R. v. Baker (D.), 2012 MBCA 102

Citation: R. v. Baker (D.), 2012 MBCA 102 Date: 20121113 Docket: AR 12-30-07765 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Holly C. Beard BETWEEN: HER MAJESTY THE QUEEN ) J. R. Ritchot and ) N. Carnegie Appellant ) for the Appellant ) ) D. Baker ) on her own behalf- and - ) ) Appeal heard and ) Decision pronounced: ) October 25, 2012DEBBIE BAKER ) ) Written reasons: (Accused) Respondent ) November 13, 2012 BEARD J.A. I. THE ISSUE 1 The appeal was allowed following the hearing with reasons to follow.

These are the reasons. 2 The Crown has appealed the order of the motion judge that the Crown provide payment for the legal services of a lawyerfor the accused, Ms Baker, in her criminal proceedings, and that she provide to the Government of Manitoba, or its designate, a mortgageand charge on her home to secure repayment of any legal fees, together with the payment of interest and the costs of enforcement of theorder.

The appeal is pursuant to s. 676.1 of the Criminal Code (the Code), which states as follows: Appeal re costs 676.1 A party who is ordered to pay costs may, with leave of the court of appeal or a judge of the court of appeal, appeal the order orthe amount of costs ordered. 3 The order, commonly known as a Rowbotham order (R. v. Rowbotham et al. (1988), (ON CA), 25 O.A.C.321), is an order of “costs” that may be appealed by the Crown under s. 676.1. (See R.C. v.

Quebec (Attorney General); R. v.Beauchamps, 2002 SCC 52 at para. 14, [2002] 2 S.C.R. 762, and Rowbotham.) Leave to appeal the order was granted by Hamilton J.A.on August 7, 2012 (see R. v. Baker (D.), 2012 MBCA 76, 280 Man.R. (2d) 284) on the following questions (at para. 31): 1. Did the judge err in law in finding that the accused was entitled to an order for state-funded counsel without having firstapplied to Legal Aid Manitoba for publicly-funded counsel? 2. Did the judge err in law in finding that the accused (

i) had exhausted all reasonable possibilities to secure counsel, and (ii) wasindigent and unable to afford counsel? 3. Did the judge err in law in finding that the accused was unable to represent herself in a manner that was adequate to ensure afair trial? and 4. Did the judge err in ordering the Crown to enter into the Mortgage and Charge agreement with the accused?

4 Ms Baker remains unrepresented and has not filed any material on this appeal. She did, however, appear at the hearing and argue her position. 5 I am of the view that this matter can be resolved on the basis of the first ground of appeal, so these reasons will focus primarily on matters relevant to that ground. II. THE STANDARD OF REVIEW 6 The Crown has argued, and I agree, that the appeal involves only questions of law, being the application of the law to the undisputed facts of the case, and that the standard of review is that of correctness. ( See R. v.

Shepherd , 2009 SCC 35 at para. 20 , [2009] 2 S.C.R. 527 , R. v. Mabior (C.L.) , 2010 MBCA 93 at para. 37 , 258 Man.R. (2d) 166 , and R. v. McCaughan (C.J.) , 2009 MBCA 14 at para. 31 , 236 Man.R. (2d) 188 .) III. THE FACTS 7 Ms Baker is charged with theft over $5,000 and falsifying financial information with the intent to defraud her employer. She is not in custody. 8 Ms Baker was employed as the accounts manager and head of administration at the Beausejour Consumers Co-operative Ltd.

The Crown has alleged that she used that position to steal over $143,000 by way of 95 irregular transactions between May 22 and November 22, 2005. The gist of the allegation is that she stole the money and then prepared reconciliations in which the cash shortfalls were falsely entered as petroleum or grocery sales. 9 Ms Baker originally retained a lawyer, but he withdrew his services shortly before the preliminary inquiry. She elected to be tried by judge and jury and, following her preliminary inquiry on August 28, 2011, at which time she acted on her own behalf, she was committed to stand trial.

There followed a series of pre-trial conferences, during which Ms Baker advised the trial judge (who was also the motion judge in this matter) that she was attempting to retain a specific lawyer. She subsequently indicated that she could not pay his retainer, and she has apparently made no efforts to speak to or to retain any other lawyer. 10 In December 2011, Ms Baker filed the motion for state-funded counsel which is now before this court. In the accompanying affidavit, she disclosed that she was receiving an annual salary of $42,000 and that this exceeds Legal Aid’s published income eligibility guidelines.

The only evidence of any attempt to secure funding from Legal Aid is an email from Legal Aid confirming the maximum gross family income for a family of three, being $31,000. She has made no formal application for Legal Aid funding. IV. THE MOTION JUDGE’S DECISION AND SUBSEQUENT PROCEEDINGS 11 The motion judge correctly explained the exceptional nature of a Rowbotham order.

He recognized that Ms Baker had not made a formal application for Legal Aid funding, but, in oral reasons delivered on February 27, 2012, he stated as follows: The tariff for Legal Aid, on a full reimbursement basis for a family of three is $31,000. She does not qualify. Although counsel for the Crown raised a concern that she had not even made a formal application, given the publicized eligibility guidelines, I’m not prepared to hold the lack of a formal application against her.

Indeed, if the publicized Legal Aid eligibility requirements are to be respected, an application to Legal Aid would be a waste of time. 12 He found that Ms Baker was indigent: For the purpose of this application, I am prepared to conclude that she is indigent. I recognize that an income of $42,000 is far superior to the incomes of many people who find themselves facing serious charges.

She has not, however, struck me as one who’s attempted to shirk responsibilities, she has just completed a divorce proceeding, she is gainfully employed, granted she’s above the Legal Aid guideline -- Legal Aid tariff guideline, but it cannot be said that she is financially able to easily pay a lawyer. 13 He concluded that Ms Baker needed a lawyer to defend the charges against her. He then granted an order that the Crown pay for the services of a lawyer on the condition that Ms Baker enter into a “Mortgage and Charge” agreement, stating, in part: I am prepared to grant a Rowbotham order but only on terms.

Indigency in Ms. Baker’s case is attributable to her being cash poor.

I am prepared to grant a stay of proceedings but only on condition that she agrees to repay the amount advanced, plus interest, as here and after set forth and immediately provides to the Provincial Government or its funding agency a second charge on her house property to secure any advances for legal fees which the Crown or its designate makes, plus interest and enforcement costs. 14 On March 2, 2012, the Crown wrote to the motion judge and requested that the terms of the order regarding the mortgage be removed, stating that the order would be referred to Legal Aid for it to find competent counsel who would represent Ms Baker at the Legal Aid tariff.

The motion judge responded by letter, refusing to amend his order without further information as to why it could not be implemented and suggesting that the Crown make arrangements for an appointment to discuss the matter and, if possible, to have someone from Legal Aid present. 15 A further hearing was held on March 21, 2012, at which time the Crown indicated again that it was prepared to comply with the order to provide Ms Baker with court-appointed counsel, but did not want the mortgage on her property. That hearing was adjourned without any change to the order.

The Crown advised the motion judge, by letter dated April 2, 2012, that it was filing an application for

leave to appeal the order and for a stay of the order in the event that leave was granted, which application was filed on March 27, 2012. 16 The motion judge responded by further letter dated April 4, 2012, requiring that the Crown attend on April 13, 2012, so thathe could conclude “what he started,” being the terms of the order and the mortgage. He then stated: …. If you are not prepared to draft security documentation for my consideration, even if it is without prejudice to a right to appeal atsome point the notion of a Rowbotham order in this case, I will set the security arrangements myself.

Attached is a draft of a documentwhich I believe will suffice, although I am open to suggestions to improve it. 17 Ultimately the motion judge drafted and signed an order on April 16, 2012, enclosing a Mortgage and Charge that reflectedthe terms outlined in his reasons. Subsequent thereto, trial dates were set, subject to the availability of defence counsel. V.

THE POSITIONS OF THE PARTIES 18 The Crown’s position on the first ground of appeal is that it is settled law that an accused must apply for funding from LegalAid before making an application for state-funded counsel, which it said was confirmed by this court in R. v. Drury (L.W.) et al., 2000MBCA 100, 150 Man.R. (2d) 64.

It argues that the mere fact that Ms Baker was outside the guidelines did not necessarily preclude herfrom receiving assistance, nor did it obviate the legal requirement for her to apply for Legal Aid before applying to the court for state-funded counsel. 19 Ms Baker’s position is that, although she did not make a formal application for Legal Aid, she did have discussions withpeople from Legal Aid and was told that she did not qualify because her income exceeded the income guidelines. VI.

ANALYSIS AND CONCLUSION 20 The right to state-funded counsel is an aspect of the right to a fair trial as guaranteed by ss. 7 and 11(

d) of the CanadianCharter of Rights and Freedoms (the Charter). That right was explained by the Ontario Court of Appeal in Rowbotham as follows (atpara. 156): The right to retain counsel, constitutionally secured by s. 10(

b) of the Charter, and the right to have counsel provided at the expense ofthe state are not the same thing. The Charter does not in terms constitutionalize the right of an indigent accused to be provided withfunded counsel. At the advent of the Charter, legal aid systems were in force in the provinces, possessing the administrative machineryand trained personnel for determining whether an applicant for legal assistance lacked the means to pay counsel.

In our opinion, thosewho framed the Charter did not expressly constitutionalize the right of an indigent accused to be provided with counsel, because theyconsidered that, generally speaking, the provincial legal aid systems were adequate to provide counsel for persons charged with seriouscrimes who lacked the means to employ counsel. However, in cases not falling within provincial legal aid plans, ss. 7 and 11(

d) of theCharter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require funded counsel to beprovided if the accused wishes counsel but cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial. [underlining in original] 21 Steel J.A., speaking for this court in Drury in reference to Rowbotham, stated as follows (at para. 22): This principle was confirmed by the Supreme Court of Canada recently in the New Brunswick [ (SCC), [1999] 3S.C.R. 46] case where the court agreed that while s. 7 of the Charter does not guarantee a general right to funded counsel, it does requirethe provision of paid counsel in order to guarantee a fair trial in serious and complex cases where the accused is impecunious and hasbeen refused assistance by Legal Aid. [underlining added] 22 There are important reasons to require that an accused begin the process for obtaining state-funded counsel by first applyingto Legal Aid.

Legal Aid has the mandate, the expertise and administrative supports to determine whether an applicant who is seekingfinancial assistance really needs it. It is required to examine the financial circumstances of the applicant and to investigate that person’sstated income, expenses, assets and debts. It has access to information about the cost of counsel to deal with the charges and to be ableto measure those costs against the applicant’s means.

All of that information will then be available to the court to assist on a subsequentapplication for state-funded counsel, in the event that such an application is made. 23 Further, Legal Aid has the discretion to provide funding in a number of ways, including in whole or in part, with or withoutcontribution, to applicants who are eligible. Eligibility is not determined by legislation, but rather by Legal Aid officials, after takinginto account a number of factors, including the financial circumstances of the applicant and the circumstances of that person’s case.

While Legal Aid does publish guidelines setting out who qualifies, those guidelines specifically state, “These are guidelines only. Weassess each applicant individually.” 24 Given the important role that Legal Aid has played for many years in providing public funding to indigent people for legalfees and the expertise that it has gained in that regard, the courts have accepted that its finding that an applicant has the means to retain

and instruct competent counsel is entitled to the greatest of respect. Such a finding would certainly inform, although not necessarilydetermine, a court’s decision regarding an application for state-funded counsel, and as such is a valuable resource for the court.

This wasrecognized by the courts in both Rowbotham (at paras. 161, 167) and Drury (at para. 31). 25 The motion judge misunderstood the purpose of the guidelines by treating them as being definitive when he stated, “[i]ndeed,if the publicized Legal Aid eligibility requirements are to be respected, an application to Legal Aid would be a waste of time.” When oneunderstands that the Legal Aid guidelines are guidelines only and the important role that Legal Aid plays in providing public assistanceto pay for legal fees, it is clear that the motion judge erred in finding that an application for Legal Aid would be a waste of time. 26 In this particular case, Ms Baker is clearly not indigent in the usual sense.

While Ms Baker did not file an asset statement, sheowns a house, albeit with a mortgage, a new vehicle and is employed on a full-time basis. According to her income statement, she has anet monthly income, after deducting her expenses, of $394.01. By the motion judge’s own words, she has “an income of $42,000 [that]is far superior to the incomes of many people who find themselves facing serious charges,” “[s]he has some monies left over at the endof the month but not much in the scheme of things,” and “[i]ndigency in Ms.

Baker’s case is attributable to her being cash poor.” Theseare all circumstances that cry out for the type of review that is better carried out and the results weighed, initially, by the experiencedstaff at Legal Aid, rather than by the courts. 27 For these reasons, I find that the motion judge erred in law in holding that Ms Baker was entitled to state-funded counselwithout first having applied to Legal Aid. VII.

THE MORTGAGE AND CHARGE 28 I am of the view that a few words are required on the motion judge’s decision to require Ms Baker to provide a mortgage tothe Crown or its designate to cover any legal fees, interest and enforcement costs that are incurred. Such an order, particularly when theCrown has objected, completely ignores the directive from the Supreme Court of Canada that the courts should not tell the governmenthow to discharge its constitutional duty to provide state-funded counsel or what delivery system should be employed for those services.

Once the court determines that the obligation exists, the manner of implementation falls within the purview of the government. (SeeNew Brunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46 at para. 92.) 29 While the courts have acknowledged an exception to this rule, as set out in R. v. Fisher (L.), [1997] S.J. No. 530 (Q.B.) (QL),there has been overwhelming emphasis on the very rare and unique nature of this exception. (See, for example: Fisher at para. 20; R. v.Johal (B.) et al. (1998), 110 B.C.A.C. 146; Child and Family Services of Winnipeg v.

J.A. et al., 2003 MBCA 154 at para. 40, 180Man.R. (2d) 161; R. v. Peterman (2004), (ON CA), 70 O.R. (3d) 481 at paras. 29-32 (C.A.); and R. v. Jesso (H.),2007 NLCA 28, 265 Nfld. & P.E.I.R. 187.) As stated by this court in J.A. et al., “[i]t is only in the very exceptional case in which aparticular lawyer is essential to ensure a fair trial … that a court might consider ordering a particular lawyer to act as counsel” (at para.40).

That exception clearly does not apply in this case. 30 In this case, the proposed solution of a mortgage was particularly problematic as the motion judge left it to the parties tonegotiate and arrange the terms and final form of the agreement. The effect was to force the Crown to enter into a contractualarrangement with a person with whom it was in an adversarial position, negotiating with an individual whom it is prosecuting in respectof the payment of that person’s legal fees for that very prosecution.

This raises serious concerns for public confidence in the fairadministration of justice. 31 While I recognize that the motion judge was attempting to avoid further delays in completing the trial, his solution is not inaccordance with the law. VIII. DECISION 32 For these reasons, I would grant the appeal and set aside the order in its entirety. If Ms Baker wishes to continue with herapplication for funding to cover her legal fees, she should make an application to Legal Aid, including pursuing an appeal if her initialapplication is not successful.

If she is unsuccessful in resolving her funding issues after exhausting all avenues of review within theLegal Aid system, she is entitled to make another application to the court for state-funded counsel, if she wishes to do so. ____________________________ J.A. I agree: ___________________________ J.A.

I agree: J.A.