Date: 19970529 Docket: CAC 135514
NOVA SCOTIA COURT OF APPEAL
Clarke, C.J.N.S., Hart and Bateman, JJ.A.
Cite as: R. v. Keating, 1997 NSCA 135
BETWEEN:
HER MAJESTY THE QUEEN ) Denise Smith
) for the Appellant
Appellant )
)
)
- and - )
)
) Kenneth K. Keating
) in person
KENNETH K. KEATING )
)
Respondent )
)
) Appeal Heard:
) May 21, 1997
)
) Judgment Delivered:
) May 29, 1997
THE COURT: The appeal is allowed, per reasons of Bateman, J.A.; Clarke, C.J.N.S. and Hart, J.A. concurring.
Bateman, J.A.:
[1] This is an appeal by the Crown from a decision of Justice Allan P. Boudreau of the Supreme Court, staying the trial of charges against Kenneth Kelvin Keating.
Background:
[2] On August 9, 1995, in Provincial Court, Mr. Keating entered a not guilty plea on a three count information. On October 2, he appeared with counsel and elected to be tried in the Supreme Court by judge alone. After the Preliminary Inquiry, which was originally scheduled for April 29, 1996 but adjourned to June 10, Mr. Keating was committed to stand trial on all three charges. The charges, all arising from a single alleged event, are:
THAT he at or near Halifax, in the County of Halifax, Province of Nova Scotia, between the 31st day of January, 1995, and the 22nd day of May, 1995, did unlawfully for a sexual purpose touch directly with a part of his body to wit: his mouth, a part of [L.G.], being a person under the age of fourteen years, contrary to section 151 of the Criminal Code;
And further at the same time and place aforesaid, did unlawfully for a sexual purpose invite [L.G.] a person under the age of fourteen years to touch directly with a part of her body, to wit: her mouth the body of Kenneth K. Keating, contrary to section 152 of the Criminal Code;
And further at the same time and place aforesaid, did unlawfully commit a sexual assault upon the person of [L.G.], contrary to section 271(1)(a) of the Criminal Code.
[3] Upon the appellant's appearance in Supreme Court on June 20, 1996 the trial was set for October 8, 1996. On that date the appellant appeared with counsel before the late Associate Chief Justice Palmeter. Counsel for Mr. Keating, David Perlmutter, who had represented him at the Preliminary Inquiry, asked to withdraw from the file. He said:
Mr. Perlmutter: Yes, My Lord, good morning. My Lord this matter was set down for Trial today on June 20th, and, ah, since that time, I regret to inform that Court, that I have had no contact from Mr. Keating, until yesterday afternoon, later in the day. Accordingly, I have not been able to obtain instructions from Mr. Keating, and I have really not had an opportunity to advance the file, since that time, I'm sure, you can appreciate, that mounting a defence in a matter like this, is a joint effort, between Solicitor and Client, and I'm afraid, the lack of contact between Mr. Keating and myself has amounted to a compromise of the confidence in the Solicitor/Client relationship, and accordingly, I would request that I may withdraw from the matter.
The Court: How many times did you try to get in touch with Mr. Keating?
Mr. Perlmutter: I, attempted to call Mr. Keating, more times than I can count, My Lord. My only method of contacting by phone was his pager number which did appear to be operating, but, ah, my calls were not returned. I also had his home address and I [was] able to write him, and there was a concern. . .
The Court: You didn't have his home address?
Mr. Perlmutter: I did, yes.
The Court: Did you write him?
Mr. Perlmutter: Yes, in fact, I had the letter taped to his door, and Mr. Keating has since confirmed that he did receive my correspondence.
The Court: Alright (sic), I'll hear what Mr. Keating has to say, Mr. Keating?
Mr. Keating: Ah, when I received the letter, I was, when I found out at work, I made a couple of calls to his office, and from a pay phone, because I work for the Department of Transportation and I'm on, on the Highways. Due to not understanding everything and that, and trying to get caught up with my bills, I haven't worked for the months of August, and, ah, July and June, I was trying to get as much time in as I could get in and trying to catch up with my bills, and neglected on this part, Your Honour.
The Court: Well, how did you expect Counsel to defend you here today, if you didn't get in touch with him and give him instructions?
Mr. Keating: I don't know, Your Honour. I just thought that, you know, any information he had was sufficient, but I guess it isn't.
[4] The Crown urged the judge to proceed with the matter. The alleged victim was at that time 10 years old. Palmeter, A.C.J. agreed to adjourn the matter to January 2, 1997, but refused Mr. Perlmutter's application to withdraw as counsel. In this regard he said:
The Court: . . . Mr. Perlmutter, I don't want to place you in an unfortunately (sic) position, but, I think I'm going to have to require you to continue with the Trial and I'll give specific instructions to your client. In regard to both instructions and retainer that has not been taken care of, but, ah, what concerns me, is that if I set a date and he does not have another lawyer, that means, the matter is going to be adjourned further, and I don't intend to adjourn it any further. So the only alternative would be to proceed here today, ah, and to require you to do the best you can, but I don't think that's fair. I don't think that's fair for you Mr. Keating, because you're facing a term of incarceration, if you're found guilty, and a serious term of incarceration. Alright, let's take 15 minutes, I'll go down tell them in scheduling.
. . .
The Court: Well, I'm going to grant an adjournment in this matter. I'm not going to grant your application, Mr. Perlmutter, because it's too late to get other Counsel. But I'll address some remarks to your client certainly in regards to this. Have you had a chance to talk to your client?
Mr. Perlmutter: Yes, I have, My Lord, and while the issue of Mr. Keating's financial obligations to my firm has not been a principle issue, leading up today, having had the benefit of a discussion with him, it is foreseeable that that could become an issue, and I would seek some direction from My Lord.
The Court: I, well, I'm afraid I can't give directions in regard to that because nonpayment of retained is not a reason to get off, however, um, at this particular stage the Court will undoubtedly look at it, at another time. Mr. Keating I'm going to adjourn this matter, until the 2nd and the 3rd of [?] 1997, in this Court House, it might not be in this Court room, but, in this Court House, starting at 9:30 o'clock on January 2nd, 1997. Now, I am expecting that you will keep in very close contact and give instructions to your Counsel, Mr. Perlmutter. Whatever arrangements you have made with him regarding retainer, I expect that you will do your utmost to abide by those. Because you may very well be, um, Mr. Perlmutter, he certainly cannot work for nothing, you've got to make arrangements. This is a very very serious matter. Now I'm telling you this, because the matter is not going to be further adjourned. I'm going to make a note that it is to proceed on the 2nd and 3rd of January. Do you understand that?
Mr. Keating: Yes.
The Court: Now, it very well may be that you will be proceeding without a lawyer if you cannot get things straightened out with Mr. Perlmutter, which would not be a very good position to find your self in. Do you understand what I'm saying?
Mr. Keating: Yes. Sir.
The Court: Alright, so, ah, adjourned, (Mr. Holland, is that satisfactory)
The Clerk: Yes, My Lord.
The Court: So, January 2 and 3rd, 1997, 9:30. I'll make a note, sit down Mister...alright, my notes on the file would indicate that the matter's been adjourned to January 2nd 3rd, 1997 commencing at 9:30 o'clock. Notes also indicate that Mr. Perlmutter has been asked to be released, but I denied application at this time. Cautioned the accused the Trial is to proceed on January 2 and 3rd 1997 with or without Counsel, and you're very aware of that?
Mr. Keating: YEAH.
(Emphasis added)
[5] On November 15, 1996, defence counsel advised Justice Palmeter, by letter, that Mr. Keating had not fulfilled his retainer and had been denied legal aid assistance. He renewed his application to withdraw as solicitor of record.
[6] On December 31, 1996, the Crown attorney wrote to Justice Allan P. Boudreau, the judge assigned to hear the trial on January 2, 1997, requesting that, should Mr. Keating not have counsel at trial, a lawyer be appointed for him, pursuant to s. 486(2.3) of the Criminal Code, for the purpose of cross-examining the young complainant. Section 486(2.3) provides a judge with authority to appoint counsel for an accused, in certain circumstances, for a limited purpose:
s. 486(2.3) In proceedings referred to in subsection (1.1), the accused shall not personally cross‑examine a witness who at the time of the proceedings is under the age of fourteen years, unless the presiding judge, provincial court judge or justice is of the opinion that the proper adminis-tration of justice requires the accused to personally conduct the cross‑examination and, where the accused is not personally conducting the cross‑examination, the presiding judge, provincial court judge or justice shall appoint counsel for the purpose of conducting the cross‑examination.
[7] On January 2, 1997, Justice Boudreau granted Mr. Perlmutter's application to withdraw as solicitor. Mr. Keating asked that the Court appoint counsel to act for him. Justice Boudreau, after an inquiry, found that Mr. Keating could not receive a fair trial without legal representation but concluded that he could not appoint counsel. Accordingly, he stayed the proceeding, unless and until state funded counsel was appointed for Mr. Keating. He did not proceed with the Crown's application pursuant to s. 486(2.3). It is from that decision that the Crown appeals.
Grounds of Appeal:
[8] The Crown appeals on the following grounds:
1. THAT the trial Judge erred in ruling the respondent's right to a fair trial guaranteed by s.11(d) of the Charter had been infringed or denied.
2. THAT the trial Judge erred in ordering a conditional stay of proceedings under s.24(1) of the Charter.
3. Such other grounds of appeal as may appear from a review of the record of the proceedings under appeal.
Analysis:
[9] At issue here is whether the trial judge erred in concluding that the respondent's right to a fair trial, pursuant to s. 11(d) of the Charter, would be infringed should he be required to proceed to trial without counsel.
[10] The Crown acknowledges that a trial judge has authority to enter a conditional stay of proceedings until counsel is appointed for an accused person in circumstances where the accused has been denied legal aid, cannot afford private counsel, and where representation is necessary to a fair trial. It is the Crown's position, however, that the trial judge made an inadequate inquiry into the respondent's efforts and ability to retain counsel and, in addition, that he wrongly concluded that counsel was necessary to a fair trial.
[11] It is well established that a stay of proceedings is a remedy of last resort, only to be entered in the clearest of cases (R. v. O'Connor, [1995] 4 S.C.R. 411; R. v. Curragh Inc., [1997] S.C.J. 33). It is tantamount to an acquittal (R. v. C.I.P. Inc. (1992), 71 C.C.C. (3d) 129 (Ont.C.A.)).
[12] There is no constitutional right to be provided with counsel at state expense (R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont.C.A.)). The right to retain counsel pursuant to s. 10(b) of the Charter, and the right to be provided with counsel at government expense are not synonymous. The Court in Rowbotham wrote at p. 66:
However, in cases not falling within provincial legal aid plans, ss. 7 and 11(d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require funded counsel to be provided if the accused wishes counsel, but cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial.
[Emphasis in original]
[13] The issue for this Court is whether the judge made an inquiry sufficient to enable him to conclude:
(i) that Mr. Keating could not receive a fair trial without counsel, and, if so
(ii) that he had exhausted all possible routes to obtain counsel.
(i) Requirement for Counsel:
[14] In this case the Preliminary Inquiry took one half day, the Court hearing from two witnesses. The Crown planned to call those same two witnesses on the trial and anticipated that the Crown's case would be complete within a half day with the full trial concluded in a single day.
[15] The Crown would be making application that the complainant, who was then only ten years old, testify behind a screen, as she had done at the Preliminary Inquiry. It was possible, if the complainant did not testify consistent with her evidence on the Preliminary Inquiry, that the Crown would make a Khan application or apply to enter videotaped evidence. The Crown did not plan to call expert evidence.
[16] Mr. Perlmutter submitted that it would be necessary to retain an expert to testify about the possible side effects of anti-convulsive drugs which the complainant was taking at the time of the alleged offence. With respect to the retention of a defence expert, Mr. Perlmutter addressed the Court as follows:
. . . there is an issue of medical evidence that has given him a real difficulty that the complainant is (sic) on a form of medication at the relevant time. There was experimentation with the medication. The, I think, it's for that is his main reason that he, he wanted to have a lawyer and he, and whenever he, approached lawyers, we all gave him the same thing that the defence that you really need is one that it appears that you can't afford, because we have to find an expert, get an opinion.
Mr. Perlmutter later added:
I simply wish to elaborate upon what I believe Mr. Keating's concern is about the drug. I think that the point is that he really doesn't know whether or not it's - how significant it is. There is - he has accumulated some untested evidence that certain anti-convulsants can bring on forgetfulness, hallucinations, hysteria, insomnia and, even in some cases, psychosis. Now, that would appear to be a drug called "Rivotril". The anti-convulsant in this case is Tegretol. I think the point is that he doesn't know and wants the opportunity . . .
[17] There was no information that defence counsel had done any preliminary research to establish that the anti-convulsive drugs might have an impact upon the child's memory or perception of events.
[18] Mr. Keating advised the Court that he was unfamiliar with court procedures and did not feel able to represent himself in the trial of these charges. He had a grade 11 education and had completed two years of schooling toward a mechanical course. He acknowledged that he understood the nature of the charges against him and had viewed the videotape of the complainant's evidence in addition to attending the Preliminary Inquiry. While he thought he could adequately present his own story to the Court he did not think that he could ask the right questions of the witnesses. He can read, but did not think his reading skills were good enough to fully understand the transcript of the Preliminary Inquiry. He was not sure whether a family member could assist him in that regard.
[19] In his decision the judge said:
I have to consider all of the issues involved in this particular case. I don't view the defence wanting to explore this expert evidence as strictly a fishing expedition. There's already a basis for it. Whether it pans out or not it's something that can only be determined by a proper exploration. It's a significant issue.
There are other issues. There will be motions and hearings on the use of a screen or some other device. There are other matters that are out there; the videos, for example. Would defence want to play them? Would the defence want to use them in cross-examination? These are significant issues. I have heard Mr. Keating and I'm not satisfied that he can adequately defend himself. This is not a speeding charge. This is a very, very serious offence and he could be facing very serious consequences and all of these things have to be weighed. When I weigh all these things, I am not satisfied that he can have a fair trial without legal representation. I am not authorized under the Criminal Code to order legal representation for him, except on the issue of cross-examination. We at least need counsel for cross-examination of the complainant, which will likely be a significant part of the trial, regardless of whether this expert evidence pans out or not. So, we'll all be facing a significant portion of the trial with legal representation. When I consider all these factors, I don't see how he can have a fair trial without having legal representation for this charge. There are three charges and there's a three count indictment, which has to be dealt with. We're not just facing one simple act and this is not strictly a credibility issue, although it may arise depending on the evidence, but there are other complicated issues and I have heard Mr. Keating and I don't believe that he could have a fair trial without legal representation.
(Emphasis added)
[20] In determining if counsel was necessary the judge should have considered whether Mr. Keating's requirement for counsel could have been met by appointing counsel for him, pursuant to s.486(2.3), as requested by the Crown.
[21] In addition, the trial judge should have considered the court's obligation to assist an unrepresented accused during trial and whether, in fulfilment of that obligation, his assistance would be adequate to address Mr. Keating's needs. In R. v. Kennie (1993), 121 N.S.R. (2d) 91 at p. 97, this Court approved the following comment by Griffiths, J.A. in R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont.C.A.) at p. 347:
Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must of necessity be a matter of discretion.
[22] The inquiry into the use of a screen for a child witness is not a complicated procedure. That there might be an application for the admission of videotaped evidence or a Khan application was no more than speculation. Should that eventuality arise during the course of the trial, a decision could be made at that point as to the need for counsel. Additionally, in the event counsel was appointed pursuant to s. 486(2.3), which was probable, he or she would be present for the direct examination of the complainant and could deal with the application for a screen or any other motion that might arise.
[23] It is important, as well, to consider the proceedings before Palmeter, A.C.J., at which point the adjournment was unrelated to the issues raised before Justice Boudreau but occasioned solely by Mr. Keating's refusal to contact his counsel. Associate Chief Justice Palmeter was very clear in his direction to Mr. Keating that the trial would proceed on the adjourned date with or without counsel. At that stage there was no mention of a requirement for expert testimony. While this did not preclude Boudreau, J. from further entertaining the motion, it had some relevance to weighing the bona fides of the subsequent submission that an expert was required, and should have prompted a further inquiry by him.
[24] In summary, there was not clear evidence before the judge that this was one of those rare circumstances where, due to the complexity of the proceeding, the accused required funded counsel to ensure a fair trial, particularly in light of the Crown's request that counsel be appointed pursuant to s. 486(2.3).
(ii) Ability of the accused to retain counsel:
[25] The inquiry into Mr. Keating's ability to acquire counsel, was necessary only if the judge concluded that legal representation was essential to a fair trial. As I have indicated above, that first inquiry was inadequate. Even, however, had the judge properly concluded that counsel was required, his exploration of this issue was deficient.
[26] The judge was advised by counsel that Mr. Keating, who was seasonally employed, had not met the income guidelines to qualify for legal aid. In addition, he had not satisfied his lawyer's requirements for a retainer. Mr. Perlmutter had quoted a fee of $5,000 to defend Mr. Keating and advised that other, unnamed lawyers had quoted fees of $10,000 and upward.
[27] After agreeing to release Mr. Perlmutter as solicitor of record, the judge heard evidence from Mr. Keating pertaining to his financial circumstances. It was his evidence that he had no income from employment or unemployment insurance for the months of April to mid-August in 1996. He commenced working again for the Department of Transportation in mid-August, 1996. He said that his income was between $19,000 and $20,000. Between January and the end of March he expected to earn about $2,000 a month. He boards with his brother in Halifax County paying $50.00 per week. He testified that he was divorced and returning to Family Court to review his maintenance but that he was currently paying between $500 and $600 per month in that regard. In addition, he spends about $80 per month to run his truck. He acknowledged, on cross-examination, that he spends about $60 to $80 per month on alcohol. He estimated that he netted about $1,700 per month after income tax. The trial judge found that Mr. Keating could contribute something toward his defence, but could not "fund the entire defence". He ordered that Mr. Keating, while employed, contribute $500 per month to the defence, "to a minimum of $1,500". If he failed to pay the amount specified he would lose his right to funded counsel.
[28] In my view, the inquiry, given the extreme consequences should relief be ordered, was not sufficiently detailed to enable the judge to arrive at a just result. The onus was upon Mr. Keating to establish that he lacked the financial resources to retain a lawyer. In his enquiry the judge asked for no confirmation about the terms of Mr. Keating's employment - how long it could last, whether it might be extended and the availability of overtime; he made no specific inquiry about Mr. Keating's efforts to obtain legal aid - whether Mr. Keating had been refused assistance for reasons other than income and what income he had actually reported to legal aid; he did not require Mr. Keating to satisfy the court that he had exhausted the legal aid appeal process; he did not request a copy of the documentation submitted by Mr. Keating in support of his legal aid application; he did not inquire into the possibility that legal aid might alter the usual income test in the event of a complex matter; he did not ask for proof of the amount of support, if any, that Mr. Keating was legally obliged to pay for his wife and children, nor for confirmation of the amount that Mr. Keating had actually been paying and for how long; he required no estimate from Mr. Keating nor Mr. Perlmutter as to the possible cost of an expert witness; he did not consider the fee that would be allowed for such a case by the legal aid tariff (which is $1,350) and compare it to the quotes received by Mr. Keating to determine whether such fees were within a reasonable range; he did not consider whether Mr. Keating had made a reasonable effort to contact counsel who might be prepared to conduct the defence for a more modest fee than that quoted by Mr. Perlmutter - there are a number of lawyers who agree to work on certificate for the legal aid tarriff, from which one could infer that lawyers are available who would conduct the defence for a fee within that range or even somewhat above it, but not at the $5,000 level; the judge did not enquire into what, if any, financial arrangements Mr. Keating had made for his defence between the time of the charge in August of 1995 and the date of trial, and, assuming none, why he hadn't done so; he did not explore with Mr. Keating any sources of credit or other financial assistance that he might have.
[29] Section 19 of the Legal Aid Act, R.S.N.S. 1989, c.252 sets out various reasons why assistance may be denied:
19 Legal aid may be refused, suspended or withdrawn, as the case may be, or a certificate cancelled with regard to any person otherwise eligible when that person, without sufficient reason,
(a) refuses to provide the information or documents required to study his application;
(b) refuses to provide the information required under this Act and by the regulations;
(c) refuses to exercise his legal rights and remedies;
(d) refuses to co-operate with the solicitor rendering professional services for him, in the manner that is normal and customary between a solicitor and his client;
(e) makes a false statement or conceals information in applying for legal aid;
(f) is charged for an offence the same as or similar to one for which he has been convicted previously;
(g) is receiving or has received an unreasonable total amount of legal aid; or
(h) is not ordinarily resident in one of the provinces of Canada. 1977, c.11, s.18.
[30] The judge should have made a more thorough inquiry into the reason for the refusal of legal aid in this case.
[31] In Rowbotham, supra, the trial judge had not accepted the submission of the accused that she could not afford to retain counsel for the 12-month trial. He refused to appoint funded counsel for her. Having determined that the trial judge erred, on the material before him, in refusing the accused's request that counsel be appointed the appeal court ordered a new trial.
[32] In discussing the issue on the appeal, the Court in Rowbotham noted that, while the accused was entitled to counsel, the trial judge should have considered whether a reduced role by counsel for the accused would have sufficed. The Court remarked, as well, that, on the issue of financial capability, the opinion of the director of legal aid that the accused has the means to employ counsel was, although not determinative of the issue, entitled to some deference. The Court's remarks at p. 68 provide some guidance on the nature of the enquiry which should be made:
. . . at the new trial a pre‑trial hearing should be conducted in which all the circumstances should be examined fully, and in which both the accused and Legal Aid officials will be entitled to give evidence on the question of the sufficiency of the accused's means in relation to the cost of legal assistance to the extent required, so that a fair arrangement can be worked out for providing necessary legal assistance to Mrs. Kononow.
[33] In Rowbotham, supra, the Court summarized at p. 69:
In our view, a trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided. As stated above, the finding of Legal Aid officials that an accused has the means to employ counsel is entitled to the greatest respect. Nevertheless, there may be rare circumstances in which legal aid is denied but the trial judge, after an examination of the means of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial. In those circumstances, even before the advent of the Charter, the trial judge had the power to stay proceedings until counsel for the accused was provided. Such a stay is clearly an appropriate remedy under s. 24(1) of the Charter.
(Emphasis added)
[34] In addition to making a fuller inquiry into the circumstances, as outlined above, the judge should have proceeded with the Crown's application for the appointment of counsel for the accused pursuant to s.486(2.3). In the event that that application was granted, the judge should then have considered whether the accused required additional assistance and, if so, whether he could afford to fund counsel to the extent necessary, assuming of course that he was correct in his determination that the matter was of such complexity as to require counsel. Mr. Perlmutter was apparently willing to accept the s. 486(2.3) appointment.
Disposition:
[35] In my view neither the inquiry into the complexity of the proceeding, nor that into Mr. Keating's efforts to retain counsel, were sufficient to demonstrate that this was a clear case in which a stay should be granted.
[36] I would allow the appeal.
Bateman, J.A.
Concurred in:
Clarke, C.J.N.S.
Hart, J.A.