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Digest of the Week — When Does Right to Counsel Include a Right to Funding?

R. v. Josipovic |
2015 CarswellOnt 12206 |
Ontario Superior Court of Justice

Criminal law | Trial procedure | Rights of accused | Right to retain counsel | Duty of court to ensure representation

Accused charged with first degree murder — Accused applied for order pursuant to s. 7 of Canadian Charter of Rights and Freedoms directing that government pay for such funding as was necessary to make full answer and defence, and for order granting stay of proceedings until government provided funding for counsel — Accused was denied Legal Aid on basis that he had means to fund his own defence — Accused was terminated by his employer as result of his arrest and had no income — Accused's credit privileges had been terminated by bank and he was forced to sell his house for less than assessed value — Accused's application for Legal Aid was refused on basis that he had transferred title to his properly for value less than fair market value, because of his spouse's income, and because he had used pension payout to pay various debts, and did not make payment of legal fees priority — Three weeks prior to commencing present application, accused and his wife separated and separation agreement purported to make parties financially independent of each other — Crown argued that accused had not established indigence and had not met test for state-funded counsel — Application allowed — Accused's property was in state of disrepair, and it was unlikely that any disposition by bank would have yielded any more by way of proceeds than transaction made by accused — Given circumstances, house was sold at fair market value under conditions where there was little chance that not going through with transaction would have yielded more money to accused — Consideration of spouse's income should not have disqualified accused from assistance, as $10,000 per year paid to accused's daughter could not have contributed significantly to funding of legal defence — Funds of about $50,000 had been paid on accused's behalf toward legal fees, presumably by his spouse — There was no evidence that money available after accused's arrest was spent on lavish lifestyle or for anything other than necessities of life — Identification evidence in case was most important, and defence was not one that accused could have embarked upon on his own, where amicus might have been engaged for some part of trial, or where full-time counsel was not required — If convicted, accused faced incarceration for rest of his life — Accused had grade ten education and no experience with legal matters — It was in best interests of justice for accused to represented at trial, and accused was not in financial position to fund counsel privately.
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