complex that it is necessary that [REDACTED] be represented by counsel taking into account the trial judge's obligation to assist a self-represented accused.
14 In this he relies on the Alberta Court of Appeal decision in R. v. Rain  A.J. No. 1059 and the Ontario Court of Appeal decision in R. v. McGibbon  O.J. No. 1936. In Rain at paragraph 38 the court recognised that the duty of a trial judge to preserve the accused s right to a fair trial does not go as far as providing the same assistance as would be given by counsel.
15 Counsel for the Attorney General submits that the only complexity that may arise during the trial is if there is a challenge to the validity of the production orders. This would be confined, he submits, to an argument with respect to the grounds to issue the orders as there is no confidential informant involved and no issue as to privilege. He submits this is a straightforward matter well within the capacity of the trial judge to render assistance.
16 Counsel for the Attorney General further submits that a finding that an accused would be better served if represented by counsel does not translate into being essential for a fair trial. In this he relies on the decision of R. v. Tang  O.J. No. 6694 at paragraph 9, affirmed by the Ontario Court of Appeal at 2015 ONCA 470 where the accused did not meet the second branch of the Rowbotham test.
17 Both counsel made further written submissions, at my request with respect to the availability of a Rowbotham order for a limited retainer. Both submit that it is within the jurisdiction of the Court to make a Rowbotham order on a limited basis.
18 The Rowbotham decision itself recognized that the role of counsel could be circumscribed. In R. v. Edgars, 2010 BCPC 148 at paragraphs 33-39 the court specifically considered the availability of a Rowbotham order confined to pre-trial applications and concluded they were available. In R. v. Dew, 2009 MBCA 101 at paragraphs 32-37 and 96- 99 the Manitoba Court of Appeal recognized that in appropriate circumstances a Rowbotham order may be made in respect of a limited retainer although the test remains as to whether that accused can have a fair trial in its entirety.
19 The Ontario Court of Appeal in R. v. Rushlow  O.J. No. 2335 indicated at paragraph 24, in respect of the third branch of the test, that "It is enough that there is a probability of imprisonment and that the case is sufficiently complex that counsel is essential to ensure that the accused receives a fair trial."
20 In this case I am satisfied that [REDACTED] has met the test for the third branch of the test for the pre-trial motions in respect of the validity of the production orders, and the admissibility of the resulting evidence and in respect of the admissibility of her statement to police. I am satisfied on a balance of probabilities that these aspects of the trial are sufficiently complex that, even with the limited assistance a trial judge could provide, the trial would be unfair if [REDACTED] were not to have the assistance of counsel.
21 Apart from those evidentiary issues I am of the view that the remainder of the trial is not so complex that [REDACTED] is unable to have a fair trial if she represents herself. In coming to this conclusion I am mindful of [REDACTED]'s limited education.
22 In conclusion I am prepared to issue a stay of the charge against [REDACTED], pursuant to ss. 7 and 11(d) of the Charter until such time as the Ministry of the Attorney General provides funding for her to retain legal counsel for the pre-trial motions in respect of the validity of the production orders, and the admissibility of the resulting evidence and in respect of the admissibility of her statement to police.