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constitutional remedy he is seeking. Rather, the issue is whether he
is indigent and has no other means
to retain counsel, and, if so,
whether counsel is essential to his
right to a fair trial,” she wrote.
The circumstances of this case
made it more complex than many
other impaired driving proceedings, noted Justice McArthur.
The trial was scheduled for three
days with seven Crown witnesses
and a possible issue over the voluntariness of a statement given
by the accused.
As well, Justice McArthur
rejected the Crown’s suggestion
that the defendant could represent
himself because he had a university education which included
courses on legal philosophy.
“While the applicant took some
courses on philosophy of law, he
has no training, education or
background in criminal procedure, evidence or substantive criminal law,” Justice McArthur
wrote. “He also earned his degree
in 1978, before the advent of the
Charter,” the judge observed in the
decision issued February 24,
which was not appealed by the
Although the Fleischman
ruling was based on the specifics of
that case, defence counsel say this
is not an isolated problem.
“I’m hoping that Legal Aid will
take notice of this” to change its
guidelines for determining who
qualifies, said Kathryn Wells, a
lawyer at the firm of Scarfe, Wells
in Toronto. She explained that
using the likelihood of a jail sentence as an indicator of seriousness doesn’t always work because
any conviction, whether it attracts
jail time or not, can have huge
personal consequences. “There is
an inherent disconnect between
the assessment of an individual
and these guidelines,” she said.
Wells said that it’s costly and
time-consuming for lawyers to
prepare Rowbotham applications
when accused persons are denied
legal aid, but they will often do so
because they don’t like to see
people fall through the cracks and
appear without representation,
adding, “The concern is that
people will plead guilty when they
shouldn’t. What are they supposed
to do—represent themselves and
lose so that next time they’ll be
facing jail time?” she asked.
Corbin Cawkell, a lawyer with
Hicks, Adams in Toronto, said
the Legal Aid policy is at odds
with the Ministry of the Attor-
ney General’s Justice on Target
(JOT) initiative to reduce the
average number of court appear-
ances for an accused in criminal
court. “It’s shortsightedness on
the part of the government to
claw back certificates while
doing the JOT program.”
He explained the process:
“You have one court appearance
to announce you are bringing a
Rowbotham application, and
another appearance to argue it.
You have to file materials all over
the place, and when you attend
court, there are two people there
from the Crown’s Office—Civil,
plus the regular Crown—and
then, in the end, they agree that
the order should be granted. It’s
all ridiculously expensive.”
For those who can’t afford to
bring the applications, Cawkell
said “You will see more unrepre-
sented people going to trial,” which
will also increase delay.
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