R v Sup, 2016 ABQB 110

Court of Queen ’ s Bench of Alberta Citation: R v Sup, 2016 ABQB 110 Date: 20160222 Docket: 140936972S1 Registry: Edmonton Between: Her Majesty the Queen Appellant - and - Daniel Joseph Sup Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice K.D. Nixon _______________________________________________________

Appeal from the Judgment by The Honourable Judge J.K. Wheatley Dated the 24 th day of February, 2015 [ 1 ] This Memorandum of Decision follows my oral reasons for decision delivered on November 25, 2015. As this decision was delivered orally, this Court reserved the right to make any changes to this final form of the Decision. Any changes do not affect the substance of the Judgment. Introduction [ 2 ] This is an appeal by the Crown from the decision of a Provincial Court judge to issue a Rowbotham order and conditionally stay charges against the Accused, Mr.

Sup, should counsel not be appointed within seven days. [ 3 ] Mr. Sup was facing eleven charges including mischief, failure to appear, uttering death threats, breach of conditions of his recognizance and criminal harassment. As counsel was not appointed within the seven days, Mr.

Sup was released and all charges stayed. [ 4 ] The Crown seeks to set aside the judge’s Rowbotham order and stay on the basis that he proceeded without jurisdiction because notice of a Rowbotham application was not provided to the Crown pursuant to the Constitutional Notice Regulation , Alta Reg 102/99 (the “ Regulation ”) and because the judge proceeded without evidence from the Accused or from the Crown. [ 5 ] The Crown takes no position on whether Mr. Sup might be entitled to a Rowbotham order.

Its objection to the order is purely procedural in that it argues the judge made his decision without jurisdiction to do so. [ 6 ] The order was granted on the judge’s own motion based on unsworn representations by Mr. Sup when he was in docket and having not yet spoken to bail. [ 7 ] The Defence submits that there was no requirement for notice under the Regulation because the judge proceeded on his own motion and because the Crown waived the notice period.

Further, in the Defence’s submission, the unsworn representations of the Accused were sufficient to meet the test for a Rowbotham order. [ 8 ] A Rowbotham order is a relief that can be sought under s. 24(2) of the Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B of the Canada Act 1982 (UK), c 11, ( the “ Charter ” ) .

The Regulation provides that if, in Provincial Court, an application is to be made to seek a remedy under s. 24(1) or s. 24(2) of the Charter , written notice of the application must be given to the Clerk of the Provincial Court and to the Office of the Prosecutor having carriage of the proceeding not less than fourteen days before the date on which the proceeding is scheduled to commence unless the Prosecutor agrees to a shorter period of time. [ 9 ] The reason for notice to both the Crown and to the Court for a Charter remedy was explained in the context of an application to exclude evidence under s. 24(2) in R. v.

Bourgeault , 2014 ABQB 654 . The purpose was stated as follows at para 45: [T]o allow the Crown to adequately prepare and to afford the court the opportunity to focus on the alleged breach while evidence is being heard and to give proper regard to all the circumstances in determining whether there has been a Charter breach [...]. [ 10 ] A Rowbotham order directs the Crown to provide state-funded counsel for an unrepresented accused who wishes counsel but cannot afford to pay one in circumstances where legal representation is essential to a fair trial.

The order is made where the accused’s rights under s. 7 and s. 11(

d) of the Charter will be violated if he or she is required to conduct his or her own trial. [ 11 ] Unlike other Charter applications, there is no breach that is alleged to have already occurred; rather, a Rowbotham order is given in contemplation of a future breach of an accused’s right to a fair trial in the event he were required to conduct his own trial without counsel.

The Court of Appeal in R v Rain , 1998 ABCA 315 , leave to appeal to SCC refused, 27041 (April 1, 1999) stated that a Rowbotham order may be granted when Legal Aid is denied and exceptional circumstances make it probable that the trial judge cannot discharge the duty to ensure a fair trial: at para 44. [ 12 ] The Alberta Court of Appeal articulated the test to be met for a Rowbotham order in R v Cai , 2002 ABCA 299 at para 12 , leave to appeal to SCC refused, 29598, 29796, 29904 (March 4, 2004) as follows: [W]hether there is a high degree of probability that the accused will not get a fair trial without court funding. [ 13 ] The Court of Appeal went on at to say at para 13 that: [W]here a prospective Charter breach is involved, the onus is on the applicant to prove that.

Given the conjecture involved, the accused must also provide evidence that there is a very real likelihood that the problems complained of will actually occur. [ 14 ] In this case, the Provincial Court judge inquired of the Accused whether he had counsel. The Accused replied that he had “spoken to CTLA for a Rowbotham ” and had been advised to speak to bail first because it could affect his “chances of a Rowbotham .”

[15] Mr. Sup indicated he wished to proceed with the bail application. He told the judge he had applied for Legal Aid, but hadbeen denied because of his income, that he had not had any income since he was in custody for the prior four weeks and that, unless hewere working, he did not have funds. [16] Duty counsel advised the judge he could speak to release if Mr. Sup was prepared to instruct him. The following exchangethen occurred between the Court and Crown counsel: THE COURT: Well, there are two alternatives here. He is in jeopardy. MS. SHARPE: Mm-hm. THE COURT: So I have two alternatives here.

I can appoint an amicus. I am [sic] conditionally stay [sic] the charges upon theappointment of an amicus to bring forward his application for bail and his for (INDISCERNIBLE) as a Rowbotham candidate or I canjust grant the Rowbotham application now having established that base. Correct or incorrect, counsel? MS. SHARPE: That is absolutely correct, Sir. THE COURT: He is granted Rowbotham coverage.

The charges are conditionally stayed if counsel is not appointed within sevendays of today’s date. [17] The Defence argues that because the Rowbotham order was made on the Court’s own motion, no notice to the Crown wasrequired. I disagree. The Regulation mandates notice to the office of the prosecutor. Whether the issue was raised by an accused or theCourt does not change that. [18] I agree with Judge Rosborough in R v Bull, 2010 ABPC 68 at para 40 that compliance with the Regulation is a “jurisdictionalcondition precedent” to the hearing of a s. 24 Charter application in the Provincial Court of Alberta.

I also agree with Judge Rosboroughthat the notice requirements in the Regulation, which are stated in mandatory terms, are like those in s. 24 of the Judicature Act, RSA2000, c J-2. [19] The Alberta Court of Appeal in S.E.M, RE (1988), 1988 ABCA 272 , 88 AR 346 (CA) held that the Court has nojurisdiction to proceed in the absence of notice under s. 25 (which is now 24) of the Judicature Act. [20] While s. 24 of the Judicature Act provides that an “enactment [...] shall not be held to be invalid unless 14 days’ written noticehas be given to the Attorney General of Canada and the Minister of Justice and Solicitor General of Alberta” whereas the Regulationprovides that “written notice of the application must be given” without stating the effect of non-compliance, I do not agree with theDefence that the requirement for notice in the Regulation is directory rather than mandatory. [21] A Rowbotham order is an exceptional remedy with a high onus on the applicant.

It requires careful consideration on a properevidentiary foundation. The reason notice with evidence and support documentation is important was articulated in R v Smart, 2014ABPC 175 at para 122 as follows: First, this may itself be sufficient to persuade the Crown to agree to direct Legal Aid to appoint counsel or alternatively to at least allowthe Crown to communicate its position.

Second, it helps everyone to focus on the relevant issues and third, if supporting documents aremissing, it will serve as a prompt to the applicant to retrieve those materials before the hearing. [22] Unlike the notice provision in s. 24 or the Judicature Act, however, the notice provision in the Regulation does permit ashorter period than the stated 14 days if the prosecutor consents. The Regulation does not provide for waiver of notice. [23] The Defence submits that the exchange between the Provincial Court judge and Crown counsel constituted a waiver of noticeor consent to a shorter notice period.

I do not agree. Even if the Crown could waive the notice, there is no indication from the Crown’scomment that she considered the notice period and was agreeing to waive or to shorten it in saying “absolutely correct, Sir.” Nor can it beinferred, as the Defence argued, that the Crown consented to a shortened notice period or waived it because the Crown counsel did notask for an adjournment. [24] The Regulation mandates 14 days’ notice unless the Crown agrees to less time. The judge gave the Crown no time to considerthe Rowbotham application.

Crown counsel’s failure to ask for time was not a waiver of the notice mandated by the Regulation or anagreement to shorten it. [25] I do not agree with the Defence that the unsworn submissions of Mr. Sup were sufficient for granting a Rowbotham order andconditional stay. Unsworn submissions can be, and have been, accepted in other contexts but, as pointed out by the Crown, a Rowbothamorder, which is a judicial stay until counsel is provided, is an extraordinary remedy.

This was underscored by the Alberta Court ofAppeal in Cai where the Court, in overturning a trial judge’s stay of charges on the failure of the Crown to fund counsel, described a stayof prosecution as “…the bluntest remedy, to be sparingly used in the clearest of cases”: at para 94. [26] The reason for notice is to ensure proper evidence is before the Court. Mr. Sup’s submissions were not only unsworn theywere untested by cross-examination and unsupported by documentation. [27] In Smart, the Court described three basic requirements for a Rowbotham order at para 19: (

a) the Accused must have sought the assistance of Legal Aid and been rejected, having exhausted any avenues of appeal, (

b) the Accused must be indigent, and (

c) the charges must be sufficiently serious and complex to warrant judicial action.

[ 28 ] The type of evidence that may be helpful in a Rowbotham application was described by the Alberta Court of Appeal in R v Rain 1994 ABCA 373 , 157 AR 385 and includes the accused’s financial circumstances, his or her educational background, and what he or she knows of the charges, among other considerations. [ 29 ] There was no information whether Mr. Sup had exhausted his appeals from the Legal Aid rejection. There was little before the judge upon which to make a conclusion that Mr.

Sup was indigent. [ 30 ] The type of information required to make the determination whether an accused is indigent is set out in R v Malik , 2003 BCSC 1439 including an accused’s efforts to raise funds for legal fees, among other considerations. There was no information about Mr. Sup’s assets or liabilities, about his savings or ability to borrow funds or how much a lawyer may cost to defend him at trial. There was no information before the judge about Mr.

Sup’s knowledge of the charges or his ability to defend himself such as his education or his understanding of the charges in order to determine whether the test – that it was probable the trial judge could not discharge the duty to ensure a fair trial without counsel for the accused – was met. [ 31 ] There was, in short, no proper evidentiary basis upon which to conclude that Mr.

Sup met the test for this extraordinary remedy. [ 32 ] The importance of the facts necessary to found a Rowbotham order can be seen in Rain (1994) where the Court of Appeal, in setting aside the order, noted at para 29: We have hardly a whisper of facts from the accused and not one iota from the Crown.

That is doubtless because the Crown had no notice of this application; it was conceived by the Provincial Court Judge on his own motion and without any notice by the Crown, so far as we can see. [ 33 ] The Court of Appeal emphasized at para 31 “the unfairness, the futility and the near impossibility of deciding Charter issues without evidence.” It went on to say at paras 31 and 32 that “[t]rying to fashion Charter remedies for supposed Charter breaches without any evidence is still worse,” and “still worse where it is proposed to spend public funds.” [ 34 ] The Court of Appeal returned the matter to Provincial Court with the direction that, should the accused wish a lawyer provided, “[...] she should apply on due notice with proper evidence.” [ 35 ] At most, the information before the Provincial Court judge – unsworn, unsupported by documentation, and untested by cross- examination – raised the question whether Mr.

Sup might be eligible for a Rowbotham order. It did not, however, form a basis to answer that question. [ 36 ] The judge here acted in a similar fashion to the judge in Rain. Like the judge in Rain , he acted in error and without jurisdiction in proceeding as he did.

In the result, the order must be set aside and the stay vacated. [ 37 ] In concluding, I wish to address the Defence’s argument that imposing on the Provincial Court the same level of formality as in Court of Queen’s Bench would be “dangerous” or “...would unnecessarily and inappropriately encumber an already taxed court of first instance, without any meaningful gain in fairness.” I cannot agree.

I find myself in agreement with the Crown that informality in the Provincial Court cannot govern a judicial stay, a remedy described by our Court of Appeal in Cai at para 94 and R v Dias , 2010 ABCA 382 at para 32 as “the bluntest and rarest remedy” “to be sparingly used in the clearest of cases.” [ 38 ] Should an accused wish to apply for state-funded counsel, he or she may make the appropriate application on notice and the application scheduled when the appropriate time can be set aside to properly hear the matter. [ 39 ] In the result, the appeal is granted, the order is set aside and the stay vacated.

Delivered orally on the 25 th day of November, 2015. Dated at the City of Calgary, Alberta this 22 nd day of February, 2016. K.D. Nixon J.C.Q.B.A. Appearances:

Fiona Vance for the Appellant Steve Smith for the Respondent