Quebec Court of Appeal provides Rowbotham guidance

Criminal lawyers in Quebec can now breathe a little easier after a Quebec Court of Appeal ruling that held that a certificate of eligibility from legal aid constitutes a presumption of fact when tackling the issue of financial means in cases dealing with a Rowbotham motion.

However in a ruling that adds nuances to findings from a widely-cited judgment rendered by the appeal court five years ago in Québec (Attorney-General) v. R.C. (2003), 13 C.R. (6th) the Court also held that a certificate of eligibility from legal aid is not conclusive evidence, thereby leaving the door open in cases dealing with a Rowbotham application for the courts to examine evidence on whether the applicant lacks sufficient means to obtain legal assistance.

“I would have a lot of difficulty concluding that a court, deliberating on a criminal matter and overseeing the respect of rights conferred by the Charter, would have its competence limited by an administrative decision rendered by virtue of a Quebec law,” said Justice François Doyon in a unanimous ruling.

Véronique Robert-Blanchard, a Montreal criminal lawyer defending one of 17 accused facing a plethora of charges following a huge drug bust in Quebec and New Brunswick on May 2007, said that she was “very satisfied with the ruling because we were really scared” the attorney-general was going to win the case.

The 17 accused obtained a certificate of eligibility from legal aid but not a single lawyer from legal aid was available to defend them. The accused then sought the services of lawyers in private practice who would accept the going rate fixed by the Legal Aid Act (Act), and still they had no luck. Given the wealth of evidence amassed by the police – more than 100,000 telephone conversations were intercepted, yielding 250 compact discs in evidence – that wasn’t really surprising, pointed out Robert-Blanchard.

Three Rowbotham-type motions were then filed by the accused in a bid to compel the state to pay the legal fees of lawyers they retained (who represented them contigent on being their going rate). Informed by the R.C. decision, Court of Quebec Judge Gérald Laforest in an oral ruling found that the certificates of eligibility proffered by legal aid was conclusive evidence that the accused did not have the means to retain counsel. Given the complexity of the case, the number and assortment of charges, the evidence the Crown intended to present, the number of accused and the amount of joint counts against the accused, the judge concluded that “a reasonably competent lawyer could not accept a mandate from legal aid at the fee set by the regulations.” Judge Laforest ordered the Quebec Attorney-General to take the necessary measures to ensure that each of the accused were represented by a lawyer and assume their professional fees during the trial.

The Quebec Attorney-General appealed, and the appeal court upheld the ruling but not entirely his findings, particularly his pronouncement that certificates of eligibility handed by legal aid was conclusive evidence that the accused did not have the means to retain counsel.

The appeal court points out that there are no legal provisions, including in the Act, that can lead to the conclusion that certificates of eligibility given by legal aid constitutes conclusive proof, as the judge of first instance seemed to believe.

Informed by R. v. Assoun [2002] and R. v. Rowbotham et al (1988), Judge Doyon noted that the finding of legal aid authorities on the question of financial means is entitled to great respect but its determination on the issue of financial eligibility is not conclusive.

“This is not about, in a Rowbotham type motion, contradicting the conclusions reached by legal aid authorities, but rather to ensure that it complies with constitutional requirements by proceeding at an examination that can be at times different,” said Judge Doyon. “One must not forget that the prosecutor has investigatory powers that legal aid doesn’t have. I would find it unacceptable to prohibit all evidence as the prosecutor or attorney-general may have in their possession information that legal aid does not. Further, the objectives and criteria considered by legal aid does not necessarily reconcile with those the Court must evaluate in Rowbotham motions, with the consequence that the Court can in certain cases conclude that there is no indigence in spite of the certificate of eligibility.”

Robert-Blanchard believes that the ruling achieved a reasonable balance between ensuring that certificates of eligibility are deemed to be a presumption of fact while allowing the attorney-general to provide evidence to the contrary in cases dealing with Rowbotham motions.

“The court bridged the arguments of the two parties, and I am very comfortable with the ruling,” said Robert-Blanchard. “Certainly if the attorney-general can provide evidence that an accused is hiding money, he should be able to do so. It would be completely illogical to do otherwise.”

This story was originally published in The Lawyers Weekly.

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