Her Majesty the Queen v. Rushlow [Indexed as: R. v. Rushlow]

96 O.R. (3d) 302

Court of Appeal for Ontario,

Rosenberg, Sharpe and Juriansz JJ.A.

June 4, 2009

Criminal law -- Counsel -- Rowbotham application -- Trial judge erring by holding that threshold for appointing counsel stringent and limited to cases posing "unique challenges" in which substantial possibility of lengthy term of imprisonment and decision to deny legal aid -- Accused charged with arson -- Crown intending to call expert witnesses, similar fact evidence and to lead statements made by accused to persons in authority -- Proper test is if probability of imprisonment and case sufficiently complex to require counsel to ensure fair trial -- Accused requiring assistance of counsel in order to have fair trial especially given difficulties of cross-examining expert witnesses -- Trial judge erring in dismissing Rowbotham application -- Accused not required to demonstrate actual prejudice in order for appellate court to order new trial -- New trial ordered as denial of counsel resulting in appearance of unfairness resulting in miscarriage of justice.

The accused was charged with arson and related offences. He was denied legal aid and was unable to retain private counsel for his trial. The Crown intended to call three expert witnesses at trial, to rely on similar fact evidence and to lead evidence of statements made by the accused to persons in authority. The accused brought a Rowbotham application for the appointment of state-funded counsel. The trial judge dismissed the application, stating that counsel should only be appointed in cases which pose unique challenges above and beyond those that would ordinarily be expected in a criminal trial and that this was not one of those unique and extraordinary cases in which the presence of counsel was a prerequisite to a fair trial. The accused was convicted and was sentenced to 12 months' incarceration. He appealed.

Held, the appeal should be allowed.

The trial judge applied too stringent a test on the Rowbotham application, based in part on reliance of the standard proposed by the trial judge in Rowbotham, a test not adopted on appeal. The threshold for appointing counsel is met where it is shown 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. The test adopted by the trial judge may also have placed undue weight on the impact her order might have on the administration of legal aid. Although the accused may have been equal to the task of cross-examining many of the witnesses, he was out of his depth in dealing with the evidence of the experts. In addition, [page303] the case was complex, including the Crown's application to lead similar fact evidence and his statements to persons in authority. The accused did not have the capacity to defend it without counsel. The case was also serious. A conviction for arson in these circumstances usually results in a prison term, and a custodial sentence was in fact imposed. The accused was impecunious and lacked the financial resources to retain counsel for trial. A Rowbotham order should have been made.

The Crown argued that, as the judge had taken care throughout the trial to explain the procedure to the accused and done everything she could to assist the accused, the appeal should be dismissed as the accused had failed to prove that he was prejudiced by the denial of counsel. There are great difficulties in trying to determine in what respect a trial might have been different had defence counsel been present. Although, it is not every case in which a Rowbotham application is erroneously dismissed that there must be a new trial. For example, if the concern during the Rowbotham application was the complexity of one aspect of the Crown's case and the judge then excluded the complex evidence, the fairness of the trial would not be compromised by the denial of the application. However, the accused was not required to demonstrate actual prejudice in order to be entitled to an order for a new trial. In this case, there was a miscarriage of justice in that the failure to appoint counsel resulted in an appearance of unfairness and possibly the ability to make full answer and defence. A new trial was the appropriate remedy.

APPEAL from the conviction by Pomerance J. of the Superior Court of Justice dated May 16, 2007 for arson and related charges. [page304]

Cases referred to

R. v. McCallen (1999), 1999 3685 (ON CA), 43 O.R. (3d) 56, [1999] O.J. No. 202, 116 O.A.C. 308, 131 C.C.C. (3d) 518, 22 C.R. (5th) 103, 59 C.R.R. (2d) 189, 41 W.C.B. (2d) 19 (C.A.); R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271, 25 O.A.C. 321, 41 C.C.C. (3d) 1, 63 C.R. (3d) 113, 35 C.R.R. 207 p, 4 W.C.B. (2d) 30 (C.A.); R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951, [1994] S.C.J. No. 16, 117 D.L.R. (4th) 7, 170 N.R. 81, 133 N.S.R. (2d) 81, 92 C.C.C. (3d) 218, 32 C.R. (4th) 34, 23 C.R.R. (2d) 32, 24 W.C.B. (2d) 308, consd

Other cases referred to R. v. Chemama, [2008] O.J. No. 368, 2008 ONCJ 31, 172 C.R.R. (2d) 243, 76 W.C.B. (2d) 384; R. v. Drury, [2000] M.J. No. 457, 2000 MBCA 100, [2001] 1 W.W.R. 442, 150 Man. R. (2d) 64, 47 W.C.B. (2d) 512; R. v. Handy (2002), 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 2002 SCC 56, 213 D.L.R. (4th) 385, 290 N.R. 1, J.E. 2002-1226, 160 O.A.C. 201, 164 C.C.C. (3d) 481, 1 C.R. (6th) 203, 53 W.C.B. (2d) 286; R. v. Hayes, [2002] N.B.J. No. 356, 2002 NBCA 80, 253 N.B.R. (2d) 299, 57 W.C.B. (2d) 294; R. v. Keating, 1997 NSCA 135, [1997] N.S.J. No. 250, 159 N.S.R. (2d) 357, 35 W.C.B. (2d) 183 (C.A.); R. v. Peterman (2004), 2004 39041 (ON CA), 70 O.R. (3d) 481, [2004] O.J. No. 1758, 186 O.A.C. 83, 185 C.C.C. (3d) 352, 19 C.R. (6th) 258, 119 C.R.R. (2d) 7, 61 W.C.B. (2d) 624 (C.A.); R. v. Rain, [1998] A.J. No. 1059, 1998 ABCA 315, [1999] 7 W.W.R. 652, 68 Alta. L.R. (3d) 371, 223 A.R. 359, 130 C.C.C. (3d) 167, 56 C.R.R. (2d) 219, 40 W.C.B. (2d) 35; R. v. Widdifield (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161, [1995] O.J. No. 2383, 84 O.A.C. 241, 100 C.C.C. (3d) 225, 43 C.R. (4th) 26, 28 W.C.B. (2d) 72 (C.A.); R. v. Wilson, 1997 NSCA 204, [1997] N.S.J. No. 473, 163 N.S.R. (2d) 206, 121 C.C.C. (3d) 92, 48 C.R.R. (2d) 249, 37 W.C.B. (2d) 38 (C.A.); R. v. Wood, [2001] N.S.J. No. 75, 2001 NSCA 38, 191 N.S.R. (2d) 201, 157 C.C.C. (3d) 389, 49 W.C.B. (2d) 160

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 14, 24(1) Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(a)(ii), (iii), (b)(iii)

Lance C. Beechener, for appellant. Jennifer Woollcombe, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The appellant appeals from his conviction and sentence by Pomerance J. on arson and related charges. The trial judge imposed a sentence of 12 months' imprisonment and three years' probation. The sole ground of appeal from conviction relates to the trial judge's refusal to make an order appointing counsel and staying proceedings until the Attorney General agreed to fund counsel for the appellant (a "Rowbotham order"). For the following reasons, I would allow the appeal from conviction and order a new trial. In the result, it is unnecessary to consider the sentence appeal.

The Facts of the Offence

[2] Sometime after 3:00 p.m. on September 11, 2004, neighbours noticed that the appellant's home in the Town of Lakeshore was on fire. The house was eventually completely involved in flames. Members of the volunteer fire department put their lives in danger in attempting to fight the blaze. The house and its contents were a total loss.

[3] The doors to the house were locked and it was uncontested that the appellant had been at the house earlier in the day. The appellant told police and others that when he had been in the house a few hours before the fire, he had smelled something burning. However, he could see no smoke and no sign of fire. He also told the police that he had a problem with a fuse box, which kept "tripping out".

[4] There was evidence that the appellant was in dire financial straits and yet he had recently taken steps to ensure that his lapsed account at a furniture store was returned to good standing after learning that any insurance claim made to cover the loss of the furniture would not be honoured if the account was in arrears.

[5] The Crown also adduced expert evidence in an attempt to show that the fire was intentionally set. The effect of that evidence was largely negative, i.e., the experts could not identify any non-arson cause of the fire. The experts specifically discounted a defect in the electrical wiring or the fuse boxes as the cause of the fire. It was the opinion of the fire marshal that the cause of the fire was open flame to combustible material and that it had been intentionally set. He considered but ruled out a smouldering fire (given the appellant's statements that he had smelled smoke earlier in the day). There was no evidence of any [page305] accelerant or combustible material, but this could be the result of the intensity of the fire.

[6] The Crown attempted to call similar fact evidence relating to three prior fires involving vehicles owned by the appellant. The trial judge ruled that the evidence could be admitted. I will refer to that evidence below.

[7] The appellant adduced no expert or other evidence and did not testify.

The Rowbotham Application

[8] At some point after the charges were laid, the appellant did have counsel. However, by the time of the preliminary inquiry, he was unrepresented and he conducted the preliminary inquiry himself. When he appeared at the opening of the trial, the appellant at first indicated that he was prepared to proceed without counsel. The trial judge was concerned about whether this was a voluntary decision and it soon emerged that while the appellant wished to have counsel, he had been denied legal aid. Crown counsel said she had been concerned about the appellant not being represented in view of the large amount of disclosure, "let alone the content". Crown counsel gave a brief opening in which she outlined the nature of the evidence to be called: that there would be 30 witnesses including expert evidence, five statements made by the appellant to persons in authority and similar fact evidence to show "motive and the modus operandi". There was some brief discussion of procedural issues during which the appellant complained about the late delivery of materials relating to the Crown's application to admit similar fact evidence. The trial judge then briefly adjourned the trial to consider the fact that the appellant was unrepresented. Upon resuming, the trial judge offered to adjourn the matter further so that the appellant could again speak to Legal Aid Ontario through duty counsel. As she said, she wanted "to be absolutely sure [that nothing fell between the cracks] before we commence a complex trial without counsel representing you".

[9] Later that morning, a Legal Aid Ontario duty counsel attended at the trial. She explained that the appellant had applied for legal aid, been refused and had unsuccessfully appealed the refusal in 2005. Duty counsel stated that the appellant's financial situation was "pretty much the same", and he had been denied legal aid for financial reasons. The trial judge interpreted duty counsel's submission as being that "all avenues have been exhausted with respect to a Legal Aid certificate". She then explained to the appellant the possibility of the court making a Rowbotham order that could result in the appellant having a lawyer paid for by the [page306] state. At the appellant's request, the trial judge embarked on an explanation of a Rowbotham application. The trial judge explained the procedure to be followed on the application, including the kind of financial disclosure he must be ready to make. The trial judge adjourned the trial for two days to permit the appellant time to assemble documents concerning his financial situation.

[10] The trial judge decided to hear the Rowbotham application in two stages. She would first hear submissions on whether counsel was necessary to ensure a fair trial. If that issue was resolved in the appellant's favour, she would receive the evidence concerning the appellant's financial circumstances.

[11] At the first stage, the appellant very briefly explained why he needed a lawyer. He simply referred to the complexity and number of charges and stated that it was "well over my head". In response, Crown counsel, not Ms. Woollcombe, stated that she "would be hard pressed to stand up here and argue that the first prong of the test in the Rowbotham application isn't met in terms of both the complexity of the case and the circumstances of the applicant". She pointed out that she had conceded in her factum that the case was "very complex"; there would be three, possibly four expert witnesses and a similar fact application. She told the trial judge that the applicant worked at a stamping plant and appeared to recognize that the appellant would have difficulty cross-examining even the straightforward witnesses, let alone the expert witnesses. When pressed by the trial judge as to whether she was conceding the first branch of the Rowbotham test, Crown counsel said this:

Well I am conceding at this point that this is a very complex case, if that's of assistance to Your Honour, that there are several different forms of evidence that are going to be called in this case which I would concede at this point would be difficult for a lay person. Am I ready to say impossible at this point, or that he wouldn't be, he wouldn't in any way receive a fair trial if he didn't have counsel? I'm not conceding that.

THE COURT: Okay.

Crown Counsel: But it's a probabilities test, I'll leave it to Your Honour, but I am conceding that it's a very complex case. And as I said at the beginning, I'd be hard pressed to stand up here and argue that without the assistance of counsel the fairness would definitely be infringed, if I can leave it at that.

[12] The trial judge appeared at this point to interpret the Crown's position as a concession that the first branch of the Rowbotham test had been met and therefore she moved on to the second branch. The appellant then filed his financial documents. The trial judge stated that she would look at the material and "decide whether we need to go further" and produce the [page307] documents to the Crown. She said she would make a preliminary review and then adjourned to review the materials.

[13] When the trial judge returned, she ruled that the appellant had not met the first branch of the Rowbotham test. She ruled that the appellant would not be deprived of a fair trial if he did not have counsel. I will more fully set out the trial judge's reasons below. Suffice it to say, it is my view that the trial judge reached that conclusion because she applied too stringent a test.

Analysis

Introduction

[14] I say at once that save for the problem that the appellant was without counsel for a serious and complex case, the trial judge did everything possible to assist the unrepresented appellant. She went out of her way to explain each procedural step to the appellant as the trial progressed. She identified potential evidentiary and Canadian Charter of Rights and Freedoms issues that might favour the appellant. She took care to ensure that the appellant had whatever time he required to prepare. For example, on the first day of evidence, all of the witnesses that the Crown expected to call that day had testified by the lunch-hour break. Since the appellant was not ready to deal with any further witnesses, the trial judge directed Crown counsel not to call further witnesses that day. Instead, the trial judge used the time after the lunch break to give the appellant an extended explanation of the procedure that would be followed on the voluntariness voir dire that was to take place the following day.

[15] When the appellant requested some further information relating to one of the witnesses, the trial judge ensured that the police obtained the information for him. At every stage, the trial judge erred on the side of caution in respect of any questionable Crown evidence to ensure that the evidence was properly admissible. At the conclusion of the trial, the trial judge gave full and comprehensive reasons. She addressed the arguments put forward by the appellant and any other arguments that might have enured to the benefit of the appellant.

[16] In short, the trial judge conducted a model trial for an unrepresented accused. However, the question is whether in the circumstances of this case, there was an appearance of unfairness because the appellant was required to proceed without counsel.

The Rowbotham test

[17] In R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271, 41 C.C.C. (3d) 1 (C.A.), at p. 69 C.C.C., this court held that: [page308]

[A] trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided. (Emphasis added)

[18] Whether the issue is financial ability or the necessity for counsel, the trial judge in considering whether to appoint counsel is not engaged in reviewing the decision of the legal aid authorities. As this court said in R. v. Peterman (2004), 2004 39041 (ON CA), 70 O.R. (3d) 481, [2004] O.J. No. 1758 (C.A.), at para. 22:

[W]hen a court makes a Rowbotham order, it is not conducting some kind of judicial review of decisions made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial.

[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. 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 that 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.

[20] 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: see R. v. Wood, 2001 NSCA 38, [2001] N.S.J. No. 75, 191 N.S.R. (2d) 201 (C.A.); R. v. Wilson, 1997 NSCA 204, [1997] N.S.J. No. 473, 163 N.S.R. (2d) 206 (C.A.); R. v. Hayes, 2002 NBCA 80, [2002] N.B.J. No. 356, 253 N.B.R. (2d) 299 (C.A.); R. v. Drury, 2000 MBCA 100, [2000] M.J. No. 457, 150 Man. R. (2d) 64 (C.A.); R. v. Rain, 1998 ABCA 315, [1998] A.J. No. 1059, 223 A.R. 359 (C.A.); and R. v. Chemama, [2008] O.J. No. 368, 2008 ONCJ 31.

[21] In considering whether counsel is essential, the court will also take into account the prosecution's duty to make full disclosure and the trial judge's obligation to assist the unrepresented accused: see R. v. Wilson and R. v. Keating, 1997 NSCA 135, [1997] N.S.J. No. 250, 159 N.S.R. (2d) 357 (C.A.). [page309]

The test applied by the trial judge

[22] In my view, the trial judge did not apply the correct test. After noting that the threshold for appointing counsel is "very high", she said the following:

As it was put in R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1, p. 61:

In an extreme case, that power [the power to appoint counsel for an indigent accused] may exist where a trial judge is satisfied that the decision by Legal Aid not to grant a counsel certificate is completely perverse, given the accused's financial situation, the complexity and length of the trial, and the substantial possibility of lengthy imprisonment. (My emphasis)

[23] The trial judge then went on to describe a case where counsel should be appointed as one posing,

[U]nique challenges above and beyond those that would ordinarily be expected in a criminal trial. Were it otherwise, an enormous number of self-represented individuals might well be entitled to state funded counsel, thereby causing a serious interference with the administration of the state sponsored Legal Aid Plan. (Emphasis added)

Ultimately, she was not satisfied that this was "one of those unique and extraordinary cases in which the presence of counsel is a prerequisite to a fair trial". The trial judge concluded as follows:

In light of the stringent test that must be met to satisfy the first prong of Rowbotham, the role of the trial judge in rendering necessary assistance to Mr. Rushlow, and the extra added duty of fairness resting upon Crown counsel, I am not satisfied that the absence of legal counsel will have the effect of depriving Mr. Rushlow of a fair trial in this case.

[24] In my view, the trial judge applied too stringent a test. This court has never said that a Rowbotham 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 Rowbotham 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.

[25] I am also concerned that the test adopted by the trial judge may have placed undue weight on the impact her order might have on the administration of legal aid. As pointed out above, when considering whether to make an order appointing counsel, the trial judge does not sit in review of decisions of the [page310] legal aid authorities. It was not the trial judge's concern how the decision to appoint counsel in this case would impact on Legal Aid Ontario's operations.

Was the test met in this case?

[26] In my view, the first branch of the Rowbotham test was met in this case. Crown counsel at trial essentially conceded that the case was complex and that the appellant did not have the capacity to defend the case without counsel. The central issue in the case was whether the fire had been deliberately set. The Crown intended to call 30 witnesses to prove motive and opportunity, including at least three expert witnesses to prove that the fire was not accidental. As I will explain later, while the appellant could handle cross-examination of many of the witnesses, he was out of his depth when it came to the expert evidence. Further, the Crown intended to tender similar fact evidence and lead evidence of several statements the appellant made to persons in authority. As to the appellant's personal circumstances, he had no legal training. It was unclear what his level of formal education was and all that was before the trial judge was that he worked in a stamping plant. It was also unclear whether the appellant had any prior experience with the justice system, other than the preliminary inquiry in this case. As it turned out, the pre- sentence report prepared at the conclusion of the trial indicates that the appellant has a grade 11 education and that he had no prior criminal record.

[27] Finally, the case was a serious one. A conviction for arson in these circumstances usually results in a prison term, and that was the result in this case.

The financial branch of the test

[28] The trial judge did not address the issue of whether the appellant met the financial branch of the test. The appellant has filed fresh evidence demonstrating that he is impecunious. The material also indicates the attempts the appellant made to obtain legal aid and to make arrangements to privately retain counsel before trial. The appellant was refused legal aid and his appeal to the area committee was refused. He theoretically had one further appeal to the provincial office. However, as duty counsel pointed out to the trial judge, given that his financial position had not changed since his initial application, it was unlikely he would qualify for legal aid. The appellant had offered to enter into a contribution agreement with Legal Aid. The attempts to retain counsel privately appear to have foundered on counsel's need for a retainer beyond the appellant's means. The appellant had a large number of debts and as a result of the fire had lost [page311] most of his possessions. Indeed, it was the Crown's position that the motive for the fire was that the appellant was in desperate financial circumstances.

[29] Counsel for the respondent points out some shortcomings in the fresh evidence. In particular, the appellant seems to have consulted only one counsel after the preliminary inquiry. He also acquired some debts after the fire, so that money that might have been used to retain counsel was unavailable.

[30] Perhaps the appellant could have made further efforts to privately retain counsel and he may have made some poor financial decisions. However, I accept the very fair concession from counsel for the respondent, which is stated in these terms in her factum:

This is not a case in which the appellant's finances reveal that he could have retained counsel and made a calculated decision not to.

Conclusion

[31] In my view, the appellant has shown that the trial judge erred in law in her application of the first branch of the Rowbotham test. He has also shown that on proper application of the test, the assistance of counsel was essential to a fair trial. I am also satisfied that had the trial judge reached the second branch of the test, consideration of the financial circumstances of the appellant, it is probable that she would have found that the appellant lacked the financial resources to retain counsel for the trial.

The test for granting a new trial on appeal

[32] On appeal, counsel for the appellant and for the Crown presented opposing views as to the test this court should apply if the court found that the trial judge had erred in failing to grant the Rowbotham application. Crown counsel submits that the court has the advantage of hindsight. Thus, if we are convinced that the appellant in fact had a fair trial, the appeal should be dismissed. Crown counsel in effect submits that the appellant must demonstrate prejudice in the sense that but for the lack of counsel, the result would have been different. Counsel for the appellant submits that if the appellant was wrongly deprived of counsel, the appeal must be allowed because he has been deprived of a substantive and constitutional right.

[33] I agree with Crown counsel that this court cannot ignore that fact that the trial has taken place and this court has the benefit of the transcript of the proceedings: see R. v. Widdifield (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161, [1995] O.J. No. 2383 (C.A.), at pp. 175-76 O.R. However, as I will explain below, I do not agree that the appellant must show actual prejudice, that is, that the result [page312] might have been different had he had counsel, for this court to order a new trial.

[34] There is a further complication in considering the test to be applied on appeal. There are three potential bases for this appeal. If the appellant's case is considered as a breach of a constitutional right, the remedy on appeal may lie with s. 24(1) of the Charter: see R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951, [1994] S.C.J. No. 16, at pp. 1009-10 S.C.R. However, I have also found that the trial judge erred in law in applying the test for whether counsel should be appointed. If that error of law falls within s. 686(1)(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, the burden falls on the Crown to persuade this court that no miscarriage of justice resulted pursuant to s. 686(1)(b)(iii). Alternatively, it may be that the better approach is to determine whether the appellant has shown that the lack of counsel resulted in a miscarriage of justice within the meaning of s. 686(1)(a)(iii). That was the approach adopted by the Manitoba Court of Appeal in Drury, at para. 20:

In the case at hand, which does not concern a prospective s. 7 breach, but rather where the trial has already proceeded, the appropriate remedy would be to quash the conviction if, in the opinion of the Court, the lack of representation of an accused by counsel at trial resulted in a miscarriage of justice. A miscarriage of justice within s. 613(1)(a)(iii) of the Code occurs where there is an appearance of unfairness in the trial of an accused. (Emphasis added)

[35] In this case, I do not find it necessary to resolve the question of the proper approach this court must take. I am satisfied that there has been a miscarriage of justice in this case, in that the failure to appoint counsel resulted in an appearance of unfairness and that the appropriate remedy must be a new trial.

[36] Whether the issue on appeal is viewed from the perspective of an error of law or possible miscarriage of justice, the fact that constitutional rights are involved must be borne in mind. In Rowbotham, at p. 70 C.C.C., this court described the right recognized in that case in these terms:

To sum up: where 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 where the prosecution insists on proceeding with the trial in breach of the accused's Charter right to a fair trial. (Emphasis added)

[37] It follows that the approach to be taken on appeal must recognize that the appellant's constitutional right to counsel was [page313] infringed. This court has dealt with the constitutional right to counsel in the context of a case where the accused had been wrongly deprived of his right to counsel of choice. In R. v. McCallen (1999), 1999 3685 (ON CA), 43 O.R. (3d) 56, [1999] O.J. No. 202 (C.A.), there was no suggestion that the accused had not been competently represented by counsel or that his trial was, in fact, unfair. Applying Tran, a case where an accused had been deprived of his right to an interpreter as guaranteed by s. 14 of the Charter, this court held that it was not necessary for the accused to demonstrate prejudice to obtain a new trial. Rather, a new trial was required "to protect and vindicate the right that has been breached and to ensure the perception of fairness of the proceeding": McCallen, at p. 79 O.R. The court also relied on cases from this court where the trial judge had unduly interfered in the trial and the interference seriously impaired the appearance of fairness of the trial and cases where the accused had been improperly excluded from the trial.

[38] That said, the court must take a purposive approach to the issue. The McCallen problem involved interference by the trial court with a constitutionally protected decision. That interference itself led to the appearance of unfairness, irrespective of the actual conduct of the trial. Similarly, the cases concerned with wrongful exclusion of the accused take into account that more is at stake than simply the impact on the accused's ability to make full answer and defence. It is sufficient that exclusion of the accused from a part of the proceedings where their vital interests were involved affects the appearance of the fairness of the proceedings. The same reasoning was applied in Tran. Having been denied his right to an interpreter, the appellant was effectively excluded from his trial. As the court in Tran said, at p. 977 S.C.R., the right to an interpreter "is one which is intimately related to our basic notions of justice, including the appearance of fairness".

[39] The purpose of the right to counsel in the context of a Rowbotham case is reflected in the nature of the test itself. Counsel is appointed because their assistance is essential for a fair trial. In my view, fair trial in this context embraces both the concept of the ability to make full answer and defence and the appearance of fairness. In the context of ability to make full answer and defence, the court must, however, be wary of speculating as to how the case might have been different had counsel been appointed. As Lamer C.J.C. said in Tran, at pp. 994-95 S.C.R.:

To second-guess the defence's strategy in a particular case, or to ponder the utility of proper interpretation, is an inherently dangerous exercise. It is impossible to know for sure what would have happened if an accused had been provided with full and contemporaneous interpretation of the proceeding in [page314] question. For example, one can never really know what might have been triggered in an accused's mind had he or she received the interpretation to which he or she is entitled under s. 14 of the Charter. (Emphasis added)

[40] Similarly, pondering the utility of assistance of defence counsel in a complex case is an inherently dangerous exercise. The lack of utility in speculating as to how counsel might have affected the result can be illustrated in relation to the legal rulings made by the trial judge in this case. Counsel for the respondent points out that in this case, the appellant does not challenge any of the various evidentiary rulings made by the trial judge during the trial. In my view, it is not necessary for the appellant to be able to establish that any of the legal rulings by the trial judge were wrong in order to obtain a new trial. If any of the rulings were legally wrong, that could form an independent ground of appeal, which on its own could lead to a new trial unless the Crown was able to establish that no substantial wrong or miscarriage of justice occurred. But to paraphrase the words of Lamer C.J.C. in Tran, one can never really know what would have happened had the appellant had counsel to argue any of those rulings.

[41] Take, for example, the similar fact ruling. A trial judge's decision to admit similar fact evidence is entitled to "substantial deference": R. v. Handy (2002), 2002 SCC 56, 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, at para. 153. That means there is a broad range within which the trial judge's ruling is immune from appellate interference. That also means, however, that counsel's assistance during the argument at trial is crucial.

[42] In this case, the appellant had some difficulty articulating his objection to the similar fact evidence and attempted to give evidence during his submissions about the automobile fires and the claims. He did not call any evidence on the voir dire. Defence counsel might have sought to call evidence on the voir dire or in some way challenge the statement of facts relied upon by Crown counsel. Defence counsel might have been able to persuade the trial judge to weigh the probative value and prejudicial effect of that evidence differently. Finally, it is difficult to know what, if any, impact the admission of the similar fact evidence had on the appellant's decision to testify.

[43] The other area of complexity concerns the expert evidence. Although Crown counsel initially indicated that she intended to call three or possibly four expert witnesses, in the end she called two: the Fire Marshall and the Electrical Safety Inspector. During his cross-examination of the two witnesses, the appellant was able to identify two discrepancies in their evidence. The Fire Marshall testified that the sub- panel in the area of the fire had [page315] four fuses and that the inspector examined all four. He also testified that he removed the sub-panel from the wall on September 12. The inspector testified, however, that he examined only three fuses and that while he searched for the fourth fuse, he could not find it. The inspector also testified that he examined the sub- panel while it was still on the wall, even though his examination took place on September 13.

[44] Counsel for the respondent points to the appellant's cross-examination of the experts as demonstrating that the appellant effectively cross-examined the experts and that assistance of counsel was not essential. I do not take the same view of the effectiveness of the cross-examination or its impact on the issue of the need for assistance of counsel.

[45] The appellant approached the discrepancies between the fire marshal and the inspector as a lay person might. That approach is captured in his question to the inspector: Q. So my next question, which one of you two are not telling us the truth? Somebody here is lying Your Honour . . .

[46] This approach was carried forward in the appellant's brief submissions at the conclusion of the trial. After submitting that there was no way that the inspector could properly examine the electrical panel because of what the fire marshal had done the day before, the appellant asked the trial judge "to exclude all testimony" from the fire marshal and the inspector. He submitted that there were major inconsistencies and the inspector "lied as to the location of the panel and the examination". He submitted that both witnesses "both had time to know that their reports and statements are not true".

[47] Thus, the appellant was able to point to at least two discrepancies in the evidence of the two experts. Unfortunately, the appellant was unable to make effective use of the discrepancies. Not surprisingly, he saw the issue as essentially a matter of fabrication of evidence. He was unable to leverage the inconsistencies into an effective defence or undermine the ultimate opinion of the experts. Put simply, he was unable to show how the discrepancies or inconsistencies mattered.

[48] Not surprisingly, the trial judge treated the discrepancies as essentially matters of credibility. She concluded that the two witnesses had "done their best to present an honest recollection of the relevant events in their evidence before this court". She was satisfied that these discrepancies "are not such as to warrant the rejection of the experts' conclusions". She pointed out that the fire marshal in particular had expressed some uncertainty about the fourth fuse and she repeated that the "inconsistencies [page316] relied upon by the defence are a natural bi-product of the process of honest recollection".

[49] On this record, while it was open to the trial judge to approach the evidence in that manner, that simply exposes the problem brought about by the appellant not having the assistance of counsel to lay a proper foundation to challenge the expert evidence.

[50] I have one last concern with the question of full answer and defence and the appearance of fairness. The appellant did not testify and did not call any evidence. From my review of the transcript, it appears that the appellant's theory was that the fire was a result of an electrical fault or caused by something that was done during the renovations he was doing on the second floor. Unfortunately, that position was never really developed.

[51] I do not say that in every case where the trial judge erred in failing to make a Rowbotham order there must be a new trial. There may be cases where the case as prosecuted was so different from the case as presented at the time of the Rowbotham application that it can be safely said that not only did the accused receive a fair trial, but the appearance of fairness of the trial was not compromised. For example, if the only basis for appointing counsel was that there was a complex evidentiary issue but the trial judge had ruled in favour of the defence, it could well be argued that there was no damage to the appearance of fairness.

[52] In my view, this case was one where the appellant required counsel to effectively defend the case. It was a very serious matter and resulted in a one-year prison sentence. The lack of assistance of counsel impaired the appearance of fairness and possibly the ability to make full answer and defence and in that sense resulted in a miscarriage of justice.

Disposition

[53] Accordingly, I would allow the appeal, set aside the convictions and order a new trial. If the appellant is once again refused legal aid, and he renews his Rowbotham application, it will be for the trial judge to determine whether the appellant has met the financial branch of the test in light of his current circumstances.

Appeal allowed.