Ontario v. Ahmad, 2007 CanLII 21968 (ON SC)

COURT FILE NO.: 1750/07B

DATE: 20070614

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MANESTY THE QUEEN IN RIGHT OF ONTARIO

– and –

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

– and –

LEGAL AID ONTARIO

Mr. S. Hanley, for Her Majesty the Queen in Right of Ontario

Mr. C. Bond, and Ms. M. Ragsdale, for Her Majesty the Queen in Right of Canada

Lee David, for Legal Aid Ontario

Respondents

– and –

FAHIM AHMAD

ZAKARIA AMARA

SHAREEF ABDELHALEEM

QAYYUM ABDUL JAMAL

MOHOMMED DIRIE

AHMED MUSTAFA GHANY

JAHMAAL JAMES

SAAD GAYA

IBRAHIM ABOUD

Mr. Dennis Edney, for Ahmad

Mr. David Kolinsky, for Amara

Mr. William Naylor, for Abdelhaleem

Mr. Anser Farooq, for Jamal

Mr. David Mercury, for Dirie

Mr. Rocco Galati, for Ghany

Mr. R. Moriah, for James

Mr. Paul Slansky, for Gaya

Mr. Raymond Motee, for Aboud

Applicants

HEARD: May 23, 24, 25, 28, 29, 30, 2007

REASONS FOR JUDGMENT

DAWSON J.

[1] The applicants are charged with terrorism offences under Part II.1 of the Criminal Code. Each applicant is represented by counsel pursuant to a legal aid certificate issued by Legal Aid Ontario (LAO). In accordance with LAO’s standard procedures for “big case management,” provided for by regulation pursuant to the Legal Aid Services Act, 1998, S.O. 1998, Chap. 26, a budget has been set which authorizes the extent of preparatory work that may be done by counsel through to the end of the preliminary hearing.

[2] While the contents of their applications vary each of the applicants seeks a determination from the court that their rights to a fair trial have been compromised either by the inadequacy of the number of hours allowed to them to prepare for the preliminary hearing, or by LAO’s refusal to authorize them to retain co-counsel for the preliminary hearing, or by a combination of both. The applicants contend that these shortcomings constitute a prospective violation of ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Various remedies are sought pursuant to s. 24(1) of the Charter, including a stay of proceedings until such time as appropriate funding arrangements are made.

[3] Due to the variations in the applicants’ positions and variations in the evidence in relation to them, I have considered and determined each application separately. I will briefly summarize the evidence for each separately later in these reasons. However, due to the common thrust of the applications and the general nature of the legal principles that must govern the outcomes, I will deal first with the many common features of these applications.

The Respondents

[4] This case is being prosecuted by the federal Crown. Ontario and LAO have both been named as respondents to the applications as relief is claimed against them as well. Each respondent appeared by counsel, filed a factum and made responding arguments. The application took six days to complete.

An Overview of the Prosecution

[5] The nine applicants are part of a group of 14 men to be prosecuted on a variety of terrorism charges. There are three other young persons being prosecuted separately under the Youth Criminal Justice Act, S.C. 2002, c. 1, for similar offences. Collectively, the group has been referred to by the media as the “Brampton 17.” Almost all were arrested in early June of 2006. The preliminary hearing for the 14 adult offenders was to commence on May 28, 2007, but its commencement was delayed until June 4, 2007 to allow me to complete hearing this application. Estimates of the length of the preliminary hearing vary, but it may take five to six months to complete. I am advised some counsel are attempting to clear their schedules until the end of 2007.

[6] By all accounts, the quantity of disclosure made by the prosecution is substantial. Disclosure has been made primarily, but not exclusively, by means of two external hard drives which counsel can attach to their computers. One hard drive contains a database of 86,725 records made up of 82,000 text files of monitor summaries of intercepted communications, and 4,525 other records which include witness statements, surveillance reports, debriefing reports of undercover agents, and other reports and documents. Officers notes, and affidavits in support of wiretap authorizations are also included. All of these records are searchable with a program known as Supertext. The Supertext disclosure is estimated to contain 48,473 pages, not including the monitor summaries, which are estimated to average one page each (see Exhibit 3). The same hard drive contains media files which include photographs, videos and recordings of conversations. The media files are indexed but not searchable in the same manner. A second hard drive contains the contents of the computers seized from the accused, and of “memory sticks” used by some of the accused to communicate with one another. In addition to the hard drives counsel have received compact disks containing the body pack intercepts of two police agents, an index, and the Crown’s notice to introduce intercepted communications pursuant to s. 189 of the Criminal Code.

[7] In terms of the charges themselves, the allegations can be broken into three categories. Some accused face charges alleging they were involved in the illegal importation of firearms and ammunition for the benefit of a terrorist organization; some accused face charges alleging they were involved in a training camp for terrorist activities; and some face allegations that they were involved in a conspiracy to make and detonate a number of truck bombs. While there is important overlap, it appears to me that there is a considerable degree of compartmentalization to these three aspects of the investigation and resulting charges. While this is apparent from the evidence on this application, it was made very clear in another application relating to almost all of the same parties that I heard immediately before this one.

Legal Aid

[8] Some of the applicants and their co-accused applied for Legal Aid immediately after being arrested and were granted a legal aid certificate in short order. One of the applicants, Mr. Dirie, originally retained counsel privately, but after his bail hearing applied for and was granted legal aid. The applicant Ibrahim Aboud was originally denied legal aid but subsequently legal aid was granted. I do not have evidence of the date his legal aid certificate was issued but his current counsel, Mr. Motee, went on record on December 11, 2006. The applicants Ahmad Mustafa Ghany and Saad Gaya were each denied legal aid initially due to issues related to financial eligibility and determinations of whether family members should be required to contribute to the costs of their defence. However, legal aid certificates were issued for each of these applicants on January 27, 2007.

[9] Mr. Galati, who has been on record for the applicant Ghany since June 2006, acknowledged Mr. Ghany’s legal aid certificate. Mr. Slansky acknowledged the certificate issued to the applicant Gaya, and went on record February 1, 2007. Ms. Mara Greene had conducted a bail hearing for the applicant Gaya, and is proposed as potential co-counsel for Mr. Gaya should funding become available. Ms. Greene and Mr. Slansky were both working on the case before Mr. Slansky went on the record. Affidavit and viva voce evidence from Ms. Greene demonstrates that she has done work on the file aside from the bail hearing, and has worked to some extent with the disclosure materials, although she has never officially gone on record for Mr. Gaya.

[10] The legal aid certificates for Mr. Ghany and Mr. Gaya were issued just after a funding application was filed with this court on the basis of the principles for state funding of defence counsel as set out in R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.). I have no evidence before me that the issuance of the legal aid certificates was related to that application, which did not proceed once the certificates were issued.

[11] When Mr. Galati and Mr. Slansky acknowledged their clients’ legal aid certificates they purported to do so conditional on receiving appropriate levels of funding and in contemplation of reconstituting the abandoned Rowbotham application into the funding application now before me. I would note that the conditional acknowledgement of the legal aid certificates does not involve the court. From the court’s standpoint what is significant is that Mr. Galati and Mr. Slansky have voluntarily assumed the obligations of counsel of record and are being compensated on the basis of a legal aid certificate.

[12] Due to the scope of this case LAO determined pursuant to its policies, that the applicant’s fit LAO’s “big case management” criteria and the procedure utilized to establish a budget for the conduct of such cases. Section 5 of Ontario Regulation 107/99 made under the Legal Aid Services Act, supra, provides that a budget shall “list the steps in the proceeding that a reasonable applicant of modest means would authorize under a private retainer, if advised of the available options, the potential results and the costs involved.” The budget is also to specify an amount of money that represents the total anticipated fees and disbursements for those steps. The evidence indicates that in cases where the fees and disbursements are anticipated to be particularly large, the budget is set pursuant to the recommendations of what is known as the “Exceptions Committee.” The membership of that committee includes very experienced members of the criminal defence bar. The committee makes its recommendations after receiving input from counsel for the legally aided client. In this case I have evidence of extensive written submissions made to the committee. At least some counsel also appeared before the committee.

[13] On February 21, 2007 LAO’s Director of Big Case Management advised counsel what they were authorized to do in preparation for the preliminary hearing. Some counsel, who were to be “point persons” on particular issues of common interest were authorized to expend 1200 hours preparing for the preliminary hearing. Other counsel not acting as point persons, were authorized to expend 850 hours for this purpose. Those hourly allotments were to include any preparation for the preliminary hearing already completed and previously authorized. In addition, counsel would be entitled to charge for four hours of preparation on any court day during the six month preliminary hearing. Co-counsel were not authorized for the preliminary hearing. The evidence clearly establishes that in addition to their preparation time, counsel will be paid for every hour actually spent in court at the preliminary hearing.

[14] The evidence also establishes that some counsel received additional allotments of hours to work on other aspects of the case. For example, Mr. Edney, who acts for the applicant Fahim Ahmad, was granted 120 hours to work on a constitutional challenge to the mandatory publication ban available at bail hearings pursuant to s. 517 of the Criminal Code. Mr. Edney was also authorized to expend another 120 hours working on an application to obtain disclosure from the Canadian Security Intelligence Service (C.S.I.S.).

[15] It is important to note that LAO has not yet dealt with the issue of the time needed to prepare for trial following the preliminary hearing, or with the issue of co-counsel to assist at trial.

The Applications as Originally Framed

[16] In their written applications and facta most of the applicants sought an order that they be appointed by the court, although they were already counsel of record pursuant to a legal aid certificate. This is commonly known as a Fisher application, referring to R. v. Fisher, [1997] S.J. No. 530 (Q.B.). No doubt such an order was sought because initially all counsel were also seeking “enhanced rates” over those paid by LAO. Counsel sought up to $250.00 an hour. In addition counsel asked for unlimited preparation time, in part on the basis that there are five Crown counsel working on the case and because the Crown is perceived as having an unlimited budget. All of the applicants sought an order for co-counsel. The written material asks that these orders be made against the Crown in the right of Canada, the Crown in the right of Ontario, and against LAO.

[17] The written material filed on the application is quite extensive and raises many arguments and alternative arguments. Some of the requests made on their face seem unobtainable on the case law. All of this necessitated extensive written responses by Crown counsel for Canada, for Ontario, and by LAO. This welter of arguments led to a hearing that at one point was estimated to take three to four weeks. After I dismissed an application for interim funding in oral reasons delivered during the course of this application, the applicants and respondents were able to reach agreement on a number of evidential matters that shortened the hearing. However, it was not until the final arguments commenced that all but one counsel abandoned claims for a Fisher order, for enhanced rates, for unlimited funding, for an order against LAO and focussed on a submission for an increased but limited number of preparation hours, and the provision of co-counsel at the preliminary hearing. It certainly would have been helpful if this degree of focus had been achieved before the respondents and the court had expended considerable energy and countless hours on abandoned arguments.

[18] The position of one applicant, Fahim Ahmad, remains unclear. His counsel of record is Dennis Edney of Edmonton, Alberta. As Mr. Edney filed an affidavit on the application and was to be cross-examined by the Crown he could not appear to argue on this application. Mr. Kolinsky, representing Mr. Amara, had acted as Mr. Edney’s agent on a prior motion I heard over the course of 12 days. However, as Mr. Kolinsky filed an affidavit and was a witness on this matter, he also could not appear to argue on this application. Other counsel volunteered to represent Mr. Edney’s interests in the initial stages of this application. Then, on the day Mr. Edney was scheduled to testify, he was not available as he had gone to Guantanamo Bay, Cuba to represent another client. On May 28, 2007 Mr. Edney appeared as a witness and was cross-examined on his affidavit. He explained in his evidence why he thought that all aspects of the relief he sought were appropriate and should be ordered. That was the last I saw of Mr. Edney or anyone on his behalf. No one appeared to make submissions on behalf of his client. None of the counsel for the co-applicants had any instructions. Consequently I am not able to say that he has abandoned any of his initial arguments and focussed his position as other counsel have. I would also note that Mr. Edney never filed a Notice of Application for his client. Only an affidavit was filed. I would have dismissed the application for this reason but for a reasonable concession by Crown counsel that the applicants may have been under the impression strict compliance with the rules of this court had been relaxed for this application. The rules should be complied with on future applications.

The Evidence of Behalf of the Applicants

[19] Some of the applicants filed affidavit evidence, which other applicants adopted and relied on. Affidavits from Ms. Cindy Wasser and Mr. Paul Copeland, both experienced counsel, indicate that in their opinion it would be negligent for a lawyer to complete a preliminary hearing without having read all of the disclosure. Other affidavits from counsel who have worked with the disclosure explain challenges to using the Supertext program to get through the voluminous disclosure. The most detailed affidavit, in terms of recounting efforts to work with the disclosure, to analyze the contents and to organize it for defence purposes, is the affidavit of Peter Martin. Mr. Martin expresses his opinion as to why co-counsel is necessary to effectively work with the disclosure material. Ms. Mara Greene gave similar evidence viva voce, as did Mr. David Kolinsky, counsel for Zakaria Amara. Mr. Dennis Edney, on record for Fahim Ahmad gave similar, but somewhat broader testimony.

[20] Reduced to the main points, this evidence is to the effect that counsel cannot read and digest all of the disclosure in the time they have been allowed by LAO. It is also said that co-counsel are required to split up the reading and digestion of disclosure, and to locate items in the disclosure while other counsel are cross-examining witnesses. However, one thing that came out of all of this evidence was that as of the week of May 28, 2007 when the preliminary hearing was about to start, counsel for most of the applicants had not yet used up the hours they had been allotted. In addition, they will still be paid for the time spent in court, and for four additional hours of preparation each day. I will summarize parts of the evidence and the positions of each applicant.

Ahmad Mustafa Ghany

[21] Mr. Ghany is represented by Mr. Galati. Mary Misener, who is proposed as co-counsel, swore an affidavit stating that as of March 31, 2007 she had spent 80 hours on the matter. Ms. Misener deposed that Mr. Galati had expended 570 hours. It is not completely clear if all of this time was spent on preparation for the preliminary hearing. Mr. Galati is authorized to expend 1200 hours. Based on the best evidence I have therefore, there were 550 hours left out of the 1200 authorized as of the date of Ms. Misener’s affidavit. No evidence was placed before me as to how much time has been expended since March 31, 2007. In his submissions, Mr. Galati estimates he needs 2150 hours in total to prepare for the preliminary hearing. This was his estimate to the Exceptions Committee of LAO. Given that the preliminary hearing is now commencing, it is difficult to see where these hours could be used if granted, unless co-counsel were also authorized and worked outside the courtroom as the preliminary hearing continues.

[22] Mr. Galati also says he needs co-counsel due to the recency of his legal aid certificate. However I note Mr. Galati has been on the record since June, 2006. A transcript of proceedings in the Ontario Court of Justice at a “focus hearing” before Wilkie J., who is to conduct the preliminary hearing, also shows that Mr. Galati declined to pick up the disclosure until after he challenged the conditions under which disclosure was being made. I heard that application. My judgment in that matter is styled R. v. Mohammed, [2007] O.J. No. 700, and was released February 26, 2007. The transcript of proceedings before Wilkie J. is dated March 5, 2007, and the applicable reference is to p. 117.

Saad Gaya

[23] Ms. Mara Greene testified that by the time this application came before the court she had spent 380 hours preparing. I have no evidence of the details of the time Mr. Slansky, who is counsel of record, has spent. Mr. Slansky is authorized for 1200 hours. Therefore there are 820 hours left, plus the time that will be paid for court hours and four hours of preparation per day as the preliminary hearing progresses. Even if the figure of 850 hours is used as general preparation time, with 350 reserved for use on “point person issues,” on this evidence 470 hours remain unused. No doubt Mr. Slansky has put time in on the file, but I do not have those details in evidence.

[24] One of Mr. Slansky’s main requests is for co-counsel. He submits that as he did not get a legal aid certificate until the end of January 2007, he is playing “catch up” and must have co-counsel to be properly prepared. These submissions were made to the Exceptions Committee.

Ibrahim Aboud

[25] Mr. Aboud is represented by Mr. Motee who has been authorized to spend 850 hours preparing for the preliminary hearing. He has spent 800 hours so far. Mr. Motee’s focus is on obtaining more hours, although he has sought co-counsel in his written materials. I do not have evidence about the details of what Mr. Motee feels still needs to be done to be prepared for the preliminary hearing.

Jahmaal James

[26] There is no evidence at all before the court as to exactly how much time has been expended preparing for the preliminary hearing, and no evidence of what remains to be done. An affidavit from counsel’s “assistant,” sworn on April 18, 2007 on the basis of information and belief, simply indicates that a “substantial portion of the allotted 850 hours has been utilized.”

Mohammed Dirie

[27] Mr. Dirie is represented by Mr. Mercury. I have no evidence as to the hours utilized out of the allotment of 850 hours. In submissions Mr. Mercury agreed there was no evidence of the hours he has spent preparing but he suggested they were all being used up. The Crown understandably objected to this being considered as evidence. I note that the Crown chose to cross-examine some of the affiants, and had no opportunity to do so with respect to Mr. Dirie’s application, as no affidavit was filed. Mr. Mercury submitted that he also needs co-counsel to help him, as he was just retained in April 2007. This means he took the case on after the decision of the Exceptions Committee was known.

[28] Prior to that Mr. Dirie was represented by Mr. Copeland on a private basis, although Mr. Copeland has sworn in his affidavit that he was not retained to conduct the preliminary hearing for Mr. Dirie.

Zakaria Amara

[29] Mr. Amara is represented by Mr. Kolinsky. Mr. Kolinsky testified on this application that he had utilized 600 hours from his allotment of 850. Therefore he has 250 hours left in the bank before the preliminary hearing commences. He testified he feels he needs a further 350 hours to be fully prepared, and he explained why he wants the assistance of co-counsel.

Qayyum Abdul Jamal

[30] Mr. Jamal is represented by Mr. Farooq. I have no evidence before me as to how many hours Mr. Farooq has expended from his allotment, in order to prepare for the preliminary hearing. Mr. Farooq is not requesting any extra hours, but maintains it is essential for him to have co-counsel to conduct the preliminary hearing. In submissions Mr. Farooq acknowledged that because he was retained at the beginning, he has had considerable time to get through the disclosure. He also made reference as to the many thousands of records in which an electronic record search reveals his client’s name appears, yet as I say, I have no submission that additional hours are required.

Shareef Abdelhaleem

[31] Mr. Abdelhaleem is represented by Mr. Naylor. An affidavit was filed by Mr. Martin, a lawyer who has been assisting Mr. Naylor. As of the date of Mr. Martin’s affidavit, March 30, 2007, he swore he had expended approximately 500 hours reviewing documents in the first wave of disclosure, and that Mr. Naylor had expended 150 hours to that date. Mr. Naylor takes the position that as of the date the preliminary hearing was to commence, all 850 hours had been expended. Based on Mr. Martin’s affidavit it is clear not all of the disclosure has been reviewed. It seems from Mr. Martin’s affidavit, and Mr. Naylor made this submission, that Mr. Martin’s work with the disclosure has been broadly based and may help all counsel. Mr. Martin has concentrated on the first “wave” of disclosure which the Crown submits contains the most significant evidence.

[32] One difficulty it seems to me, is that most of the work has been done by Mr. Martin and not by Mr. Naylor, although as the lawyer accepting the legal aid certificate it is expected that Mr. Naylor will conduct the preliminary hearing. Mr. Naylor obviously chose to have the work performed in this way without having approval from LAO to retain co-counsel to assist him in court. It appears that of the two, the one who has spent less time on the disclosure will be conducting the examination of the witnesses.

[33] I should say that Mr. Naylor, in a candid submission, pointed out that he has many years of experience cross-examining witnesses and that he knows what he will do and how to do it. It would be helpful to him, however, to have the benefit of Mr. Martin’s familiarity with the disclosure material, and for this reason to have Mr. Martin as co-counsel at the preliminary hearing in order to do a more effective job.

Fahim Ahmed

[34] Mr. Ahmed is represented by Mr. Edney of Edmonton. Mr. Edney testified on the application. I agree with the Crown’s characterization in argument, that Mr. Edney had no real or clear cut knowledge of how many hours he had expended. Initially he said he had expended well over 1200 hours on the case and that the number of hours authorized was insufficient. However, it became evident in cross-examination that Mr. Edney was unaware that he had been authorized an extra 120 hours to work on the CSIS disclosure motion. He said he “now” understood that he could bill for each hour of court time, giving rise to the inference that this is a recently developed understanding on his part. In response to questions I posed, Mr. Edney testified he did keep dockets on a computer to record his time spent for billing purposes. He had not consulted those before giving evidence. He then testified in response to my questions that he estimated he had spent 1,000 hours preparing for the preliminary hearing and had reviewed 60% of the disclosure. The tenor of his testimony was relatively non-specific, which limits its value. Mr. Edney also maintained in his testimony that the rates paid by LAO are inadequate. He continues to seek enhanced rates. He testified that unlimited preparation time was required in his opinion. He is seeking to have his travel and “out of town” costs covered, as well as junior counsel. I infer from this that he has not been authorized by LAO to charge travel time and expenses, although there is no clear evidence to that effect before me.

[35] In summary with respect to all of the applicants, I must say that the evidence has been presented in an uncoordinated and somewhat incomplete fashion. There are many gaps in the evidence from the point of view of my reaching an understanding of what has been done, what still needs to be done, and why. The evidence speaks to generalities but is lacking in detail and particulars.

The Position of the Respondents

[36] Each of the respondents has filed a helpful factum. LAO takes the position that even if the court were to grant a remedy, it should not be against LAO.

[37] The positions of Canada and Ontario are complimentary, and each have made extensive reference to the case law, some of which I will deal with in my analysis. In essence, it is the position of both Crown’s that there is no jurisdiction to make an order against LAO, and that the applications are premature. In order to succeed the applicants would have to show a likelihood that the trial will be unfair, and we are a long way from the trial. This proof fails. LAO has not yet dealt with funding for trial preparation, and the applicant’s have an obligation to exhaust all avenues with LAO before they bring such an application to the court. As that has not been done the application should be dismissed. With respect to any claim to be appointed as counsel, the rare circumstances which are a prerequisite to a Fisher order are not present here. Both Crown’s emphasize that an application of this sort is not a review of legal aid policies and procedures and that this court has no jurisdiction to undertake such a review. Even if it could be found that there was some unfairness to counsel, having voluntarily taken on the case, that is not the issue. The issue is whether it has been established that the trial will likely be unfair to the applicants because of the conditions associated with their legal aid certificates. If such were found, the appropriate remedy is a stay of proceedings pending adequate funding, not an order for enhanced rates, increased hours, co-counsel, or any combination of those things.

[38] With respect to the arguments that counsel do not have enough authorized preparation time to fully evaluate all of the disclosure, the federal Crown argues that this is not a case in which it can be expected that every counsel for every accused will have to independently digest all of the disclosure before the end of the preliminary hearing. Co-operation and innovative methods are called for.

[39] The federal Crown also points to aspects of the disclosure process and the preliminary hearing process that go a long way to assisting the defence in identifying those aspects of the disclosure that are important to each particular accused. As Mr. Bond put it for the federal Crown, each accused has been provided with a “road map” of the Crown’s theory and proposed method of proof, with specific reference to the evidence the Crown will rely upon to prove its case against each accused. I would summarize the evidence on this point as follows.

[40] The applicants were arrested on June 2, 2006. Initial disclosure was provided on June 6, 2006. At that time each accused received a synopsis of the case. In addition, each accused was provided with an outline of the allegations against them specifically. Shortly after that further bail hearing disclosure was made. The bail hearing disclosure was again focussed for each accused.

[41] The disclosure provided by hard drive was done in waves. The first wave was provided July 30, 2006, within just two months of the arrests, and some 10 months ago. That first wave contained the most important evidence in the case. There were 84,333 records of which 82,200 were monitor summaries of intercepted communications. The Crown added more disclosure to the hard drives on October 13, 2006, on December 18, 2006 and again on March 14, 2007. By the final instalment the total number of records were 86,725 with most of those additional records being added on October 13, 2006. By far the largest and most important instalment of disclosure was the first one. The final instalment in March 2007 contained an upgraded Supertext program and an improved media directory. The CD’s of body pack conversations previously referred to were provided on November 2, 2006.

[42] The Crown also points out that 719 intercepts were initially identified by the Crown as relevant. These intercepts were placed on the media side of the hard drive. By means of a split screen, counsel can play the intercepts and scroll through a transcript of the intercept at the same time. That ability came with the first wave of disclosure. Subsequently the Crown has reduced the number of intercepts and notified all of the accused of the specifics of the 464 intercepts they will be relying on.

[43] The Crown also points to the evidence of the organized fashion in which the preliminary hearing was arranged as instrumental in providing part of the “roadmap” to the Crown’s case. By December 13, 2006 the Crown had served a detailed outline of the case the Crown intended to present at the preliminary hearing, together with a notice pursuant to s. 540 (8) of the Criminal Code. The outline is broken down into three major headings dealing with the importation of weapons allegations, the terrorist training allegations, and the truck bomb conspiracy allegations. Under each heading a further outline of the allegations is provided and specific reference is made to the evidence to be relied on, including the precise identification of intercepted communications, and precise identification of source debriefing reports in relation to the undercover agents. Each of these major headings is broken down by counts and by accused. That document was then further improved upon and by March 30, 2007 was even more detailed. These documents are in evidence on this application.

[44] The judge to preside at the preliminary hearing, the Honourable Peter Wilkie, met extensively with counsel in what are described as focus hearings which were held pursuant to s. 536.4 of the Criminal Code. Those hearings occurred on March 5, 6, 7, 8, 9, and 12, and on April 2, and 3 of 2007. I have transcripts of some of those hearings. Counsel and Justice Wilkie worked very hard to achieve a written agreement as to what evidence would be presented at the preliminary hearing. This form of agreement is now provided for by s. 536.5 of the Criminal Code. That agreement is exhibit M to the affidavit of Giannice Lund filed as part of the federal Crown’s response to these applications. In that agreement four of the nine applicants concede the evidence to be tendered at the preliminary hearing is sufficient to justify an order committing them for trial. Those four are Mr. Abdelhaleem, Mr. Ahmad, Mr. Amara, and Mr. Gaya.

[45] The agreement lists the witness to be called viva voce. The Crown points out that more witnesses are being called than was originally proposed by the Crown, as a result of the positions taken by the accused at the focus hearings. That shows familiarity with the disclosure material. The agreement also required the Crown to provide a chart by April 27, 2007 of all exhibits the Crown relies on that were seized from the residences or places of arrest of the accused, including seizure particulars. The Crown agreed to produce a witness knowledgeable about these seizures for cross-examination at the preliminary hearing. The prosecution also agreed that by April 27, 2007 they would identify any accused whose statement the Crown intends to adduce at trial, and to make available audio and videotapes of all contact those accused had with persons in authority from the time of their arrests to the conclusion of their statements.

[46] Crown counsel argues that all of these factors help the applicants and their counsel to identify the portions of the disclosure that are likely to be significant, and that the argument that a fair trial cannot be had if every item of disclosure is not reviewed by counsel for each of the applicants prior to the end of the preliminary hearing is simply untenable in the circumstances of this case.

Relevant Sections of the Charter of Rights

[47] The relevant provisions of the Charter read as follows:

s. 7

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

s. 10

Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right;

s. 11

Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

s. 24(1)

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Analysis

[48] I commence by referring to the following important passage from the Ontario Court of Appeal’s judgment in R. v. Rowbotham, supra, at pp. 65-66:

The right to retain counsel, constitutionally secured by s. 10(b) of the Charter, and the right to have counsel provided at the expense of the state are not the same thing. The Charter does not in terms constitutionalize the right of an indigent accused to be provided with funded counsel. At the advent of the Charter, legal aid systems were in force in the provinces, possessing the administrative machinery and trained personnel for determining whether an applicant for legal assistance lacked the means to pay counsel. In our opinion, those who framed the Charter did not expressly constitutionalize the right of an indigent accused to be provided with counsel, because they considered that, generally speaking, the provincial legal aid systems were adequate to provide counsel for persons charged with serious crimes who lacked the means to employ counsel. 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 added)

[49] The opinion expressed in the above quotation that the framers of the Charter did not expressly constitutionalize the right to state funded counsel was subsequently confirmed by the Supreme Court of Canada in R. v. Prosper, [1994] S.C.R. 236. At para. 30 of the judgment, Lamer C.J.C., concluded that there was evidence in the Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada (January 27, 1981), that a specific proposal to entrench the right to state funding of counsel for the indigent was rejected by that committee.

[50] Returning to Rowbotham, the Court of Appeal concluded that due to the complexity of that case the appellant required counsel in order to have a fair trial. Consequently, to force the appellant to proceed without counsel would, in those circumstances, violate the appellants s. 7 and s. 11(d) Charter rights.

[51] In the circumstances of the Rowbotham case, where legal aid had been denied, the Court of Appeal pointed out that while Legal Aid’s decision about whether the appellant was in a financial position to retain counsel privately was entitled to great respect, the trial court was required to come to its own conclusion on that issue. If the court concluded there was no such ability, the court should stay proceedings until state funding for counsel was available, to ensure a fair trial.

[52] The Rowbotham case seems to have proceeded on the assumption that if legal aid was available no constitutional violation would occur. This is consistent with the court’s conclusion that the framer’s of the Charter must have considered that “generally speaking” the provincial legal aid schemes were adequate to ensure legal counsel were available for the indigent. Boiled down to its essentials, Rowbotham stands as authority that the court must ensure a fair trial, and that “generally speaking” if legal aid is available fair trial concerns will be satisfied.

[53] The Supreme Court of Canada dealt with entitlement to state funded counsel in New Brunswick (Minister of Health and Community Services) v. G.(J.) (1999), 1999 CanLII 653 (SCC), 177 D.L.R. (4th) 124. The case involved a mother of three children in temporary custody of the Minister of Health and Community Services who could not obtain legal aid for representation at a court application by the Minister to temporarily extend state custody of the children for a further six months. Legal aid was not available for such hearings as it was the policy of the provincial legal aid plan to provide representation on permanent guardianship applications only. The court ultimately ruled that the mother was entitled to state funded counsel on the basis that to refuse legal assistance to the indigent in such circumstances would violate s. 7 of the Charter. The court concluded that the mother’s liberty and security of the person interests were at stake and emphasized the importance of a fair hearing as a principle of fundamental justice.

[54] However, at para. 86 the Supreme Court cautioned that the right to a fair hearing will not require representation by counsel in every situation in which a person’s right to life, liberty or security of the person is at stake. Nevertheless, after examining the complexities of that particular case, the seriousness of the interests at stake and the capacities of the parents to handle the matter without legal representation, the court made a case specific determination that state funded legal representation was required to ensure a fair hearing. While the legal aid program in New Brunswick was found to be the “locus of the constitutional violations” in the case (para. 93), the court made a point of indicating that governments have wide latitude in discharging their constitutional obligations to provide state funded counsel in those proceedings where that duty arises (para. 92). In dealing with the remedy for the violation found in that case the court specifically stated that courts should not become involved in directing the reformation of government policies as that would constitute an intrusion into the legislative sphere (para. 102). This portion of the Supreme Court’s judgment has since been referred to by the Ontario Court of Appeal in R. v. Peterman (2004), 2004 CanLII 39041 (ON CA), 70 O.R. (3d) 481, at para. 21, as supporting the Court of Appeal’s conclusion that a criminal trial court has no jurisdiction to review the policies of LAO relating to lawyer compensation and the provision of junior counsel.

[55] In the New Brunswick case Chief Justice Lamer also referred to the comments he made in Prosper that I have already referred to concerning the framer’s decision not to constitutionalize a requirement for state funded counsel for the indigent. He then went on to make the following statements (para. 107):

The omission of a positive right to state-funded counsel in s. 10, which, as I said in Prosper, should be accorded some significance, does not preclude an interpretation of s. 7 that imposes a positive constitutional obligation on governments to provide counsel in those cases when it is necessary to ensure a fair hearing. To hold otherwise would be to suggest that the principles of fundamental justice do not guarantee the right to a fair hearing or, alternatively, that under no circumstances would the requirements of a fair hearing obligate governments to pay for an individual to be represented by counsel. Both of these positions are untenable. In my view, the significance of the omission of a positive right to state-funded counsel under s. 10 is that s. 7 should not be interpreted as providing an absolute right to state-funded counsel at all hearings where an individual’s life, liberty, and security is at stake and the individual cannot afford a lawyer. Accordingly, while a blanket right to state-funded counsel does not exist under s. 10, a limited right to state-funded counsel arises under s. 7 to ensure a fair hearing in the circumstances I have outlined above.

[56] The focus of these two leading cases is on whether a fair trial can be held without counsel in the particular circumstances of a given case. If it cannot then state funded counsel is to be provided.

[57] The distinguishing feature of the case before me is that all of the applicants have legal aid certificates and all have counsel who have accepted those certificates and voluntarily gone on the record to represent their interests. This is not a case where the applicants need an order of the court in order to obtain counsel. I should also say, that the Crown did not argue this case is not complex. It is, and I am satisfied the accused must have the assistance of counsel if there is to be a fair trial.

[58] Counsel for the applicants contend that the restrictions imposed upon them in connection with their legal aid certificates will lead to an unfair trial. Authority which is binding on me, and some which is persuasive, does not auger in favour of a successful outcome for the applicants in these circumstances.

[59] R. v. Peterman, supra, is the binding authority. The accused in that case had retained counsel pursuant to a legal aid certificate. Counsel’s office was a four hour drive from the location where the case was proceeding. Counsel applied for coverage of travel time and expenses, but those were denied pursuant to LAO’s policies not to cover such costs unless qualified local counsel was unavailable to take the case. As in the case before me, counsel remained on the record and brought an application to the court for enhanced funding. A judge of this court concluded that travel time and expenses should be paid, and that Legal Aid’s restrictions on preparation time and denial of junior counsel were unreasonable. The court made an order that Legal Aid or the Attorney General of Ontario pay counsel’s travel time and expenses and pay for unlimited preparation time and junior counsel. Aside from the level of complexity, the circumstances in Peterman are very similar to the circumstances of the case before me.

[60] As already mentioned, in allowing an appeal by Legal Aid and the Crown, Rosenberg J.A. held that a criminal trial court has no jurisdiction to review legal aid rates or policies and impose an order for other arrangements on LAO. The criminal trial court’s jurisdiction rests solely on its obligation to ensure that the accused receives a fair trial (para. 21). Consequently, when a court makes an order for state funded counsel it is not conducting a judicial review of decisions made by legal aid authorities (para. 22). While an accused must not be subjected to unreasonable interference in his or her choice of counsel, that does not translate into a right to state funding of counsel of choice, in cases where state funding is required (para. 28).

[61] Justice Rosenberg also suggested that there are only two exceptions to the general rule that there is no positive obligation on the state to fund an accused’s counsel of choice in cases where state funding is required (para. 29). The first is where the accused can establish that they can only obtain a fair trial if represented by a particular counsel, a situation described as “unique” and one of “unusual circumstances” (para. 29). This is reference to a Fisher order: see R. v. Fisher, supra. The second is where the court concludes the accused “simply cannot find competent counsel to represent him or her on conditions imposed by Legal Aid” (para. 30). The court also held that having accepted a legal aid certificate, “…counsel’s professional obligation was either to proceed on Legal Aid’s terms, or assist his client in finding other competent counsel who was prepared to defend his client” (para. 35).

[62] In the case at bar I have no evidence before me that unique circumstances exist that would justify me making a Fisher order. Even Mr. Edney acknowledged in his cross-examination that other counsel competent to handle the case are available. Nor do I have any evidence before me that no other lawyers are willing to represent the applicants on a legal aid certificate with the conditions that apply here. In fact I know that the applicants have five co-accused who are represented on legal aid certificates, who’s counsel have not joined in this application. That tends to support the opposite inference and suggests that there are competent counsel willing to act on LAO’s terms.

[63] In my view, the pronouncements in Peterman are sufficient to require me to dismiss all of the applications before me. Counsel accepted the legal aid certificates and voluntarily assumed their professional responsibilities to their clients and to the court by placing themselves on the record. I have no jurisdiction to review the policies and procedures of legal aid that have resulted in the conditions attached to the legal aid certificates issued in this case. If I were to make the orders requested in this case, given the absence of evidence that no other competent counsel will take the case, I would effectively be making an order that the state fund the accused’s counsel of choice, when the prerequisites to the making of such an order have not been established by the applicants. The applicant’s arguments wholly fail to acknowledge that while they have a limited right to counsel of choice, they do not have the right to state funded counsel of choice unless they bring themselves within one of the exceptions referred to in Peterman.

[64] As Justice Rosenberg declared in Peterman, at para. 20, defence counsel who undertake the defence of the indigent by accepting legal aid perform an invaluable service, and by accepting legal aid certificates ensure that the state is able to fulfill its constitutional obligation. Justice Rosenberg also acknowledged that those services are often performed at rates and under conditions that may lead to incomplete compensation in order to ensure that accused persons are treated fairly and receive an effective defence. I wish to echo those comments. Nothing in my reasons should be taken as endorsing the current legal aid rates or restrictions on preparation as fair to counsel who accept legal aid certificates. However, as all of the cases I have referred to make clear, the court’s jurisdiction is restricted to considering whether the case is one which requires counsel in order for there to be a fair trial, and whether competent counsel is available to the accused in such a case. Where counsel is available to an indigent accused, it must be presumed that when counsel voluntarily undertakes to act that they will discharge their professional obligations in accordance with the standards expected of them.

[65] I would add that I am cognizant of the fact that the decision of the Exceptions Committee was not known at the time the legal aid certificates were accepted. However, once those conditions were known, if counsel were not willing to continue they should have applied to be removed from the record, and assisted their clients in obtaining other counsel. This was determined to be the law in this province in Peterman, which I note was decided in April 2004, over two years before the applicants were charged.

[66] If I am wrong in my interpretation and application of Peterman, however, I should also indicate that the applicants have failed to demonstrate that the restrictions on their hours of preparation or the denial of junior counsel, will lead to an unfair trial. I do not mean to say that restrictions placed on the number of preparation hours for the preliminary hearing is not something which poses a potential risk to fair trial interests; it potentially does. The preliminary hearing is an important step in trial preparation. Aside from the disclosure that may be obtained at a preliminary hearing, important witnesses can be pinned down to clear positions so that counsel can truly know the case their clients have to meet, and counsel can obtain a transcript to contradict the witness should the testimony change. The preliminary hearing can also be vitally important in uncovering potential Charter violations that can lead to the exclusion of important evidence at trial. There are many other important benefits that flow from a properly conducted preliminary hearing. Those benefits are not just to the accused, but to the administration of justice as a whole. Cross-examination on preliminary hearing testimony may assist in uncovering deception, or unreliability. A properly conducted preliminary hearing leads to a fairer trial, and in the experience of many jurists, to a shorter and better focused trial.

[67] The question here, however, is whether the applicants have affirmatively established a violation of ss. 7 or 11(d) of the Charter on a balance of probabilities. As the case is still at the preliminary hearing stage the applicants are required to prove a violation of their rights on a prospective basis. This can be very difficult to do. While the applicants have framed their claim for relief broadly, one of the remedies sought is a stay of proceedings until adequate funding is provided. A stay is the most appropriate remedy in most cases: New Brunswick v. G.(J.), supra at para. 101; R. v. Peterman, supra, at para. 21.

[68] As the applicants seek to restrain government action on the basis of a prospective Charter violation they must demonstrate “a high degree of probability” that the Charter infringement will occur: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97 at para. 108; Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at paras. 29-37. This test has been applied in other cases where the issue before the court was whether the court should intervene to provide state funding because legal aid was alleged to be inadequate: see R. v. Cai (2002), 2002 ABCA 299 (CanLII), 170 C.C.C. (3d) 1 (Alta. C.A.), at para. 6.

[69] In Cai the Alberta Court of Appeal was dealing with a large gang related drug conspiracy. Thirty-five accused were charged with 39 counts related to drug trafficking and organized crime. A judge of the Court of Queen’s Bench determined that the legal aid system in place in Alberta was inadequate in such a case, and issued a stay of proceedings pending the provision of adequate funding of the defence. The state refused to fund three of the accused, and the stay of proceedings was made final with respect to them. The Crown then appealed.

[70] The Court of Appeal for Alberta reversed the Court of Queen’s Bench and vacated the stay. In doing so the Court of Appeal found the wrong test had been applied in the court below. At para. 6 of its judgment the court indicated that the test was whether the accused had shown that there is a high degree of probability that “representation that is currently made available through Legal Aid will not produce a fair trial.” I agree this is the test to be applied. In my view the question is not whether the current counsel for the applicants will provide an adequate defence by the means they have chosen to conduct their preparation, but whether, generally speaking, the resources that have been made available by LAO have been shown to be so inadequate that there is a high probability that a fair trial is unlikely. Obviously the evidence before me about the nature of the case, the extent of the disclosure, and the difficulties in navigating it, are relevant to this issue.

[71] I conclude that the applicants have simply failed to demonstrate that there is a high probability that the restrictions imposed by LAO will result in an unfair trial.

[72] First, I would point out that while I have evidence from some counsel that they have had difficulty navigating the disclosure electronically, I also have evidence that the Supertext program provides considerable search capabilities, including progressive search capabilities. The evidence also discloses that only two of the counsel involved in this case have taken the Crown up on its offer to provide free training in the programs use. Ms. Greene, who testified to a variety of difficulties in navigating the disclosure, has not taken the training. Nor has Mr. Edney, although he testified he was familiar with Supertext from previous cases. However, the fact that most of the counsel who complain have failed to take the training, impacts negatively on the weight I can attach to this part of their evidence.

[73] I should also say that none of the applicants has provided me with any first hand evidence of how the disclosure works, or does not work. Despite spending days on this issue none of the counsel involved in the case provided me with a demonstration. I was told at one point by Mr. Naylor that it would be best if we continued to hear this application in a specially equipped courtroom so that Mr. Martin could use the screens and computers to demonstrate the use of the disclosure. However, that demonstration never materialized. On more than one occasion during the hearing of the application I mentioned that I was hearing a lot of “soft evidence” on the issue, and that the program had not been demonstrated, but that did not result in the production of a demonstration. I am left in a very poor position to evaluate the evidence about any difficulty in working with the disclosure. This is not a question of credibility, but a question of having an adequate evidential base to assist me in evaluating the extent of the described difficulties. This lack of context makes it very difficult to assign the weight to the evidence that counsel for the applicants contend I should. It is akin to having to make findings on the basis of a description of a complex crime scene without a diagram or photographs.

[74] I also pointed out earlier in these reasons that most counsel still have an unused bank of preparation hours to draw from. They will also have every hour of court time paid for, plus four hours per day in court for additional preparation. It seems likely that a great deal of preparation can be done by counsel during the course of the preliminary hearing. I cannot ignore this, and I do not have a satisfactory evidential base to allow me to conclude that the applicants have shown that they will not be able to evaluate all of the disclosure that, in counsel’s judgment, with the assistance of their clients, relates to the case against them. The agreement as to the preliminary hearing, and the transcripts of the focus hearings before Wilkie J. that I have reviewed, suggest that the preliminary hearing will be conducted in a reasonably flexible way.

[75] As the Crown contends, and I agree, each accused has been provided with a fairly specific road map as to the case the Crown will present against each accused. I would be the last one to say that the balance of the disclosure is not important. Clearly it is. This is particularly so in a case where conspiracy is alleged. Counsel must have regard to the role the acts and declarations of others may play in proof of the case against their clients. However, lawyers representing clients of modest means must exercise their professional judgment and skill in sorting through the material. While I agree that it is highly desirable that counsel have the ability to read all of the disclosure in the vast majority of cases, and even assuming that counsel may not be able to do that within the confines of the time LAO has authorized for preparation for the preliminary hearing in this case, it has not been demonstrated to me on a balance of probabilities that the flow through effect is likely to be an unfair trial. There is speculation, but no demonstrated cause and effect. This case is still at its very early stages.

[76] I would also point out that LAO has not yet dealt with a budget for trial preparation. It may be that co-counsel will be authorized for trial, and that a considerable number of hours of preparation time will be authorized. That remains to be seen. In Cai, the Alberta Court of Appeal held that an application for state funding is premature until all resources available through legal aid have been exhausted (paras. 10, 43).

[77] Some counsel in this case arranged to have other lawyers do a great deal of the preparation for the preliminary hearing without having obtained authorization for co-counsel. Now that co-counsel has been denied for the preliminary hearing, it seems to me that I should not be considering the plight these counsel find themselves in due to choices they made before LAO’s position was known. Having taken on the case it is their responsibility to properly represent their client, as long as they remain on the record.

[78] In addition, while some counsel have led evidence that all or most of their preparation hours have been used up, I have little concrete evidence about any specific shortcomings in their preparation. I have no clear evidence of what remains to be done or why it is important. Although lawyers are required to keep dockets for legal aid billing, all I have been provided with are estimates of hours expended. I do not say these things to be critical of counsel but to explain why the evidence fails to establish what must be shown to demonstrate that there should be a stay of proceedings pending further state funding. There is very little meat on the bones of evidence that I have been provided with to make my decision.

[79] As the applicants have failed to establish in any concrete way that there is a likelihood the trial will be unfair, I would dismiss the applications even if I am wrong that the judgment in Peterman requires that result for the reasons already given.

The Constitutionality of s. 12(1) of the Legal Aid Services Act, 1998, S.O. 1998, Chap. 26

[80] LAO takes the form of a corporation without share capital, and is established by s. 3(1) of the Legal Aid Services Act. In their written material most of the applicants challenged the constitutional validity of s. 12(1) of the Act. All of the applicants except Mr. Gaya abandoned their challenge at the commencement of argument.

[81] Section 12(1) of the Legal Aid Services Act, 1998, reads as follows:

12(1) The corporation shall establish and administer a cost-effective and efficient system for providing high quality legal aid services within the financial resources available to the corporation.

[82] Mr. Slansky, who represents Mr. Gaya, did not appear on the days set for argument. Instead Mr. Galati appeared as Mr. Slansky’s agent. The constitutional challenge was not pressed strenuously in oral argument. I was referred to paras. 58 and 59 of the factum filed by Mr. Slansky. In those paragraphs it is argued that ss. 7 and 11(d) of the Charter create a “positive obligation” on Ontario to provide all necessary funding to ensure that all persons charged with criminal offences who need but cannot afford counsel will be provided with counsel at the government’s expense. As s. 12(1) is said to be inconsistent with that positive obligation, the submission is that the section is unconstitutional.

[83] This submission is completely out of line with the law. As Chief Justice Lamer pointed out in the passages of his judgments in Prosper, and New Brunswick v. G.(J.) already referred to, there is in fact “no positive obligation” of this nature placed on governments; there is only a case by case requirement for funding in circumstances where a fair trial cannot be had without counsel. The cases also make it clear that governments may satisfy any obligations that arise in such cases in more than one manner, and not necessarily through the provision of legal aid. These points are sufficient to lead to a dismissal of the constitutional challenge to s. 12(1).

[84] I also wish to point out that there is absolutely no evidence before me that s. 12(1) of the Act played any part in the determination made by LAO in this case, beyond its general influence in the formulation of the policies of LAO. Counsel for LAO advised that once a legal aid certificate has been issued, the overall budget of LAO plays no role in setting the specific budget for a particular case subject to big case management, other than through LAO’s policies, which are of course shaped in part by the Act.

[85] I agree with the submissions of counsel for Ontario, that I have no jurisdiction, nor reason, to consider the constitutional validity of s. 12(1) of the Act in the circumstances of this application.

The Application for Costs

[86] The applicants Mr. Ghany and Mr. Gaya seek an order for costs against LAO. Counsel submits that a costs order is justified because LAO denied a legal aid certificate to these applicants for approximately six months, and only issued a certificate when the predecessor of this funding application was launched.

[87] I have already said that there is no evidence to suggest that the granting of the legal aid certificates occurred because the prior application was brought. Even if it was, I fail to see how that could or should lead to a costs order in this application. Moreover, the evidence the applicants filed, particularly that filed on behalf of Mr. Gaya, shows that during that six months LAO was involved in sorting out issues of financial eligibility. The evidence shows that some incorrect information was provided and that there were misunderstandings on both sides.

[88] The claim for costs against LAO is completely without merit in my view.

Conclusion

[89] The applications are dismissed.

___________________________

DAWSON J.

Released: June 14, 2007

COURT FILE NO.: 1750/07B

DATE: 20070614

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

– and –

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

– and –

LEGAL AID ONTARIO

Respondents
– and –

FAHIM AHMAD, ZAKARIA AMARA, SHAREEF ABDELHALEEM, QAYYUM ABDUL JAMAL, MOHOMMED DIRIE, AHMED MUSTAFA GHANY, JAHMAAL JAMES, SAAD GAYA and IBRAHIM ABOUD

Applicants

REASONS FOR JUDGMENT

DAWSON J.

Read More