R. v. Russell, 2015 ONCJ 782

Court File and Parties

Court File No.: Toronto Region Date: 2015-11-16 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Sheri Ann Russell

Before: Justice Carol Brewer

Heard on: October 13, 2015

Reasons for Judgment released on: November 16, 2015

Counsel:

• Andrew Jin and Patrick Clement for the Crown
• Marianne Salih for the defendant, Sheri Ann Russell

Reasons for Judgment

Brewer J.:

Introduction

1Sheri Ann Russell is charged with fail to comply with a recognizance, criminal harassment and assault with a weapon. The trial is scheduled to proceed on January 5, 2016. Ms. Russell says that she cannot afford to pay a lawyer and that counsel is necessary for her to have a fair trial. She brings an application pursuant to sections 7, 11(d) and 24(1) of the Charter of Rights and Freedoms for the proceedings against her to be conditionally stayed until state-funded counsel is provided for her trial (a "Rowbotham" application).

2Pursuant to sections 7 and 11(d) of the Charter an accused has a constitutional right to a fair trial. In some circumstances, a fair trial includes the right to state-funded counsel. The onus is on the applicant to establish three things on a balance of probabilities:

1. that she is ineligible for, or has been refused Legal Aid and has exhausted all available appeals;

2. that she is indigent and has no other means to retain counsel; and

3. that counsel is essential to her right to a fair trial.

See R. v. Rowbotham, [1988] O.J. No. 271 (C.A.) at ¶167; R. v. Tang 2015 ONCA 470 at ¶9.

3Crown counsel concedes that the first two criteria have been satisfied. Accordingly, the only issue to be determined is whether counsel is essential to a fair trial.

The Facts

4Ms. Russell's trial is scheduled to last for one day. The Crown anticipates calling four witnesses: two civilians and two police officers. The disclosure is 160 pages in length, plus photos and videos. It is alleged that the applicant made various threatening phone calls, Facebook messages and text messages to the complainant, then arrived at the complainant's place of employment and further threatened the complainant while brandishing a baseball bat. Should a conviction be registered, the Crown will not be seeking a jail term.

5The applicant is 41 years old. She is separated from her husband of 21 years and lives with her 11 year old son in rental accommodation. Her income is from the Ontario Disability Support Program. She has no savings.

6In February 2001 Ms. Russell developed a herniated disk in her spine. Shortly thereafter she suffered a second herniated disk. The applicant has undergone multiple surgeries, which failed to alleviate her condition. She suffers from chronic pain and is being treated with painkillers. The pain causes her to have difficulties with concentration and focus. As a consequence of her condition Ms. Russell has become very depressed and, at one time, was suicidal. She has been prescribed anti-depressants. The applicant also suffers from anxiety and is easily overwhelmed. Ms. Russell has mobility issues and, occasionally, finds it difficult to get out of bed. However, she moved without apparent difficulty when she appeared in court.

7The applicant completed half of grade nine. She has training as a school bus driver and was employed in that capacity until her back injuries were sustained.

8Ms. Russell understands the charges she is facing. She was able to testify and be cross-examined during this motion. The applicant does not think she can represent herself given her anxiety, depression, lack of education and her poor memory.

9The applicant was initially granted Legal Aid and was represented by counsel. However, Ms. Russell was reluctant to have her charges combined with another charge of assault (which was subsequently withdrawn) and to enter a plea of guilty to a lesser and included charge. On January 12, 2015, her counsel went into court and brought an application to be removed from the record due to a lack of confidence in his representation. The applicant felt that her lawyer was not acting in her interests and that he did not listen to her. She requested a change of solicitor on January 14, 2015. Legal Aid Ontario denied the request because it determined that the breakdown in the applicant's relationship with her lawyer was the result of unreasonable instructions or expectations on her own part. On this basis, Legal Aid found that the exceptional circumstances required to justify a change of solicitor had not been met.

The Legal Framework

10It is well established that in making its determination that the court is not sitting in review of Legal Aid's decision, but is conducting a separate inquiry as part of its independent obligation to ensure trial fairness: R. v. Rushlow, [2009] O.J. No. 2335 (C.A.) at ¶18; R. v. Peterman, [2004] O.J. No. 1758 at ¶22.

11Representation by counsel is not necessarily a prerequisite to a fair trial, or required by the principles of fundamental justice: New Brunswick (Minister of Health and Community Services) v. G.(J.), [1993] 3 S.C.R. 46 at ¶86; R. v. Rain, [1998] A.J. No. 1059 (C.A.) at ¶36. Recently, in R. v. Rushlow, supra, the Ontario Court of Appeal articulated some of the factors to consider when determining whether counsel is essential to a fair trial. Rosenberg J.A. stated at ¶19:

In considering whether to appoint counsel, the trial judge is required to consider the seriousness of the charges, the length and complexity of the proceedings and the accused's ability to participate effectively and defend the case. . . .

12Further, at ¶20 Rosenberg J.A. added:

The courts have considered a number of factors in determining whether appointing counsel is essential in view of the complexity and seriousness of the case. Generally, the courts look at the personal abilities of the accused, such as their education and employment background, their ability to read and their facility with the language of the proceedings. The courts will also consider the complexity of the evidence; the procedural, evidentiary and substantive law that applies to the case; the likelihood of especially complex procedures such as a voir dire; the seriousness of the charges; the expected length of the trial and the likelihood of imprisonment.

13In this case, the charges are relatively serious. However, Crown counsel has advised that he will not be seeking a period of incarceration in the event that the applicant is convicted. Therefore the matter is less serious than some other criminal convictions.

14The case is not lengthy. There are no pre-trial motions, complicated evidentiary applications or Charter issues that need to be addressed. The case is neither legally nor factually complex. The only issue in the case will be credibility. In this connection Ms. Salih takes the position that a credibility defence is complex. She has referred me to the decision of Anderson A.C.J. in R. v. Smart, [2014] A.J. No. 835 (Prov. Ct.). At paragraphs 180 to 182, Associate Chief Justice Anderson said the following:

Regarding the issue of complexity, the accused has raised perhaps the most difficult defence that an accused person can raise -- that the complainant is not telling the truth. Assuming that the assertion of the accused is true, which one must assume under the presumption of innocence, how would one with the accused's criminal record go about laying the groundwork to support his denial? He can of course baldly assert his innocence without the need for any help but at the end of the trial, to what will the accused be able to point in order to raise a doubt about the complainant's account?

If the complainant's allegations are not true, where does the explanation reside? Could it reside in one of the more innocent weaknesses that a cross-examiner might test, the ability to perceive, or the ability to retrieve facts from memory or perhaps the distortion came about in the way the story was recounted and translated by the police? Might there have been gaps, convenient or otherwise, in the story related? Could the complainant have simply misconstrued the events at the time? Was she sober? Under drugs? Were perceptions affected by shock or possibly shaped by past experiences and perhaps jumping to a false conclusion? Might the lapse of time been allowed to transform impressions into false memories? Is there something in the way she expressed herself to the officer where things were misconstrued? When was the allegation first made? What is there in the disclosure and any past experience with the complainant that may shed light on any of these issues? And then how is any of this going to be brought out in the court? If there is no room in the facts for an innocent explanation to the complainant's alleged false statement, then what might motivate a deliberately distorted account? What is the history between these parties …? What is there in the disclosure which if brought out will point to animus? What about the complainant's propensities which, if led or fed in cross-examination, might illustrate the animus? Where is the Achilles heel that might support the theory that the witness is fabricating or exaggerating and how might that best be exposed? What can be brought out that can be pointed to in final arguments?

Mr. Howard says that he does not know how to advance a credibility attack and the Court believes him. The Court is satisfied that Mr. Howard has no clue as to how to approach a successful defence based on showing that 'the lady is lying'.

15While I appreciate the concerns that were raised by Anderson A.C.J., I believe that he overstates the complexity of a credibility defence. It is the bread-and-butter of all criminal cases. Indeed, the burden of proof and the approach to credibility set out by the Supreme Court of Canada in the case of R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 are specifically designed to address such cases. If credibility is "perhaps the most difficult defence" that an accused person can raise, then orders for the appointment of state-funded counsel would become routine.

16Moreover, in dealing with Mr. Howard, Anderson A.C.J. was dealing with an accused person whose own credibility would be impacted by his lengthy criminal record. This is not an issue for Ms. Russell.

17Despite applicant's health challenges and limited education, she presented in court as both intelligent and articulate. There is no issue about her ability to understand, read or write in English. The applicant was able to express herself clearly in seeking a change of solicitor from Legal Aid. I believe that she can participate meaningfully at the trial.

18I appreciate that Ms. Russell is a novice in the criminal justice system, but believe that the substantive and procedural directions that I can provide to her will adequately equip her to understand the process and what the Crown is required to prove in order to seek a conviction. I am also able to provide guidance as to the proper approach to cross-examination to ensure that she is able to put forward her defence. In saying this, I am aware that there are limits on the role that a judge can play in assisting a defendant because of the judge's role as a neutral arbitrator: see R. v. Smart, supra ¶110-113. There is no question that a trial judge cannot be a substitute for counsel. However, a trial judge does have an obligation to assist an unrepresented accused to ensure that she has a fair trial and this is a factor that bears on the issue of whether the appointment of counsel is essential to a fair trial for the applicant.

19I acknowledge that both Ms. Russell and the trial process would be better served if she had counsel. However, that is not the same thing as finding that representation for the applicant is essential to a fair trial.

20In all of the circumstances, I am not satisfied that the applicant has met the onus of establishing that the appointment of counsel is essential to a fair trial for Ms. Russell. Accordingly, the application is dismissed.