Law Times

Law Times • June 6, 2016 Page 5 www.lawtimesnews.com Legal aid ruling Nordheimer calls cut-offs unrealistic BY YAMRI TADDESE AND ALEX ROBINSON Law Times A n Ontario Superior Court judge has or- dered a stay of crimi- nal charges against an alleged drug supplier until he gets a government-funded de- fence lawyer. The accused, who makes be- tween $14,000 and $16,000 per year, did not qualify for legal aid. In making what's called a Rowbotham order, Justice Ian Nordheimer said Legal Aid On- tario's low-income cut-offs are out of line with the face of pov- erty in Canada. A single-income individual in Ontario would have to make $12,000 or less in order to qual- ify for legal aid, according to the ruling in R. v. Moodie. "It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this coun- try," wrote Nordheimer. "As just one comparator, in a report issued last year, Statis- tics Canada calculated the low income cut-off, before tax, for a single person living in a metro- politan area (more than 500,000 people) for 2014 at $24,328, or more than twice the figure that Legal Aid Ontario uses," he not- ed. "The low income cut-off is the level of income below which persons are paying a dispropor- tionate amount of their income for basic necessities (food, shelter and clothing)." The Crown had argued that the applicant failed to take ad- equate steps to come up with enough funds to pay defence counsel, suggesting he could have asked for a bank loan, got a second job, or asked a family member to co-sign for a loan. Nordheimer said none of these suggestions is realistic. "No financial institution is going to loan the applicant mon- ey given his income level, his lack of exigible assets, and his out- standing credit card debt," said the judge. "The applicant's father has made it clear that he is not going to assist his son in any way. Unfortunately, the applicant's mother is no better situated fi- nancially, than is the applicant, in terms of co-signing for a loan." Partly because the applicant's bail conditions impose a curfew, he was also unable to find a sec- ond job, the judge said. In his decision, Nordheimer cited R. v. Rushlow, 2009, a Rowbotham application in the Court of Appeal, in which the judge said counsel was essential if the case is "sufficiently com- plex" and if there is a high prob- ability of imprisonment if the defendant is found guilty. The Crown later conceded that the case was complex and the defendant needed a lawyer to represent him. In his decision, Nordheimer said there was little dispute as to whether the ac- cused would face a prison term if he were convicted. "When we're dealing with complex cases where the state is trying to incarcerate an individ- ual for lengthy periods of time, it is fanciful to say that that person can receive a fair trial representing themselves," says Michael Spratt, a criminal defence counsel at Aber- gel Goldstein & Partners LLP. "And it's ludicrous to say someone well below the pov- erty line is in a position to retain counsel to achieve a fair trial." Rowbotham applications have become more common in recent years, according to crimi- nal lawyer Sean Robichaud. "In the past five years, I've seen Rowbotham applications skyrocket and the reason for that, it seems, just as the justice pointed out, is [that] the thresh- old and criteria that are being used by legal are entirely out of touch with the standards of pov- erty and need for people seeking legal assistance who can't afford it," Robichaud says. Spratt says that although the rejection of legal aid on first re- quest is the most common rea- son Rowbotham applications are filed, it is not always the cause. Spratt says his firm had a cli- ent who was in custody and was granted legal aid, but his coun- sel was forced to leave the case because of a conf lict of interest and Legal Aid refused to fund a new lawyer. "It's not just monetary cut- off," Spratt says. "It's arbitrary policies at Legal Aid with re- spect to changing lawyers and recognizing the importance of the lawyer-client relationship." Part of what is driving Rowbotham applications is LAO's reluctance to grant these changes of solicitor requests when an accused no longer wishes to be represented by their legal aid lawyer, says Robichaud. That leaves individuals who can no longer continue their relationship with their current counsel without a lawyer. "The change of solicitor ap- plication is a different procedure altogether that has nothing to do with poverty; therefore, it's a way for [LAO] to claw back on certifi- cates without violating their own internal polices that have been set by the government," says Ro- bichaud. He says these kinds of administrative difficulties add to defence counsel's hesitation to take on legal aid certificates. Spratt says the default posi- tion of LAO is to reject aid to defendants who change lawyers, which, therefore, results in more Rowbotham applications. These applications are result- ing in a lot of wasted resources that could have been used to fund aid to defendants in the first place, Spratt says. "The real insanity here is that whether it's a Rowbotham or whether it's funded by Legal Aid, it's still money that is funded by the government. It's a fiction to imagine these are different enti- ties," he says. "When Legal Aid denies someone funding and the Rowbotham is granted, they still administer the account and the Rowbotham order. The only difference is money, court time, and resources are wasted argu- ing the Rowbotham at all." Spratt says rejecting legal aid to defendants who change coun- sel is an effort to save money on the part of LAO, but, ultimately, it results in more expense be- cause of the court proceedings. Spratt estimates that $2,500 to $5,000 is being spent to argue the applications on top of court administration and costs. "We're wasting all those re- sources that can be used to deal with extreme backlogs in our court," he says. A starting point to fix the problem would be for the prov- ince to expand funding LAO and increase the minimum sal- ary cut-off, Spratt says. "It's a small price to pay to en- sure our system is fair," he says. For its part, Legal Aid Ontario says it has to make do with its fixed funding from the province. "As with all legal aid plans, Legal Aid Ontario operates within a fixed budget so [it] must be responsible in how the public money it receives from the On- tario government is spent," says spokesman Feroneh Neil. "The demand for legal aid as- sistance for low-income Ontar- ians is high. While the province has recognized this by raising the legal aid financial eligibility thresholds, Legal Aid Ontario has a yearly budget it must ad- here to and must prioritize, in accordance with its legislation, the cases it is able to fund." LT NEWS A DAILY BLOG OF CANADIAN LEGAL NEWS LEGALFEEDS.CA FEEDS LEGAL POWERED BY Untitled-3 1 2016-06-02 11:24 AM Sean Robichaud says Rowbotham applica- tions have become more common in recent years. When we're dealing with complex cases where the state is trying to incarcerate an individual for lengthy periods of time, it is fanciful to say that that person can receive a fair trial representing themselves. Michael Spratt Read Doron Gold's take on mental health in the legal profession in his regular column, the Lawyer Therapist Work-life balance

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