Her Majesty the Queen - v. -, 2013 SKPC 72

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 072 Date: May 7, 2013 Information: 24440574, 24476379 Location: Tisdale _____________________________________________________________________________ Between: Her Majesty the Queen - and - Irene Squirrel Appearing: Ms. B. Rogers For the Crown Mr. R. Calder, Court Worker For the Applicant APPLICATION FOR COURT-APPOINTED COUNSEL B. MORGAN , J INTRODUCTION [ 1 ] Ms. Squirrel is charged under two Informations.

She faces one count of defrauding the Ministry of Social Services of monies in the approximate amount of $12,000.00, the condensed version of the Crown’s case being that she received social assistance benefits while she was working and/or being supported by another. That charge is indictable by law, and Ms. Squirrel makes application for court-appointed counsel, alleging that she cannot pay for a lawyer, that the imposition of a criminal record and potential jail sentence would cause her undue hardship, and that she is not able to represent herself on a complex matter. The other Information is a

summary charge of failing to attend Court. This application pertained to both Informations.

[2] I am satisfied that Ms. Squirrel has taken the preliminary steps necessary to bring this application to the Court, and despitethe fact that the fraud charge remains in Provincial Court without defence election, I am prepared to hear the application at this time. [3] The leading case in Saskatchewan respecting applications of this nature is R. v. Hopfner, (SKQB), 146Sask. R. 35, which poses two questions that I will address in turn: I. Is the applicant indigent? II. If so, is counsel necessary for there to be a fair trial? I. Is the applicant indigent? [4] Ms.

Squirrel swore that her income is based on two part-time jobs, between which she earns approximately $1,200.00 permonth net. The eligibility for a single person for Legal Aid is $985.00 per month net (see Exhibit P-2). Ms. Squirrel pays $250.00 permonth room and board for her and her nineteen year old daughter, but also claims to pay approximately $300.00 per month for groceries. She has two younger children who do not reside with her, and she claims to send money when she can to their father, with whom thosechildren apparently reside.

However, she was vague on the amount she sends, and how often, as she was vague on her expensesgenerally. [5] I have concerns as to the reliability of Ms. Squirrel’s evidence as to both her income-earning ability and her expenses. Twiceduring her examination-in-chief, and once during cross-examination, she swore that she had no criminal record. When then asked by theCrown whether she had been convicted in December of 2000 for driving while her blood alcohol level exceeded the permitted amount,she readily agreed that she had been, and that in fact she did have a criminal record.

It matters little whether she was being deliberatelydeceptive, or whether she was simply being casual in her testimony; in either case, her credibility and reliability are both damaged. Coupling this false testimony respecting her record with her casual attitude when disclosing her income and expenses, I am not satisfiedthat she is in fact unable to afford counsel. There is no evidence that she has made any efforts to hire counsel by making monthlypayments, or perhaps negotiating a reduced fee, as she is relying solely on her unsuccessful application for Legal Aid.

In my view, shehas failed in establishing that she cannot afford counsel, which ends the matter. However, I would equally decline to make an orderunder the second leg of the test, discussed below. II. If so, is counsel necessary for there to be a fair trial? [6] As explained in Hopfner, the nub of the issue here is that an appointment should only be made where it is necessary toensure the indigent applicant receives a fair trial and is able to make full answer and defence.

If every indigent person who applied wasto have court-appointed counsel, the courts would be supplanting the Legal Aid system put in place by the legislature and replacing itwith a court-created system, which would in my view be inappropriate. Hence, reference to the Hopfner case provides a non-exhaustivebut useful guide as to what factors to look at. [7] In looking at those factors, and in looking at all the circumstances of this case, I am not satisfied that the applicant requirescourt-appointed counsel, and for the reasons that follow, I dismiss the application with respect to both Informations.

I preface thesecomments by noting that I will apply these factors to the fraud charge, as that is the most serious charge that led to this application.

(1) What is the educational level of the accused, and apart from formal education, are there other reasons for which it can be said thatshe is competent to defend herself without counsel? [8] Ms. Squirrel has obtained her grade 12 education through the Adult Basic Education Program at Cumberland College, and

[ 8 ] Ms. Squirrel has obtained her grade 12 education through the Adult Basic Education Program at Cumberland College, and has no other formal training. I agree with the Crown that she is an articulate and intelligent woman, and that the fact that her formal education ended with grade 12 is not a determinative factor. I see no particular impediment to her representing herself on the fraud matter based on her education level and life experience level.

(2) Does the case appear to be complex in the sense of raising any question of fact or of law as to which an accused is likely to be at a significant disadvantage if she is unrepresented by counsel? [ 9 ] Although Ms. Rogers fairly concedes that fraud cases are always complex to a certain extent, there is nothing evident in this case that convinces me that the appointment of counsel is necessary for Ms. Squirrel to have a fair trial or to make full answer and defence. The essential allegation is that, as pointed out earlier, she was receiving funds when she was not entitled to do so.

Although there undoubtedly will be documentary evidence at trial, the nature of the alleged fraud is not factually complex. There are no apparent Charter issues. I cannot say Ms. Squirrel is likely to be at a significant disadvantage if she is unrepresented by counsel.

(3) Does the case appear to be one raising any question of fact or of law as to which without the benefit of counsel an accused is likely to find it difficult to marshall relevant evidence? [ 10 ] I cannot find that to be the case in this situation before me. The documentary evidence will be marshalled by the Crown as part of their obligation to prove the case beyond a reasonable doubt. There does not appear to be any complex factual or legal issues that will put the defence to a disadvantage in preparing for trial.

(4) Is the case one which may result in the imprisonment of the accused, in the event of conviction? [ 11 ] The Crown has fairly conceded that, in the event of a conviction, they would likely be seeking a conditional sentence order with, I have no doubt, a request for some kind of restitution for the amount in issue, just over $12,000.00. Although incarceration is a possibility, it is far from a certainty or even a likelihood.

CONCLUSION [ 12 ] Much of the applicant’s argument centred on the idea that, if she was convicted, she would have a criminal record, which would result in the loss of her job, and that a possible restitution award would have significant financial repercussions on her. That may well be the case, but there are two simple answers to that. The first is that such consequences would follow conviction whether or not she had counsel.

The second is that those consequences are not relevant on an application of this nature, which deals with ensuring that an indigent applicant has a fair trial, and can make full answer and defence. [ 13 ] I would note in closing that, at this point, the accused has not yet made an election as to mode of trial. I have dealt with the application at this stage because, were the application to be granted, it would be of assistance to the accused to have the benefit of counsel when electing mode of trial.

However, I am satisfied that there are no proceedings that will take place in Provincial Court, which might include a trial if the accused so elects, in which the appointment of counsel is necessary to ensure a fair trial and full answer and defence for the applicant. Depending on the proceedings as this case works its way through the courts, it may be that there will be a trial in Court of Queen’s Bench. In such a case, Ms. Squirrel could renew her application before a justice of that Court if she chose to. [ 14 ] In conclusion, I dismiss the application with respect to both Informations. B. Morgan, J