WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

Section 486.4 — Order restricting publication — sexual offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

Section 486.6 — Offence

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: November 20, 2020

Court File No.: Lindsay 19-0582

Between:

Her Majesty the Queen

— and —

Elliott Jennings

Before: Justice S. W. Konyer

Heard on: November 9, 2020

Reasons for Judgment released on: November 20, 2020

Counsel:

• Ms. C. Ma — counsel for the Crown
• Ms. K. Zadorozhnya — counsel for the accused Elliott Jennings

KONYER J.:

Decision on Rowbotham Application

[1] Elliott Jennings is charged with committing an indecent assault on the complainant between January 1, 1979 and December 31, 1982. At the time of the alleged offence, the complainant would have been between the ages of 13 and 16, while Mr. Jennings would have been between the ages of 24 and 27. He was charged with this offence on May 10, 2019. The Crown is proceeding by indictment, and Mr. Jennings has elected to be tried by a Judge of the Ontario Court of Justice. No trial date has yet been scheduled, but I will be the Judge assigned to hear this trial.

[2] Mr. Jennings has applied for an order staying the proceedings against him until such time as the Crown funds the costs of his defence, commonly known as a "Rowbotham" order: see R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont.C.A.) To succeed with this application, Mr. Jennings must satisfy me that he is not eligible for legal aid, that he is indigent, and that his right to a fair trial will be materially compromised if he is unrepresented.

[3] There is no dispute that Mr. Jennings has been refused legal aid, nor is there any dispute that he cannot afford to pay for a lawyer to represent him at his trial. He is indigent and does not qualify for legal aid. Therefore, the only issue I am left to decide is whether it is necessary that Mr. Jennings be represented by counsel in order to ensure the fairness of his trial.

[4] To make this determination, I must 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": R. v. Rushlow, 2009 ONCA 461, [2009] O.J. No. 2335 (C.A.), at para. 19.

[5] In order to gauge Mr. Jennings' ability to participate effectively and defend the case, I need to consider a number of factors, including:

• His personal abilities
• His education and employment background
• His literacy
• The complexity of the evidence
• The procedural, evidentiary and substantive law that applies to the case
• The likelihood of especially complex procedures like a voir dire
• The seriousness of the charge
• The expected length of the trial
• The likelihood of imprisonment

[Rushlow, supra, at para. 20]

[6] In deciding whether representation by counsel is necessary for Mr. Jennings to receive a fair trial, I must also "take into account the prosecution's duty to make full disclosure and the trial judge's obligation to assist the unrepresented accused": Rushlow, supra, at para. 21.

[7] At the same time, Mr. Jennings need not establish that his case poses "unique challenges". Rather, "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": Rushlow, supra, at para. 24. The real issue on this application is whether Mr. Jennings' case is sufficiently complex that counsel is required to ensure he receives a fair trial.

[8] There can be no doubt that Mr. Jennings faces a serious criminal charge. Sexual offences against children are abhorrent, and courts are required to recognize the devastating impact of such crimes on the victims and their families – see the decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9. One result of this increased awareness of the harms caused by offences of this nature is that sentences have increased in order to address principles of proportionality, denunciation and deterrence in cases involving the sexual abuse of children. Given this reality, Mr. Jennings faces the very real prospect of a significant period of incarceration if he is found guilty at the conclusion of his trial.

[9] The fact that an offence is serious, however, does not in and of itself justify the making of a Rowbotham order: see R. v. Coutts, 2018 ONSC 974, at para. 30. In R. v. Woods, 2016 ONSC 2374, the court explained at para. 23 that there is a presumption that the trial judge can ensure trial fairness, and that this presumption "will only be rebutted where the applicant demonstrates that the complexity of the case, the applicant's lack of competence or other circumstances are such that, despite the best efforts of the trial judge, the trial would be unfair without counsel's representation of the accused."

[10] Mr. Jennings testified during the course of this application. He presented as someone who is intelligent, thoughtful and articulate. While he does not possess any legal training, he appears capable of understanding the allegations against him, and of responding to those allegations in a factual way. Mr. Jennings completed high school and several years of post-secondary education. He is mature, has a good deal of life experience and a long history of employment that includes working with the public and supervising others. I conclude that Mr. Jennings is capable of understanding the allegations against him, of understanding what the Crown must prove at his trial, of understanding the defences that may be available to him, and of responding to the charge he is facing. Despite his lack of legal training, I am not persuaded that he is incapable of challenging the testimony of the anticipated Crown witnesses or of making arguments in his own defence.

[11] I accept Mr. Jennings' testimony that he suffers from emphysema and arthritis, and that these physical ailments limit his ability to speak at length or to concentrate for long periods. He would certainly benefit from being represented by counsel at his trial, as would most accused persons; however, this is not the test on a Rowbotham application. Rather, I must decide whether it is essential that he be represented in order to receive a fair trial. As a trial Judge, I will be able to ensure that Mr. Jennings has meaningful access to his disclosure and adequate time to prepare for his trial. I can also ensure that adequate breaks are taken during the course of the proceedings to accommodate Mr. Jennings' physical limitations. I will also need to fulfill my obligations as a trial judge to ensure that Mr. Jennings understands the trial process, and to provide him with meaningful assistance throughout his trial. I am not persuaded that Mr. Jennings is incapable of bringing forth his defence to the charge he is facing in these circumstances.

[12] On the evidence before me, it is difficult to assess the degree of complexity in Mr. Jennings' trial with precision. The Crown argues that the issues at trial are likely to revolve around credibility, which is something that Mr. Jennings is capable of adequately addressing. The disclosure is modest, comprising only 76 written pages and about 3 hours of video-recorded statements. The Crown intends to call the complainant and 2 other narrative witnesses. The Crown estimates that the prosecution case will last one to two days at most. The Crown does not anticipate tendering any statements made by Mr. Jennings, nor does it anticipate that there will be a need for any voir dires at trial. The Crown argues that the issues at trial will relate to matters of credibility, which Mr. Jennings is capable of addressing.

[13] Ms. Zadorozhnya, who represented Mr. Jennings on this application, asserts that the trial could potentially be more complex. Since the age of consent at the time of the alleged offence was 14, the Crown will have to prove not only that the complainant did not consent to the sexual touching, but that Mr. Jennings had the requisite mens rea – namely, the "intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched": see R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 42. If the Crown fails to prove beyond reasonable doubt that the complainant did not consent, or that Mr. Jennings did not have the required intention, I must find him not guilty. On this application, Ms. Zadorozhnya argues that these issues are sufficiently complex that counsel is required in order to ensure that any available defence is brought out with full force and effect.

[14] It appears to me from the evidence on this application that the central issues at trial are likely to involve my assessment of the credibility of the complainant and defence witnesses in the event that Mr. Jennings chooses to testify or call evidence. I will likely have to determine whether the Crown has proven beyond reasonable doubt that the sexual touching complained of occurred. If I find that the sexual touching did occur, I will likely need to determine whether the Crown has proven lack of consent beyond reasonable doubt and whether Mr. Jennings had the required intention. Resolving these issues will depend upon findings of credibility. Courts have repeatedly held that credibility assessments are not beyond the scope of self-represented accused persons of average education and intelligence who do not possess legal training, even in cases involving sexual offences: see R. v. Brown, 2018 ONCA 9, at para. 20; R. v. Matthews, 2015 ONSC 3742; R. v. Russell, 2015 ONCJ 782, at paras. 14-15.

[15] Ms. Zadorozhyna also asserts that the complainant in this matter told the police that other acts of sexual touching occurred between Mr. Jennings and himself beyond the acts which form the basis of the charge before the court. It would therefore be open to Mr. Jennings, she argues, to bring an application pursuant to s. 276 of the Criminal Code to obtain leave to cross-examine the complainant on other sexual acts in order to support a claim of honest but mistaken belief in consent: see, for example, R. v. Dickson (1999), 81 C.C.C. (3d) 224 (Y.T.C.A.), aff'd, [1994] 1 S.C.R. 153; R. v. Harris (1997), 118 C.C.C. (3d) 498 (Ont.C.A.). Mr. Jennings, she argues, would not be capable of effectively bringing the proper application, nor of appreciating how to effectively marshall the appropriate evidence at trial to support a defence of an honest but mistaken belief in consent.

[16] While the Crown does not concede that there would be any merit to a s. 276 application or a defence of honest but mistaken belief in consent in the circumstances of this case, it points out that if a Rowbotham order is not made, that it will seek an order appointing counsel to conduct the cross-examination of the complainant pursuant to s. 486.3 of the Criminal Code. If such an appointment is made, then counsel would be entitled to bring a s. 276 application if they felt it had merit. Just like counsel on a legal aid retainer, approval would have to be sought from Legal Aid Ontario in order for counsel to be funded to bring such an application: see R. v. Furster, [2016] O.J. No. 1443 (S.C.J.), at para. 6. The Crown argues that I can thus be assured that Mr. Jennings would be represented on any meritorious s. 276 application.

[17] Ms. Zadorozhnya also points out that the charge against Mr. Jennings was laid on May 10, 2019, meaning that just over 18 months have elapsed without trial dates even being set. She argues that Mr. Jennings' right to be tried within a reasonable time, guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms, may be infringed by the time his trial occurs. She further argues that it would be necessary for him to be represented by counsel in order to bring the appropriate application for Charter relief. I do not agree that counsel is essential in order to bring an application for relief for unreasonable delay. As a result of the Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27, the calculation of delay and the analysis of delay has been greatly simplified. There is a presumptive ceiling of 18 months of tolerable delay for a trial in this court. For Mr. Jennings, this means that if the net delay in his case exceeds 18 months, it will be presumptively unreasonable. The net delay is calculated by calculating the total delay and deducting from that total any delay caused by the defence or caused by exceptional circumstances. If the net delay exceeds 18 months, then it is presumptively unreasonable and he is entitled to relief by way of a judicial stay of proceedings unless the Crown can rebut that presumption.

[18] Based on the position taken by the Crown on this application, it would not be able to credibly argue that Mr. Jennings' case is so complex that delay beyond 18 months could be justified based on the complexity of his case. Mr. Jennings is capable of calculating the net delay in his case by deducting from the total delay the delay caused by his own actions and any exceptional circumstances, which may include the shutdown of the courts caused by the global health pandemic. Mr. Jennings does not presently have work commitments and apparently has access to the internet as demonstrated by his participation in this application by way of the Zoom platform. With due diligence he can equip himself with the knowledge and tools required to bring an application for Charter relief if he wishes to claim that his right to be tried within a reasonable time has been infringed. Self-represented accused persons do have an obligation to be reasonably diligent in preparing for their case.

[19] I will ensure that a copy of this decision as well as a copy of the Jordan decision are provided to Mr. Jennings, together with a copy of the Ontario Court of Justice Guide for Accused Persons in Criminal Trials. This last document includes a link to the Ontario Court of Justice Rules and the necessary forms for the filing of a Charter application. I find that it is not essential for Mr. Jennings to be represented by counsel if he wishes to bring an application for a stay of proceedings due to unreasonable delay.

[20] In summary, Mr. Jennings is a reasonably intelligent and articulate individual facing a serious charge. The central issues at his trial are likely to revolve around the credibility and reliability of the complainant. Since he wishes to be represented by counsel, I infer that he would not object to an order appointing counsel to conduct the cross-examination of the complainant, who is the only witness to the alleged sexual contact forming the subject matter of the charge. The appointed counsel would also be responsible for bringing any necessary applications in order to effectively cross-examine the complainant. Mr. Jennings would be left to conduct the cross-examination of the other two narrative witnesses being called by the Crown, to call defence evidence if he so chooses, to testify in his own defence if he chooses to do so, and to argue the merits of the case at its conclusion. The arguments he will need to make are likely to revolve around issues of credibility rather than technical legal arguments.

[21] As a trial judge, it will be my responsibility to provide Mr. Jennings with reasonable assistance throughout his trial. This includes, but is not limited to, ensuring that Mr. Jennings understands the charge against him, his right to disclosure, the presumption of innocence and the burden of proof, the essential elements of the offence that the Crown must prove, the defences available to him, and the trial process. I will also be obliged to provide him with ongoing assistance throughout the trial to ensure that his defence is brought out will full force and effect.

[22] It would always be preferable for any accused person facing serious charges to be represented by counsel. In Mr. Jennings circumstances, however, where counsel will be appointed to cross-examine the central prosecution witness and to bring any pre-trial evidentiary applications necessary for that purpose, I am not persuaded that it is essential for him to be represented by counsel in order to ensure the fairness of his trial. I find that he is able, with assistance from myself as the trial judge if necessary, to adequately address the credibility issues which are likely to be the crucial issues that I will have to resolve at his trial.

[23] Mr. Jennings has not discharged his onus on this application, and I therefore dismiss the application.

Released: November 20, 2020

Signed: "Justice S. W. Konyer"