R v Fleischman, 2012 ONCJ 120 (24 February 2012) Summary
This was a Canadian case in the provincial division of the Ontario court system. The applicant was charged with impaired driving and driving with greater than 80mg of alcohol in 100ml of blood (“over 80”). He brought an application pursuant to sections 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms for the proceedings against him to be conditionally stayed until state-funded counsel was provided for his trial. The judge found that counsel was essential to the applicant’s right to a fair trial and that the applicant was unable to afford to obtain counsel, and on that basis stayed the proceedings until state funding could be provided. The judge also found that there is a right to a fair trial (which may include the provision of state-funded counsel), regardless of whether jail is likely.
Phillip Fleischman was charged with impaired driving and over 80 (which is driving with greater than 80mg of alcohol in 100ml of blood). He brought an appeal under sections 7, 11(d) and 24(1) of the Canadian Charter for the charges against him to be conditionally stayed until state-funded counsel was provided for his trial. He was 63 years old and on a low income. He had no savings and his only asset was a car which was essentially worthless. He was divorced and had four adult children whom he was in limited contact with. He had a number of debilitating health issues including cancer, diabetes, high blood pressure and severe heart disease. The applicant had undertaken some tertiary education including some law courses but had not worked for a number of years because of ill health.
The Judge considered the preliminary legal issue of whether the probability of jail is a precondition for an order that counsel is essential for a fair trial. The Judge held that the right to a fair trial exists regardless of whether jail is likely: “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.”
Pursuant to sections 7 and 11(d) of the Canadian Charter, the applicant had to establish three things on a balance of probabilities:
- that he was ineligible for legal aid;
- that he was indigent and had no other means to retain counsel; and
- that counsel was essential to his right to a fair trial.
The Court found that on the balance of probabilities the applicant was indigent and had no other means to retain counsel including that it was not reasonable that the applicant should have approached two of his adult children for financial assistance.
Was counsel essential to the applicant’s right to a fair trial? The court considered the seriousness of the charges, the length and complexity of proceedings and the applicant’s ability to participate effectively and defend the case. The Court held that the applicant had established on the balance of probabilities that counsel was essential to his right to a fair trial and the matter was conditionally stayed until such time as state-funding was provided. Her considerations included that the applicant was:
- facing a criminal conviction;
- it was a complicated case set for three days with the Crown calling seven witnesses;
- there were complexities over and above similar matters concerning the identity of the applicant and the medical defence to be mounted by the applicant;
- the applicant’s education, despite including some tertiary study, did not include training in criminal procedure, evidence or substantive criminal law, and he did not have expertise in the subject matter; and
- the applicant’s significant health issues.
Relevance to the Victorian Charter
The right to a fair trial and the role of state-funded legal aid are expressed in the Charter of Rights and Responsibilities 2006 (Vic) in slightly different terms to the Canadian Charter. Section 24 provides for rights in relation to a fair hearing, while section 25 provides for minimum guarantees for a person charged with a criminal offence. Section 25(2) of the Victorian Charter provides that a person charged with a criminal offence is entitled without discrimination to a number of minimum guarantees, including having legal aid provided if the interests of justice require it. Section 24(2) of the Legal Aid Act 1978 (Vic) also includes a test for whether it is in the interests of justice that legal aid be provided.
In the recent case of Slaveski v Smith & Anor  VSCA 25, the applicant had been in receipt of a grant of legal assistance for his appeal, but VLA revoked his grant for breach of the grant’s terms, after he changed lawyer several times and refused to follow reasonable advice. The Victorian Court of Appeal found that while the Victorian Charter recognises the importance of VLA’s role in providing legal assistance to eligible people, it acknowledged VLA’s discretion and that while a trial without representation is usually slower, more stressful and might be imperfect, a trial does not have to be perfect to be fair.
Dietrich provided that it is only where the lack of representation results in a miscarriage of justice that the trial is unfair. The Court of Appeal in Slaveski held that: “While the circumstances of the particular case, including the background of the person are relevant, a proceeding should only be stayed where the judge is truly satisfied that, without legal representation, the accused will not receive a fair hearing.”
This Canadian case would appear to represent a more interventionist approach than in the Australian and Victorian context where the importance of discretion in the context of limited resources and the other means judges have to ensure that justice is done have been emphasised. It also makes a clear statement that the likelihood of imprisonment is not the appropriate test in regard to whether counsel is necessary to ensure a fair trial.
The decision can be found online at: http://canlii.ca/en/on/oncj/doc/2012/2012oncj120/2012oncj120.html
Carman Parsons is Client Access Policy Officer at Victoria Legal Aid.