



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hafizi, 2015 ONCA 534

DATE: 20150717

DOCKET: C58939

MacPherson, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario

Appellant

and

Ahmed Hafizi

Respondent

Troy Harrison and Ann Christian-Brown, for the appellant

Dominic Lamb and Solomon Friedman, for the respondent

Heard: June 26, 2015

On appeal from the order of Justice Monique Métivier of
    the Superior Court of Justice, dated May 22, 2014, with reasons reported at 2014
    ONSC 3121.

ENDORSEMENT

Introduction

[1]

In granting the respondents
Rowbotham
application, the
    application judge appointed his counsel of choice as state-funded counsel. She
    conditionally stayed his first degree murder charge until the state negotiated
    compensation in good faith with the respondents chosen counsel.

[2]

Ontario no longer disputes that the respondent could not fully fund
    counsel from his own resources and that he required counsel to ensure a fair trial.
    In other words, Ontario no longer contests the application judges decision to
    order state-funded counsel under
Rowbotham
. Ontario only seeks leave
    of this court to appeal the counsel of choice appointment  the
Fisher
order
     arguing that the application judge erred in ordering Ontario to pay for the
    specific counsel the respondent wished to represent him.

[3]

In the interests of moving this case along, Ontario has agreed to fund
    the respondents chosen counsel even if successful on this appeal.

Leave to Appeal

[4]

Ontario seeks to appeal only the
Fisher
order, with leave,
    under s. 676.1 of the
Criminal Code
, R.S.C. 1985, c. C-46. This
    section provides:

A party who is ordered to pay costs may, with leave of the
    court of appeal or a judge of a court of appeal, appeal the order or the amount
    of costs ordered.

[5]

The term costs in
s.676.1
covers obligations to make future payments imposed by judicial decision:
R.
    v. Beauchamps
, 2002 SCC 52,
[2002] 2 S.C.R. 762, at para.
14;
R. v. Figueroa
(2003), 64 O.R. (3d) 321
(C.A.)
, at para.
16.

[6]

Leave to appeal is granted. In our view, the application judges
    decision to order publicly-funded counsel of choice in this case is contrary to
    the binding decision of this court in
R. v. Peterman
(2004), 70 O.R.
    (3d) 481 (C.A.).

Publicly Funded Counsel (and Counsel of Choice) in Criminal
    Proceedings

[7]

Where a court is satisfied that an accused persons right to a fair
    trial guaranteed by
ss. 7
and
11
(d) of the
Charter
would be infringed if he or she was not represented by counsel, the court can
    make what is called a
Rowbotham
order. That is, pursuant to
R. v.
    Rowbotham
(1988), 41 C.C.C. (3d) 1 (Ont. C.A.)
,
the court may order the state to fund counsel to represent the accused person
    so as to ensure trial fairness.

[8]

Justice Rosenberg in
Peterman
expanded upon
Rowbotham
.
    Beginning at para. 21, he describes the
Rowbotham
principle set out
    above. At paras. 26-27, he restates the fundamental right of an accused person
    to choose his or her counsel, a right zealously protected by the court. As
    Rosenberg J.A. explains at para. 28, however, the right of an accused person to
    choose his or her counsel does not require the state to pay for an accused
    persons chosen counsel, even where the accused person wins a
Rowbotham
order. At paras. 29-30 of
Peterman
, Rosenberg J.A. goes on to describe
    the two very narrow exceptions to that general rule, which he variously
    observes will be unique, unusual and exceedingly rare.

[9]

The first exception is where an accused person can show that he or she
    will only receive a fair trial if represented by a specific lawyer. In other
    words, no other counsel is able to, or will, protect the fair trial rights of
    the accused person. Justice Rosenberg notes that this exception applies only in
    unusual circumstances. Such rare circumstances underlay
R. v. Fisher
,
[1997] S.J. No. 530 (Q.B.)
, the genesis of the
Fisher
order:
Peterman
, at para. 29.

[10]

The
    second exception that Rosenberg J.A. describes is where an accused person
    satisfies the court that he or she cannot find competent counsel under Legal
    Aid rates and conditions:
Peterman
,

at para. 30.

[11]

Finally,
    as Rosenberg J.A. emphasized at paras. 31-32 and 37 in
Peterman
, the
    onus lies on the accused person to produce evidence justifying an order under either
    of the two exceptions. In our view, the respondent in the case before us failed
    to produce sufficient evidence to fit into either exception.

Discussion

[12]

The
    application judge relied on the following facts in granting the counsel of
    choice application:

·

The respondent is facing a serious charge and a complex case;

·

His family, after spending $147,000 on his defence, cannot or
    will not spend more money on his legal fees;

·

His counsel of choice have taken part in the case for two years
    and have participated in pre-trial proceedings; and,

·

The respondent was denied Legal Aid and has exhausted all
    available appeals.

[13]

We
    do not think that the facts support either of the narrow and rare exceptions
    outlined in
Peterman
. Respectfully, the application judges reasons do
    not refer specifically to the
Peterman
test; they do not include any
    analysis of its components; and they do not reference any evidence capable of satisfying
    either
Peterman
exception.

[14]

The
    respondent in this court relies simply on the complexity of the case and the familiarity
    of his counsel of choice with the details of it. The respondent does not
    explain why it would not be possible for other competent counsel to protect his
    fair trial rights.

[15]

On
    the application judges reasoning, nearly any accused person facing a serious
    charge and a complex trial could succeed on a counsel of choice application
    once he or she ran out of money to pay his or her lawyer. That broad
    availability does not fit with the intended rarity of a counsel of choice order.

[16]

Finally,
    there is nothing in the application judges reasons to support the need for
    payment of enhanced rates above those authorized by Legal Aid to ensure that the
    respondent receives competent counsel: see
Peterman
, at para. 30;
Ontario
    v. Criminal Lawyers Association of Ontario
, 2013 SCC 43, [2013] 3
    S.C.R. 3, at para. 66. Despite that, we again acknowledge that Ontario has
    agreed to fund the respondents counsel of choice even if successful on this
    appeal.

Disposition

[17]

Leave
    to appeal is granted and the appeal is allowed. The order appointing the
    respondents counsel of choice as state-funded counsel, at a rate to be
    negotiated in good faith, is set aside. In accordance with Ontarios position
    on this appeal, the respondents counsel will not be removed.

J.C.
    MacPherson J.A.

J.
    Simmons J.A.

"H.S.
    LaForme J.A."


