R. v. Rain, 1998 ABCA 315 (CanLII)
R. v. Rain, 1998 ABCA 315
Date: 19981001
Docket: 9603-0585-A
IN THE COURT OF APPEAL OF ALBERTA
THE COURT:
THE HONOURABLE MR. JUSTICE IRVING
THE HONOURABLE MADAM JUSTICE HUNT
THE HONOURABLE MR. JUSTICE SULATYCKY
BETWEEN:
- and -
APPEAL FROM THE JUDGMENT BY
THE HONOURABLE MR. JUSTICE J. ANDREKSON
DATED THE 28TH DAY OF OCTOBER, A.D. 1996
RESERVED JUDGMENT
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE SULATYCKY
COUNSEL:
For the Appellant, Her Majesty the Queen
Ms. M.T. Duckett
For the Respondent, Mary Muriel Rain
[Note: An Erratum was filed on March 25, 1999; the correction has been made to the text and the erratum is appended to this judgment.]
REASONS FOR JUDGMENT OF THE
HONOURABLE MR. JUSTICE SULATYCKY
[1] The Crown appeals from the judgment of a summary conviction appeal justice dismissing an appeal from the stay of proceedings against the Respondent, Muriel Mary Rain, until funded legal counsel is provided. Leave to appeal was granted on the following grounds:
(a) The learned Summary Conviction Appeal Justice erred on a question of law alone by finding that the learned Provincial Court Judge did not err by finding that the Respondent’s rights under ss. 7 and 11(d) of the Charter of Rights and Freedoms would be infringed by virtue of the unavailability of funded counsel for her trial;
(b) The learned Summary Conviction Appeal Justice erred on a question of law alone by finding that the learned Provincial Court Judge did not err by directing a stay of proceedings in respect of either or both of the offences with which the Respondent was charged.
FACTS
[2] On April 27, 1993, the Respondent, Ms. Rain, was charged with two offences under the Criminal Code: unlawful operation of a motor vehicle while impaired, contrary to s. 253(a) and failing to comply with a demand for a breath sample, contrary to s. 254(5).
[3] The Crown proceeded summarily on the charges. Ms. Rain appeared in Provincial Court in Glenevis, Alberta on May 20, 1993. She pleaded not guilty to the impaired driving charge and guilty to refusing to give a breathalyzer sample. The judge refused to take the guilty plea and suggested that she talk to one of the lawyers present. Later she pleaded not guilty to the refusal charge. She said she was going to get a lawyer through legal aid and a trial date was set allowing Ms. Rain time to contact the Legal Aid Society.
[4] On June 17, 1993, the day set for trial which was estimated to take one hour, the Court was informed that Ms. Rain had been denied coverage by Legal Aid because this was her first offence. The Provincial Court judge referred Ms. Rain back to Legal Aid and directed that failing the appointment of counsel by Legal Aid, counsel would be appointed by the Court at legal aid rates.
[5] The Crown’s application for an order in the nature of certiorari to quash the provincial court order was denied on December 13, 1993: R. v. Rain (M. M.) (1993), 147 A.R. 150, 15 Alta. L.R. (3d) 293.
[6] An appeal to this Court on November 14, 1994, was allowed, granted certiorari, quashed the provincial court order and returned the matter to the Provincial Court on the ground that both the Provincial Court judge and Court of Queen’s Bench justice had erred in deciding the merits of the case without a proper factual record before them: R. v. Rain (M. M.) (1994), 1994 ABCA 373 (CanLII), 157 A.R. 385, 25 Alta. L.R. (3d) 1.
[7] At p. 390 (A.R.), this Court also indicated the type of evidence which would be useful for applications of this sort could include the financial circumstances of the accused, the accused’s educational background, what the accused knows of the charge, what particulars the accused has obtained from the Crown, what efforts were made to obtain Legal Aid, the reasons for Legal Aid’s denial, whether the accused has any other access to a lawyer or agent capable of giving her an effective defence to the charge and any other matter which would help the accused make her argument that she cannot fairly meet the charge without counsel. This Court (while questioning whether ordering the expenditure of public funds was an appropriate Charter remedy) also said that, before making a precedent-creating order of the kind here, it was necessary to have information on the cost to the government of such precedent.
[8] Ms. Rain re-applied unsuccessfully for legal aid. Then, on March 20, 1995, after giving notice to the Crown, she applied in Provincial Court for an order appointing counsel. Ms. Rain was represented by counsel, who appeared pro bono publico. In support of the application, the Court heard evidence from Ms. Rain; Wanda Fish, Northern Director of the Legal Aid Society of Alberta, and Peter Bruce Gunn, a lawyer who was qualified as a expert in the area of defence of impaired driving and related offences. Ms. Rain also entered into evidence a letter from Alan Wood, Regional Vice-President of the Insurance Bureau of Canada. The Crown’s evidence consisted of the Law Society of Alberta’s new Code of Conduct.
[9] Ms. Rain’s evidence included the facts that she had dropped out of high school in grade 12 and that because of her children, she had minimal job experience. Her last employment was running a hot lunch program on the Alexis Reserve. At the time of her testimony, she was unemployed.
[10] Ms. Fish gave evidence of the terms of the agreement between the federal and provincial governments and the Law Society of Alberta for the provision of legal aid. Pursuant to those terms, the Legal Aid Society does not provide counsel for summary conviction matters unless a conviction would affect the accused’s means of earning a livelihood, there is a chance of incarceration or the applicant has unusual needs such as illiteracy or some sort of mental or physical impediment. Following those terms, Ms. Rain was denied coverage. She also had exhausted all possible appeals.
[11] Ms. Fish also testified that the budget for the Legal Aid Society was approximately $27,000,000, but had been subject to budget cuts. This did not affect coverage.
[12] Mr. Gunn gave his expert opinion that impaired driving charges are the most litigated and technically difficult in the Criminal Code. In every case the Charter of Rights is a live issue.
[13] With respect to the complexity of the case, after obtaining a waiver of privilege, Mr. Gunn testified that Ms. Rain had told him she was not the driver of the motor vehicle but had been pushed into the driver’s seat. Because there were other witnesses, in his opinion, that aspect of the case may be dealt with fairly easily. The refusal to provide a breathalyser sample, he thought, raised different difficulties about whether there was a valid demand and whether the failure to provide her with a list of legal aid lawyers would be a defence to her refusal.
[14] He further gave evidence that the typical penalty for a first offence is a fine of about $600. Although incarceration usually resulted from a failure to pay, he testified that the judges are “pretty good” if a person is incapable of paying the fine. They generally lower the fine when a person’s circumstances make payment difficult and under the available fine option programs, there are ways of working off the fine in place of serving any default time.
[15] In this case, there was no evidence that Ms. Rain, who was unemployed at the time of trial, could not participate in a fine options program.
[16] Mr. Gunn was allowed to give his opinion on matters unrelated to his expertise in the defence of impaired driving and related charges, including the answer to the ultimate question before the learned Provincial Court judge. When asked if in his opinion it was possible for the Respondent to be provided with a fair trial in the absence of counsel, he replied: “She wouldn’t have a hope.” No explanation or foundation for this opinion was given, but Mr. Gunn’s evidence as a whole throws some light on the reasons for it.
[17] Although not qualified as an expert in the execution of judicial functions, Mr. Gunn gave evidence and opinion on how judges discharge their duties. He was asked if it was not right that when an unrepresented accused recounted to a judge his version of events, similarly to the way he would recount them to an interviewing lawyer, (aside from credibility issues) and the facts are the foundation for a defence, the judge would take that into account. His anecdotal reply was as follows:
No, sir, I disagree with you absolutely. I sat – when I articled back in 1969, I sat for a month with my uncle on the bench believe it or not. He was a Provincial Court Judge in Cape Breton. We had a more relaxed atmosphere there. And I drove back to Sydney with him one time, and a fellow had come before him that morning on a speeding charge between Sydney and Glace Bay. There is a point to the story, believe it.
There was an unusual section in the Nova Scotia Highway Traffic Act. It said that the speed limit on all roads in Nova Scotia was 60 miles an hour except where the speed should be reduced because of other circumstances, and a speed sign reducing it was prima facie, only prima facie evidence that that was a reasonable speed and anything above it would be unreasonable. There was one stretch of road between Sydney and Glace Bay that’s totally empty, and for some particular reason they put up a 40 mile an hour speed sign there. That was the spot where the guy had been stopped doing 50.
He did not know the rule that if you could show it wasn’t reasonable, then it’s not a speeding ticket, and my uncle was actually known as being one of the softer judges in the Maritimes, and we were driving back to Sydney, and I was very annoyed at him because he had convicted this fellow, and I had said to him. why didn’t you acquit. Here we’re driving on the road, there is nothing. He said, if he had raised it, I would have acquitted. It is not my job to be advocate, it is my job to adjudicate because – and it struck me like a slap in the face, and it’s something I’ve never forgotten, sir. The judge is supposed to be an adjudicator. He can’t become one of the litigants. If he does, he loses every possibility of being an adjudicator.
[18] In the next question posed to Mr. Gunn, Crown counsel attempted to be more particular by referring to the specifics of this case and concluded by asking: “...as long as she can explain what happened to her, then those relevant issues come to the attention of the judge, and the judge will interpret them according to law; isn’t that right?”
[19] Mr. Gunn replied: “No, sir, that’s fantasy land. With all due respect, that is not reality. That is not the way Courts work, and if you honestly believe that that’s how every trial takes place, I don’t know where you’ve been, and I’m sorry, but that – that’s just plum stupid.”
[20] This cynical view of the way judges function appears to be the foundation for Mr. Gunn’s opinion that without counsel the Respondent “wouldn’t have a hope” of a fair trial.
[21] In response to questions from the Court, Mr. Gunn also gave evidence about the attitude of the general public to alcohol related drinking driving offences. He testified that such conduct is no longer socially acceptable. He said that it is now looked upon as a crime, not as merely wild behaviour.
[22] The letter of Mr. Wood outlined the insurance implications of a conviction for impaired driving. These included that, following conviction for impaired driving, insurance coverage likely would only be available through a high risk insurer at a significantly higher premium.
[23] On March 21, 1995, the Provincial Court judge ruled that Ms. Rain’s right to a fair trial would be violated if funded counsel were not appointed to act for her. The judge ordered the appointment of counsel to be funded at the Legal Aid rate: R. v. Rain 1995 CanLII 16095 (AB PC), [1995] 6 W.W.R. 137, 170 A.R. 359, 28 Alta. L.R. (3d) 160. Subsequently, on April 12, 1995, he acknowledged that he did not have jurisdiction to order the Crown or any other body to fund counsel or to compel pro bono work and therefore, ordered that the proceedings against Ms. Rain be stayed until she was provided with funded counsel: R. v. Rain 1995 CanLII 16105 (AB PC), [1995] 6 W.W.R. 146, 28 Alta. L.R. (3d) 169.
[24] The Crown’s appeal to a Summary Conviction Appeal Justice was dismissed on October 25, 1996: R. v. Rain 1996 CanLII 10508 (AB QB), [1997] 2 W.W.R. 38, (1996), 45 Alta. L.R. (3d) 119, 191 A.R. 331, 3 C.R. (5th) 122.
ANALYSIS
A. Whether the Charter guarantees funded counsel
[25] Leave to appeal was granted, first, on the issue of whether Ms. Rain’s rights under ss. 7 and 11(d) of the Charter would be infringed by virtue of the unavailability of funded counsel for her trial.
[26] Sections 7 and 11 (d ) of the Charter provide:
s. 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
s. 11 Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
[27] These sections, on their face, do not provide for funded counsel. Both this Court in R v. Robinson (1990), 1989 ABCA 267 (CanLII), 51 C.C.C. (3d) 452 and the Ontario Court of Appeal in R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1, among others, have held a general right to funded defence counsel cannot be inferred.
[28] In Robinson and in Deutsch v. Law Society of Upper Canada Legal Aid Fund (1985), 48 C.R. (3d) 166 (Ont. Div. Ct.) (considered in Rowbotham), the courts were provided with the 1981 minutes of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada respecting its recommendations on the Charter. The minutes showed that a proposed amendment would have enlarged s. 10 of the Charter to include a constitutional right to be provided with counsel for those with insufficient means to pay for counsel and if the interests of justice so required. The proposal was rejected. This Court agreed with the conclusion of Craig J. in Deutsch v. Law Society of Upper Canada Legal Aid Fund, supra, that the minutes demonstrate that the Charter was not drafted to guarantee an unfettered right to funded counsel.
[29] Although the Charter does not unqualifiedly provide for funded counsel, such a right may be inferred in rare circumstances. In Deutsch v. Law Society of Upper Canada Legal Aid Fund, supra, Craig J. explained those circumstances as follows:
In conclusion as to this issue, under the common law the accused has a right to a fair trial and the trial judge is bound to ensure that an accused person receives a fair trial. Here the accused faces possible imprisonment. Pursuant to s. 7 of the Charter, the accused has an entrenched right not to be deprived of his liberty except in accordance with the principles of fundamental justice. Also, pursuant to s. 11(d), he has an entrenched right to a “fair and public hearing”. The right to fundamental justice and a fair and public hearing includes the right to a fair trial. There may be rare cases where legal aid is denied to an accused person facing trial, but, where the trial judge is satisfied that, because of the seriousness and complexity of the case, the accused cannot receive a fair trial without counsel, in such a case it seems to follow that there is an entrenched right to funded counsel under the Charter.
[30] In Rowbotham, supra, the Ontario Court of Appeal noted that, even prior to the Charter, the province of Ontario had enacted a comprehensive legal aid plan. In Alberta, the Legal Aid Society of Alberta was incorporated in 1973, also prior to the Charter. The objective of these legal aid plans is to provide the assistance of counsel to a person charged with a serious crime but who lacks the means to pay for such assistance.
[31] The court in Rowbotham at p. 66 was of the opinion that, at the advent of the Charter, because legal aid systems were in force in the provinces, “those who framed the Charter did not expressly constitutionalize the right of an indigent accused to be provided with counsel, because they considered that, generally speaking, the provincial legal aid systems were adequate to provide counsel for persons charged with serious crimes who lacked the means to employ counsel.” The court held, however, that where representation of the accused by counsel is essential to a fair trial and the case does not fall within provincial legal aid plans, sections 7 and 11(d) of the Charter require funded counsel to be provided if the accused wishes counsel but cannot pay a lawyer.
[32] The Ontario Court of Appeal in Rowbotham referred to the portion of the judgment of Craig J. in Deutsch v. Law Society of Upper Canada Legal Aid Fund, supra, quoted above and also to a similar view expressed by McDonald J. in Panacui v. Legal
Aid Society of Alberta, 1987 CanLII 148 (AB QB), [1988] 1 W.W.R. 60 (Alta. Q.B.). Neither view was specifically adopted.
[33] In Robinson, supra, this Court had the opportunity to consider the views of McDonald J. in Panacui , supra where he stated at p. 67 that, in view of the interests protected by ss. 7 and 11(d) of the Charter, “a person charged with an offence that is serious and complex, when he cannot afford to retain counsel, is constitutionally entitled to have counsel provided to assist him at the expense of the state.”
[34] This Court did not adopt that opinion. It referred to it only to point out that “keyed as it is to prosecutions for serious and complex offences” it does not extend previous authorities.
[35] The authorities establish that funded counsel is not a right in every case, but in some circumstances, where the assistance of counsel is essential in order to assure a fair trial, the Charter requires the provision of funded counsel.
B. When is the assistance of counsel essential to a fair trial?
[36] Representation by a lawyer is not a pre-requisite for a fair trial. A person is entitled to represent himself or herself and when he or she does so, there are other means which are intended to protect the right to a fair trial, the foremost being the duty of every trial judge to ensure that all persons receive a fair trial.
[37] The Criminal Code recognizes the accused’s right to self-representation at trial, for example, in subsections 651(2), (3) and (4) which sets out the accused’s right to reply to the summing up by the prosecutor where the accused is not defended by counsel. Thus, an accused cannot be compelled to have counsel if he or she is unwilling: Vescio v. The King 1948 CanLII 53 (SCC), [1949] S.C.R. 139 (S.C.C.), cited in Robinson, supra and elsewhere.
[38] Whether an accused is represented by counsel or not the basic duty of a trial judge is to ensure that he or she receives a fair trial. It is true that the duty of a trial judge to preserve the accused’s right to a fair trial does not go as far as providing the same assistance as would be given by counsel. The Quebec Court of Appeal has agreed with the Ontario Court of Appeal that the scope of the assistance a trial judge can give to an accused is limited to what is reasonable and cannot and does not extend at each stage of the trial to provision of the kind of advice that counsel could be expected to provide if the accused were represented by counsel: R. v. Taubler (1987), 20 O.A.C. 64 as quoted in R. v. Sechon (1995), 1995 CanLII 4978 (QC CA), 104 C.C.C. (3d) 554 (Que. C.A.) at 559.
[39] The Ontario Court of Appeal in R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334 at p. 347 described the duty of the trial judge when an accused is unrepresented by counsel as including the provision of reasonable assistance to the accused in the presentation of evidence and in putting any defences before the court and to guide the accused in such a way that his or her defence is brought out with its full force and effect.
[40] Undoubtedly the trial judge’s burden of assuring a fair trial appears heavier when an accused is unrepresented. But the nature of the duty imposed on the trial judge is not changed merely because an accused is represented by counsel. Judges who cede any aspect of that duty to counsel may be found in error. For example where the accused is represented by counsel who does not object to the admission of inadmissible evidence, it is still the duty of the trial judge to exclude it in order to ensure a fair trial: R. v. D.(L.E.) (1989), 1989 CanLII 74 (SCC), 50 C.C.C. (3d) 142 at 161 (S.C.C.) as quoted in R. v. Lafontaine and Lafontaine, [1998] A.Q. no. 1285 (Q.L.) (Que. S.C.).
[41] Even though a criminal trial is an adversarial process and the judge is the adjudicator, the judge has ample latitude to participate in the examination of witnesses when necessary to ensure fairness. That applies whether the accused has counsel or not. In R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. 207 (Ont. C.A.),(in which case accused had counsel at trial) at page 230 Martin J.A. described this aspect of the judge’s role as follows:
The judge, however, is not required to remain silent. He may question witnesses to clear up ambiguities, explore some matter which the answers of a witness have left vague or, indeed, he may put questions which should have been put to bring out some relevant matter, but which have been omitted....Further, I do not doubt that the judge has a duty to intervene to clear the innocent.
[42] The trial judge is not the lone guardian of the right to a fair trial. That right can be protected retrospectively as well. As suggested in Robinson, supra, upon appeal, a court is in the position to determine if the conduct of the trial without counsel breached the accused’s right to a fair trial. For examples of appellate scrutiny of the fairness of a trial without counsel see R. v. Hardy, (1991) 1991 ABCA 342 (CanLII), 7 C.R.R. (2d) 382 (Alta. C.A.) and R. v. Jones (1994), 154 A.R. 118 (Q.B.).
[43] In Jones, supra Veit J. ordered a new trial because the trial judge failed to provide the unrepresented accused with basic information about the trial process. Certainly the type of information which was not provided would have been furnished by counsel if one had been available to the accused. But it was not the absence of counsel which caused the unfairness, rather, it was the failure of the trial judge to ensure trial fairness by properly providing information to the accused.
[44] In most cases where representation by counsel is necessary for a fair trial, an indigent accused will receive assistance through the legal aid program. When legal aid is denied and exceptional circumstances make it probable that the trial judge cannot discharge the duty to ensure a fair trial then the appointment of counsel becomes necessary. What sort of cases are exceptional was discussed in Rowbotham.
C. The guidelines set out in Rowbotham
[45] In Rowbotham, the accused was one of twelve charged in a large-scale conspiracy to traffic in marijuana and hashish. The trial took more than one year although the particular accused’s involvement was a small part of the overall case. Because she had full-time employment, the accused was denied legal aid. The trial judge was of the opinion that she had not proved she could not afford to retain counsel. She was unrepresented throughout the trial which resulted in her being sentenced to two years less one day imprisonment.
[46] On appeal, the Ontario Court of Appeal considered Deutsch v. Law Society of Upper Canada Legal Aid Fund, supra, which involved an accused who faced charges under the Income Tax Act and separately, charges under the Criminal Code for fraud and possession of stolen property. He was refused legal aid because of doubts that he required financial assistance. In dismissing his application for judicial review, Craig J. observed that the accused might seek the appointment of funded counsel as an application under the Charter. Although he recognized there was no right to funded counsel under the Charter, he also pointed out that under both the common law and the Charter, the accused has a right to a fair trial from which could be inferred the right to counsel.
[47] The Ontario Court of Appeal also considered Panacui v. Legal Aid Society of Alberta, supra in which the accused faced charges of kidnapping, three counts of attempted murder, a number of robbery counts, escaping lawful custody and firearms offences. He was granted legal aid but he wanted the counsel to be one of his choice and not the counsel appointed to represent him. McDonald J., after reviewing sections 7, 10(b) and 11(d) of the Charter and the role of counsel in protecting a person’s liberty, concluded at p. 67:
“In my view, the foregoing statement of the purposes and interests which ss. 7, 10(b) and 11(d) are meant to protect when the issue is the scope and extent of the right to counsel, lead me irresistibly to the conclusion that a person charged with an offence that is serious and complex, when he cannot afford to retain counsel, is constitutionally entitled to have counsel provided to assist him at the expense of the state.”
[48] In Rowbotham, the court stated at p. 67 that for the purpose of the appeal before it, it was necessary “to consider only the right of an accused charged with a serious offence who lacks the means to employ a lawyer, to be provided with funded counsel at his or her trial.”
[49] The trial judge in this case applied Re White (1976), 1976 CanLII 274 (AB QB), 32 C.C.C. (2d) 478 (Alta. S.C.-T.D.), a pre-Charter case which also set out the requirement that the charge be serious and complex.
[50] Subsequent cases have regarded Rowbotham as setting out guidelines to determine when a case is so exceptional that funded counsel is necessary to assure a fair trial. Ontario cases sometimes describe applications for funded counsel for an indigent accused as Rowbotham applications. See, for example, R. v. Belanger, unreported, July 4, 1997 (Ont. Prov. Div.) and R. v. Duong and Lam, unreported, May 31, 1996 (Ont. Gen. Div.).
[51] The test which has evolved from Rowbotham has two aspects which must be considered. One is the accused’s circumstances. It must be determined if the accused can afford to retain counsel and if the accused has the education, experience and other abilities to conduct his or her own defence. The other is the nature of the charge or charges. Regard must be had to the seriousness of the offence, the complexity of the case and the length of trial. The central concern throughout is the fairness of the trial.
D. Cases considering the need for counsel at trial
[52] As noted above, the authorities which have inferred the right to counsel have involved serious and complex offences in lengthy trials. In Rowbotham, the court considered the assistance of counsel necessary when the accused faced charges as part of a year-long trial for conspiracy to import narcotics. In Panacui v. Legal Aid Society of Alberta, the accused faced numerous charges including kidnapping, murder, robbery, escape from lawful custody and firearms offences.
[53] More recently, in R. v. Duong and Lam, supra, two accused were charged with conspiring to commit insurance fraud arising from claims using stolen vehicles. The Ontario General Division court found that although the facts were simple, the complexity of the law of conspiracy and the anticipated trial time of six weeks, on balance, made representation by counsel essential to a fair trial. The accused had not proved, however, that he lacked the means to employ counsel and therefore, his application for funded counsel was dismissed.
[54] Counsel on this appeal have cited many cases in which courts have applied Rowbotham. The authorities indicate that even where there are charges of some complexity and seriousness, depending upon the circumstances, counsel may not be necessary for a fair trial.
[55] The Court of Queen’s Bench of this province held in R. v. Svidal and James (1990), 1990 CanLII 5532 (AB QB), 107 A.R. 241, that the two accused, who were charged with three counts of fraud totalling in excess of $20 million, would not be denied their rights to a fair trial when they had been refused legal aid because they refused to provide a mortgage to the Legal Aid Society on the houses which were in the names of their wives and because their situation of impecuniosity resulted from having transferred all their assets to their wives. The issue of counsel was not appealed to this Court: (1991), 120 A.R. 333.
[56] The Quebec Court of Appeal in Sechon, supra, dismissed the appeal from a conviction for two counts of mischief by making a false statement to the police. The accused was without the assistance of counsel because she had been denied coverage by legal aid. The trial had lasted two or three hours and turned primarily on the issue of credibility. The court found that the absence of counsel did not deny the right to a fair trial.
[57] In R. v. Baig (1990), 1990 CanLII 191 (BC CA), 58 C.C.C. (3d) 156; leave to appeal denied (1991), 60 C.C.C. (3d) vi (S.C.C.), the British Columbia Court of Appeal held that a well-educated accused appealing five convictions for the unauthorized practice of medicine did not require the assistance of counsel in order to protect his rights. Although the appeal involved a Charter issue, it was not particularly complex and the appellant was not facing imprisonment.
[58] In Mireau v. Canada (1991), 1991 CanLII 7908 (SK QB), 96 Sask. R. 197, the Saskatchewan Court of Queen’s Bench held that a conviction arising from a sit-in demonstration and pursuit of two civil complaints under the provincial human rights legislation did not result in the violation of Charter rights if the applicant was not provided the assistance of funded counsel.
[59] In R. v. Satov, [1996] O.J. No. 2500 (Q.L.), the accused was charged with common assault in a domestic situation. Even though the Ontario provincial division court recognized concerns for the delicacy of the situation, it held the accused’s lack of legal representation would not breach his right to a fair trial.
[60] In R. v. Lafontaine and Lafontaine, supra, the Quebec Superior Court held that the two accused, who were charged with indecent acts and being found in a bawdy house, did not have an exceptional case although the Crown’s evidence would include photographs and film.
[61] With the exception of R. v. Hill (1996), 34 C.R.R. (2d) 344 (Ont. Prov. Div.), courts in other provinces have held that persons charged with impaired driving and related offences would not have their Charter rights infringed if not provided with funded counsel.
[62] In Hill, the accused was charged with driving over the legal limit of alcohol after failing the roadside screening tests. The accused, who was on welfare, could not afford the services of either a lawyer or toxicologist, who could give the opinion that if the accused’s evidence of his consumption was correct, he could not have been over the legal limit. Because this was his first offence and the Crown was not seeking incarceration as a penalty, the accused was not provided with legal aid. The Ontario Court provincial division judge followed the decision of the Queen’s Bench justice from which this appeal is taken and found that the accused would be unable to obtain a fair trial without state-funded counsel.
[63] Subsequent Ontario cases have not followed the decision in Hill. For example, in R. v. Belanger, supra, the accused was charged with impaired driving and having a blood alcohol level over 80 mgs. The Crown elected to proceed summarily and indicated it would seek a monetary penalty rather than incarceration. No evidence was adduced to show that a conviction would impair the ability of the accused to earn a livelihood. The evidence was that she was a full-time student in receipt of student loans. The court quoted the statements at p. 353 in Hill, holding that not every indigent accused charged with an “over 80" offence and where “evidence to the contrary” is argued will be provided with state-funded counsel. Rather, “it will be an unusual case where the absence of counsel will so fundamentally alter the trial process as to render it unfair.” The judge in Belanger found in that case, which did not involved property damage or bodily harm, the charges were not complex or serious when compared to those faced in Rowbotham.
[64] Prior to Hill, the Ontario Court Provincial Division in R. v. Badertscher [1996] O.J. No. 4528 (Q.L.) considered the application of an accused who had numerous previous charges and had defended himself on an earlier impaired driving charge. The court found no particular level of complexity to the charges of operating a motor vehicle while impaired by alcohol and failing to comply with a demand for samples of breath. There was evidence that the accused was detained, taken to an accident scene and interviewed without being advised of his right under s.10(b) of the Charter. On the basis of the evidence before the court, it held at para. 22 that the right to a fair trial would not be infringed if the trial proceeded without the presence of legal counsel.
[65] In R. v. Krzak [1996] O.J. No. 3096 (Q.L.), the Ontario Provincial Division court held that the accused, charged for the first time with impaired driving and having over 80 mgs. of alcohol in his system, had not discharged the onus to establish sufficient seriousness and complexity to meet the test in Rowbotham. The trial judge was not prepared to find that every charge of “over 80 mgs.” involves some complexity.
[66] In R. v. Metallic and LePage, unreported, November 10, 1997 (Que. S.C.), the accused was charged with driving with blood alcohol over 80 mgs. and obstructing a police officer. The trial was estimated to require no more than three hours but there was no other evidence regarding the complexity of the case. In R. v. Cabot and St. Pierre, unreported, November 10, 1997 (Que. S.C.), the two accused were charged with impaired driving and having blood alcohol over 80 mgs. The Crown had declared that it was not seeking a penalty of imprisonment. There was no other evidence suggesting the trial would be lengthy or involve complexity or some other particularly unusual circumstances. Both applications for funded counsel were heard before Tremblay J. After considering Rowbotham, Sechon and Badertscher, he found in both cases there was little complexity to the charges and therefore, did not warrant the appointment of funded counsel.
[67] The determination of whether representation by counsel is essential to a fair trial must be made on a case-by-case consideration. As pointed out by Tremblay J. in R. v.
Metallic and LePage, and in R. v. Cabot and St. Pierre, it would be possible for exactly the same offence, to have an accused, who is university educated with numerous previous offences, who would not be appointed a lawyer, while an illiterate accused could obtain one.
E. The decisions in this case
[68] In each case, the onus is upon the accused to present evidence to persuade the court on the balance of probabilities that his or her Charter rights were infringed: R. v. Collins 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, cited in R. v. Goncalves (1992) 131 A.R. 68 (C.A.), reversed 1993 CanLII 133 (SCC), [1993] 2 S.C.R. 3, 81 C.C.C. (3d) 240.
[69] The learned Provincial Court Judge concluded in this case that the offences with which Ms. Rain was charged were complex and serious and that therefore she required counsel if her Charter right to a fair trial was to be ensured. He placed significant reliance on the evidence of Mr. Gunn, saying:
[T]he Court notes and accepts his evidence on the following matters:
Number 1. On the issue of complexity of alcohol related drinking and driving charges, Mr. Gunn gave his opinion that this area is the most litigated and technically difficult area in the Criminal Code.
Number 2. If Ms. Rain had the assistance of competent counsel, Mr. Gunn advised that there are areas of obvious and potential defence including Charter issues, and he assessed her chances of success at trial at 50/50.
3. Mr. Gunn states that without counsel at trial, and I quote, “she wouldn’t have a hope”, end of quotation.
4. Mr. Gunn reviewed the impact of convictions for alcohol related driving charges including fines, loss of driving privileges, financial hardships including insurance costs, and the escalating social stigma which goes with such convictions.
[70] The learned Provincial Court Judge, relying on the evidence of Mr. Gunn found that the charges facing the accused were complex. He then considered the question of seriousness as follows:
Viewed from the subjective viewpoint of the accused, a finding of guilt leads to substantial penalties. The fines are substantial, the loss of driving
privileges are at the very least inconvenient and often lead to a loss of employment. Insurance costs are very substantial, and the condemnation of family, friends, and business associates and the general community is a heavy burden.
Viewed objectively by the community at large and the Courts, there is no doubt alcohol related drinking driving charges are viewed very seriously. We note most recently again the concern and statistics set out in the decision of Mr. Justice Cory in the Bernshaw case in the Supreme Court of Canada. So clearly the alcohol related driving charges facing the accused are serious, but are they serious enough to warrant appointment of Court ordered counsel (emphasis added).
One of the considerations Mr. Justice McDonald set out is whether the accused faces incarceration. In the present case, incarceration is a possibility on a first offence, but the Crown is not seeking incarceration, and hence it is not a reasonable probability. Legal aid has decided that as a matter of policy not to extend coverage for first offence if the Crown proceeds summarily and incarceration is not a probability.
This Court holds that once this Court has found the offences facing an indigent accused to be complex and serious, and the Court so finds in the present case, then it follows from the adoption of the reasons of Justice Smith that jurisdiction to grant the requested order has been established, and this Court may grant such an order.
[71] It should be noted that the Learned Provincial Court Judge abruptly concluded his consideration of the importance of probability of incarceration upon conviction in determining “seriousness” in this case. His reasons for doing so may be surmised as: (1) He considered that the possibility of incarceration was enough, or, (2) He considered that the possibility of incarceration becomes irrelevant when it is determined that the charges are “serious” having regard to other considerations. The latter interpretation is unlikely since his discussion of the issue of incarceration was opened by asking whether the charges are serious enough to warrant the appointment of court ordered counsel. He apparently recognized that the question of incarceration remained essential, even though he had already determined without regard to that factor that the charges were “serious”. Since he did not answer that question the reasonable interpretation is that the learned Provincial Court judge decided that the possibility of incarceration was enough.
[72] Having concluded that the charges were complex and serious without attention to the issue of imprisonment, the learned Provincial Court Judge then went on to consider whether the appointment of counsel should be denied “by reason of one or a combination of the following considerations: 1. There is an agency which may be capable of representing the accused; namely, Student Legal Services....2. That defence counsel should undertake cases such as the accused faces on a pro bono basis...3. The judge must ensure that an unrepresented accused has a fair trial, and accordingly, it is all right to deny counsel to an accused because the judge will take care of the interests of the accused.”
[73] He gave reasons why, in his opinion, none of the three considerations were reasonable alternatives to funded counsel. He concluded his consideration of the judge’s role as follows: “This Court finds that the obligation of the trial judge to ensure a fair trial cannot and should not prevail over the need for counsel where an accused is facing a serious and complex matter.”
[74] When the Crown refused to pay for counsel as ordered by the learned Provincial Court judge, he made an order staying the charges against Ms. Rain in the absence of funded counsel.
[75] The Crown appealed. The learned Summary Conviction Appeal Justice was of the opinion that there had been no error of law leading to the order under appeal. In assessing the trial court’s conclusion on the seriousness issue, he said:
[The learned Provincial Court Judge] found that the charges facing the Respondent are serious. He relied on evidence of the seriousness with which the offences are viewed in the community and the severity of the consequences that flow from a conviction. He found that, in the Respondent’s case, incarceration was a possibility but not a “reasonable probability.” Mr. Gunn stated that it is “almost invariably the case” that there is prison time in default of fine payment for these offences. Thus, there is a possibility that the Respondent may face incarceration as a consequence of conviction on these charges. In pre-trail applications, judges should not attempt to predict the outcome of a proceeding. Their role is not to weigh the evidence and decide whether it satisfies the “beyond a reasonable doubt” standard. Thus [the learned Provincial Court Judge] correctly found, in my view, that these charges are serious, despite the Crown’s assurance that it would not seek incarceration as a penalty. Incarceration is a possibility: that is enough.
[76] With respect, it is an error of law to conclude that the possibility of incarceration is enough to satisfy the requirement of “seriousness”, in the assessment of need for counsel in cases such as this. If the possibility of incarceration was enough every offence in the Criminal Code and virtually every violation of most Alberta statutes would fall into the “serious” category. That is because s. 787(2) of the Criminal Code and s. 7(2) of the Provincial Offences Procedure Act, S.A c. P-21.5 provide general authority for imposing imprisonment in default of payment of any fine.
[77] The practical result of the position taken by the learned Summary Conviction Appeal Justice is to remove from consideration the question of “seriousness” in applications such as the one leading to this appeal. Such result is a radical and unwarranted departure from the jurisprudence both under common law and under the Charter.
[78] As already noted the law prior to the Charter was as stated in Re White, supra. In that case McDonald J. classified an offence as “serious in that a conviction may result in imprisonment”. This Court in Robinson, supra noted that the decision of McDonald J. in Panacui, supra in which the Charter was invoked “keyed as it is to prosecutions for serious and complex offences . . .is not in practical discord with the case authorities . . . including Re White.” The decision of this Court in Robinson, supra limits the right to funded counsel to those indigent accused who face “serious and complex criminal offences”. If the possibility of incarceration was enough to satisfy the requirement of “seriousness” then the constant use of the word “serious” by this and many other courts in the context of applications such as this one would be redundant and meaningless. That is because as noted every criminal charge by definition would be “serious” since every one carries the theoretical possibility of imprisonment.
[79] The requirement that an offence be found “serious in that a conviction may result in imprisonment” must be based on more than theoretical possibility. At the very least it must be founded on a reasonable probability that a trial judge, correctly applying all relevant sentencing principles and considering all relevant circumstances, would not be in error by imposing a sentence of imprisonment, and that any monetary penalty correctly imposed would be beyond the means of the accused to pay and that the only alternative to payment was imprisonment in default. In the latter respect the availability of fine option programs is a necessary consideration. The learned Summary Conviction Appeal Justice disregarded the availability of such a program to Ms. Rain, although the reasons for the order under appeal drew attention to the program.
[80] Since the learned Summary Conviction Appeal Justice erred in upholding the order under appeal, it follows that the learned Provincial Court Judge also erred in that he incorrectly considered the question of incarceration in determining whether the charges against Ms. Rain were “serious”.
[81] The decision of the learned Provincial Court Judge is also in error in another fundamental way, namely, because he accepted and relied upon the opinion of Mr. Gunn, that without the assistance of counsel, Ms. Rain “wouldn’t have a hope” of a fair trial.
[82] The fairness of the trial is the ultimate question for the trial judge to decide. Leaving aside the debatable appropriateness of allowing expert evidence on the ultimate question, there is a clear requirement that a judge disregard evidence of a witness who does not have expertise in a given area. McLachlin J. in R. v. Marquard (1994), 1993 CanLII 37 (SCC), 85 C.C.C. (3d) 193 (S.C.C.), at p. 225 said:
Important as the initial qualification of an expert witness may be, it would be overly technical to reject expert evidence simply because the witness ventures an opinion beyond the area of expertise in which he or she has been qualified. As a practical matter, it is for opposing counsel to object if the witness goes beyond the proper limits of his or her expertise. The objection to the witness' expertise may be made at the stage of initial qualification, or during the witness' evidence if it becomes apparent the witness is going beyond the area in which he or she was qualified to give expert opinion. In the absence of objection, a technical failure to qualify a witness who clearly has expertise in the area will not mean that the witness' evidence should be struck. However, if the witness is not shown to have possessed expertise to testify in the area, his or her evidence must be disregarded and the jury so instructed.
[83] Mr. Gunn was not tendered, nor ruled qualified as an expert in curial decision-making or any similar field. His opinion that Ms. Rain “wouldn’t have a hope” of a fair trial in the absence of counsel was not arrived at in the studied manner necessary to
qualify him to express it as an expert opinion in court. Except for the anecdote concerning his uncle there was no evidence that Mr. Gunn had ever observed a criminal trial in which the accused was unrepresented by counsel. He testified that he had handled thousands of cases in court. But, ipso facto, those were not cases in which the accused was unrepresented. Further, there was nothing in the evidence from which to infer that Mr. Gunn, on his numerous appearances in courts, took the time to observe the conduct of trials other than those in which he was involved. On the contrary, he gave evidence that he was a time-conscious practitioner, not given to devoting any time to anything but the essentials of his busy practice. He said that he spends about six minutes in his client interviews. If the client wants to tell him a long story about what happened, he generally passes the client to another lawyer who might take an average of 45 minutes for the interview.
[84] There was no foundation in the evidence for accepting the opinion of Mr. Gunn on the potential fairness of the trial. The learned Provincial Court Judge was bound to disregard that evidence. He did the contrary and accepted it.
[85] I cannot say that the adoption by the learned Provincial Court Judge of the invalid opinion on the potential fairness of the trial had no effect on his decision. In fact it appears to have fundamentally influenced it.
[86] Mr. Gunn’s opinion, lacking empirical support, is based on his cynical view that it is unrealistic to expect judges to participate to the fullest extent permissible in order to discharge their duty to ensure a fair trial. That is an unacceptable premise from which to assess the potential for an unfair trial in any given case. If it were the appropriate starting point it would effectively establish a presumption of trial unfairness.
[87] In considering whether a charge is so serious and complex that court-ordered counsel is required the basic premise must be that the trial judge will do everything appropriate to ensure a fair trial. Counsel should be ordered only in cases where, notwithstanding the fullest use of the trial judge’s authority, the complexity or length, and the seriousness of the case alter the trial process so as to make it unfair.
[88] Likely misled by Mr. Gunn’s faulty premise, the learned Provincial Court Judge found that the charges were complex and serious and that without counsel there would be trial unfairness. Only then did he consider the role of the trial judge. The duty of the trial judge to ensure a fair trial and everything which that entails must be considered in deciding whether a charge is so complex and serious as to warrant court-ordered counsel. With respect, once it is found that there is a probability of an unfair trial in the absence of
counsel, consideration of the role of the trial judge will have been exhausted. All that remains to be considered is whether there may be an adequate alternative to court-ordered counsel such as Student Legal Services or pro bono counsel. To consider the possibility of the trial judge being that alternative, as did the learned Provincial Court Judge, indicates an error in principle by misplacing consideration of a fundamental element of trial fairness - the duty of the trial judge to ensure it.
[89] Had the Learned Provincial Court Judge correctly approached the assessment of whether the charges faced by Ms. Rain were serious and complex thus rendering probable an unfair trial in the absence of counsel he could not have come to the conclusion that he did, at least on the issue of seriousness. As the learned Provincial Court Judge found, there was no reasonable probability that Ms. Rain would be incarcerated upon conviction. The Crown was not seeking imprisonment, such penalty would be well beyond the usual penalty of a fine of $600 and therefore demonstrably unfit, and imprisonment in default of payment of any fine could be avoided through the available fine option program. There was no evidence that participation in the fine option program would work an unnecessary hardship on Ms. Rain.
[90] Further, the learned Provincial Court Judge did not consider the impact specifically on Ms. Rain of a conviction for one or both charges she was facing. He noted correctly that applications of this type are to be considered according to their particular circumstances. But he generalized in finding that conviction leads to substantial fines, the inconvenience or worse of lost driving privileges, increased insurance costs and the condemnation of family, friends, business associates and the general community.
[91] As already noted there was evidence of the availability of a fine option program permitting Ms. Rain to avoid imprisonment in default of payment of any fine imposed, and also to avoid the financial hardship of a fine. There was no evidence that Ms. Rain required a car for employment or other reasons. Indeed, she was unemployed. While higher insurance premiums may be relevant if one has and needs a car, there was no evidence of that in this case. In short there was no specific evidence to support the finding that the charges against Ms. Rain were serious. Consequently, the trial judge’s finding on this point were made in the absence of any evidence and he could not reasonably conclude that the absence of counsel would probably result in an unfair trial.
[92] We need not consider, since the point was not argued, whether the learned Provincial Court judge erred by ordering funded counsel absent evidence that counsel who had been appearing pro bono publico for Ms. Rain would abandon her prior to trial.
Such action would have been unexpected in view of the honourable history of the bar and the rules of the Law Society. In our view, under these circumstances no stay should have been imposed prior to trial.
[93] Lastly, we also note that there was no evidence before the learned Provincial Court judge of cost projections, or even approximations, which would flow from the inflation of any right to state-funded counsel in trials. This Court, when this matter was first before it, had said that such evidence was necessary. That was overlooked by the learned Provincial Court judge. So to was the admonition of this Court in Robinson, supra that, the courts are not the best qualified, if they are qualified at all, agencies to determine spending priorities for public funds in this area. Arguments can be compellingly made that such spending by government should be directed to compensation of victims or rehabilitation programs for offenders. These issues are, of course, political and not justiciable.
CONCLUSION
[94] In this case, the Respondent has not proved that the lack of funded counsel would impair her right to a fair trial. Therefore, the learned Provincial Court Judge erred by finding the Respondent’s right under ss. 7 and 11(d) of the Charter of Rights and Freedoms would be infringed. Consequently, the learned Summary Conviction Appeal Justice erred by finding that the learned Provincial Court Judge did not err.
[95] The appeal on the first ground is allowed. As a consequence, the second ground of appeal (the correctness of the order staying the proceedings) need not be considered.
[96] It is now more than five years since Ms. Rain was charged. She has not yet been tried. The delay is not her fault. Although she failed to appear when first scheduled in Provincial Court and a warrant was issued, she did appear later that day.
[97] On the trial day Ms. Rain appeared and the Court was advised that she had been rejected for legal aid. The Court’s own motion on that day started the chain of legal proceedings recounted above as a result of which the Ms. Rain and her right to be tried within a reasonable time have become hostages to other imperatives.
[98] It appears that the learned Provincial Court judge was advised that there were interests at stake in this matter other than Ms. Rain’s rights. He noted in his judgment that “[d]efence counsel in particular seems to view this as a test case which will open up the area of summary conviction alcohol related first offence driving charges for the appointed of funded defence counsel”. The Crown has participated in this test, at least latterly, by funding Ms. Rain’s counsel at both levels of appeal.
[99] Now that it has been determined that the reasons for the stay order under appeal display an error in principle the ordinary course is for this matter to go back for trial. That will invite an application for another stay because of violation of the right to be tried within a reasonable time as guaranteed under s. 11(b) of the Charter.
[100] The circumstances of this case include Ms. Rain’s desire to dispose of this matter speedily by entering an early guilty plea, the refusal of the judge to accept that plea, the time consumed in appeals from the first order of the learned Provincial Court Judge, the inexplicable return of the matter to the judge who had previously decided the very issue involved, the further time involved in the second set of appeals, and the time taken to render this judgment. Were this matter to now go to trial, Ms. Rain would be justified in feeling that she had been merely a pawn in what to her would appear a strange and bewildering contest. When she testified on March 20, 1995 she said that she did not know much about what was going on with her case and that she was “really confused.” The prejudice to Ms. Rain caused by the delays was transparent at that time. Much more has transpired since . Her right to trial within a reasonable time demands respect. In the circumstances I conclude that the ends of justice require that we decline to vary the stay imposed by the learned Provincial Court judge notwithstanding that his reasons for imposing it were in error.
APPEAL HEARD ON October 1 & 2, 1997
JUDGMENT DATED at Edmonton, Alberta,
A.D. 1998
I concur:
I concur:
HUNT, J.A.
ERRATA OF THE DECISION OF
IRVING, J.A.
HUNT, J.A.
SULATYCKY, J.A.
In paragraph 68 the correction made is “......R. v. Goncalves (1992) 131 A.R. 68 (C.A.), reversed 1993 CanLII 133 (SCC), [1993] 2 S.C.R. 3, 81 C.C.C. (3d) 240".
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