



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Josipovic, 2018 ONCA 199

DATE: 20180227

DOCKET: M48045 (C62030)

Nordheimer J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

John Josipovic

Applicant (Appellant)

Delmar Doucette and Daniel C. Santoro, for the applicant

Craig Harper, for the respondent

Heard: February 21, 2018

On an application for the appointment
    of counsel on appeal pursuant to s. 684(1) of the
Criminal Code
, R.S.C.
    1985, c. C-46.

REASONS FOR DECISION

[1]

The applicant, John Josipovic, along with his brother, Mato Josipovic, were
    convicted of second degree murder on December 18, 2015 for the death of Lou
    Malone. John Josipovic was sentenced to life imprisonment without eligibility
    for parole for 13 years on April 8, 2016.

[2]

On January 17, 2017, the applicant and his brother brought applications
    for the appointment of counsel pursuant to s. 684(1) of the
Criminal Code
,
    R.S.C. 1985, c. C-46 to represent them on their appeals.

[3]

On January 25, 2017, Huscroft J.A. granted the brothers application but
    dismissed the applicants application. In doing so, Huscroft J.A. made two
    central findings. First, he found that the applicant had raised an arguable
    case and was not capable of advancing his appeal without the assistance of
    counsel. However, Huscroft J.A. also found that the applicant had not met his
    burden of establishing that he had insufficient means to retain counsel.

[4]

In reaching the latter conclusion, Huscroft J.A. found that the
    applicant had not provided: his tax returns (save for his 2014 return); a
    current valuation of his pension; or a current valuation of the matrimonial
    home. Huscroft J.A. also found that neither the applicants wife nor his
    parents provided any information regarding their ability or willingness to fund
    counsel for the applicants appeal.

[5]

The applicant now renews his application for the appointment of counsel.
    On this application, the applicant provided both his and his wifes tax returns
    for the years 2010 to 2015. There is nothing in those tax returns that would
    suggest that the applicant has the financial resources to fund counsel for his
    appeal.

[6]

The applicant also provided a Municipal Property Assessment Notice for
    the 2016 property tax year assessing the value of the matrimonial home at $427,000.00.

[7]

In terms of his pension, the evidence establishes that the pension is
    locked-in such that the applicant cannot take the value of the pension. He
    might have been able to do so at an earlier point in time by way of a special
    application to the Financial Services Commission of Ontario, but that
    opportunity has now passed. The applicant could take early retirement in which
    case he would receive $400 per month. If the applicant waited until he turned
    65, he would receive $1,000 per month. The applicant does not wish to take
    early retirement.

[8]

In terms of the applicants parents, his father passed away on September
    30, 2017 and his mother has numerous health issues. The applicants sister
    holds a power of attorney over their mothers affairs. The applicants sister believes
    that, given her mothers financial needs, she is not in a position to assist
    the applicant with legal expenses for his appeal. Moreover, the applicants
    sister would not have the authority to disburse their mothers assets for any
    purpose other than their mothers expenses.

[9]

Finally, in terms of the applicants spouse, the evidence is that she advanced
    something in the order of $100,000 towards the applicants trial legal fees by
    way of a line of credit on the matrimonial home. There is still approximately $67,000
    in outstanding legal fees owed to the applicants trial counsel.

[10]

Of
    more importance, in terms of the applicants spouse, is the fact that the
    applicant and his wife entered into a separation agreement in October 2015,
    shortly before the criminal trial began. Under that separation agreement, the
    applicant transferred his interest in the matrimonial home to his wife and agreed
    to provide her with her interest in his pension. In return, the applicants
    wife agreed to not seek spousal support. The applicant has filed an opinion
    from a family law lawyer which says that the separation agreement produced a
    result consistent with the parties rights and obligations under the
Family
    Law Act
 and that the applicants wife received no more  and quite
    possibly less  than she was entitled to receive under the
Family Law Act
.

[11]

The
    Crown opposes the application on essentially two bases. One is what the Crown
    views as suspicious circumstances surrounding the execution of the separation
    agreement. The Crown sees the separation agreement as simply a mechanism to
    isolate or protect assets that would otherwise be available to the applicant to
    fund his legal costs. The other is the Crowns contention that the applicant
    did not do more to realize the value of his pension prior to it being locked-in.

[12]

The
    Crowns suspicions surrounding the separation agreement do not form a proper
    basis upon which this court could refuse a s. 684 appointment. Suspicions are
    not evidence. In any event, the reality is that the applicants spouse has no
    legal obligation to fund the applicants legal fees. She is entitled to refuse
    to allow her assets, including any interest that she has in the matrimonial
    home, to be used for the applicants legal expenses. I note, in passing, that the
    same is true with respect to the applicants parents, even if they had the
    means at their disposal. There is nothing in the record before me to establish
    that the separation agreement is not a valid contractual resolution of the
    parties separation.

[13]

On
    the second point, I accept that the applicant might have done more to realize the
    value of his pension at some earlier point in time. However, he did not do that
    and there is now no legal way for him to do so.

[14]

All
    of that said, I am mindful of the fact that the applicants pension still
    represents an asset that he could use to provide some contribution to his legal
    expenses  if not now, then at least at some time in the future. On this point,
    the applicant offered to enter into a contribution agreement whereby he would contribute
    to the payment of his legal fees in the event that he is released from custody.
    Such contribution agreements are not unusual in cases where Legal Aid Ontario
    provides a certificate for counsel.

[15]

I
    do not see any principled reason why this court cannot impose, as a term of
    making a s. 684  order, that an accused person enter into a contribution
    agreement whereby s/he commits to making a contribution to the legal expenses
    that the public will otherwise expend on their behalf. While it is in the
    publics interest to have persons charged with very serious criminal offences
    properly represented, the public is also entitled to have persons, who receive the
    benefit of public funds, contribute to those expenses to a degree that is both practical
    and reasonable for them to do. Certainly, there is nothing in the plain wording
    of s. 684 that would prohibit the imposition of such a term.

[16]

In
    the end result, I am satisfied that the applicant has shown that he has
    insufficient means to retain counsel. An order will therefore go under s. 684,
    appointing Delmar Doucette and Daniel Santoro as counsel for the applicant on
    his appeal. That order, however, is conditional on the applicant entering into
    a contribution agreement, on terms acceptable to the office of the Attorney
    General, where he will contribute the sum of $500 per month to his legal
    expenses commencing on April 1, 2018. If any issues arise concerning the
    contribution agreement, the matter can be brought back before me for further
    submissions.

[17]

I
    will mention one other matter.  While I was considering my decision in this
    matter, it occurred to me that, in light of the family lawyers opinion on the
    separation agreement and the additional financial disclosure, it might be
    appropriate to simply refer this matter back to Legal Aid Ontario for a
    reconsideration of their refusal to provide a legal aid certificate.  Counsel
    were contacted and invited to comment on whether this should happen.

[18]

Counsel
    for the applicant advised that, on October 31, 2017, they had submitted the
    matter for reconsideration to Legal Aid Ontario with the family law lawyers
    opinion and the additional financial information.  The response of Legal Aid
    Ontario was to say that their decision was final and is not subject to
    reconsideration.  Nevertheless, counsel for the Crown submitted that the
    matter should be returned to Legal Aid Ontario, pursuant to s. 28(6) of the
Legal
    Aid Services Act, 1998
, S.O. 1998, c. 26.  Section 28(6) reads:

The Corporation may issue a certificate to an individual who is
    an appellant or respondent in a criminal appeal if the Supreme Court of Canada
    or the Court of Appeal for Ontario is of the opinion that it is desirable in
    the interests of justice that the individual be represented and has requested
    that counsel be appointed to represent him or her.

[19]

This
    section of the
Legal Aid Services Act, 1998
was utilized in
R. v.
    Rafferty
, 2013 ONCA 741 where Rosenberg J.A. granted an order appointing
    counsel under s. 684 but also referred the matter back to Legal Aid Ontario for
    reconsideration, with the order appointing counsel only becoming effective if
    legal aid was refused (para. 12).

[20]

While
    I was inclined to use that same approach in this matter, on the assumption that
    Legal Aid Ontario might take a different view if the matter was referred back
    to it as a result of a request by this court, that assumption appears to be a flawed
    one.  Counsel for the applicant have drawn to my attention that in
R. v.
    Wabason
(C61698; M46948) Juriansz J.A. referred a s. 684 matter back to
    Legal Aid Ontario and, notwithstanding his request that Legal Aid Ontario
    reconsider the matter, Legal Aid Ontario refused to do so.  Legal Aid Ontarios
    stance on the subject appears to be consistent with the contents of the letter
    that Legal Aid Ontario sent in this case, as referred to above.

[21]

In
    the end result, I agree with counsel for the applicant that referring this
    matter back to Legal Aid Ontario would be futile. The s. 684 order is granted
    as set out above.

I.V.B. Nordheimer
    J.A.


