Toronto: Judge Stays Charges Against Man Until Government Pays for Lawyer

Update:

Justice Ian Nordheimer, seen in a file courtroom sketch, threw out handgun evidence in a recent case that exposed police disregard for the constitutional rights of defendants.
Justice Ian Nordheimer wrote in a ruling on May 26/16 “It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,”. Seen in a file courtroom sketch from the Toronto Star.

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Superior Court Justice Ian Nordheimer says the income threshold to qualify for legal aid is too low and doesn’t reflect the reality of poverty in Canada.

A Toronto judge has criticized the income cutoff for legal aid funding in Ontario as “not realistic” given the face of poverty in Canada.

Superior Court Justice Ian Nordheimer was presiding over the case of Tyrell Moodie, charged with a number of drug offences, who was denied funding by Legal Aid Ontario because he made more than the organization’s threshold income level for a single person — about $12,000. Moodie, 23, works part time and earned about $16,000 in 2015.

Nordheimer put a halt to the charges against Moodie until the government picks up the tab for his lawyer, which court heard could cost a minimum of $11,000.

“It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,” Nordheimer wrote in a ruling last week.

Nordheimer cited a Statistics Canada report from 2015 that “calculated the low-income cut-off, before tax, for a single person living in a metropolitan area for 2014 at $24,328, or more than twice the figure that Legal Aid Ontario uses.”

Until LAO increases its low-income threshold, the number of similar applications made to the courts for state funding could very well go up, particularly in areas of the province where the cost of living is so high, said Moodie’s lawyer, Scott Pearl.

“Everyone is presumed innocent, and should be able to pay for a lawyer,” he told the Star.

“Certainly for many individuals like (Moodie) who come before the courts, have a job and earn money, but barely enough to pay their rent and buy food … it’s not realistic for someone in those circumstances to afford a lawyer.”

The monument in square outside Law Society of Upper Canada proclaiming that we are all equal before the law. photo by fightyourtickets.ca
The monument in square outside Law Society of Upper Canada proclaiming that we are all equal before the law. photo by fightyourtickets.ca

A spokesperson for LAO said demand for legal aid for low-income individuals remains high.

“Although the province has recognized this and has made a multi-year commitment to raising the legal aid financial eligibility thresholds, Legal Aid Ontario has a yearly budget it must adhere to and it must prioritize, in accordance with its legislation, the cases it is able to fund,” said Feroneh Neil in an email.

There have been three 6-per-cent increases to the financial eligibility thresholds since 2014, Neil noted, with the most recent this past April.

Moodie faces various drug offences, including trafficking of cocaine and possession of marijuana. Nordheimer noted that this is a “complex” case where the accused would not have been able to represent himself without the assistance of a lawyer.

“It is necessary for the applicant to have counsel in order to have a fair trial,” the judge wrote.

The Crown pointed out that Moodie had failed to take steps to try to find other sources to pay for a lawyer, but Nordheimer found that he has limited assets, practically no financial support from family, and would be unable to secure a loan given his low income and outstanding debt.

Moodie’s bail conditions, which include a curfew, have also made finding a second job difficult, the judge wrote.

Moodie’s request for state funding for a lawyer is known as a Rowbotham application. Criminal defence lawyer Daniel Brown, who was not involved with the case, said it can be challenging for an accused to bring such an application to court on their own, or to find a lawyer who will do it free.

“The most vulnerable members of our community are disproportionately affected by cuts to the legal aid certificate system including marginalized racial groups, those with mental health issues, the impoverished, and the uneducated. The current legal aid cut-offs for funding are completely unrealistic,” he said.

“The system is broken and Justice Nordheimer’s ruling is a step in the right direction to improve the funding problem.”

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