R. v. Baker, 2012 MBCA 76

Citation: R. v. Baker, 2012 MBCA 76 Date: 20120807 Docket: AR 12-30-07765 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: HER MAJESTY THE QUEEN ) N. Carnegie ) for the Applicant Applicant ) ) D.

Baker- and - ) on her own behalf ) DEBBIE BAKER ) Chambers motion heard: ) July 26, 2012 ) (Accused) Respondent ) Judgment delivered: August 7, 2012 HAMILTON J.A. 1 The Crown seeks leave to appeal a Rowbotham order pursuant to s. 676.1 of the Criminal Code (the Code): 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 a court of appeal, appeal the order or theamount of costs ordered. 2 A Rowbotham order (R. v.

Rowbotham et al. (1988), (ON CA), 25 O.A.C. 321) for payment of futurelegal services of a lawyer to represent an accused person in a criminal prosecution is an order of “costs” that may be appealed by theCrown under s. 676.1. See R.C. v. Quebec (Attorney General); R. v. Beauchamps, 2002 SCC 52, [2002] 2 S.C.R. 762, and Rowbotham. 3 Because I am of the view that leave to appeal should be granted to the Crown, my reasons are intentionally brief. Background 4 The order granted by the judge is unusual.

It reads: THIS COURT ORDERS THAT upon the Accused ... executing the mortgage and charge in the form attached hereto as Appendix “A,”the proceeding will be stayed unless and until the Crown provides funding for counsel for [the accused] in accordance with the LegalAid Tariff for these proceedings while they are before the Court of Queen’s Bench. [emphasis added] 5 Appendix “A” is a document, drafted by the judge, entitled “Mortgage and Charge,” which states in part: In order to secure the advance of funds by the Government of Manitoba (“Manitoba”), or its nominee, to be used for legal fees to assistthe undersigned in defending the criminal charges currently before the Court of Queen’s Bench in suit number CR11-01-31315, I hereby

mortgage and charge the property legally described below in favour of Manitoba, or its nominee, said charge to secure the amount of monies advanced for the said legal fees plus interest at the rate of 2% per annum calculated from the date of advance until payment, plus the costs of enforcing the within mortgage and charge to be calculated on a solicitor and own client basis. 6 The accused has signed the “Mortgage and Charge” document.

As a result, in accordance with the order, the criminal proceedings against her are conditionally stayed. 7 Trial dates are set for February 25 to March 8, 2013. 8 The accused is charged with theft over $5,000 and falsifying financial information with the intent to defraud her employer. The Crown alleges that, in her position as accounts manager, she stole over $143,000 from her employer between May 22 and November 22, 2005. 9 The Crown elected to proceed by way of indictment. The accused acted on her own behalf at the preliminary inquiry. She was committed to stand trial on August 24, 2011.

She has elected trial by judge and jury. The judge is the assigned trial judge and has presided over several pre-trial conferences. The accused’s application for state-funded counsel arose out of these pre-trial conferences. 10 In her affidavit in support of her application, she provided some financial information and attached a copy of an email that she received from Legal Aid Manitoba.

It stated that: “For a household of 3, the maximum gross family income for Legal Aid eligibility is $31,000.” 11 At the hearing of her application, the judge permitted the accused to augment her financial information, after which Crown counsel cross-examined her on her evidence in the affidavit and at the hearing. 12 The accused’s annual income is $42,000 and she lives with her two teenage children. The appraised value of the accused’s house is $195,000, which she has recently mortgaged for $135,000.

In the course of settling her divorce proceedings, the accused remortgaged the house to pay out her ex-husband’s interest and pay off other debts. 13 The accused contacted one lawyer about her defence, but she did not retain him when he sought a $25,000 retainer. She has not applied for Legal Aid funding. The Judge’s Reasons 14 The judge explained the exceptional nature of a Rowbotham order: It is trite to say that a Rowbotham order is only granted in an exceptional case. The onus is always on the applicant to demonstrate the required factors on the balance of probabilities.

Simply because a person is indigent does not mean that a person automatically qualifies for representation. Both indigency and the need to ensure a fair trial must be shown. 15 He did not require the accused to apply to Legal Aid before proceeding with her application: 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. 16 He concluded that the accused is 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. Indeed, when one looks at her refinancing arrangements, one sees her paying a large brokerage amount as well as interest on her mortgage at a rate of 11 percent which is well above normal market rates and is indicative of the difficulty which she has in securing

financing. She has some monies left over at the end of the month but not much in the scheme of things. Furthermore, I do not consider it absolutely necessary, at this stage, to require her to sell her house, uprooting her children in the process, to hire a lawyer. 17 He also concluded that the accused needed a lawyer to defend the charges against her: I am faced with an accused person who defends charges which, if convicted, could easily result in a period of incarceration. The Crown argues that Ms.

Baker holds a responsible position now and at the time of these offences held a responsible position at the Beausejour Cooperative and suggests that she could, therefore, represent herself without resulting unfairness. Notwithstanding that she is familiar with the reams of paper the Crown intends to place into evidence, she has no legal background and does not have the familiarity with the judgmental decisions that need to be made to ensure that whatever her defence is, it is pleaded properly.

Furthermore, it must be remembered that the current election is for judge and jury, something which adds to the complexity of the proceedings. The length of the trial I would estimate to be five to 10 days, which although not overly long is not very short either. In my opinion, these charges and the realistic prospect of incarceration, if convicted, coupled with Ms. Baker’s background and her lack of familiarity with the court process justifies the conclusion that she needs a lawyer to protect her

Section 7 Charter rights. 18 He granted the order on condition that the accused enter into the “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. …. . . . . . The basic intent of this order is to permit Ms. Baker to be represented but ensuring that she utilize the equity in her property, to repay the province or its funding agency for those fees. .... The Test for Granting Leave 19

Section 676.1 provides a right of appeal only to the Crown. To my knowledge, the test for granting leave to appeal under this

section has not been settled. 20 The Crown acknowledges that the test for leave should create a meaningful threshold. It submits that this can be accomplished by a test that requires a likelihood of an error of law that also has potential ramifications for the justice system. It states that this test, broadly speaking, is similar to the considerations for granting leave on a

summary conviction appeal, except that it need not be as stringently applied because it is an appeal of first instance. See, for example, R. v. R.W.M. , 2011 MBCA 74 , 270 Man.R. (2d) 29. In R. v. Griffin (J.M.) , 2011 ABCA 197 , 510 A.R. 142, the Alberta Court of Appeal voted that (at para. 18): ….

The tests for leave typically require, at minimum, that there is an arguable case, the issue is important, and there is no prejudice or bar to hearing the appeal. …. 21 The interlocutory appeal permitted by s. 676.1 is an exception to the general principle that there is no right of appeal of interlocutory orders made during the course of criminal proceedings. I am of the view that the test suggested by the Crown seems reasonable and I am comfortable using it for this application. However, by doing so I am not foreclosing future reconsideration of the leave criteria. I say this for two reasons.

First, I do not have the benefit of any counter argument to the Crown’s position, as the accused does not have counsel. Second, a Rowbotham order is a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms . As

such, notice under s. 7(2) of The Constitutional Questions Act, C.C.S.M., c. C180, is required. I am unable to determine from the recordwhether such notice was given in this case and it may be that the Attorney General of Canada will wish to address the nature of the testin a future leave application. 22 To summarize, the test that I am applying in this application for leave is that the Crown must demonstrate that the ground ofappeal raises a question of law that, in turn, raises an arguable case of substance that is of significance to the administration of justice.

Analysis and Decision 23 As stated by Steel J.A. in R. v. Drury (L.W.) et al., 2000 MBCA 100, 150 Man.R. (2d) 64 (at paras. 21-22): In the case of R. v. Rowbotham, the court held that the denial of funded counsel to an indigent, unrepresented accused facing seriousand complex criminal charges violated the right to a fair trial guaranteed by ss. 7 and 11(

d) of the Charter …. This principle was confirmed by the Supreme Court of Canada recently in the New Brunswick [ (SCC), [1999] 3S.C.R. 46] case …. See also R. v. Dew (E.J.), 2009 MBCA 101, 245 Man.R. (2d) 211. 24 When a Rowbotham order is granted, the government is to be given “all possible latitude to determine how to fulfill itsconstitutional obligations.” See New Brunswick (Minister of Health and Community Services) v. G.(J.), [1993] 3 S.C.R. 46 at para. 92,and Québec (Procureur général) c.

C.(R.) (2003), (QC CA), 13 C.R. (6th) 1 at para 163. 25 In C. (R.), the Quebec Court of Appeal explained the two conditions that must be met by an accused seeking a Rowbothamorder before relief under s 24(1) can be considered (at para. 125): …. ... [T]he accused must (1) establish his or her indigent state and (2) establish the need to be represented by counsel in order to ensurea fair trial. …. 26 The jurisprudence contemplates that a Rowbotham order is to be granted in an exceptional case where legal aid has beenrefused and where the accused has “exhausted all possible routes to obtain counsel” (see Drury at para. 33) and C.(R.) at paras. 127,130. 27 The Crown asserts that the judge made the following errors of law in: 1. finding that the accused was entitled to an order for state-funded counsel without having first applied to Legal Aid Manitoba forpublicly-funded counsel; 2. finding that the accused (

i) had exhausted all reasonable possibilities to secure counsel, and (ii) was indigent and unable to affordcounsel; 3. finding that the accused was unable to represent herself in a manner that was adequate to ensure a fair trial; and 4. ordering the Crown to enter into the Mortgage and Charge agreement with the accused. 28 The Crown filed a lengthy brief.

Very briefly stated, it argues that the order offends the jurisprudence requiring an applicantseeking state-funded counsel to make a legal aid application and that the “Mortgage and Charge” is unprecedented, contrary to theprinciple of granting latitude to the government to determine how to comply with the order and that placing the Crown in the position ofmortgagee of the accused creates a conflict of interest. In addition, the Crown argues that the judge’s findings that the accused is

indigent and that she is unable to represent herself are errors in law because he misapplied the applicable legal standards to the facts as he found them. See R. v. Shepherd , 2009 SCC 35 , [2009] 2 S.C.R. 527. Finally, the Crown argues that the judge applied the wrong legal standard to determine whether the accused required counsel by determining that she would benefit from counsel rather than determining that counsel was necessary to ensure a fair trial. 29 The Crown asserts that each of the alleged errors raises an arguable case of substance that is of significance to the administration of justice.

It argues that if the order is allowed to stand as a precedent, the judge’s approach could dramatically extend the range of persons entitled to funding. 30 I am persuaded by the Crown’s arguments that each ground of appeal raises a question of law. Given the unusual nature of the order and that the grounds of appeal are interrelated in a number of respects, I think it important that all the Crown’s grounds of appeal go forward for review by a panel of this court. Conclusion 31 Leave is granted to the Crown on the following questions: 1.

Did the judge err in law in finding that the accused was entitled to an order for state-funded counsel without having first applied 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) was indigent 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 a fair trial? and 4. Did the judge err in ordering the Crown to enter into the Mortgage and Charge agreement with the accused? 32 In its brief, the Crown was seeking an order lifting the conditional stay of proceedings ordered by the judge.

At the hearing, Crown counsel acknowledged that such request was for the panel. 33 Given the interlocutory nature of this appeal and that criminal proceedings have been conditionally stayed, the appeal should be heard as soon as possible. In that regard, I instruct the registry office to set a date for the hearing of the appeal prior to the filing of factums and to set a

schedule for the filing of factums prior to the hearings. J.A.