COURT FILE NO.: 15-40000401 DATE: 20160930 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – AUSTIN ROWE
Brent Kettles, for the Crown Daniel Freudman, for the Applicant, Austin Rowe
HEARD: 19 September 2016
S.A.Q. Akhtar J.
I. Factual Background and Overview
Introduction
[1] The applicant seeks a conditional stay of proceedings pending the appointment of state-funded counsel, pursuant to R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.). He argues that prior to, during and subsequent to the Legal Aid Ontario (LAO) application, he has done all in his power to obtain the requisite funding for representation by counsel. After exhausting all avenues of LAO appeal, the applicant further claims that he has applied for lines of credit, mortgage refinancing, loans and credit cards, all to no avail.
[2] Mr. Freudman, for the applicant, asks this court to find that the applicant does not have the means to retain counsel. Given the complexity of the charges the applicant faces and the almost certain prospect of incarceration if convicted, representation by counsel is necessary to ensure a fair trial.
[3] The application is opposed by Mr. Kettles, counsel for the Crown. He requests the dismissal of the application on the grounds that the applicant has not been transparent with respect to his financial dealings or prioritised the retaining of counsel through his financial resources. According to Mr. Kettles, the applicant has failed to discharge the heavy burden imposed upon him when seeking state-funded counsel.
Background Facts
[4] On 2 July 2014, a robbery involving the use of a firearm was committed in the City of Toronto. The victim informed police that the robber had pointed a firearm at her when demanding her possessions. Shortly after the offence had been committed, a police search located a number of items near the location of the robbery. Those items included a firearm and the victim’s mobile phone, jacket and gloves. DNA samples were taken from the phone for analysis.
[5] Later that day, the applicant reported his firearm as stolen. The police, suspecting the applicant’s involvement in the crime, commenced a surveillance operation. The applicant was followed over the course of a number of days. The police efforts proved fruitful: a discarded cup used by the applicant at a food court allowed them to extract a DNA sample for analysis. This sample matched the DNA on the items found near the scene of the offence. A DNA warrant permitting the police to take samples from the applicant himself confirmed these results. As a result, the applicant was charged with Robbery, Pointing a Firearm at Another Person and Public Mischief for wrongfully reporting that his firearm had been stolen.
[6] In August 2015, the applicant retained Daniel Freudman as counsel. However, on 17 March 2016, Mr. Freudman applied for and was granted an order removing himself as counsel of record. Notwithstanding this development, the applicant was ordered to stand trial at the Superior Court of Justice on 9 January 2017.
[7] There is no dispute that the applicant was denied Legal Aid in his subsequent application to LAO. The information provided to LAO described the applicant’s annual income as approximately $37,152. Combined with his fiancée’s annual salary, the applicant’s annual household income totalled $74,304. Based on these figures, LAO denied legal aid.
[8] The applicant appealed, providing additional financial disclosure, but the appeal was dismissed. On 25 February 2016, a further appeal was launched, but on 1 March 2016, the applicant was advised that he was financially ineligible to qualify.
Legal Principles
[9] The applicant has no automatic constitutional right to representation by counsel at trial: R. v. Rain, 1998 ABCA 315, 68 Alta. L.R. (3d) 371, leave to appeal refused, [1998] S.C.C.A. No. 609, at para. 36; and Rowbotham. However, sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms guarantee the right of an indigent accused to state-funded counsel if there would otherwise not be a fair trial.
[10] The test for the provision of state-funded counsel can be found in Rowbotham, at para. 170, and reads as follows:
[W]here the trial judge finds that representation of an accused by counsel is essential to a fair trial, the accused, as previously indicated, has a constitutional right to be provided with counsel at the expense of the state if he or she lacks the means to employ one. Where the trial judge is satisfied that an accused lacks the means to employ counsel, and that counsel is necessary to ensure a fair trial for the accused, a stay of the proceedings until funded counsel is provided is an appropriate remedy under s. 24(1) of the Charter.
[11] In R. v. Williams, 2011 ONSC 7406, Molloy J. distilled the principles from existing jurisprudence into three headings, all of which had to be satisfied before a Rowbotham application could succeed. As per the court in Williams, at para. 5, the applicant must demonstrate on a balance of probabilities:
(1) that he is ineligible for, or has been refused, Legal Aid and has exhausted all available appeals;
(2) that he is indigent and has no means to retain counsel otherwise; and,
(3) that his right to a fair trial will be materially compromised if he is forced to proceed to trial unrepresented by counsel.
[12] The applicant bears a heavy onus in seeking to persuade a court to grant an order for state-funded counsel. It is only in a “rare and exceptional case” that a Rowbotham application will be granted: R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302, at para. 19.
[13] The first two limbs of the test are largely factual, but the third – the requirement of a fair trial – engages the Charter. In considering whether an applicant’s right to a fair trial will be compromised, the court must examine the complexity of the case and the seriousness of the consequences: Rushlow, at para. 19. Generally, courts will look at the applicant’s ability to participate in the proceedings, as well as the evidentiary issues, the seriousness of the charges and likelihood of imprisonment: Rushlow, at para. 20.
[14] In the circumstances of this case, there is agreement between the parties that the applicant has been refused Legal Aid and has exhausted all avenues of appeal. There is also no dispute that the charges are sufficiently serious and complex, such that an unaided accused’s right to a fair trial would be compromised. The sole issue to be decided is whether the applicant is indigent and lacks the means to retain counsel.
II. Does the Applicant Lack the Means to Retain Counsel?
Legal Principles
[15] Although the opinion of LAO, as to whether the applicant has the financial ability to retain counsel, is not determinative of the issue, it is a factor to be taken into account: R. v. Magda, [2001] O.T.C. 370 (Ont. S.C); and R. v. Tang, [2011] O.J. No. 6694 (Ont. S.C.).
[16] An applicant that has been denied Legal Aid but still claims indigence must provide extensive financial information to lend support to their application. In R. v. Malik, 2003 BCSC 1439, [2003] B.C.T.C. 1439, at para. 23, Stromberg-Stein J. outlined the following evidence that an applicant had to provide as part of their claim:
a) extraordinary financial circumstances;
b) attempts to obtain funds to retain counsel;
c) prudence with expenses and prioritization of payment of his legal fees;
d) efforts to save for the cost of counsel and to raise funds by earning additional income;
e) he has made all reasonable effort to use his assets to raise funds, for example by obtaining loans;
f) whether he is in a position to pay some of the costs of counsel;
g) the income and assets of his spouse and family.
[17] See also: R. v. Drury (L.W.), 2000 MBCA 100, 150 Man. R. (2d) 64, leave to appeal refused, [2000] S.C.C.A. No. 619; R. v. Kalaichelvam, 2015 ONSC 7246, at para. 10; R. v. Clarke, 2013 NSSC 177, [2013] N.S.J. No. 292, at para. 81; and R. v. Kazman, 2016 ONSC 4320, at paras. 20-24.
[18] Most recently, the British Columbia Court of Appeal, in R. v. Crichton, 2015 BCCA 138, [2015] B.C.J. No. 589, leave to appeal refused, [2015] S.C.C.A. No. 432, made clear that an applicant must provide detailed financial evidence of their financial circumstances. In doing so, the court refused a Rowbotham application because of the manner in which the applicant had managed his financial affairs, despite the fact that the charges – 23 counts of sexual assault by a physiotherapist on his former patients – were extremely serious. In reversing the application judge’s conclusion that “a lack of financial prudence should not, by itself, result in a refusal of a remedy,” the court, at para. 52, made the following observation:
In my respectful view, the trial judge erred in this conclusion. The evidence and the facts found by the trial judge strongly supported his conclusion that the applicant did not meet the stringent financial test established by the authorities. The rationale for such a stringent test is justified in that such an order is ‘rare and exceptional’ and that it must be the ‘clearest of cases’ before a stay of proceedings is entered. This is based on the law that establishes that the judiciary should not be spending taxpayer money in cases where an accused chooses not to spend the money he has on his lawyer, and instead comes to the court cap in hand, expecting counsel to be appointed for him. In those circumstances, the cap will remain empty.
[19] Finally, even though applicants are not required to become destitute, they must show that they have been willing to make reasonable sacrifices and that they have taken reasonable steps in attempting to retain counsel: Drury, at paras. 33, 45-48, 58-65.
Is the Applicant Indigent?
[20] As noted, the Crown takes no issue with the applicant’s assertions that he is unable to obtain Legal Aid and that the charges are sufficiently complex to satisfy the requirement that a fair trial would not be possible if the applicant were unrepresented.
[21] Instead, the Crown’s opposition to the application rests on the financial branch of the test. It argues that the applicant has not discharged his onus by:
(a) failing to provide a full and credible picture of the state of his financial affairs with supporting documentation;
(b) failing to make the reasonable sacrifices and exercising the financial prudence necessary to claim state aid; and
(c) failing to prioritise expenditures so that any funds available to him could be used to fund a lawyer.
[22] For the following reasons, I agree with these submissions.
(a) Failing to Provide Details and Documentation
[23] During the course of the applicant’s application, his counsel, Mr. Freudman, identified the sum of $17,000 as being the amount necessary to cover the costs of counsel in the applicant’s forthcoming trial.
[24] In R. v. Kizir, 2014 ONSC 1676, 304 C.R.R. (2d) 287, Lalonde J. noted, at para. 46:
In Borean, at para. 8, the Court held that the inquiry into the applicant’s finances must be more than cursory, and a finding on the issue should not be based merely on unsubstantiated statements of alleged facts by the accused. A significant and in-depth review of the facts is required.
[25] In making a Rowbotham application, the applicant is under an obligation to provide supporting documentation verifying the information contained in his affidavit: R. v. Craig Wright (SCJ, unreported 28 June 2013); Kazman, at paras. 33-35; and R. v. John Barron, 2014 ONSC 2660, at para. 17.
[26] The applicant testified at the Rowbotham hearing, informing the court that he had been employed as a store manager, but he had lost his job in the summer.
[27] To support his claim of indigence, the applicant, in response to numerous requests made by the Crown, provided a series of documents purporting to show his poor finances. Mr. Kettles argues that the documentation is woefully short of what is required to establish indigence. He further submits that the applicant has deliberately withheld documentation which would shed light on the truth of the claims made in his application. For the following reasons, I agree with this submission.
[28] First, I note that in his affidavit, the applicant claims that his “before-tax” income is approximately $36,000, making his “post-tax” monthly income $2,398.50. However, his pay stub of March 2016 lists his income as $46,785.96. Even more mysteriously, his 2015 T4 statement displays “before-tax” income of $52,905.78. The applicant sought to explain this discrepancy by his method of calculating his income. According to the applicant, the inaccuracy was caused by failing to take into account periods where he might work overtime. However, the applicant could still not provide an explanation for the amount found on the T4 slip. When cross-examined by Mr. Kettles as to why he had not referenced the T4 amount in his affidavit, the applicant replied that he had not looked at the tax slip before giving it to his accountant. I find this evidence difficult to believe, particularly in light of the applicant’s previous managerial position. However, the applicant’s credibility is further diminished by his failure to provide information from his accountant, which might explain the increased amount found on the tax slip.
[29] Secondly, the applicant provided bank statements showing numerous email transfers to and from his account. In written correspondence, Mr. Kettles asked for clarification with respect to the source and destination of these transfers. Instead of providing bank documents which might have ended any potential controversy, the applicant simply provided a typed summary of what he claimed were the origins of the transfers. The summary disclosed that the bulk of the money flowing into the applicant’s account, approximately $8,000, came from Ms. Toussaint’s bank account, and these transfers were made between August 2015 and April 2016. The applicant explained the reason for the transfers: he and Ms. Toussaint used his account as “the primary account to do the bill payments.” Mr. Kettles, for the Crown, not satisfied with the applicant’s summary and explanation, requested independent documentation backing up this information. He was informed by Mr. Freudman that Ms. Toussaint was unwilling to provide documentation because she was “not comfortable with divulging her banking information.” Mr. Freudman wrote that “despite our efforts to the contrary, Mr. Rowe’s explanation as to the e-mail transfers is the most we can provide.”
[30] With respect, that is very far from the case. It would be very simple for Ms. Toussaint to provide documentation showing that the money transfers came from her account. It is unclear why the applicant’s fiancée, who stands to be significantly impacted by the result of her future husband’s application, would be “uncomfortable” in divulging information required to assist in obtaining legal representation. There is almost a delicious, unrealised irony in Mr. Freudman informing Mr. Kettles that Ms. Toussaint “has already provided us with an Affidavit setting out her financial situation.” It would appear that Ms. Toussaint had no difficulties disclosing her financial status in her affidavit. Why, I ask rhetorically, has her comfort zone changed so dramatically since the affidavit? It would not be overly cynical to take the view that the applicant and Ms. Toussaint have no wish to disclose the real origin of these transactions.
[31] Thirdly, the applicant also indicated, in his affidavit, that he was still paying off his student loan. As evidence, he produced a letter from the National Student Loans Service Centre (NSLC) notifying him of a “past due” payment of $81. When testifying, he told the court that he believed the outstanding loan was between $7,000-$8,000 based on a verbal conversation with the NSLC. When the outstanding remnant of the loan had been previously queried by Mr. Kettles, the applicant informed him that he was unable to obtain those details, as the NSLC was unable to provide them on “short notice.” That was in May of this year. In cross-examination, the applicant conceded that he had not made any efforts to obtain the requested information, in the four months that had elapsed since then.
[32] Although the applicant has provided some correspondence from financial institutions rejecting his loan applications, it is unclear why the rejections occurred. For example, a letter from Citibank, dated 15 December 2015, indicates that they were unable to approve his application “at this time.” The bank invites the applicant to “contact the local branch which processed [his] application” if he requires further information. There was no evidence of any effort made by the applicant to do that and enquire if there were any additional ways of obtaining the loan.
[33] Moreover, other documents, such as the email from Expert Mortgage Limited, are offered as proof of an inability to obtain financing. Included within that document is a handwritten note made – according to Mr. Freudman – by legal staff, stating that the application was “not approved due to having no equity in property.” Again, there is no official explanation for this rejection – something that would have been easy to obtain.
[34] I conclude that the applicant has not discharged his obligation to provide the required financial information and documentation required in a Rowbotham application. Moreover, his conduct is more consistent with a person actively trying to conceal his true financial state of affairs.
(b) Failing to Exercise Financial Prudence
[35] Once charged, in July 2014, the applicant was obliged to take reasonable steps to finance his representation. This included making reasonable sacrifices to save money. The applicant’s trip to Jamaica, accompanied by his fiancée, in September 2015, was, in my view, a breach of this obligation. The trip cost $1,040: money that should have been allocated towards the cost of paying counsel.
[36] The applicant informed the court that in June 2016, he lost his job. This was as a result of restructuring at the company at which he worked. As part of a new arrangement, his employer, Easy Homes Ltd., offered him a lower paid position as a delivery driver which operated various hours during the day including the night time hours. At this point, the applicant was on bail with conditions of a curfew, which prevented him from being outside his residence at night. The applicant, loathe to inform his employer of the charges that he faced, declined the job offer and resigned from the company. The applicant relies on his lack of employment as evidence of impecuniosity and inability to afford counsel. However, it is clear from his evidence in court that he made no effort to avoid this state of affairs.
[37] In my view, it was incumbent upon the applicant to at least inform his employer of his bail conditions and attempt to seek some type of work accommodation. If that was not possible, the applicant should have requested a bail variation to change his curfew conditions to allow him to work at night. The applicant did neither, and failed to provide an adequate explanation for his lack of action. The applicant testified that he thought bail would not be varied because the conditions of release had been strictly defined by the Justice of the Peace which made clear that he was not to be outside his home except when travelling to and from work or in the company of Ms. Toussaint. However, it is clear that he never even canvassed the issue with Mr. Freudman, despite having retained him as counsel earlier. The applicant had already varied his bail previously when seeking permission to travel to Mexico for a work conference and was obviously aware of his options. By failing to at least seek a variation, the applicant has failed to discharge the burden of showing earnest efforts to self-finance legal representation.
[38] The applicant has made some attempts at seeking employment in a managerial capacity, but has failed, according to him, because of the existence of the criminal charges revealed by background checks. However, I accept Mr. Kettles suggestion that, in a Rowbotham context, the applicant is obliged to widen the scope of potential employment and seek alternative types of jobs, in lieu of (or at least until he finds) a suitable position, equivalent to the one that he resigned. The applicant has not made any such attempts.
(c) Failing to Prioritise Funding for Counsel
[39] I have already referred to the applicant’s trip to Jamaica with his fiancée – a vacation that should have been sacrificed to channel funds into a retainer for counsel. Even more troubling, however, is the applicant’s actions with respect to a $25,000 loan, provided by Domenico Pennino, for the purpose of clearing title on the property jointly owned with Ms. Toussaint. According to the applicant, he and Ms. Toussaint were unable to finance the initial purchase of their home and obtained assistance from a former co-worker, Christopher Johnson, who, in return, became part owner of the property. According to the applicant, Mr. Johnson was only prepared to stay on title for a period of one year. The applicant and his fiancée purportedly took out the loan to pay off Mr. Johnson and remove him from the property title.
[40] The details of the loan and transaction were not originally divulged, but they came to light when the Crown independently obtained title documents relating to the property: revealing a $25,000 charge.
[41] Mr. Kettles sought clarification with respect to the specific disbursements taken from the loan. He was eventually told that no documentation regarding the agreement with Mr. Johnson existed, and that $21,291.63 of the loan money was paid to John Vamvakidis Corporation, to be held in trust. The only evidence presented to the court from Mr. Vamvakidis was that “mortgage proceeds were allotted to pay various debts and expenses.” The applicant insisted that he had made numerous requests to obtain a breakdown of how this money was spent, but was unable to get Mr. Vamvakidis to provide this information. More surprisingly, he said that his own lawyer would not tell him what happened with the loaned money.
[42] Notwithstanding this, it is unclear why the applicant, who comes to court to ask the taxpayer to fund his defence, would obtain and use a loan to clear a third party from title, when the pressing priority was the payment of legal representation. The applicant suggests that the loan was necessary because Mr. Johnson only agreed to stay on title for a year, but, in the same breath, explains that “there was no formal agreement made between [the applicant] and Mr. Johnson” to explain the lack of documentation.
[43] In my view, the applicant should have used the loan to fund counsel, not to obtain a beneficial enrichment by removing Mr. Johnson from title. I do not accept that the loan taken out had to be used to pay off Mr. Johnson before retaining counsel. There was no legal obligation to do so, as there was no formal agreement. Mr. Freudman, for the applicant, made clear that a defence of the criminal charges would cost approximately $17,000 – an amount well within the funds obtained.
Conclusion
[44] For the reasons set out above, I conclude that the applicant has failed to satisfy me that he is indigent and has no means to retain counsel. His application is accordingly dismissed.
S.A.Q. Akhtar J.
Released: 30 September 2016
COURT FILE NO.: 15-40000401 DATE: 20160930 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – AUSTIN ROWE REASONS FOR JUDGMENT S.A.Q. Akhtar J.