Criminal Law

Fewer self-reps with applications for state-funded counsel

By Peter Small, AdvocateDaily.com Contributor

Fewer defendants would be forced to represent themselves in criminal trials if they could make informal judicial applications for state-funded legal representation, says Toronto criminal lawyer Ryan Handlarski.

“I have a very simple suggestion for access to justice, which is that a person in Superior Court facing serious charges — years in jail — should not be self-represented unless they want to be or they likely have the ability to pay for a lawyer, but are refusing to,” he tells AdvocateDaily.com.

To qualify for legal aid, a single person must have an income of no more than $15,781 a year, according to Legal Aid Ontario.

This leaves out many people who can’t afford a lawyer, says Handlarski, principal of RH Criminal Defence.

Their main recourse is to make a Rowbotham application, under which a judge can order the state to pay the legal fees of a defendant facing serious charges, he says.

The Ontario Court of Appeal, in a 1988 decision, held at paragraph 170 that where a "judge finds that representation of an accused by counsel is essential to a fair trial, the accused … has a constitutional right to be provided with counsel at the expense of the state if he or she lacks the means to employ one.”

But Rowbotham applications are formal and complex, and are normally undertaken by lawyers working without charge in the hopes that the funding will be approved, Handlarski says.

“Right now, in most cases, you need a lawyer to get a lawyer,” he says.

But many lawyers are unwilling to do Rowbotham applications on spec, he says.

As a solution, Handlarski proposes that Superior Court judges make the process less formal, allowing more defendants to go through the application process themselves.

As the system now stands, too many people are falling through the cracks, he says.

Handlarski says he was struck by the problem in a recent drug trial where a male defendant was self-represented because he claimed he couldn’t afford counsel. Handlarski acted for the man’s co-accused, a woman.

The man had been refused legal aid and was facing serious charges, including trafficking fentanyl, conspiracy to traffic fentanyl, and conspiracy to commit fraud. He told the judge that a lawyer had agreed to make a Rowbotham application on his behalf, but had not followed through, Handlarski says.

“For someone facing fentanyl charges, which can carry a sentence of more than 10 years in prison, he wanted a lawyer and he couldn’t get one. That seemed to me to be very unjust,” Handlarski says.

At the trial, the jury found the man guilty of nearly every charge, he says.

Handlarski's client was acquitted of the most serious charges she faced.

But she too was almost forced to go without a lawyer, he says.

Before the trial, Handlarski brought a Rowbotham application on her behalf but the judge dismissed it, while nonetheless leaving the door open for a second application on a better evidentiary basis.

The woman made the second application herself, largely using the materials Handlarski had assembled for the first one, he says. This time it was approved.

Her co-accused, however, didn’t make a Rowbotham application himself, Handlarski says. “The process in and of itself is difficult enough that it is a disincentive for many self-represented accused.”

Superior Court judges, where the most serious criminal cases are tried in Ontario, could make the process less formal so a lawyer would not be needed, he says.

The defendant could just tell the judge: “I want to bring a Rowbotham application and I can’t afford to retain a lawyer to bring it. I don’t know how to bring one myself,” Handlarski says.

The judge could respond, “Okay, we’re going to come back in one month and you're going to argue the Rowbotham application yourself. The onus is on you. I want you to get documents like banking documents or mortgage or other documents that explain why you can’t afford a lawyer,” Handlarski says.

The judge would not expect the accused to make complex legal submissions, he adds.

For taxpayers who balk at the idea of the government paying the legal fees of more people accused of crimes, Handlarski replies that it’s important for society to ensure that people charged with serious crimes get a proper defence.

Besides, trials operate so inefficiently when defendants represent themselves that the system would save money if everyone who wanted to have a lawyer could have one, he says. “Having a self-represented trial is very inefficient and frustrating for everyone."

In the fentanyl case, the judge and Crown did everything possible to make sure the process had the appearance of fairness, which caused numerous delays, making a trial that should have taken two or three weeks stretch to five, Handlarski says.

“It went really slowly and I believe that was difficult for the jury who were taking precious time out of their normal lives,” he says. “It was very inefficient.”

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