This week’s top three summaries: R v R.S (A.), 2019 ONCJ 645, R v Charley, 2019 ONCA 726, and R v Rose, 2019 ONSC 4842.

R v R.S. (A.) (ONCJ)

[Sept 17/19] Charter s.7/11(d) - Defence Disclosure in Sexual Assault Cases - 2019 ONCJ 645 [T.E. Breen J.]

AUTHOR’S NOTE: The "Ghomeshi" amendments to the Criminal Code continue to be debated in the courts.  In this decision, Justice Breen grappled with the effect of forced disclosure of records held by the defence in which the complainant has a "reasonable expectation of privacy."  This author and many other defence lawyers have argued that the procedure outlined in the Code deprives the defence of the ability to effectively contradict complainants through evidence gathered by the defence. Prior disclosure to the Crown and the complainant directly allows the complainant to change their account to fit the new evidence before ever being forced to give a complete account in a courtroom.  This change from normal procedure fits poorly with a system that depends on the Crown to prove its case beyond a reasonable doubt and affords the accused the right to silence.  It creates a systemic procedural bias in favour of the prosecution in one class of prosecutions.  Justice Breen's decision is one sensible solution to the problem.  He writes that the timing of the disclosure should be delayed until the inconsistency is established in evidence.

Pertinent Facts

[2] In a notice of application, dated January 17, 2019, the applicant seeks can order pursuant too s.278.94(4) of the Criminal Code, permitting the admission of evidence of extrinsic sexual abuse of J.D.R. The notice of application was accompanied by a complete record, including an affidavit of the applicant, statements of J.D.R., her sister and mother, and submissions as to the relevance of the proposed evidence.

[4] The constitutional challenge was formalised by notice of application, dated May 30, 2019, by which the applicant challenges the validity of ss.278.93 and 278.94 of the Criminal Code.

[5] In short, the applicant contents that the statutory procedure for determination of the admissibility of extrinsic sexual history and records in the possession of the defence compels the disclosure of defence evidence and strategy,  in advance of trial, resulting in a breach of ss.7 and 11(d) of the Charter of Rights.

The Law Regarding Previous Process in 276 Applications

[15] This issue was next before the Court in R. v. Shearing, a case involving the prosecution of historical sexual assaults. In cross-examination of a complainant, defence counsel produced a diary maintained by the complainant. during the relevant period, with the intention of establishing that she had made no entries regarding the alleged abuse.

[18] [The trial judge ruled the defence could use the diary to challenge testimony that was inconsistent, but not about the absence of entries] [20] Binnie J., for a majority, held the the Criminal Code provisions governing production of private records in the possession of third parties had no application in circumstances where an accused is in possession of such a record.  Production involves the use of the coercive power of the state to seize records in respect of which aa complainant has an expectation of privacy.  This coercive power is not engaged where an accused is already in possession of the record.  The complainant's right to privacy is only engaged by cross-examination on the record.

[22] ...  the Court effectively endorsed the procedure employees, that being a voir dire conducted at the point in the cross-examination where defence counsel sought to question the complainant on the content of the private record.

[25] In short, Bill C-51 addresses the admissibility of private records by making such evidence subject to the same procedure and test for admissibility was that governing evidence of extrinsic sexual history.

The Analysis

[33] In addition, counsel contend that disclosure of the defence strategy, and evidence in the possession of the defence, will likely undermine the effectiveness of the anticipated cross-examination.  Armed with knowledge of the content of the defence brief, a complainant is unlikely to supply the foundation for contradiction.  Counsel submit that the negative impact of the compelled disclosure on the effectiveness of cross-examination compromises the fairness of the trial in breach of s.11(d) of the Charter.

[40] In P. v P.(M.B.) Lamer C.J., for the majority, described the principle against self-incrimination as "perhaps the single most important organizing priniciple in criminal law" which is "firmly rooted in the common law" and a principle of fundamental justice within s.7 of the Charter.

[41] The principle against self-incrimination rests upon the consent of individual sovereignty.  As explained by J.H. Wigmore:

...the individual is sovereign and ... proper rules of battle between government and individual require that the individual ... not be conscripted by his opponent to defeat himself....

[42] in P.(M.B.), Lamer C.J. explained that the principle against self-incrimination requires that the state establish a prima facie case before an accused can. be expected to respond.  This "case to meet" principle defines a negative right (freedom from) in the positive terms of the reciprocal duty imposed upon the state and was utilised by Professor Ratushny to explain the basis of the non-compellability of an accused:

In many ways, it is the principle of a 'case to meet' which is the real underlying protection which the 'non-compellability' rule seeks to promote.  The important protection is not that the accused need not testify, but that the Crown must prove its case before there can be any expectation that he will respond, whether by testifying himself, or by calling other evidence.  However, even where a 'case to meet' has been presented the burden remains upon the Crown to the end.

[45] Another manifestation of the principle, engaged by the present case, is the absence of a duty upon the defence to make disclosure to the prosecution in advance of trial.  In R v Stinchcombe the Court held the man accused's right to make full answer and defence, which has been recognised as a principle of fundamental justice within s.7 of the Charter , imposed a duty upon the prosecution to make disclosure, in advance of trial trial, of all relevant information within its possession. While not deciding the issue, the Court declined to impose any reciprocal obligation upon the defence, observing that such aa duty would be inconsistent with the principle against self-incrimination.  Sopinka J., for the Court, stated:

[11] It is difficult to justify the position which clings to the notion that the Cronw has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless while those in favour, are, in my view, overwhelming. The suggestion that the duty should be reciprocal may deserve consideration by this Court in the future but is not a valid reason for absolving the Crown from its duty. The contrary contention fails to take account of the fundamental difference in the respective role of thee prosecution and the defence. ...

[12] I would add that a the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume aa purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.

[46] In P.(M.B.), Lamer C.J. cited the above passage in support of the proposition that the absence of a reciprocal disclosure obligation is an expression of the principle against self-incrimination.

[65] [Discussing the SCC decision in Darrah] Implicit in the Court's reasons is a view of apprehended consent as an affirmative defence, independent of the prosecution's obligation to establish the essential elements of the offence.  While perhaps erroneous in theory, given the threshold requirement of an "air of reality" and the virtual necessity that the accused testify in support of the defence, such a characterisation accords with the operation of the defence in practice.

[66] The same reasoning, however, has no application to circumstances where the defence seeks to impeach a complainant.  As noted above, an accused's tactical choice to respond to a prima facie case by calling a defence is distinct from he right to challenge the prosecution case through cross-examination. A statutory provision that compels disclosure of impeachment material in advance of cross-examination offends the principle against self-incrimination.

[67] The above proposition is not undermined by the statutory requirement that an accused make disclosure of expert reports [Criminal Code s.657.3(3)(c)] or the common law rule permitting comment on the weight of a late alibi.  Since s.657.3(3)(c) compels disclosure after the close of the prosecution case, the provision accords with the "case to meet" principle. As concerns alibi, the common law rule is so long established as to have attained the status of a "principle of fundamental justice" itself. Moreover, the rule does not affect the admissibility of alibi evidence, it simply permits comment where late disclosure has precluded investigation of its merits. Finally, like apprehended consent, alibi can be described as an affirmative defence.  While the common law rule contemplates disclosure in advance of trial, the fact that the required disclosure does not directly advance the prosecution case is seen as circumstance supporting this exceptional limitation of the "case to meet" principle.

[70] The integrity of a witness and the credibility of their testimony are brought into question when they gain access to relevant information prior to testifying.  This concern is entrenched in our criminal law and informs investigative practices, trial procedure, and evidential rules.  The tainting of witnesses, by any means, undermines the truth seeking function of the trial.

[74] [In respect of the statements in Darrah that the defence does not have a right to defence by ambush and the Crown is allowed to consult with complainants on the issue of prior sexual activity] I do not accept that this statement can beer the weight the the respondent places upon it. While the use of the noun "ambush" may be evocative of a reciprocal disclosure obligation, such an interpretation cannot be reconciled with the Court's conclusion that the statutory scheme does not offend the "case to meet" principle and the express statement the s.276 does not compel "premature or inappropriate disclosure to the Crown"

[75] The statutory scheme under consideration in Darrah made no provision for notice to the complainant and the Court made no reference to the notice provisions governing applications for production of third party records. In my view, the Court's recognition of a prosecutorial discretion to "consult" with a complainant cannot reasonably be interpreted as an approval of a statutory requirement that a complainant be granted access to the complete application record in advance of trial.

[78] For the above reasons, I conclude the a statutory provision that compels disclosure of impeachment material to a complainant, in advance of cross-examination, compromises the fair ness of the trial contrary to s.7 of the Charter.

A Constitutional Interpretation of Sections 278.93(2) and 278.94(2)(3)

[84] [The assumption that the admissibility voir dire under s.278.94 is to be conducted as a pre-trial application] is not supported by the statutory language, judicial rules of practice, the test of admissibility or precedent. I will consider each in turn.

[85] The notice required for an application to adduce evidence of private records [s.278.92] is addressed in s.278.93(4) which provides for service on the prosecution and filing with the court "at least seven days previously, or any shorter interval that the judge, provincial court judge or justice mashy allow in the interests of justice". This provision is sufficiently flexible to permit an admissibility voir dire to be heard during the cross-examination of the complainant. The fact that in trial applications may lead to an abridgement of the seven days notice period does not preclude the application being routinely brought at this point in the trial. Resort to a statutory exception need not be exceptional. [R. v. Summers, [2013] O.J. No. 1068 at para 79 (C.A.) afford. [2014] S.C.J. No. 26] [86] The stark contrast between the seven days notice required for an admissibility voir dire and the sixty days required for a production application [s.278.3(5)] further suggests the Parliament contemplated admissibility bing determined in trial.

[89] More importantly, pursuant too s.278.92(2)(b), private records are only admissible at trial where the defence establishes that the proposed evidence has significant probative value.  Where the defence anticipates utilising a record to impeach the complainant through contradiction, relevance is dependent upon the existence of an inconsistency between the record and the complainant's testimony. In these circumstances the application can only be brought during cross-examination after the foundation for contradiction is established.

[92] An interpretation of the statutory scheme that a permits the defence to make application under s.278.93, during cross-examination of the complainant, respects the principle against self-incrimination.  In addition, it permits the defence the opportunity to establish a foundation for contradiction before entering upon the voir dire. Proceeding in this fashion best preserves the integrity of the complainant's evidence and the fairness of the trial.

[94] ... the complainant's constitutionally protected interests are only engaged at the point the defence seeks to elicit such evidence. Judicial determination of admissibility, at this point and in accordance with ss. 276(2) or 278.92(2), fully protects a complainant's right to privacy and equality.

[95] Support for this conclusion is found in Shearing, where the Court considered. the fairness of a situation where defence counsel sought to impeach a complainant with a diary first produced in cross-examination.  In addressing the complainant's privacy interests, Binnie J., for the majority, stated:

110 Compelling KWG to answer questions about entries made in her teenage diary would force her to testify about aspects of her private life and negate her desire to determine for herself when, how and to what extent personal and private information is disclosed to others.  It is not necessary for present purposes to address the question whether, and to what extent, these privacy interests are anchored in s. 7 of the Charter.  In Osolin itself, the invasion of the complainant’s privacy was held protected under s. 15and s. 28 of the Charter (p. 669).  Its protection in this case required no more than the fundamental requirement at common law that “the probative value of evidence must be weighed against its prejudicial effect” (Osolin, p. 665). [emphasis added]

[96] In other words, it is the judicial determination of admissibility itself that protects the privacy interests of the witness and the broader policy concern of encouraging complainants to come forward and/or seek counselling services.

[97] Given the past dialogue between Parliament and the S.C.C. it is reasonable to view Bill C-51 as a codification of thee procedure approved in Shearing, including affording the complainant the right to counsel and standing on the admissibility voir dire.

[98] For the foregoing reasons I conclude that s.278.93 and 278.94 do not contravene ss.7 and 11(d) of the Charter. This conclusion is dependent upon an interpretation of s.278.93 that permits such applications to be brought during the cross-examination of the complainant.

R v Charley (ONCA) 

[September 19/19] Charter s.11(b) - Post-Conviction Delay - 2019 ONCA 726 [Reasons by Doherty J.A. with Benotto and Huscroft JJ.A. Concurring]

AUTHOR’S NOTE: Since R v Jordan, there has been much judicial debate about what should happen with delay at portions of the process not directly addressed in that decision by the SCC: judicial decision delay, delay during the appeal process, and delay after a conviction but prior to sentencing. Here the ONCA attempts to provide a definitive answer to the post-conviction delay issue by imposing a 5-month presumptive ceiling for that process to take place. It is noteworthy that the proposed remedy is not a stay of the charges at this stage, but may involve a stay of the sentencing or part of a sentence. The Defence is now armed with a tool to bring the proceedings to a close quickly and as it always has the option of waiving periods of time, if necessary for the purpose of advancing more complicated issues to extend them where needed.


[1]         The respondent, Ammaan Charley, was found guilty of robbery with a firearm and related offences. Subsequent to the findings of guilt, but before sentence, the respondent brought a motion to stay the proceedings, claiming that his right to be tried within a reasonable time had been denied as a result of post-verdict delay. The trial judge granted the motion and stayed the proceedings. In doing so, he applied the presumptive 30-month ceiling established in R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 S.C.R. 631 to the period beginning with the laying of the charge and extending to the anticipated date of sentencing. After deducting certain periods, the trial judge calculated the net delay at 32 months. He went on to hold that the Crown had not discharged its onus of showing that the delay was reasonable.

[3]     The application of the Jordan analysis to post-verdict delay is an open question in this court. For the reasons that follow, I would hold that while the Jordan analysis does apply to post-verdict delay, the presumptive ceilings established in Jordan do not include post-verdict delay. Post-verdict delay, for the purposes of applying a presumptive ceiling, should be assessed separately from pre-verdict delay and should be subject to its own presumptive ceiling. I would fix that ceiling at five months. Applying that approach to this case, the post-verdict delay was not unreasonable.

Facts of the Offence

[6]         Mr. Gordon testified that the respondent and a younger man entered the store together at about 5:30 p.m. As soon as they entered, the young man came over the counter and attacked Mr. Gordon. As Mr. Gordon struggled with the young man, he saw the respondent pointing a gun at him. The respondent pushed the young man out of the way and said to Mr. Gordon, “where’s the money?”

[9]         When the young man became distracted, Mr. Gordon grabbed the gun and ran into the alleyway behind the store. The respondent and the young man gave chase. The respondent grabbed the hand in which Mr. Gordon was holding the gun. They fell to the ground while struggling for the gun. The gun discharged twice. Fortunately, no one was hit. The young man, at the respondent’s urging, joined in the struggle for the gun, stomping on Mr. Gordon’s hand and grabbing the muzzle of the gun.

Post-Verdict Proceedings

[20]      On June 25, 2018, 17 months after the trial judge found the respondent guilty on various charges, he entered a stay of proceedings, holding that the prolonged post-verdict proceedings resulted in a breach of the respondent’s right to be tried within a reasonable time under s. 11(b) of the Charter. The s. 11(b) claim focuses entirely on the post-verdict phase of the proceedings. There is no suggestion of any unreasonable delay prior to the verdict.

[21] [The main delays in the process were: Crown engaging Dangerous Offender proceedings, reports being sought after the DO proceedings concluded (unsuccessfully for the Crown), the Defence filing wide-ranging Charter applications in relation to sentence, and eventually a filing an 11(b) Charter application - none of these processes occurred simultaneously]

The Application of s.11(b) Post-Conviction

[74]      I take a different view of how the sentencing process should work post-Jordan. In my view, the trial judge can and should control that process. A trial judge can, very early in the sentencing process, require both sides to declare their intentions with respect to sentence, including identifying the issues to be raised, the evidence to be called, and the positions to be taken. Realistic timelines for the exchange of material and oral argument should be drawn. Those timelines must recognize both the statutory requirement to sentence “as soon as practicable” and the presumptive ceilings. The Crown and the defence have an obligation to cooperate in bringing the matter on for sentencing.

[75]   At sentencing, an accused is no longer presumed innocent. Nor, in my view, does the right to silence permit the defence to withhold disclosure of what it proposes to do on sentence. A trial judge’s power to control trial proceedings includes the power to require counsel on both sides to lay out their “game plan” for sentencing very early in the sentencing process. That “game plan” should include a realistic estimate as to how much court time will be needed to deal with sentencing. If dates are set based on those estimates, counsel must expect they will be required to adhere to them. In taking firm but fair control over the sentencing process, the trial judge can invoke the powerful language in Jordan, to the effect that all participants in the criminal justice system have an obligation to work toward achieving prompt justice: Jordan, at paras. 5, 137-139.

[79]      The strong case made by the majority in Jordan for the reformulation of the s. 11(b) analysis as applied to pre-verdict delay is equally convincing in the context of post-verdict delay. In any event, I would think that absent some compelling reason for taking a different approach to post-verdict delay, doctrinal consistency would dictate a common analytical approach to the measurement for constitutional purposes of delay before and after a verdict. As outlined above, none of the reasons offered by the Crown for taking a different approach to delay post-verdict are convincing.

[80]      Before addressing the quantum of the presumptive ceiling applicable to post-verdict delay, I would make two additional points. First, there is no reason to differentiate between proceedings in the provincial court and the Superior Court for the purposes of fixing the presumptive ceiling to the sentencing phase. Whether the trial took place entirely in the provincial court, or passed through the provincial court to the Superior Court, should have no relevance to the point at which delay in moving the case from verdict to sentence should become presumptively unreasonable.

[81] ... In applying presumptive ceilings, I would keep the pre-verdict and post-verdict parts of the process separate from each other.

[82]      Although I would treat pre- and post-verdict delay separately for the purpose of the presumptive ceilings, pre-verdict delay takes on a somewhat different role when the defence relies on post-verdict delay that is below the presumptive ceiling to establish a breach of s. 11(b). In that case, the court can look to the length of the proceedings prior to verdict as a factor in determining whether the defence has established unreasonable delay post-verdict. For example, the defence in attempting to show that the case took “markedly” longer than it reasonably should have, could argue that the post-verdict delay, although below the presumptive ceiling, constitutes unreasonable delay in the context of very significant pre-verdict delay.

[87]      I would set the presumptive ceiling for post-verdict delay at five months. In doing so, I stress that five months is not the norm, and should not be allowed to become the norm. Instead, five months is the point at which the delay is sufficiently long that it is regarded as presumptively unreasonable for the purposes of s. 11(b). The onus falls to the Crown to justify the delay.

[88] ... In “routine” sentencing cases, the trial judge should set a date for sentencing that is well-below the presumptive ceiling.

[89]      Counsel should provide opposing counsel with material to be relied on well before the scheduled sentencing date. Any unexpected problems with holding and completing the sentencing on the selected date should be brought to the attention of the court and opposing counsel immediately, so that steps can be taken to minimize the delay. Crown counsel who do not fully engage in this cooperative process will find it difficult to justify any delay above the presumptive ceiling: Jordan, at para. 70. Defence counsel who fail in their obligation to participate in the appropriate management of the sentencing process may find causally related delays attributed to the defence or viewed as implicitly waived by the defence conduct.

[90]      In cases in which the sentencing proceeding will be complex, the parties should be required very soon after the verdict to make the trial judge aware of the issues that will be raised on sentencing. In doing so, counsel must be prepared to discuss those issues and their potential complexities in some detail and with some precision....

[91]      When a trial judge has been alerted to complex issues that will be raised on sentence, the trial judge should set an appropriate schedule with counsel to address those issues in a timely and efficient manner. That schedule must keep the presumptive ceiling firmly in mind. If it appears to the trial judge that the proposed plans of counsel could run up against the presumptive ceiling, the trial judge should raise that issue with counsel at the scheduling meeting. Counsel should be asked to specifically address issues such as waiver and exceptional circumstances considered in the context of their proposed plans with respect to sentencing. Potential s. 11(b) problems should be confronted and addressed before they become s. 11(b) violations.

[92]      In my view, the trial judge is entitled to expect a high level of cooperation between counsel on sentencing. For example, the impact of pre-trial custody conditions on sentence has become a commonly litigated matter. Counsel should be well-aware of the kind of material that should be put before the trial judge in support of a claim that the sentence should be mitigated to reflect those pre-trial conditions. Defence counsel should be able to identify, with particularity, the material needed. The trial judge is entitled to look to the Crown to cooperate with the defence in obtaining that material, especially if it is in the hands of government agencies.

[93] Armed with a five-month presumptive ceiling and the recognition in Jordan that all involved have an obligation to move the matter forward, a trial judge could, absent a waiver of delay, require defence counsel to move forward immediately after verdict with the various issues it proposed to raise on sentencing.

Application to the Case

[95] ... In oral argument, counsel for the respondent acknowledged that the period from August 2017 until the convictions were stayed in 2018 was consumed with defence constitutional applications and motions, which in the circumstances are properly characterized as defence delay for the purposes of the Jordan analysis. I fully agree with this concession. Consequently, the net delay is seven months (late-January 2017 – August 2017).

[98]      A s. 752.1 application is the Crown’s first step in the bringing of a dangerous offender or long-term offender application under Part XXIV of the Criminal Code. Part XXIV proceedings are, of necessity, taken after verdict. In my view, those proceedings are properly characterized as exceptional in the sense that they are “reasonably unavoidable” once the Crown has determined that the circumstances dictate that a Part XXIV designation should be sought: see Jordan, at paras. 69-72; Cody, at paras. 46-48. However, even when delay is attributable to a reasonably unavoidable circumstance or event, the Crown has an obligation to mitigate any resulting delay: Cody, at para. 48.

[100]   I would treat the five months between the verdicts and the dismissal of the s. 752.1 application (late-January 2017 – June 2017) as attributable to an exceptional circumstance, that is the commencement of a Part XXIV proceeding. In my view, the s. 752.1 application constitutes a discrete event in the context of that exceptional circumstance. The five months required to bring and resolve the s. 752.1 application should be deducted from post-verdict delay before applying the five-month presumptive ceiling: Jordan, at paras. 48, 75; Coulter, at para. 38.

[102]    I accept that if the s. 752.1 application is properly characterized as frivolous, the Crown cannot rely on the time needed to make and dispose of that application as an exceptional circumstance. I do not, however, agree that the Crown’s application was frivolous. The application was arguable. Indeed, it initially succeeded. The trial judge reconsidered and reversed his decision based on a factual error concerning one entry in the respondent’s criminal record. The trial judge’s reasons tell me that this was a close call.

[104]   In summary, I would treat the initiation of a proceeding under Part XXIV of the Criminal Code as an exceptional circumstance. I would also treat the s. 752.1 application as a discrete event in that process. I would deduct five months from the seven-month delay: see Coulter, at para. 38. The remaining two-month delay falls below the five-month presumptive ceiling I would set. It is also below the three-month presumptive ceiling suggested by the respondent.

[105]   I make one further observation with respect to the application of the Jordan analysis to post-verdict delay. Jordan recognized that the new framework it put in place should be applied somewhat differently in respect of cases that were in the system before Jordan was released: see Jordan, at paras. 95-100. The majority described transitional exceptional circumstances that could, in some situations, justify delay above the presumptive ceiling. I would take the same approach in applying the presumptive ceiling applicable to post-verdict delay set down in this case. There is, however, no need to consider how the transitional exception would apply on the facts of this case, as the post-verdict delay falls under the presumptive ceiling. There was no s. 11(b) breach.

Potential Remedies for a Breach

[113]   This court has, in the exercise of its appellate powers, stayed the enforcement of a part of a sentence when it would be inappropriate to reincarcerate an offender: see R. v. Plange, 2019 ONCA 646 (CanLII), at para. 48. The jurisprudence also recognizes that Charter breaches may mitigate sentence, either through a s. 24(1) Charter remedy, or by the application of the generally applicable principles of sentencing: see R. v. Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 S.C.R. 206, at paras. 56-64. 

[114]   It is arguable that the remedy for post-verdict delay should not affect the conviction, but should be based on a determination of the “appropriate and just” remedy as it relates to sentencing. Appropriate remedies might include a stay of the sentencing, or a stay of the enforcement of all or part of the sentence imposed. I leave this issue to a case in which the court has found a breach of s. 11(b) post-verdict.

Result Here

[129]   I would allow the Crown appeal and set aside the permanent stay entered by the trial judge. The trial judge found the respondent guilty of armed robbery, aggravated assault, and possession of a loaded firearm: see R. v. Charley, 2017 ONSC 605 (CanLII), at para. 99. I would affirm the findings of guilt on each of those charges and remit the matter to the trial court for sentencing on those charges.

R v Rose(ONSC)

[August 8/19] – Rowbotham Applications – 2019 ONSC 4842 [D.E Harris J.]

AUTHOR’S NOTE: Herein, Justice Harris provides a good, short overview of a Rowbotham application for public funding of a defence where the case is complex, the accused is not completely impoverished, and is able to make a contribution to the defence.  The case provides a good foundation for public funding in cases where the accused can pay a portion of their defence costs. 

The Background and Law

[1]        I allowed a Rowbotham application in this criminal prosecution: see R. v. Rowbotham (1988) 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1, 63 C.R. (3d) 113, 1988 CarswellOnt 58. These are my reasons.

[2]        The applicant is charged with two counts of conspiracy to import cocaine contrary to the Controlled Drugs and Substances Act.

[3]        The applicant states that he cannot afford counsel for the trial itself.  He applied for Legal Aid for the trial but was refused. His appeals have how been exhausted. A 10 week trial is scheduled to commence on October 15, 2019. Four other accused are being tried along with him. Prior to this, during this summer, pre-trial applications including a Garofoli motion are to be heard.

[4]        Upon conviction, the Crown is seeking a sentence of 10-12 years in custody.  The applicant does not have a criminal record.

[5]        There are three pre-conditions to a Rowbotham order: 1. Legal Aid must have been refused; 2. The trial must be of sufficient complexity that representation is essential to a fair trial; and 3. The applicant cannot afford to fund counsel independently.

[7]        With respect to the second criteria, the complexity of the matter is obvious from the length of the trial, the trial of multiple accused (5) and from the two conspiracy allegations, some of the most complex factually and legally in the Criminal Code.

[8]        The somewhat interesting aspect of this case was with respect to the financial criteria. The applicant has agreed to pay $12,000 towards his legal fees. This is not unlike the contribution agreements that Ontario Legal Aid (OLA) is known to offer accused persons. Funding is granted by OLA, but the accused must participate to some degree with his or her own funds.

[10]        Such an arrangement is a good compromise between individual and community interests. The accused obtains funding for legal representation for a complex trial with potentially serious consequences to him or her upon conviction. The public is not solely responsible for paying for counsel. The accused partially defrays the cost if able to do so.

[11]        It is well-known that criminal trials over the last decades have become lengthier and more complex. This was noted in the Rowbotham judgment itself over three decades ago (para. 193, Carswell). At the same time, income inequality between rich and poor has grown significantly. These two factors, and others as well, have often made it more difficult for accused persons to fund their own trial defence. Partial payment of fees by the accused with the Attorney General paying the remaining portion, is a development which is responsive to this reality.  They are likely to become more common in the future.


[14]        The applicant is 39 years old and has always been gainfully employed. He currently works as a machine operator and makes somewhere in the neighbourhood of $70,000 per year.  He has four children: an 18-year-old son, a 15-year-old son and twins, one a girl, the other a boy, age 4 years old. The applicant’s common law wife works as a dental assistant at about $18 per hour and working 25-30 hours a week.  He has tried to obtain financial help from his sister, his mother and his father. But there has been no substantial help forthcoming.

[16]        Although the applicant and his wife bring in a gross income of over $100,000 pre-tax, they have substantial expenses. In the end, there is little disposable income remaining.  His counsel estimates that his billings at the legal aid rate would be $71,000 and agrees that on a private retainer would be approximately twice that, roughly $140,000.  Ability to pay must be measured with that context in mind.

[17]        In my view, it is not feasible that the applicant could fund such a defence, even if his payments are spread out over time. In view of the disparity between the likely fees and the applicant’s ability to pay, the contribution agreement although relatively small, is a satisfactory compromise in all of the circumstances.