Rowbotham Applications

In light of the ongoing Legal Aid “strike” by criminal lawyers, today’s decision in R. v. Rushlow, 2009 ONCA 461 takes on added importance.  Although it deals with Rowbotham applications – where the rate of payment is generally that of Legal Aid – it has implications for Fisher applications also (Fisher allows for a higher rate of remuneration than Legal Aid rates).  The Court writes (note, the Court’s decision uses a variant spelling for Rowbotham):

 

The Rowbothom test

[17]          In R. v. Rowbothom (1988), 41 C.C.C. (3d) 1 at 69, this court held that:

[A] trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided. [Emphasis added.]

[18]          Whether the issue is financial ability or the necessity for counsel, the trial judge in considering whether to appoint counsel is not engaged in reviewing the decision of the legal aid authorities.  As this court said in R. v. Peterman (2004), 70 O.R. (3d) 481 ( C.A. ) at para. 22:

[W]hen a court makes a Rowbothom order, it is not conducting some kind of judicial review of decisions made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial.

[19]          In considering whether to appoint counsel the trial judge is required to consider the seriousness of the charges, the length and complexity of the proceedings and the accused’s ability to participate effectively and defend the case.  Because of the pervasiveness of legal aid, it will be the rare and exceptional case that the court will find it necessary to appoint counsel.  This does not mean that counsel is only required in exceptional cases.  Rather, it is the fact that legal aid is available for accused who cannot afford a lawyer that Rowbothom orders are exceptional.

[20]          Courts have considered a number of factors in determining whether appointing counsel is essential in view of the complexity and seriousness of the case.  Generally, the courts look at the personal abilities of the accused such as their education and employment background, their ability to read and their facility with the language of the proceedings. The courts will also consider the complexity of the evidence; the procedural, evidentiary and substantive law that applies to the case; the likelihood of especially complex procedures such as a voir dire; the seriousness of the charges; the expected length of the trial; and the likelihood of imprisonment:  see R. v. Wood (2001), 191 N.S.R. (2d) 201 (C.A.); R. v. Wilson (1997), 163 N.S.R. (2d) 206 (C.A.); R. v. Hayes (2002), 253 N.B.R. (2d) 299 (C.A.); R. v. Drury (2001), 150 Man. R. (2d) 64 ( C.A. ); R. v. Rain (1998), 223 A.R. 359 ( C.A. ) and R. v. Chemama, 2008 ONCJ 31.

[21]          In considering whether counsel is essential, the court will also take into account the prosecution’s duty to make full disclosure and the trial judge’s obligation to assist the unrepresented accused: see R. v. Wilson and R. v. Keating (1997), 159 N.S.R. (2d) 357 (C.A.).

The test applied by the trial judge

[22]          In my view, the trial judge did not apply the correct test.  After noting that the threshold for appointing counsel is “very high”, she said the following:

As it was put in R. v. Rowbothom (1988), 41 C.C.C. (3d) 1, p. 61:

In an extreme case, that power [the power to appoint counsel for an indigent accused] may exist where a trial judge is satisfied that the decision by Legal Aid not to grant a counsel certificate is completely perverse, given the accused's financial situation, the complexity and length of the trial, and the substantial possibility of lengthy imprisonment. 

[My emphasis]

[23]          The trial judge then went on to describe a case where counsel should be appointed as one posing,

[U]nique challenges above and beyond those that would ordinarily be expected in a criminal trial. Were it otherwise, an enormous number of self-represented individuals might well be entitled to state funded counsel, thereby causing a serious interference with the administration of the state sponsored Legal Aid Plan. [Emphasis added.]

Ultimately, she was not satisfied that this was “one of those unique and extraordinary cases in which the presence of counsel is a prerequisite to a fair trial”.  The trial judge concluded as follows:

In light of the stringent test that must be met to satisfy the first prong of Rowbothom, the role of the trial judge in rendering necessary assistance to Mr. Rushlow, and the extra added duty of fairness resting upon Crown counsel, I am not satisfied that the absence of legal counsel will have the effect of depriving Mr. Rushlow of a fair trial in this case.

[24]          In my view, the trial judge applied too stringent a test.  This court has never said that a Rowbothom order is limited to an extreme case where Legal Aid’s decision is completely perverse and there is a substantial possibility of lengthy imprisonment.  The passage from Rowbothom quoted by the trial judge is from the reasons of the trial judge in that case.  This court did not endorse that test.  Nor need the case be one posing “unique challenges”.  The authorities hold that the case must be of some complexity, but a requirement of unique challenges puts the threshold too high.  It is enough that there is a probability of imprisonment and that the case is sufficiently complex that counsel is essential to ensure that the accused receives a fair trial.