Ontario Criminal


Accused could not afford to retain counsel to extent necessary to ensure fair trial

Accused charged with four counts of trafficking in cocaine and oxycodone and possession of proceeds of crime. Accused applied for appointment of state-funded counsel. Legal Aid had denied funding to accused, as his income of $13,200 per year exceeded its financial cut-off. Accused had grade nine education and had entered workforce as labourer when he was 14 years old. Accused had received disclosure, and said that he could not make much of it. Allegations involved sales of drugs to undercover operators, and issues were potentially defence of entrapment and Charter claims. Crown had indicated to accused that his offences should have attracted four-year sentence in penitentiary. Accused argued that complexity of case arose from tactical decisions involving possibility of calling co-charged individuals as witnesses at trial. Crown argued that accused had means to pay counsel, but refused to allocate his own money properly for that purpose. Application allowed. Although it appeared that accused’s chances for bail on review were low, it could not be said that they were non-existent. Court could not accept that accused should have had to give up everything he had, including his apartment, in order to satisfy court that he was doing everything he could to fund lawyer. There was evidence that accused had, over time, satisfied outstanding accounts owing to Legal Aid, and it could not be said that he had not been mindful of his duty to contribute financially to his own defence when that had been required of him. Given accused’s modest level of education, his working background as labourer, difficulties inherent in mounting entrapment defence, and likelihood of significant sentence of imprisonment upon conviction, case would have been complex for accused to defend, and carried serious consequences for him. For accused not to have counsel at trial would have resulted in trial unfairness, as accused would not have been able sufficiently to understand case he had to meet or to present any defences available to him, and would have been subject to very serious consequences upon conviction. This was rare case where court was satisfied that accused, because of length and complexity of proceedings, or for other reasons, could not afford to retain counsel to extent necessary to ensure fair trial.

R. v. Davidson (Apr. 22, 2015, Ont. S.C.J., A.D. Kurke J., File No. 7483/14) 121 W.C.B. (2d) 97.

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