Court File and Parties
Date: February 7, 2013
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Shemaine Baksh
Before: Justice Heather McArthur
Heard on: January 29, 2013
Reasons for Judgment released: February 7, 2013
Counsel:
- Ms. Chantelle Blom and Ms. Sarah Loosemore, for the respondent/Crown
- Ms. Kristin Bailey, for the applicant
Editor's note: All charges against the Accused were stayed at a later stage of these proceedings.
Reasons for Judgment
McArthur J.:
Introduction
[1] Ms. Shemaine Baksh is charged with seven counts of fraud over, six counts of possession of property obtained by crime, four counts each of forgery, personation with intent, draw document without authority, utter documents without authority and theft under, and two counts of obtaining credit by fraud. The Crown alleges that starting in 2002, Ms. Baksh improperly withdrew money from her mother's bank accounts and credit cards. Her three day trial is set to start on April 2, 2013. Ms. Baksh says that she cannot afford to retain a lawyer and that counsel is essential for her right to have a fair trial. She brings an application pursuant to ss. 7, 11(d) and 24(1) of the Canadian 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).
[2] There are three main issues to be addressed in this application:
Issue One: Is the applicable standard of proof a balance of probabilities or a high degree of probability?
Issue Two: Has the applicant established that she is indigent and has no other means to retain counsel?
Issue Three: Has the applicant established that she requires counsel to ensure her right to a fair trial?
[3] For the reasons that follow, I find that the applicable standard of proof is a balance of probabilities, not a high degree of probability. I also find that the applicant has established on a balance of probabilities that she is indigent and has no other means to retain counsel. I find, however, that she has failed to establish that she requires counsel to ensure her right to a fair trial.
Issue One: Is the applicable standard of proof a balance of probabilities or a high degree of probability?
[4] Pursuant to ss. 7 and 11(d) of the Charter a defendant has a constitutional right to a fair trial. In some circumstances, a fair trial includes the right to state-funded counsel. In general, both parties agreed that the onus is on the applicant to establish the following 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 (Ont. C.A.); R. v. Montpelier, [2002] O.J. No. 4279 at paras. 5-7)
[5] The Crown, however, also argued that the evidentiary burden on the applicant was "very heavy". She submitted that while the above three conditions had to be established on a balance of probabilities, the overall burden on the applicant was a high degree of probability. In making this submission, she relied on the decision of R. v. Cai, 2002 ABCA 299, [2002] A.J. No. 1521 (Alta.C.A.).
[6] In R. v. Cai, at para. 6, the court held that the standard of proof in a Rowbotham application is a "high degree of probability", since what is being considered is a prospective Charter breach. This, the court reasoned at paragraph 32, meant that it is wrong to say that "51% would suffice", rather the correct test is "stricter". A number of other cases have applied the reasoning in R. v. Cai, in holding that that the applicant's onus in a Rowbotham application is a high degree of probability. (See for example: R. v. Hie, [2012] O.J. No. 2805 (Ont.C.J.) at para. 26; R. v. Bailey, [2012] A.J. No. 873 at para. 63; R. v. Bacon, [2011] B.C.J. No. 977 (B.C.S.C.) at paras. 23-26-27; R. v. Edgars, [2010] B.C.J. No. 1414 (B.C.P.C.) at para. 28 and 31; R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.C.S.C.) at para. 28)
[7] In light of other authorities, I asked for submissions on the correctness of the position in R. v. Cai. After having an opportunity to consider those cases, the Crown submitted that the standard of proof is a balance of probabilities, not a high degree of probability. I agree with this position for the following reasons.
[8] First, in R. v. Cai, the court relied on Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, in support of its position that the burden of proof for prospective Charter breaches is a high degree of probability. With respect, I do not believe that Operation Dismantle, supra, set such a high standard. In his discussion regarding the applicable standard of proof in that case, Dickson C.J. for the majority, referred to both injunctive relief, which required a "high degree of probability" and declaratory relief, which "must be based on more than mere hypothetical consequences". He then stated at para. 36:
It is clearly illustrated by the rules governing declaratory and injunctive relief that the courts will not take remedial action where the occurrence of future harm is not probable. This unwillingness to act in the absence of probable harm demonstrates the court's reluctance to grant relief where it cannot be shown that the impugned action will cause a violation of rights. (emphasis added)
Thus, as I read Dickson C.J.'s analysis, it stands for the proposition that an applicant must establish a prospective Charter breach on a balance of probabilities.
[9] I find support for this conclusion in the case of New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46. There, Lamer C.J., writing for the majority, addressed whether the applicant was entitled to state-funded counsel when the government sought a judicial order suspending parental custody rights. At para. 52, Lamer C.J held that the court must determine if it was "likely" that the applicant's Charter rights would be infringed if the custody hearing proceeded without counsel. In discussing the applicable standard of proof he noted at para. 51:
This Court has held on a number of occasions that remedies can be ordered in anticipation of future Charter violations, notwithstanding the retrospective language of s. 24(1) …. In Operation Dismantle, Dickson J. (as he then was) held at p. 450 that an application requesting a remedy for a prospective breach "must at least be able to establish a threat of violation, if not an actual violation, of their rights under the Charter". He also found at p. 458 that courts require proof of "probable future harm" before ordering such a remedy.
Of note, Lamer C.J., was one of the justices who decided Operation Dismantle and was thus in a particularly good position to articulate what the majority meant in that case.
[10] Second, the court in R. v. Cai, supra, also relied on the comments of Cory J. in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97. There, Cory J. stated at para. 108 that in Operation Dismantle, Dickson C.J had "adopted the requirement" that an applicant must demonstrate a "high degree of probability" that a Charter breach will occur before the court will grant relief. For the reasons set out above, I do not believe that Operation Dismantle set such a high standard. In any event, the comments of Cory J. in Phillips v. Nova Scotia, supra, are from the minority reasons. Sopinka J., for the majority, expressly stated that it was "unnecessary and undesirable" to decide the constitutional issue as it was not before the court. He further explained at para. 9, "[t]the policy which dictates restraint in constitutional cases is sound. It is based on the realization that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen." The way in which Cory J.'s comments have been used to support a higher standard of proof in Rowbotham applications illustrates the validity of this concern.
[11] Finally, the later decision of F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, casts further doubt on the proposition that the burden in a Rowbotham application is a high degree of probability. In that decision, Rothstein J., for a unanimous court, held that there is only one civil standard of proof in Canada: a balance of probabilities. He noted the practical problems of having an intermediate standard of proof, and at para. 43 approved of the following observation:
…suggesting that the standard of proof is "higher" than the "mere balance of probabilities" inevitably leads one to inquire: what percentage of probability must be met? This is unhelpful because while the concept of "51 percent probability" or "more likely that not" can be understood by decision makers, the concept of 60 percent or 70 percent probability cannot.
[12] Given the inherent difficulties with applying a higher degree of probability standard, Rothstein J. stated:
Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities.
[13] I find that the analysis in F.H. v. McDougall applies in the present context. A high degree of probability standard presents practical difficulties. Thus, to paraphrase Rothstein J.: I think it is time to say once and for all, that there is only one standard of proof in Rowbotham applications and that is proof on a balance of probabilities.
[14] The Crown concedes that the applicant has established on a balance of probabilities that she has been denied Legal Aid and has exhausted all avenues of appeal. She argues, however, that the applicant has failed to establish on a balance of probabilities both that she is indigent and that counsel is essential to her right to a fair trial. I turn now to an assessment of those issues.
Issue Two: Has the applicant established that she is indigent and has no other means to retain counsel?
[15] Ms. Baksh's trial is set for three days. The disclosure totals about 1,500 pages, or one banker's box. The defence originally suggested that fees in this matter would be approximately $10,000 to $15,000. In oral submissions, counsel agreed that Ms. Baksh could likely find counsel to conduct her trial for less money. Moreover, the above fee was based on a rate for private clients, a rate higher than that paid by legal aid. If counsel agreed to accept the legal aid rate, the fees would be approximately $6,000 to $8,000. Counsel argues, however, that given Ms. Baksh's financial situation, it is clear that she could not afford to pay counsel even at this lower rate.
[16] The Crown points to the decision of Legal Aid which found that Ms. Baksh failed to qualify financially. The Crown also submits that Ms. Baksh has failed to provide sufficient documentation to establish that she cannot afford to retain counsel. The defence counters that the Legal Aid decision regarding financial eligibility should be given little weight in my analysis. Moreover, the defence asserts that Ms. Baksh has provided sufficient information in the form of her sworn testimony, current bank records, tax records and other documentation to meet her onus. For the following reasons, I find that that Ms. Baksh has established that she cannot afford to retain counsel for her trial, and has no other means of retaining counsel.
[17] First, as made clear by the Court of Appeal in R. v. Peterman, [2004] O.J. No. 1758 at para. 22, while giving appropriate deference to the decision of Legal Aid, the court must reach its own decision about whether the defendant can afford counsel. In the reasons turning down her appeal the Legal Aid authorities noted:
...the applicant has failed to give priority to legal fees, as required by legal aid policies. The offences occurred in 2002; therefore, the applicant would have had some indication that there would have been the need for legal fees since that time; however, the applicant waited until December 19, 2011, to turn herself in. Therefore, the applicant knew of the need for legal fees but chose to set her own priorities and used available funds for other purposes.
[18] This was not a situation, however, where Ms Baksh was informed in 2002 that she was wanted by the police, and waited almost a decade before turning herself in. Rather, the police told Ms. Baksh for the first time that they were investigating her in September, 2011. In December, 2011 they told her that she was going to be charged. She immediately turned herself in. The comment that Ms. Baksh should have been saving money since 2002 for legal fees is troubling, in that it is premised on an assumption of guilt. In making this comment, I keep in mind that when considering whether to appoint counsel I am not conducting a judicial review of the decision made by Legal Aid authorities. (See R. v. Peterman, supra at para. 22) That said, the fact that the reasons are contrary to the presumption of innocence affects the weight that I give to Legal Aid's opinion regarding financial eligibility.
[19] In any event, based on the evidence before me, I find that Ms. Baksh cannot afford to fund counsel for her trial. At the time she was charged, Ms. Baksh had not worked for almost a year. Since that time, she has not been able to find employment for a number of reasons. First, Ms. Baksh does business consulting work and the current economic climate means that there are fewer contracts available. Second, the fact that Ms. Baksh has been charged with a number of fraud and related counts makes it difficult to obtain work in her field. Third, her bail conditions prohibit her from handling financial instruments that are not in her own name. This rules out many positions in her chosen field, and also prevents her from taking retail and service industry jobs that would require her to handle customer credit cards. Fourth, she has had some health issues which have interfered with her ability to look for work.
[20] At the time she was charged, Ms. Baksh had approximately $7,000 in savings. Those savings have been used up in the past year to pay for basic necessities such as food and shelter. She gave up her apartment and now shares living arrangements with a number of other individuals in order to save money. She does not have a car and walks most places, occasionally taking public transit. In light of the fact that she is accused of defrauding her mother, she has no contact with her family and cannot rely on them for financial assistance. She sold most of her personal belongings and has obtained modest sums of money from community charities in order to assist with her basic living expenses.
[21] I do not see this as a situation where there is good reason to suspect that the applicant is being disingenuous about her true financial condition or that she has access to significant funds, but has taken steps to hide assets. (See R. v. Malik, 2003 BCSC 1439; R. v. Farinacci, 2011 ONSC 6322; R. v. Tang ONSC (unreported, Sept 23, 2011)) Nor do I find this to be a case where the applicant has the financial ability to retain counsel but has made a calculated decision not to do so. (See R. v. Rushlow, supra, at para. 30)
[22] In light of all of the circumstances, I find that Ms. Baksh has established on a balance of probabilities that she is indigent and has no other means to retain counsel.
Issue Three: Has the applicant established that she requires counsel to ensure her right to a fair trial?
[23] The Crown argues that given Ms. Baksh's educational and employment background, she is able to defend herself in this matter. The defence counters that while Ms. Baksh is a well-educated and articulate woman, with some knowledge of business law, she does not have legal training or experience in the criminal justice system. As such, she requires the assistance of counsel to ensure that her trial is fair. Moreover, the defence argues having Ms. Baksh cross-examine her own mother would render her trial unfair. For the reasons that follow, I find that Ms. Baksh does not require the assistance of counsel to ensure a fair trial.
[24] It is clear that representation by counsel is not necessarily a prerequisite to a fair trial, or required by the principles of fundamental justice. (See New Brunswick (Minister of Health and Community Services) v. G.(J), supra, at para. 86; R. v. Rain, 1998 ABCA 315 at para. 36) Recently, in R. v. Rushlow, 2009 ONCA 461, [2009] O.J. No. 2335, the Ontario Court of Appeal articulated some of the factors to consider when determining whether counsel is essential to a fair trial. Rosenberg J., writing for the court, noted at para. 19 that the trial judge should consider the seriousness of the charges, the length and complexity of the proceedings and the defendant's ability to participate effectively and defend the case. (See also New Brunswick (Minister of Health and Community Services) v. G.(J), supra, at paras. 75, 83)
[25] In this case, the charges are serious. The Crown has advised that in the event Ms. Baksh is convicted, they will be seeking a period of incarceration. The charges are also particularly serious for Ms. Baksh in light of her chosen field of employment. Convictions for fraud related offences would make it difficult, if not impossible, to continue to do business consulting work.
[26] The case, however, is not particularly lengthy or complex. The three day trial estimate arises from the number of charges that need to be addressed, rather than any anticipated legal issues. There are no Charter issues, or pre-trial motions such as a voluntariness voir dire. Moreover, while there are number of charges, the allegations with respect to each are similar. The challenges of this case relate to its factual complexity, not its legal complexity.
[27] I find that Ms. Baksh is well-equipped to deal with the issues that will arise in this case. She obtained a Bachelor's degree in Economics and Political Science from the University of Toronto. She then attended the Edinburgh Business School and received her MBA. She works as a business consultant and she has handled many contracts with both government and private industry. She incorporated her own business. She understands and can articulate legal issues that arise in her field, for example fiduciary duties. Here, Ms. Baksh has experience and expertise in the very subject matter of the charge (See R. v. Williams 2011 ONSC 740 at paras. 12-13.) That goes a long way to ensuring that she can have a fair trial without the assistance of counsel.
[28] Moreover, in determining whether counsel is essential to Ms. Baksh's fair trial rights, I have considered my obligation as the trial judge to assist her during trial and whether my assistance would be adequate to address her needs. (See R. v. Rushlow, supra, at para. 21; R. v. Keating (1997), 1997 NSCA 135, 159 N.S.R. (2d) 357 (C.A) at para. 21; R. v. Dew, 2009 MBCA 101 at para. 40) I am aware of the fact that a lawyer's value to their client is not limited to the courtroom. (See R. v. Dew, supra, at para. 46) But in the context of this case, much of the out-of-court work will be in reviewing and understanding financial documents. As noted above, Ms. Baksh has the ability to do so. Indeed, her comprehension of the financial documents in this case is likely to be better than that of many lawyers. During the course of the proceedings, if any unanticipated legal issues arise, I can provide the appropriate assistance and allow Ms. Baksh the time required to adequately consider and address those matters. In light of the legal and factual issues involved, I believe that my assistance will ensure that Ms. Baksh's fair trial interests are protected.
[29] Finally, I have also considered whether requiring Ms. Baksh to cross-examine her own mother will lead to any trial unfairness. Ms. Baksh testified that she would be uncomfortable cross-examining her mother and that she has no idea how her mother will react. While I have sympathy for Ms. Baksh, the fact that she will be uncomfortable cross-examining her mother does not support a conclusion that having her do so would render the trial unfair. That said, this issue is one that is difficult to fully assess at this stage. If during the course of the cross-examination concerns develop regarding trial fairness, I can reconsider this matter.
Conclusion
[30] In conclusion on this point, Ms. Baksh has failed to establish on a balance of probabilities that counsel is required for a fair trial. Her educational and employment background provide her with the experience and expertise to deal with the issues that will arise in this case. She is intelligent and articulate and will be able to comprehend the proceedings and communicate effectively. As a trial judge, I will provide assistance to ensure that potential legal issues are identified and her fair trial rights are protected. Any fair trial issue relating to the cross-examination of her mother can be addressed if and when it arises.
[31] The standard of proof in an application for state-funded counsel is a balance of probabilities, not a high degree of probability. In this case, Ms. Baksh has established on a balance of probabilities that she is indigent and has no other means to retain counsel. She has failed, however, to establish that counsel is essential to her right to a fair trial. As a result, the application to conditionally stay the proceedings pending the provision of state-funded counsel is dismissed.
Date: February 7, 2013
Signed: Justice Heather McArthur
Footnotes
[1] The Crown factum also stated "The evidentiary burden of proof requires the Applicant to demonstrate that this is a 'rare and exceptional case' such that publicly-funded counsel is required to ensure his right to a fair trial." The quote, "rare and exceptional case", comes from the Ontario Court of Appeal decision in R. v. Rushlow, 2009 ONCA 461, [2009] O.J. No. 2335 at para. 19. When viewed in context, however, the quote does not support the proposition for which the Crown has cited it. The Court explained in R. v. Rushlow: "Because of the pervasiveness of legal aid, it will be the rare and exceptional case that the court will find it necessary to appoint counsel. This does not mean the counsel is only required in exceptional cases. Rather, it is the fact that legal aid is available for accused who cannot afford a lawyer that Rowbotham orders are exceptional."
[2] Rothstein, Linda R., Robert A. Centa and Eric Adams. "Balancing Probabilities: The Overlooked Complexity of the Civil Standard of Proof", in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence. Toronto: Irwin Law, 2004. At pp. 466-67
[3] Ms. Baksh would also be required to pay for disbursements as well as 13% H.S.T. on all fees and disbursements.
[4] The trial Crown has advised that she will not be seeking an order pursuant to s. 486.3(1) of the Criminal Code for counsel to be appointed to cross-examine the applicant's mother.