R. v. Nightingale

2001BCSC0293 Citation: HMQ v. Nightingale Date: 20010221 2001 BCSC 293 Docket: C05992S Registry: Prince George IN THE SUPREME COURT OF BRITISH COLUMBIA HER MAJESTY THE QUEEN v. RONALD GENE NIGHTINGALE REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE MEIKLEM (IN CHAMBERS) BAN ON PUBLICATION PURSUANT TO SECTION 539 BAN ON DISCLOSURE PURSUANT TO SECTION 486(3) Counsel for the Attorney General of British Columbia: S. Martorana Appearing for the Accused: R. Nightingale, In Person Date and Place of Hearing: February 12, 2001 Prince George, BC [1] The applicant/accused Ronald Gene Nightingale has applied for a conditional stay of proceedings pending the appointment of government-funded counsel pursuant to s. 24(1) of the Charter of Rights and Freedoms and R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont.C.A.), on the basis that the right to a fair hearing in accordance with the principles of fundamental justice under ss. 7 and 11 (d) of the Charter of Rights and Freedoms requires funded counsel to be provided if an accused wishes counsel, cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial. [2] The applicant faces trial on a two count indictment charging sexual assault and touching for a sexual purpose. He was represented by counsel at the preliminary inquiry but has been unable to retain counsel for the trial. [3] The Ministry of the Attorney General opposes the application on the basis that the applicant has not provided sufficient evidence to establish that he meets the financial eligibility criteria to qualify for the limited right to state-funded counsel and that the case is not one in which exceptional circumstances exist which compel the appointment of state-funded counsel. [4] Counsel for the Attorney General points out that the applicant has stated that the reason he feels his case is complex is that he will have to cross-examine the alleged victim. Counsel has advised the court that if the applicant does not have counsel at his trial the Crown will be requesting the appointment of counsel for the purposes of cross-examining the victim, pursuant to s. 486(2.3) of the Criminal Code, which provides that: 486.(2.3) In proceedings referred to in subsection (1.1), the accused shall not personally cross-examine a witness who at the time of the proceedings is under the age of eighteen years, unless the presiding judge, provincial court judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination and, if the accused is not personally conducting the cross-examination, the presiding judge, provincial court judge or justice shall appoint counsel for the purpose of conducting the cross-examination. [5] The applicant's financial information in support of his application was somewhat ill-prepared and was put together during the course of the hearing with the acquiescence of counsel for the respondent Attorney General. [6] Mr. Nightingale is single, without dependents, and earned $40,848.02 in the year 2000. He is permanently employed as a sawmill machine operator and his net monthly income according to the statement provided to the trustee in bankruptcy is $1,803.43. The legal aid qualification guideline income for a single person in criminal cases is $925.00 per month. He was successful in assigning into bankruptcy in December 2000, notwithstanding the fact that his total unsecured debt after compromises by creditors was between $3,000.00 and $4,000.00. Mr. Nightingale's declared expenses inclusive of his monthly payment to the trustee in bankruptcy in the sum of $150.00 per month, and a telephone expense of $140.74, (which includes a cell phone in addition to a residential phone) is $1,674.18. He no longer has any substantial assets, nor does he have any secured debt. [7] Mr. Nightingale informed the court that he had arranged to pay his previous counsel on an installment plan and it was his failure to abide by the payment term which caused his counsel to withdraw. [8] Mr. Nightingale is clearly not indigent and his present financial circumstances are not exceptional. He suggests that counsel would cost him $1,000.00 a day for a trial that is expected to take 4 or possibly 5 days. With his household income and current expenses he could save $200.00 per month, which could be applied to his legal expense, if he denied himself the luxury of a cell phone. I note also that he pays rent of $700.00 per month for a rural property with acreage because he finds that more convenient for himself and his pets than alternative accommodation that would be readily available at considerably less cost. [9] If the applicant is not in a position financially to retain counsel, it is because of his own voluntary choices and priorities and a lack of foresight and planning. Consequently, this is not an appropriate case to order a conditional stay of proceedings to encourage the holders of the public purse to come forth with funding for counsel. [10] I am moved to produce reasons in this matter primarily because of the suggestion by the Crown that if Mr. Nightingale is not represented by counsel at trial the Crown will be applying to have the court appoint counsel for the purpose of conducting the cross-examination of the complainant, whom I understand is now 12 years old. [11] As I read s. 486(2.3), that subsection does not require an application to be made by the Crown, but rather it is mandatory upon the court, in the cases specified, that it shall appoint counsel for the purpose of conducting the cross-examination of a witness who at the time of the proceedings is under the age of 18 years unless the court is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. [12] The applicant's trial is set for April 9, 2001, some six weeks hence. The trial is therefore imminent. At this time it appears probable that Mr. Nightingale will not be able to properly retain and instruct counsel in a timely manner in order to proceed with the trial on the date set. [13] I have been assigned to preside at the trial. It is difficult to conceive of a situation where I would form the opinion that the proper administration of justice required the cross-examination to be conducted personally by the accused, rather than by counsel. [14] In my view it is inappropriate and not in keeping with the proper administration of justice in these circumstances to await the actual commencement of trial to ascertain whether the accused is going to be represented by counsel. If it became necessary to appoint counsel for the purposes of conducting cross-examination of the complainant at that late date, clearly the fairness of the trial would be affected by the appointed counsel's lack of timely preparation for the conduct of the cross-examination. It would be disruptive to adjourn to facilitate preparation, and the adjournment required for reasonable preparation would probably require the re-scheduling of the trial. [15] The primary purpose of s. 486(2.3) is the protection of child witnesses rather than the provision of full answer and defence to an accused, but it is my view that counsel appointed pursuant to that provision should, where circumstances permit, be appointed well in advance of the trial in order that the accused's defence is not prejudiced or compromised by lack of adequate preparation. The time and other resources utilized for preparation should be commensurate with those required by any reasonably competent defence counsel. I understand that the Crown's case consists entirely of the testimony of the child complainant, which magnifies the importance of preparation from the perspective of the accused. [16] From the comments of counsel appearing on this application, I understand that the Ministry of the Attorney General takes care of the remuneration and other administrative aspects when the court appoints counsel under s. 486(2.3) and that such remuneration is expected to include reasonable preparation time. [17] In light of the above stated circumstances counsel should be appointed now. I appoint Donald P. Kennedy, of Prince George, who formerly acted for the accused, as counsel for the purposes of conducting the cross-examination of the child witness in this proceeding. In the event that Mr. Kennedy is unable or unwilling to so act, I request that trial counsel Elizabeth Rennie (or alternate crown counsel that may be appointed) provide me with the names of other defence counsel who are prepared to be appointed for the purposes stated. "I.C. Meiklem, J." The Honourable Mr. Justice I.C. Meiklem