R. v. Tremblay

2013 BCSC 56 R. v. Tremblay IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Tremblay, 2013 BCSC 56 Date: 20130116 Docket: 26073-2 Registry: Vancouver Regina v. Michel Andre Norman Tremblay Before: The Honourable Mr. Justice Fitch Reasons for Judgment on "Rowbotham" Application Counsel for the Crown: James M. Whiting Counsel for Mr. Tremblay: George L. Xuereb Place and Date of Hearing: Vancouver, B.C. January 3 and 11, 2013 Place and Date of Judgment: Vancouver, B.C. January 16, 2013 [1] The accused, Michel Andre Norman Tremblay, ["Tremblay"] seeks an order under s. 24(1) of the Canadian Charter of Rights and Freedoms [the "Charter"] staying proceedings against him until such time as state-funded counsel is provided for him in connection with his upcoming trial. In R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont.C.A.) ["Rowbotham"] it was held that in cases not falling within provincial legal aid plans, sections 7 and 11(d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require that state-funded counsel be provided to an accused if that accused establishes on a balance of probabilities that (1) he does not have the means to retain a lawyer and (2) representation is essential to a fair trial. [2] Rowbotham orders are relatively rare for a number of reasons. First, as Rosenberg J.A. noted in R. v. Rushlow, 2009 ONCA 461 ["Rushlow"] at para. 19, the order is only exceptionally sought because of the pervasiveness of legal aid, particularly for serious charges likely to result in a substantial period of incarceration upon conviction. Second, an accused seeking such a remedy faces a heavy burden, in part as a function of the nature of the relief being sought, and in part as a consequence of judicial reluctance to determine spending priorities for public funds. Finally, as the constitutional breach being asserted is prospective in nature, an accused must establish a very real likelihood or high degree of probability that a fair trial will not occur unless state-funded counsel is appointed. The test is stringent. The Charter guarantees a fair trial, not a perfect one. While unrepresented accused will always be in a disadvantaged position, trial judges play an important role in ensuring that assistance is given with respect to criminal procedure, that an accused's rights are respected and that his or her defence is brought out as fully and effectively as possible. The trial judge's obligation to assist an unrepresented accused, along with the prosecution's duty to make full disclosure, are important considerations in determining whether the provision of counsel is essential to the achievement of a fair trial. [3] The principles governing the resolution of Rowbotham applications were thoroughly summarized by Stromberg-Stein J. in R. v. Malik, 2003 BCSC 1439, 111 C.R.R. (2d) 40 at paras. 22-23. I have been guided by those principles in the determination of this application. [4] This application arises in a somewhat unusual context. Mr. Tremblay was originally approved for legal aid coverage in early 2011. Coverage was effective until March 6, 2013. His trial is scheduled to commence before a jury on February 18, 2013. Four weeks have been set aside. In November of 2012, Mr. Tremblay's counsel was reminded of the coverage sunset date. He asked the Legal Services Society of British Columbia to extend coverage to the end of trial, an additional 10-day period. In response, Mr. Tremblay was asked to attend a further financial eligibility interview. He did so and advised the Legal Services Society that he had earned some income in the summer of 2012 doing seasonal construction work, but that he had been laid off and was awaiting Employment Insurance ("EI") benefits. As a consequence of these earnings, Mr. Tremblay was deemed financially ineligible for continuing legal aid coverage and the referral was terminated. That decision was confirmed on review. Of particular significance to the resolution of this application is that Mr. Tremblay was advised of this development in the middle of December, less than two months before the scheduled jury selection date and exactly two months before the start of the trial. This unanticipated development has left Mr. Tremblay without counsel on the eve of trial and with virtually no means to raise the funds necessary to privately retain a lawyer in his defence. [5] In the circumstances of this case, I am satisfied that Mr. Tremblay has discharged his burden of establishing on a balance of probabilities that the assistance of counsel is essential for the conduct of a fair trial, that legal aid is unavailable, and that he is financially unable to independently retain counsel. For the reasons expressed more fully below, I would grant the order sought. Background [6] Tremblay stands jointly charged with Nadine Fayann Prevost that they: ... on or about April 9, 2010, at or near the City of Richmond, in the Province of British Columbia, did unlawfully possess a controlled substance to wit: N-methyl-3, 4-methylenedioxyamphetamine (MDMA or Ecstasy), for the purpose of exporting from Canada, contrary to section 6(2) of the Controlled Drugs and Substances Act. [7] The Crown has elected to proceed by indictment. The accused have elected trial by judge and jury. A four-day preliminary hearing was held in April and May of 2012. The matter is currently set for a four-week trial commencing February 18, 2013. Jury selection is scheduled for February 7, 2013. [8] Briefly, the allegations are that on the date of the alleged offence Tremblay and his co-accused, Prevost, were about to board a flight to Sydney, Australia at Vancouver International Airport when they were stopped by Canadian Border Services Agency ("CBSA") officers. They were briefly questioned. Based on their responses, CBSA officers formed the belief that the two were attempting to smuggle narcotics out of Canada. Both accused were taken to a secondary examination area. Three bags checked in by Tremblay and Prevost were removed from the aircraft and searched. Each of the bags contained MDMA. The total weight of the drugs found in the course of the search was about eight kilograms. [9] In the course of pre-trial conferences held earlier in connection with this matter, counsel for Prevost gave notice of her intention to challenge the voluntariness of statements she made to CBSA officers. In addition, counsel for Prevost has indicated that she will apply to exclude the fruits of the search on grounds that Prevost's section 8 and 10(b) rights were infringed. Counsel who has been acting for Tremblay to date, including on this application, has advised that he will not be contesting the voluntariness of pre-search statements Tremblay made to the officers nor will he assert constitutional violations in connection with an application to have the fruits of the search excluded pursuant to section 24(2) of the Charter. The First Branch of the Test: Whether the Assistance of Counsel Is Essential for a Fair Trial [10] The following factors are among those relevant to an assessment of whether the assistance of counsel is essential to the achievement of a fair trial: the seriousness of the charges, the length and complexity of the proceedings, and the accused's ability to participate effectively and defend the case. [11] With respect to the seriousness of the charges, Tremblay faces a maximum term of imprisonment of 10 years. The Crown confirmed on this application that should he be convicted of the offence charged, it will be seeking a federal term of imprisonment. [12] As Tremblay is not joining in the pretrial applications to be made by his co-accused, the central issues at trial insofar as he is concerned would appear to be factual: whether he was in possession of MDMA; whether he knew or was willfully blind to the fact that he was in possession of this substance or, at least, an illegal drug; and whether he possessed it for the purposes of exporting it from Canada. I do not anticipate that the evidence will be particularly complex. While the issues are primarily factual, those issues arise in the context of a jury trial and in a case with more than one accused. There is at least the potential in this case that Prevost, who is represented, will seek to shift responsibility for possession of the drug to Tremblay. The potential for a cut throat defence to be mounted by a represented accused against an unrepresented co-accused is a troubling feature of this case which warrants close consideration on this application. While I would not characterize the case as one of extreme complexity or posing unique challenges, I do not consider this to be a prerequisite for the making of a Rowbotham order: Rushlow, at para. 24. Moreover, complexity is not assessed in the abstract but by reference to a particular accused's ability to participate effectively at trial and defend the case. [13] Mr. Tremblay testified before me on this application. He is 45 years of age. He has a grade 11 education. When he was about 30, he took some post-secondary courses to upgrade his education. He has recently overcome an addiction to alcohol. He works intermittently as a renovation labourer at construction sites in western Canada. He has a relatively minor criminal record. His most recent conviction was for impaired driving in 2000. He testified that he does not know whether he pleaded guilty to that charge or was convicted following a trial. His previous experience with the administration of criminal justice has been minimal and serves as no reliable gauge of his ability to defend himself in this proceeding. He testified, and I accept, that he has no idea how to select jurors, give evidence or cross-examine witnesses. While he understands the nature of the allegations made against him, I also accept that he has no real grasp of the elements of the offence charged. [14] Much of the cross-examination of Mr. Tremblay was directed at his financial situation and ability to privately retain a lawyer. Indeed, counsel for the Attorney General of Canada advanced the position in his closing submissions that the most significant hurdle or difficulty Mr. Tremblay faced on this application was in meeting the second prong of the Rowbotham test - specifically, whether he had established on a balance of probabilities that he was financially unable to privately retain counsel. [15] Although the cross-examination was not lengthy, I had an adequate opportunity to observe Mr. Tremblay and assess his capabilities, including his ability to defend himself at trial. In my judgment, he would be incapable of effectively defending himself in this matter despite the assistance that would be given him by the trial judge and, where appropriate, by Crown counsel exercising his or her minister of justice role. I say this for a number of reasons. Clearly, Mr. Tremblay is not sophisticated in criminal procedure or substantive criminal law. I would not expect him to be so. This does not distinguish him from the vast majority of other similarly situated accused. But, in addition, it became clear to me during the course of the cross-examination that Mr. Tremblay did not understand some fairly common non-technical words, including the word "access". Moreover, when presented with documentary evidence, including a Record of Employment supplied by him in connection with this application, Mr. Tremblay was easily confused and quick to agree with suggestions in cross-examination that were not or may not have been true. I consider him to be wholly incapable of defending himself against a cut throat defence mounted by a represented co-accused. If such a defence was presented by the co-accused, I am of the view that there is a very real likelihood that the trial would be unfair in substance and would be perceived as such by a reasonable member of the community. I say this despite the assistance that could be provided to him by the trial judge in the course of the trial. [16] In my view, the first branch of the Rowbotham test has been met in this case. Having heard from Mr. Tremblay under oath, I have no difficulty coming to the conclusion that he would be completely at sea attempting to defend himself in this serious matter. The Second Branch of the Test: Whether the Accused is Financially Unable to Engage Counsel [17] As noted above, following the laying of charges, Mr. Tremblay applied for and was granted legal aid by the Legal Services Society of British Columbia. The referral to counsel references a service start date of February 25, 2011 and a coverage end date of March 6, 2013. As is evident, the coverage period initially authorized would expire during the third week of this scheduled four week trial. [18] Mr. Tremblay's counsel advised me during the argument of this application that he was reminded of the end date of the coverage in the course of preparing for trial and contacted the Legal Services Society requesting a short extension to cover the last week and a half of the proceeding. He was advised that a further interview of Mr. Tremblay and a financial eligibility reassessment was required to extend the coverage period. He was further advised that if Mr. Tremblay did not attend for the reassessment, his coverage would be terminated on December 7, 2012. [19] Mr. Tremblay attended a financial eligibility reassessment in November, 2012. In the course of that interview he advised representatives of the Legal Services Society that he had managed to find seasonal construction work from April to September, 2012 with a company called LRC Bailey Inc. The information disclosed by Mr. Tremblay to the Legal Services Society, and put before me on this application, indicates that he made approximately $20,000 in employment income during this time period. Mr. Tremblay further informed the Legal Services Society that he was laid off at the end of September, 2012 and was waiting for EI benefits to start. [20] By form letter dated December 17, 2012 Mr. Tremblay was advised that he did not qualify financially for continuing legal aid coverage. Mr. Tremblay immediately requested a review of that decision. By this time, he was receiving EI benefits of about $1,840 per month. By letter dated December 18, 2012 Mr. Tremblay was informed that the review had been denied because his income exceeded the financial guidelines of the Legal Services Society. It would appear that Mr. Tremblay's EI benefits result in him making $371 a month over the $1,470 monthly net income below which individuals qualify for legal aid. [21] Mr. Tremblay filed an affidavit for use on this application disclosing aspects of his financial situation and other matters relevant to the granting of the order sought. He was cross-examined on that affidavit. His wife, Glenda Nelson, was also called to give evidence on the application and was cross-examined on the family's financial circumstances. [22] The application was heard on January 3, 2013. Judgment was reserved. After reflecting on the matter, I determined that the record did not enable resolution of the second prong of the Rowbotham test - specifically, whether the accused was financially able to engage counsel or, alternatively, contribute to the cost of state-funded counsel should the order be granted. I determined that it was in the interests of justice in this case to give Mr. Tremblay an additional opportunity to put material before the Court addressing this branch of the Rowbotham inquiry. I did so, in part, because of a concern that the timeline imposed by the Court upon counsel for the resolution of this matter may have impaired the ability of counsel for Mr. Tremblay to assemble a complete record. [23] Additional materials addressing the financial circumstances of the accused and his family were filed on January 8, 2013, including a second affidavit sworn by Mr. Tremblay and an affidavit sworn by his wife. Counsel for the Attorney General of Canada was given the opportunity to further cross-examine on the affidavits filed but declined to do so. [24] Further oral submissions were entertained on January 11, 2013. [25] By way of summary, Mr. Tremblay and his wife reside with their eight-year-old daughter in a rented basement suite in Surrey. They have been married for 11 years. Mr. Tremblay continues to receive EI benefits but has no additional source of income. [26] In 2010, Mr. Tremblay reported employment income of $36,142. In 2011, he reported employment income of $3,843 and EI benefits of just over $13,338. His total income for the taxation year 2011 was just slightly over $17,000. [27] Glenda Nelson has been employed as a hospital porter with the Fraser Health Authority. She has, for a considerable period of time, suffered from hearing loss in one ear. She has recently been diagnosed with pronounced hearing loss in her other ear. This hearing impairment has had an impact on Ms. Nelson's ability to perform her regular work duties. At the time of the application, she understood that she had been placed on medical leave. She testified that she was not being paid. Her understanding was that she would eventually receive 60% of her regular pay for the period of time she was on medical leave status. During her testimony, she presented a note from her doctor which suggested that her prognosis for recovery was good once she was fitted with proper hearing aids. She testified that she has not yet received an appointment for that fitting. [28] In 2010 Ms. Nelson earned $33,660. In 2011 she earned $25,230 in employment income and a few thousand dollars in EI benefits. [29] As I understand it, Ms. Nelson has a son from a previous relationship who lives with her mother. She provides her mother $400/month in child support payments and gives her mother additional money as she can to support her son in his extra-curricular activities. [30] In 2012, the accused and his wife received a $6,000 retroactive child tax credit award. They also cashed in $550 from Ms. Nelson's Canada Savings Bonds to meet their expenses. I am satisfied that these monies were received before Mr. Tremblay was aware that he might be ineligible for continuing legal aid coverage. Ms. Nelson, who manages the money in the household, testified that some of this money was spent on outstanding bills while the rest was given to her mother or provided to her son to support him in his athletic and recreational pursuits. She currently has no savings other than Canada Savings Bonds with an account balance of $105. [31] Mr. Tremblay and his wife do not have credit cards or a vehicle. They live modestly. They have no assets other than household furnishings. They have no savings. I am satisfied that their monthly expenses are such that it is virtually impossible for them to save any money. [32] Since becoming aware, some two months before jury selection, that he no longer qualifies for legal aid, Mr. Tremblay and Ms. Nelson approached family members in an unsuccessful attempt to obtain a loan to pay for a lawyer. [33] Mr. Tremblay took the additional step of inquiring about a loan with HSBC. Not surprisingly, he was told that he would not qualify for any loan as he holds no assets and was facing criminal prosecution and the possibility that a term of imprisonment will be imposed upon conviction. Mr. Tremblay deposes that his wife's financial situation was also discussed with the bank but that she was also deemed to be an unsuitable candidate for a loan. [34] Although it was suggested on the hearing of the application that it was open to Mr. Tremblay to attempt to arrange some sort of payment plan with criminal defence counsel to ensure his representation at trial, I do not regard the suggestion as a realistic or viable option for someone in Mr. Tremblay's circumstances. [35] Against this background, I do not believe it can fairly be said that Mr. Tremblay has made a "choice" to be unrepresented. His financial circumstances, which have been fully disclosed on this application, leave him unable to retain counsel. [36] I have considered whether the order should contain a term requiring Mr. Tremblay to pay some of the costs associated with the provision of counsel. As a general rule, it is my view that individuals who can afford to pay some of the costs associated with state-funded counsel should be required to do so, and to the fullest extent possible. I would adhere to that view even where the amount of the contribution might be seen as being symbolic in nature. [37] In the case at bar, the accused and his wife have virtually no savings, no assets and no ability to borrow money. Maintaining solvency is, I am sure, a challenge that they face every month. Any contributory amount I could reasonably order Mr. Tremblay to pay would be minimal - in the nature of a few hundred dollars. I suspect that including as a term of the order I propose making what amounts to a purely symbolic contributory requirement would make administration of the order itself unnecessarily complex and time consuming. Perhaps more to the point, it would further impoverish this family and the two children they are currently supporting. [38] For these reasons, I would grant the order sought. "FITCH J."