Court File and Parties

Ontario Court of Justice

Date: 2016-11-10

Court File No.: Toronto 4817 998 15-75008411

Between:

Anthony Lewis Applicant

— And —

Her Majesty the Queen Respondent

Before: Justice William B. Horkins

Heard on: October 28, 2016

Ruling for the funding of Counsel, pursuant to a Rowbotham Application Released on November 10, 2016

Counsel:

• Nansy Ghobrial, for the Crown
• Karen Heath, for the Applicant/Accused Anthony Lewis

Decision

W.B. HORKINS, J.:

Introduction

[1] The accused has been denied Legal Aid and now applies for a Conditional Stay of this prosecution on the basis that in order to receive a fair trial he requires the assistance of state-funded defence counsel. This is what has become known as a Rowbotham Application. I am persuaded that he is correct and my reasons for granting his Application are outlined below.

The Charge and Background

[2] Mr. Lewis is charged with Assault Causing Bodily Harm arising from the events of May 10, 2015. In the simplest of terms the Crown's case is that the accused, while performing his duties as part of the security staff at a nightclub was involved, with others, in ejecting the complainant from the premises. In the course of being ejected the complainant fell down a flight of stairs and sustained a broken arm. It is alleged that he was pushed by the accused.

[3] This case is already set down for a three-day trial two months from now, in January 2017. It is scheduled to proceed on a "with or without counsel" basis. The applicant was refused Legal Aid and has exhausted all available appeals. Counsel for the applicant before me has indicated that her office is prepared to act as counsel at trial, at legal aid rates and subject to the usual terms and conditions of such a retainer.

Nature of Rowbotham Applications

[4] Although the available remedy on a Rowbotham Application is the granting of a Conditional Stay of prosecution, these applications are effectively an application for state funding for defense counsel. For that reason such applications are responded to, not by trial counsel from the Office of the Crown Attorney but, rather, by counsel from the Ministry of the Attorney General, Crown Law Office - Civil. Crown counsel from that office opposes this Application.

The Three Conditions Precedent

[5] There are three general conditions precedent to a successful Rowbotham Application. The accused must have:

1. Exhausted his efforts to obtain legal aid funding;
2. Be unable to fund counsel out of his own resources;
3. And demonstrate that his right to a fair trial will be infringed if forced to proceed to trial without the assistance of counsel.

Fair Trial Rights as the Focal Point

[6] It is this third issue, the fair trial rights of the accused, which was the focal point of the submissions made before me. The debate is essentially on the question of whether this prosecution is too complex for Mr. Lewis to receive a fair trial defending the charge on his own.

Financial Inability to Retain Counsel

[7] Although Legal Aid based their refusal of funding on financial grounds, that aspect was not pressed before me and this application is in no way a review of Legal Aid's refusal or the basis of their decision. The materials filed on this application make it clear that the accused is not financially able to retain counsel privately. Although his spouse earns in the range of $40,000 a year, he is personally deeply in debt, and she is not able to contribute to his legal expenses in light of her own financial obligations, including carrying their household expenses and those related to raising their three young children.

The Fair Trial Analysis

[8] Therefore, this application turns on a consideration of the anticipated fair trial implications of this accused attempting to defend himself without the assistance of counsel. The issue of whether the applicant's right to a fair trial will be infringed in the absence of counsel involves a consideration of essentially three factors:

1. The seriousness of the charge;
2. The length and complexity of the trial;
3. The accused's ability to participate effectively at trial without the assistance of counsel.

1. Seriousness of the Charge

[9] The Crown has elected to proceed summarily. The maximum penalty provided by the Criminal Code is therefore 18-months imprisonment. The initial intake and disclosure package provided to the accused by the Crown advises that on a plea the Crown would seek a sentence of six-months in jail.

[10] A conviction under s. 267 of the Criminal Code will often trigger a number of collateral consequences, including a period of probation, a mandatory victim surcharge, a discretionary firearms prohibition and a DNA data banking Order.

[11] I conclude that this is a serious case, with the potential to significantly impact the liberty of the accused and his future prospects in life.

2. The Complexity of the Trial

[12] The Crown has provided a synopsis of the allegations: In the early morning hours of May 10, 2015 the complainant was with friends at a nightclub in downtown Toronto. At approximately 2 a.m., a friend of the complainant's became involved in a fight on the dance floor at the club. The complainant went to the aid of his friend and became involved in the altercation. The accused and other security staff at the club intervened and took hold of the complainant in order to escort him from the premises. The exit from the club is at the top of a flight of stairs. It is alleged that the complainant was pushed down the stairs, causing him to fall and break his arm. Some, but not all, of what happened was captured and preserved on video from the club's camera system.

[13] This matter was judicially pre-tried several months ago, at which time a blueprint and time estimate for the trial was developed. The accused had the assistance of Counsel at that meeting. At trial the Crown will need to prove that the complainant was in fact pushed; that if pushed, it was this accused that pushed him, causing him to fall. The Crown may also need to establish whether that action was intentional, as opposed to accidental or reflexive; and if intentional, that the accused's acts were not justified by self-defence or the defence of others in the course of his employment.

[14] The Crown's witness list is forecast to consist of five civilians: three patrons of the nightclub, the manager of the nightclub and someone to put in the video evidence. The accused's case may involve three to four additional witnesses, including the accused himself. Despite there being no note of it, I suspect that in addition to these witnesses an investigating police officer and some brief medical evidence may be tendered. The three-day trial estimate seems to me to be somewhat optimistic, especially if the accused is forced to proceed without the assistance of counsel.

[15] Assuming that identification of the accused is a significant issue at this trial, I have to take into account that occurrence eyewitness identification of perpetrators is a subtle area of the law and has been generally acknowledged to be one, if not the leading, source of known wrongful convictions.

[16] If self-defence and defence of others in an employment context become live issues at trial, I have to consider that the law concerning self-defence, including issues of defending others pursuant to an employment obligation, has been often acknowledged as one of the most confusing areas of Canadian criminal law to try to explain to a jury. That is, to explain in a way that a lay person, such as this accused, would fully understand.

[17] I therefore conclude that this prosecution has great potential to present some significantly complex issues of both fact and law.

3. The Ability of the Accused

[18] The evidence on this issue is very thin. The accused is 35 years old. He is a college graduate. He is presently a business student at Ryerson University. I am going to assume that he has no cognitive or communication issues that would impair his ability to conduct his own defence. I will assume that his ability to defend himself at trial is at least as good as any other untrained lay person.

The Challenge for Self-Represented Accused

[19] The challenges faced by a self-represented accused are generally acknowledged and understood.

An accused without legal representation is at a profound disadvantage in the complex system of criminal justice. Without their own lawyers, accused are vulnerable to pressure to plead guilty, not well positioned to challenge the prosecution's case and less able to mount a full defence. In short, they are at serious risk of being unable to adequately access the justice system.

Whatever the reason for his or her status, the self-represented accused is usually ill-equipped to conduct a criminal trial. He or she comes to court with a rudimentary understanding of the trial process, often influenced by misleading depictions from television shows and the movies.… His or her knowledge of substantive legal principles is limited to that derived from reading an annotated criminal code. He or she is unaware of procedure and evidentiary rules. Even once made aware of the rules, he or she is reluctant to comply with them, or has difficulty doing so. …The limitations imposed by the concept of relevance are not understood or are ignored, and the focus of the trial is often on tangential matters. Questions, whether in examination-in-chief or cross-examination, are not framed properly. Rambling, disjointed or convoluted questions are the norm. The opportunity to make submissions is viewed as an opportunity to give evidence without entering the witness box.

Assistance from the Bench

[20] The fact that a self-represented accused will receive limited assistance from the Court is sometimes cited as off-setting the need for defence counsel.

… 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.

[21] It must be borne in mind that the obligations on a trial judge to provide assistance are actually very limited and should not be mistaken as any sort of substitute for the assistance of counsel. Trial judges must not assume the role of counsel; must not provide legal advice; and must remain scrupulously impartial as between the parties. Recently, in R. v. Tung, our Court of Appeal underscored this: … a trial judge has a duty to ensure that an accused has a fair trial and to provide guidance but not to act as an advocate for the accused; R. v. Chemama, 2016 ONCA 579, at paras. 13-14; R. v. Tran, 55 O.R. (3d) 161 at para. 31."

The Test

[22] In R. v. Rowbotham, 41 C.C.C. (3d) 1, the Ontario Court of Appeal concluded that in certain circumstances ss. 7 and 11(d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require state-funded legal counsel to be provided to an accused.

[23] Although rejected in Rowbotham, the American approach to state funding of counsel for indigent accused was summarized:

… in Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court of the United States held that the Fourteenth Amendment incorporated the Sixth Amendment right to counsel. Gideon v. Wainwright, supra, involved a prosecution for felony, and although the Court did not expressly restrict its ruling to felony cases, later judgments interpreted the decision in Gideon as establishing the right to counsel only in felony cases (Whitebread, Criminal Procedure (1980), at 516). However, in Argersinger v. Hamlin, 407 U.S. 25 (1972), the Supreme Court held that the principle enunciated in Powell and Gideon applies whenever loss of liberty is involved (at p. 32).

[24] In United States v. Cronic, 466 U.S. 648 (1984), the U.S. Supreme Court had said:

Lawyers in criminal cases are "necessities, not luxuries". Their presence is essential because they are the means through which the other rights of the person on trial are secured. Without counsel, the right to a trial itself would be "of little avail", as this Court has recognized repeatedly.

[25] The law in Canada is presently not as generous as the American law. In Rowbotham the Court made this clear:

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.

[26] And so it was very much on the assumption that legal aid would be generally available that the Court rejected the American approach of mandating state-funded counsel to indigent individuals accused of serious crime. That same assumption may lack some validity in the prevailing state of legal aid availability in this jurisdiction. In a recent case, R. v. Moore, Justice Nordheimer granted a Rowbotham Application and made these observations:

[6] 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. As just one comparator, in a report issued last year, Statistics Canada calculated the low income cut-off, before tax, for a single person living in a metropolitan area (more than 500,000 people) for 2014 at $24,328, or more than twice the figure that Legal Aid Ontario uses. The low income cut-off is the level of income below which persons are paying a disproportionate amount of their income for basic necessities (food, shelter and clothing). Some people equate this figure with the "poverty line" although Statistics Canada expressly states that this is not a measure of poverty. The reason for that is simple. There is no accepted definition of "poverty". As Statistics Canada says "Decisions on what defines poverty are subjective and ultimately arbitrary". Nevertheless, the fact that a person, below the low income cut-off, has his or her income largely consumed by those basic necessities obviously means that they do not have sufficient income to allow for extraordinary expenses, such as the fees necessary to retain a criminal defence lawyer to provide representation in a criminal jury trial.

Application of the Test

[27] The present state of the law with respect to the right to counsel at trial clearly permits the prosecution of self-represented accused. However, Rowbotham Orders are not reserved just for rare and exceptional cases. In R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302, Justice Rosenberg said:

The authorities hold that the case must be of some complexity, but a requirement of unique challenges puts the threshold too high. It is enough that there is a probability of imprisonment and that the case is sufficiently complex that counsel is essential to ensure that the accused receives a fair trial.

[28] At what point does the obvious inherent handicap of an accused being prosecuted without the benefit of counsel become constitutionally intolerable? Rowbotham itself was a very long, very complex trial of multiple accused. With benefit of hindsight in that case, the Court of Appeal was of the view that state-funded counsel was indeed necessary for the accused Laura Kononow to receive a fair trial.

[29] In Rushlow, the Court of Appeal considered an Arson trial where the accused defended himself unsuccessfully. The Court articulated a threshold for the need for counsel at a more realistic level than had earlier been understood. This was a serious and complex trial. The trial judge "conducted a model trial for an unrepresented accused." However, the Court stated that the need for counsel to ensure a fair trial does not only arise in "exceptional cases". Nor need the case be one posing "unique challenges".

[30] In R. v. Williams, 2011 ONSC 7406, the Rowbotham Application was denied. The accused was charged with multiple mortgage frauds. He was a mortgage broker himself and the Court felt that his expertise in that area compensated for any of the complexities presented in the case.

[31] In R. v. Swiech-Lemon, 2013 ONSC 5583, the Court refused a Rowbotham Application in an Assault Bodily Harm case where the Crown was seeking a jail sentence and the issue of self-defence was alive. The accused had no particular disabilities and the Court felt she could adequately defend herself in what was seen to be "a relatively simple court proceeding".

[32] In R. v. Baksh, 2013 ONCJ 57, my colleague Justice McArthur dismissed a Rowbotham Application in a fraud case. The accused had a university degree in economics and an MBA. The Court considered that the case was not legally complex and that the accused, by virtue of her business "experience and expertise" was well equipped to deal with the matter without counsel. It is noteworthy that Justice McArthur expressly reserved the right to reconsider the representation issue should circumstances later indicate the need to do so.

[33] In Fleischman, 2012 ONCJ, Justice McArthur again considered a Rowbotham Application. This was an impaired driving case where it was agreed that there was no risk of a jail sentence. The case was set for a three-day trial. The application was granted on the basis that this drinking and driving case would present more than the usual complexities arising in such cases. There were live issues surrounding the statutory presumptions, expert evidence from a toxicologist and a statement voir dire. In addition, although highly-educated, the accused suffered ill health that might well impair his ability to comprehend and communicate effectively in the proceedings. The application was granted.

[34] An additional concern that I have in this case is its age. The events took place in May of 2015. It will be over 19 months old when it comes up for trial. It is important that the trial proceed as scheduled and within the three-days budgeted for hearing it. The involvement of counsel will undoubtedly enhance the prospects of this trial proceeding on time and in a focused and efficient manner.

Conclusion

[35] In light of all of the above, I am persuaded that it is necessary for the applicant to have state-funded counsel in order for there to be a fair trial of the matter.

[36] It is for these reasons that I order a Conditional Stay of the charges against this accused pending state-funded counsel being provided on appropriate terms.

Released: November 10, 2016

Signed: "Justice W.B. Horkins"