Ontario Court of Justice

(Toronto Region)

Between:

HER MAJESTY THE QUEEN Respondent

R. v. IVANMARINO MAZIA Applicant

Reasons for Judgment and Order Conditionally Staying Proceedings

JUSTICE BRENT KNAZAN

November 17, 2014

Appearances

• Ms. B. Forson, Counsel for the Respondent
• Mr. E. Stimec, for the Crown
• Mr. Ivan Mazia, In person

Decision

This is an application by Mr. Mazia for a stay of proceedings until the Attorney General provides funding for him to be represented by counsel. The Attorney General concedes that Mr. Mazia is ineligible for or has been refused Legal Aid and has exhausted all appeals for reconsideration of his eligibility and that he is indigent and unable to privately retain counsel to represent him at trial. Therefore, it is common ground that the application turns on the third criteria set out in R. v. Rowbotham, 185 C.C.C. (3d) 352, that is – has Mr. Mazia satisfied this Court that his right to a fair trial will be materially compromised absent public funding for counsel.

The Charge and Crown's Position

Mr. Mazia is charged with break and enter into a place other than a dwelling under section 348 of the Criminal Code. The Crown has elected to proceed by summary conviction rendering the maximum penalty six months imprisonment. Crown counsel appearing on the trial has indicated that the prosecution is seeking a sentence of imprisonment if there is a conviction.

Legal Aid History

Mr. Mazia applied for legal aid and received a certificate to be represented on this charge along with a number of other charges arising out of different circumstances. He received a Legal Aid certificate. He authorized a lawyer to appear on his behalf for several appearances and Legal Aid sent his certificate to this lawyer. Mr. Mazia took the position that he never authorized Legal Aid to issue the certificate to that lawyer. There is a dispute about this fact. Mr. Mazia ultimately received an apology from Legal Aid respecting the processing of his application, but the dispute is not germane to this application. Legal Aid treated his request to send the certificate to another lawyer as an application for change of solicitor and refused his request as he did not meet the test for changing solicitors. Mr. Mazia appealed but the Appeals officer upheld the decision of the Area Committee.

As Mr. Mazia requested a trial on all of his charges, he set different trial dates for the charges arising out of the different events. In one trial he applied for a stay as he did in this application and the Attorney General agreed to fund counsel. In another trial he applied for a stay and the judge dismissed his application.

The Crown's Case

The prosecutor has provided a synopsis of the case against Mr. Mazia and elaborated on it in oral argument. The allegation is that Mr. Mazia broke into a bar, removed the cash register, left something in the bar and returned to retrieve it.

There is a video recording the crime. Apparently the video recording does not show the culprit completely clearly. The prosecution will call a witness who knows Mr. Mazia to identify the person in the video. The prosecution may or may not, as part of its case, ask the Court to conclude that the guilty person is Mr. Mazia based on my watching the video. The estimated trial time is one day.

This then is not a complicated case, all other things being equal. But all other things are not equal; Mr. Mazia is legally blind.

Mr. Mazia's Vision Disability

He suffers from deterioration of the cornea in one eye and has 7% vision in the other. He can't see and he can't drive. He can read but with difficulty. He argued his motion intelligently orally and in writing. He was articulate, concise in his oral submissions and understood the issues and Crown counsel's factum and position. But when he read he had to hold the papers about two inches from his eyes, find the best distance and then read with difficulty. When I asked him if he could see me on the judge's bench about three to four metres from where he was standing he answered that he could see my shape and the glasses. When I asked him if he could see a beard, which is there, he indicated that he could see some different colour. The Attorney General accepted Mr. Mazia's self-reporting of his vision without requiring sworn evidence or cross-examination. It is part of the evidentiary foundation of his application.

Determination of Whether Mr. Mazia Can Obtain a Fair Trial Without State-Funded Counsel

If a trial judge is satisfied that representation of an indigent accused who has been denied legal aid is essential to a fair trial, he may stay the proceedings against the accused until the necessary funding of counsel is provided: R. v. Rowbotham, supra. Rowbotham dealt only with serious and complex cases as that was the case there. Justice Rosenberg found it unnecessary to deal in that case with less serious offences.

Subsequent cases could leave the impression that the seriousness of the offence is a separate requirement for the accused to establish in addition to satisfying the judge that counsel is essential to a fair trial. In R. v. Williams, 2011 ONSC 7406, for example, Justice Molloy wrote that "the court must consider the seriousness of the charges, the length and the complexity of the proceedings, and the accused's ability to participate effectively and defend the case". In support of this statement she refers to the decision of the Ontario Court of Appeal in R. v. Rushlow, 2009 ONCA 416, 245 C.C.C. (3d) 505 at para. 19.

I will return to these three criteria, but dealing firstly with the seriousness of the offence, Rowbotham does not establish that the offence must be serious because it did not deal with it. But in any event Rushlow is a case where the Court of Appeal found that the trial judge erred in her exercise of discretion and put too high a burden on the applicant to show that counsel was essential to a fair trial.

Justice Rosenberg wrote:

In my view, the trial judge applied too stringent a test. This court has never said that a Rowbothom [sic] order is limited to an extreme case where Legal Aid's decision is completely perverse and there is a substantial possibility of lengthy imprisonment. The passage from Rowbothom [sic] quoted by the trial judge is from the reasons of the trial judge in that case. This court did not endorse that test. Nor need the case be one posing "unique challenges". 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. Paragraph 24.

Since the prosecution is asking for imprisonment for Mr. Mazia, he meets any requirement for seriousness that Rowbotham establishes.

Complexity and the Applicant's Disability

Regarding the complexity of the case, this case is a straightforward case for any defendant without a vision-related disability. But Mr. Mazia's disability presents a serious obstacle to his defending himself. Crown counsel, in his elaboration of the synopsis to summarize the case advised the Court that he would rely on the identification method set out in R. v. Leaney, [1989] 2 SCR 393 and would be calling a witness who knows Mr. Mazia to identify him as the person in the video. He also advised that he might rely on R. v. Nikolovski, [1996] 3 S.C.R. 1197 and ask the Court to determine that Mr. Mazia was the person who committed the break and enter by watching the surveillance video.

In Leaney, the Supreme Court determined that police officers who did not know the accused, could not testify that the accused was in the video but that an officer who had known him for fifteen years could have. In R. v. Nikolovski the Court determined that the trial judge could look at the video herself and determine whether the accused was the person in the video.

In Leaney the Court held that the court must hold a voir dire on the witness's qualification to identify the person in the video. In Nikolovski, Justice Cory, after determining that the trial judge was permitted to make her own comparison between the perpetrator in the video and the accused, added:

A trial judge sitting alone must be subject to the same cautions and directions as a jury in considering videotape evidence of identification. It would be helpful if, after reviewing the tape, the trial judge indicated that he or she was impressed with its clarity and quality to the extent that a finding of identity could be based upon it. This courtesy would permit Crown or particularly defence counsel to call, for example, expert evidence as to the quality of the tape or evidence as to any changes in appearance of the accused between the taking of the videotape and the trial and to prepare submissions pertaining to identification based on the tape. Paragraph 32

So there is some legal complexity in the nature of the case apart from Mr. Mazia's disability, though not enough to raise it to the level of a complex case. However, given the nature of the Crown's evidence and the applicable law, Mr. Mazia's legal blindness satisfies me that counsel is essential to his having a fair trial. The case is based on sight - the witnesses will be describing what they see. Mr. Mazia cannot be in the same position as the witnesses, the prosecutor or the judge as they look at the video and discuss it.

I am told that in another case the video screen was brought right up to Mr. Mazia so that he could look at it. But in that theft case the issue was not identity, it was established that Mr. Mazia was in the video, but rather what he did. Here the quality and clarity of the video and what it shows will be the main proof of identity against Mr. Mazia.

Charter Considerations

Section 15(1) of the Charter guarantees Mr. Mazia equality with a person who does not have a vision-related disability. I do not require an application under the Charter from either Mr. Mazia or on my own motion. In Hills v. Attorney General of Canada, [1988] 1 SCR 513, at paragraph 93, in reference to statutory interpretation, Justice L'Heureux-Dube said:

I agree that the values embodied in the Charter must be given preference over an interpretation which would run contrary to them (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110).

Here I am not interpreting a statute, except that indirectly I am applying s. 11(d) of the Charter because every Rowbotham application necessarily relies on s. 11(d). However, the principle that Charter values informs the whole of the law is as applicable to a judge's exercise of discretion as to the interpretation of a statute. Any exercise of discretion must be exercised consistently with the Canadian Charter of Rights and Freedoms.

In the Report of the Courts Disabilities Committee prepared for the Honourable R. Roy McMurtry, December 2006, Making Ontario's Courts Fully Accessible to Persons with Disabilities the Committee stated:

The right to equality for persons with disabilities includes a right to have disability-related needs reasonably accommodated, up to the point of undue hardship, to ensure that persons with disabilities can fully participate in and benefit from services and facilities available to the public.

Since Mr. Mazia has established that he could not defend himself without being able to see the evidence at least as well as everyone else in the court, he cannot have a fair trial if required to defend himself. Examples of complex cases where judges have determined that counsel was not essential to a fair trial do not assist in a case where a visually impaired defendant is faced with a crown case turning on video identification. I was advised that in Mr. Mazia's other case the judge dismissed a similar application, but when her reasons were read to me she did not appear to deal with his vision-related disability.

Role of Counsel

That leaves a final argument of Crown counsel. That is, that if assistance with seeing is essential for Mr. Mazia to have a fair trial then that is not a role for counsel but for someone to assist him in court. I disagree, as in my opinion that narrows the role of counsel and is not justified. I have already dealt with the legal issues that the method of proceeding by video identification gives rise to. But in addition, counsel's role is not limited to legal argument; every counsel serves their client by their own listening to and absorbing and processing the evidence and explaining its significance to the client from a factual as well as a legal perspective. It is precisely a lawyer who can address the unfairness that would occur if Mr. Mazia were required to defend himself.

Order

The application is allowed and the charge is stayed until the Attorney General provides a lawyer for Mr. Mazia at legal aid rates. As Mr. Mazia is in custody and at one point had a lawyer prepared to represent him, the trial should proceed on the date of December 4 if possible. Mr. Mazia should make best efforts to obtain and instruct a lawyer who is prepared to proceed on the trial date.

Brent Knazan Ontario Court of Justice

November 17, 2014