An Ontario Superior Court judge has ordered a stay of criminal charges against an alleged drug supplier until he gets a government-funded defence lawyer.
The accused, who makes between $14,000 and $16,000 per year, did not qualify for legal aid. In making what’s called Rowbotham order, Justice Ian Nordheimer said Legal Aid Ontario’s low income cut-offs are out of line with the face of poverty in Canada.
A single income individual in Ontario would have to make $12,000 or less in order to qualify for legal aid, according to the ruling in R. v. Moodie.
“It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,” wrote Nordheimer.
“As just one comparator, in a report issued last year, Statistics Canada calculated the low income cut-off, before tax, for a single person living in a metropolitan area (more than 500,000 people) for 2014 at $24,328, or more than twice the figure that Legal Aid Ontario uses,” he noted. “The low income cut-off is the level of income below which persons are paying a disproportionate amount of their income for basic necessities (food, shelter and clothing).”
The Crown had argued the applicant failed to take adequate steps to come up with enough funds to pay defence counsel, suggesting he could have asked for a bank loan, got a second job, or asked a family member to co-sign for a loan. Nordheimer said none of these suggestions are realistic.
“No financial institution is going to loan the applicant money given his income level, his lack of exigible assets, and his outstanding credit card debt,” said the judge. “The applicant’s father has made it clear that he is not going to assist his son in any way. Unfortunately, the applicant’s mother is no better situated financially, than is the applicant, in terms of co-signing for a loan.”
Partly because the applicant’s bail conditions impose a curfew, he was also unable to find a second job, the judge said.
Rowbotham applications have become more common in recent years, according to criminal lawyer Sean Robichaud.
“In the past five years, I’ve seen Rowbotham applications skyrocket and the reason for that, it seems, just as the justice pointed out, is [that] the threshold and criteria that are being used by legal are entirely out of touch with the standards of poverty and need for people seeking legal assistance who can’t afford it,” Robichaud says.
But part of what’s driving Rowbotham applications is also LAO’s reluctance to grant change of solicitor requests when an accused no longer wishes to be represented by their legal aid lawyer, says Robichaud. That leaves individuals who can no longer continue their relationship with their current counsel without a lawyer.
“The change of solicitor application is a different procedure altogether that has nothing to do with poverty, therefore it’s a way for [LAO] to claw back on certificates without violating their own internal polices that have been set by the government,” says Robichaud.
He says these kinds of administrative difficulties add to defence counsel’s hesitation to take on legal aid certificates.
For its part, Legal Aid Ontario says it has to make do with its fixed funding from the province.
“As with all legal aid plans, Legal Aid Ontario operates within a fixed budget so must be responsible in how the public money it receives from the Ontario government is spent,” says spokesman Feroneh Neil.
“The demand for legal aid assistance for low-income Ontarians is high. While the province has recognized this by raising the legal aid financial eligibility thresholds, Legal Aid Ontario has a yearly budget it must adhere to and must prioritize, in accordance with its legislation, the cases it is able to fund.”