QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 144 Date: 2014 05 15 Docket: N.J. No. 12 of 2014 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and ANTHONY ROBERT REGNIER Counsel: Andrea J. Rohrke for the Attorney General of Canada Anthony R. Regnier on his own behalf Blaine R. Beaven as friend of the court JUDGMENT ALLBRIGHT J. May 15, 2014 [1] Anthony Robert Regnier is charged in an indictment before this court with the offence: 1. THAT he, the said ANTHONY ROBERT REGNIER, on or about the 21st day of March, A.D. 2013, at or near Saskatoon, Saskatchewan, did unlawfully have in his possession controlled substance, to wit: methamphetamine for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act [S.C. 1996, c. 19]. [2] Mr. Regnier’s preliminary inquiry was held in Provincial Court in Saskatoon on March 13, 2014, and he was committed to stand trial on the noted offence in the Court of Queen’s Bench for the Province of Saskatchewan with Queen’s Bench justice sitting alone. At the preliminary inquiry, Mr. Regnier was represented by Mr. Blaine Beaven of Scott Beaven Law Office. Mr. Beaven acted for Mr. Regnier as result of court appointment following an appropriate application by Mr. Regnier seeking such counsel. An endorsement on the Provincial Court documentation dated March 13, 2014 notes, “Mr. Beaven’s court appointment has expired after the preliminary hearing.” [3] Prior to the preliminary inquiry, case management conference was held from time to time dealing with Mr. Regnier’s matter, and as part of the case management discussions, the issue of Mr. Regnier being represented by court appointed counsel was canvassed. Ultimately Mr. Beaven agreed to accept such an appointment and as noted representing Mr. Regnier at the preliminary inquiry. [4] Mr. Regnier now applies in this court for court appointed counsel (in essence Rowbotham application, R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1, 63 C.R. (3d) 113 (Ont. C.A.). The essence of his current application is that he wishes to have lawyer appointed by the court to represent him at his trial. [5] hearing was convened before me for the purposes of canvassing Mr. Regnier’s application, and on that occasion counsel, Andrea J. Rohrke, appeared on behalf of the Attorney General of Canada in opposition to Mr. Regnier’s request. (The remuneration for counsel appointed on behalf of Mr. Regnier following from such an application would be the responsibility of the Attorney General of Canada.) As part of her appearance and presentation, Ms. Rohrke requested leave to cross-examine Mr. Regnier on his financial circumstances as set forth in the application materials prepared on behalf of Mr. Regnier by the Saskatoon CLASSIC (Community Legal Assistance Services for Saskatoon Inner City Inc.) office. Such questioning occurred, and Mr. Regnier provided responses to the court generally dealing with his personal circumstances and his financial circumstances. Mr. Beaven requested the opportunity, as friend of the court, to ask additional questions of Mr. Regnier, and that request was granted. [6] The issue for me then to determine is whether such an appointment should be made by the court at this time, and if so, whether any conditions should be placed upon that appointment. [7] am appreciative of the efforts of the personnel at CLASSIC for the assistance which they have provided to Mr. Regnier in bringing the current application. am also appreciative of the assistance of Mr. Beaven in appearing as courtesy to the court on the occasion of the hearing. [8] The material before me satisfies me that Mr. Regnier has been denied Legal Aid and has failed on the final appeal. The assertion on his behalf is that his disability income is essentially what has disentitled him from receiving services from Legal Aid Saskatchewan; however, he does not have sufficient resources to hire counsel. His disability benefits are received from the Saskatchewan Teachers’ Federation, and they are the entirety of his income. The submission proceeds; that after paying for his mortgage and other related bills, he is left with very little disposable income. Further, it is asserted on behalf of Mr. Regnier that he does not feel capable of representing himself, as he has substance addiction problem which impairs his perception and memory. Finally, the Crown on complex matter is seeking jail sentence ranging from 18 months to years incarceration. [9] The submission prepared by supervising lawyer Trevor Oleniuk of CLASSIC concludes with the proposition that Mr. Regnier requires court appointed counsel in order to have fair trial pursuant to ss. and 11(d) of the Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (U.K.), 1982 c. 11) (the “Charter”) as set forth in R. v. Rowbotham. [10] Mr. Regnier has filed an affidavit in support of his application, and the contents of that affidavit parallel the grounds set forth in the formal application and the background articulated therein. [11] Mr. Regnier’s monthly income is $2,500 per month, and as he observes, that exceeds the Legal Aid eligibility level of $985 per month. [12] Set forth in Mr. Regnier’s affidavit are the following additional relevant facts: He has suffered from serious addiction to methamphetamine for over 10 years. His addiction is serious, and it has had an immense impact on his everyday life. He is struggling to deal with his addiction and attends counselling and has regular appointments with psychiatrist. His addictions have the practical effect of impairing his memory and his ability to concentrate. He believes this would negatively affect his ability to pay attention during court proceedings and would make it difficult for him to represent himself on the matter. He is nervous to appear in court and finds the process “very overwhelming” and that such impact further impairs his ability to represent himself. He understands the charges against him are serious and their consequences would be severe. He does not feel able to respond to the serious charges which he is facing. He has no knowledge of legal process or training, and in earlier court attendances he has found that he is unable to understand the language used. He is consequently unable to follow what is happening, and, therefore, at the end of the proceedings is also unaware of what took place and is unaware of what consequences that may have for him. If he is unsuccessful with the application for court appointed counsel, he will likely simply plead guilty to his charges to get it over with, as he would not be able to understand the court proceedings in meaningful way to defend himself. His income is entirely from disability benefits from the Saskatchewan Teachers’ Federation, and he receives $2,500 per month total. His estimate of his income, expenses and assets leaves him in position where the cost of retaining legal counsel in the matter would be completely unaffordable to him. Finally, it is his understanding that private lawyer would charge him thousands of dollars up front as retainer, and as he has no savings and very little disposable income, he cannot afford to retain lawyer. [13] On questioning by Ms. Rohrke, it was demonstrated that Mr. Regnier has significant amount of equity in the home which he owns. While there are financial encumbrances against that home, nonetheless there is the equity which is there, and as understand his response to Ms. Rohrke’s questions, there would appear to be no reason why he could not obtain some funds from the equity in his home. [14] In addition, Ms. Rohrke inquired of Mr. Regnier as to his transportation cost of $300 per month as set forth in his financial information. He is apparently not driving vehicle, and it is her view that these are funds which could be made available to him for the purposes of retaining counsel. In addition, his financial information suggests his residence is worth $200,000 with $75,000 mortgage, leaving, as indicated, equity of approximately $125,000. [15] The following background facts are significant as prelude to the formal Rowbotham analysis. [16] In Provincial Court the application for court appointed counsel was first heard on July 31, 2013 before Judge Whelan. The matter was adjourned. The matter was adjourned so that the accused could inquire into whether he could obtain loan through court services to fund his defence and also so the accused could look into mortgage or loans against his home, which has significant amount of equity. [17] The continuation of the original application was heard on August 29, 2013, at which time the matter again came before Her Honour Judge Whelan. At that time Judge Whelan seized herself with the file. It would appear that Mr. Regnier had not by that time consulted any banking institutions regarding loan or line of credit against his property, nor had he apparently looked further into his financial options. At that time Judge Whelan, in any event, concluded that in order for the matter to move forward in timely fashion and in the absence of the accused having any “disposable assets” at that time that it would be appropriate to grant the accused time limited order. Such an order for six months was made on the understanding that Mr. Regnier would make attempts to sell his motorcycle, vehicle and other assets in addition to inquiring into whether he could obtain bank loan or home equity line of credit. [18] The application again came before Judge Whelan on November 19, 2013, at which time Mr. Regnier was seeking an extension of his court appointed counsel. Judge Whelan determined that the application was premature as her order of August 29, 2013 provided number of conditions which the accused had to complete before she would consider an extension. At that time Mr. Regnier had apparently not complied with any of those conditions. [19] The application was again brought before Judge Whelan on February 27, 2014. The accused once again had failed to complete any of the steps outlined by Judge Whelan in her previous order and had not made any attempt to inquire into loan. Counsel for Mr. Regnier advised that Mr. Regnier had an appointment with the bank the next day; however, the judge was unwilling to provide an extension. Ultimately the court appointed counsel order was extended to March 13, 2014 so that the accused would have representation for the preliminary inquiry; however, no further order was granted beyond that. ROWBOTHAM ANALYSIS [20] In this instance is it clear to me that Mr. Regnier has still not undertaken any of the actions required by Judge Whelan during the time when she case managed the matter. In essence, Mr. Regnier comes before this court in the same position as he was on the earlier occasion without having attempted in any way to utilize his personal resources to obtain counsel. Nonetheless, he seeks an order for court appointed counsel for the purposes of conducting his defence on the indictment before this court. [21] The Ontario Court of Appeal in R. v. Rowbotham, supra, set forth protocol for an accused individual to pursue in seeking court appointed counsel in cases not falling within particular provincial Legal Aid plan. Rowbotham references ss. and 11(d) of the Charter, those sections which guarantee an accused fair trial in accordance with the principles of fundamental justice. The court in Rowbotham recognizes that there will be appropriate circumstances which require that funded counsel be provided to an accused; where that accused wishes counsel but is legitimately unable to pay lawyer, and secondarily, where representation of the accused is essential to fair trial. [22] Since the authorship of R. v. Rowbotham, the protocol has widely been adopted throughout Canada in most, if not all, jurisdictions where the particular provincial Legal Aid scheme is not prepared to provide counsel to an accused individual. [23] As key ingredient of the protocol, the Ontario Court of Appeal concluded that in circumstances where an accused’s fair trial interests are impaired for want of legal representation, that an appropriate remedy is stay of proceedings under s. 24(1) of the Charter, in the event the prosecution insists on proceeding with trial in breach of the accused’s Charter right to fair trial. [24] The protocol requires initially that an indigent accused is required to apply for provincially funded Legal Aid under the appropriate authority. Only in the event of the unavailability of Legal Aid as counsel for an accused is the court required to consider whether the court itself should make an order appointing counsel. [25] There are two germane criteria which an accused must demonstrate in order to qualify for court appointed counsel. The first criterion is that the accused is unable to afford counsel, in other words that the accused is indigent. The second criterion involves consideration of the complexity of the legal issues involved in the charge or charges against the accused, particularly including an assessment of the possible sentence to be imposed. [26] In this instance propose to deal firstly out of turn with the second criterion. [27] I am satisfied from the information and material placed before me that Mr. Regnier is probably not capable of conducting his own defence in light of the personal issues which he is facing and his methamphetamine addiction. The subtle but critical issue of the difference between possession of substance for the purposes of trafficking and simple possession are probably key to Mr. Regnier’s defence, and this difference requires legal analysis of the principles differentiating the two potential offences, again those being possession for the purposes or simple possession. [28] The information further satisfied me that Mr. Regnier has demonstrated an inability to closely follow the proceedings in which he is involved, particularly referencing the preliminary inquiry. [29] In addition, on the second criterion, am advised that the Crown will be seeking significant period of incarceration in the event that Mr. Regnier is found guilty of the offence of possession for the purposes. A combination of these factors on the second criterion lead me to conclude that it would most certainly be beneficial to Mr. Regnier to have counsel represent him, particularly on the fundamental premise that in my view he is not capable of adequately representing himself. [30] However, the second criterion practically comes into play only upon the court’s finding of an accused such as Mr. Regnier being indigent. [31] On the point of indigency, am not persuaded that Mr. Regnier has shown that he is indigent as such is contemplated in R. v. Rowbotham. [32] In considering the financial situation of Mr. Regnier, am entitled to consider not only his statement of his income versus his expenses, but am entitled to consider any equity in real property which is available to him. In this instance, Mr. Regnier has monthly income of approximately $2,500 and his demonstrated expenses in essence consume the $2,500. Upon Mr. Regnier being questioned regarding his financial circumstances, am satisfied that there are some smaller items in his monthly expenses, such as transportation, which he either does not consistently incur or which realistically he does not need to incur. In my view, some of these expenditures could be used to make periodic payments to counsel to represent him. Further, am satisfied that Mr. Regnier has significant amount of equity in his home, by his own financial statement that equity being approximately $125,000. observed that throughout the entire process that Mr. Regnier has been before the courts, whether it is Provincial Court or the Court of Queen’s Bench, that he has made no efforts to attempt to secure funding utilizing this significant equity in his home. Judge Whelan during the Provincial Court proceedings had urged this upon Mr. Regnier; however, he failed to undertake what she requested of him during that process, and it was ultimately only as result of Judge Whelan prudently not wishing the matter to be delayed that she made limited appointment of counsel on behalf of Mr. Regnier. [33] At this stage Mr. Regnier comes before the court still having made no such inquiries. If Mr. Regnier had made such substantial inquiries and attempted to secure alternate financing and been met with lack of success, he would have been in position to present these efforts to the court, and would have been in different position in assessing his ability to fund his own defence. If no financial institution was prepared to provide him with funding utilizing his equity as security, that might well cast different light upon the question of his indigency. However, as noted, that has not occurred. [34] The matter of indigency was considered in R. v. Malik, 2003 BCSC 1439 (CanLII), 111 C.R.R. (2d) 40. At para. 33 the court addresses indigency in the following fashion: 33 ... indigency is an inability to pay or contribute to legal fees despite best efforts to prioritize payment of those legal fees by saving, borrowing or otherwise raising funds for such payment, and consequently being incapable of retaining counsel in ample time to ensure fair trial. [35] In addition, the court in Malik noted that the accused’s financial circumstances must be extraordinary, and it is not sufficient to prove simply difficult circumstances. [36] The court in Malik identified items of financial information which are to be presented by an accused, and they include: (a) extraordinary financial circumstances; (b) attempts to obtain funds to retain counsel; (c) prudence with expenses and prioritization of payment of his legal fees; (d) efforts to save for the cost of counsel and to raise funds by earning additional income; (e) he has made all reasonable effort to use his assets to raise funds, for example by obtaining loans; [emphasis added] (f) whether he is in position to pay some of the costs of counsel; (g) the income and assets of his spouse and family. [37] Some of the items in this canvass are not relevant to Mr. Regnier, however, some are. For example, Mr. Regnier’s financial statement does not demonstrate “extraordinary financial circumstances”, nor has he demonstrated “prudence with expenses and prioritization of payment of his legal fees”. [38] am appreciative that Mr. Regnier is unable to earn additional income from other employment; however, significantly he has not demonstrated “that he has made all reasonable effort to use his assets to raise funds, for example by obtaining loans”. [39] In this instance the Attorney General has acknowledged recognition that in assessing financial eligibility, the court is not bound by the Legal Aid financial criteria, and in essence the court may be more flexible in its assessment. An example of this is that in considering financial eligibility, the court can also take into account the complexity of the case which is balanced against the accused’s financial resources. [40] In considering all of the factors surrounding Mr. Regnier’s financial circumstance and the potential cost of trial, I am of the view that Mr. Regnier has not demonstrated that he is indigent. His financial circumstances are significantly in excess of the baseline criterion for Legal Aid in Saskatchewan, and am not persuaded that he has demonstrated the requisite circumstance of being indigent. Accordingly, in applying the Rowbotham protocol to the application before me, while Mr. Regnier meets the second criterion, he does not in my respectful view meet the first criterion. [41] Accordingly, Mr. Regnier’s application for court appointed counsel is dismissed. [42] appreciate that Mr. Regnier will require some time in order to secure counsel or make arrangements to put in place financing arrangements with counsel, and, therefore, it is important to provide reasonable window of time for Mr. Regnier to start to make such arrangements. I, therefore, direct that Mr. Regnier’s pre-trial in this matter is to be scheduled for Friday, July 25, 2014 at 10:00 a.m., and direct that Mr. Regnier is to be personally present on that occasion unless he has retained counsel to represent him, in which case counsel may appear on his behalf. [43] In the normal course, at that pre-trial conference in terms of setting trial date, such trial, with the court’s current scheduling requirements, would be set for some months in the future in any event. The cumulative effect of the time frame from the date of this order through to the date of potential trial will also enable Mr. Regnier, if he so chooses, to attempt to make arrangements with counsel making periodic payments over the ensuing months towards his legal fees. [44] Order accordingly. J. G.N. ALLBRIGHT
The Court dismissed the application. It found that the accused was not capable of representing himself but that the accused had not shown that he was indigent.