Ontario Court of Justice

Date: 2021-04-20 Location: Toronto

Between: Her Majesty The Queen — AND — David Singh

Before: Justice Mara Greene

Reasons for Judgment released: April 20, 2021

Counsel: N. Gilks, for the Ontario Securities Commission David Singh, for David Singh (Self-represented)

M. Greene, J:

[1] Mr. Singh has brought an application to adjourn his trial. This is the third such application brought since March, 2021. At the end of this application I advised the parties that I was dismissing the application with written reasons to follow. Here are my reasons for dismissing Mr. Singh’s application for an adjournment.

Background

[2] Mr. Singh is facing several charges under the Securities Act. In particular, he faces a charge of securities fraud, trading without registration and illegal distribution of securities. Mr. Singh has advised me that the Ontario Securities Commission (OSC) is seeking a penitentiary sentence in the range of five years if he is convicted of these offences. Mr. Singh is self-represented. His adjournment application is brought on several grounds but all relate to his assertion that he is not capable of representing himself at this time due to i) the constraints of COVID 19 on his trial; b) his physical health problems and c) his mental health problems. The main issue is at this hearing is whether Mr. Singh can receive a fair trial at this time given his above identified concerns. The OSC vigorously opposed this application. It was the position of counsel for the OSC that Mr. Singh is not being truthful about his computer literacy, his physical health concerns and his mental health concerns. It is their position that these adjournment applications are merely an attempt to delay the prosecution indefinitely.

Summary of the facts

[3] On May 31, 2018, Mr. Singh was charged with offences under the Securities Act. Counsel for the OSC advised on the first day of trial in March 2020, that the charges relate to allegations that Mr. Singh sold shares to 77 investors in the amount of more than $5.6 million in two different mortgage investment corporations. It is alleged that despite having sold these shares, these corporations did not have an underlying portfolio of mortgages. Instead, it is alleged that Mr. Singh used most of the investors’ money for personal expenses and loans. It is further alleged that at the time of the relevant time Mr. Singh did not have a license to sell shares and he also failed to provide his investors with a prospectus.

[4] Mr. Singh is self-represented. He has consistently indicated an interest in retaining counsel but to date has failed to do so. The judge conducting the judicial pre-trial in this matter provided Mr. Singh with information about representing himself. Mr. Singh was also provided with a witness list prior to the original trial date.

[5] After some delays in this matter, including an adjournment of the trial in September, 2019, the trial finally began in March, 2020, just as Canadians were starting to become concerned about COVID 19. After two days of evidence, Mr. Singh sent a text to the lead investigator in this case advising he had a fever and was vomiting as such he was going to attend at hospital and would not be at court. I was advised at the same time that the day before Mr. Singh had expressed an interest to the lead investigator in attending a gymnastics competition for his daughter on the Thursday. At that time there was some discussion about the prosecution potentially bringing an application not conduct the trial in absentia. After some discussion, I noted that we were in the middle of flu season and the matter was put over to the next day. I specifically did not order that Mr. Singh bring a medical note. I stated “So I am not, at this stage, going to demand that he bring me a medical letter. If he is not – if I was home with stomach flu for 24 hours, I would be absolutely furious if my lawyer said, ‘Despite the fact that you are vomiting non-stop, run to the doctor’s office and get me a note’”. I further stated “I am not going to rush to conclusion he is just making this up. I just think that is an unfair process”. The next day, Mr. Singh attended court but advised he was still ill so I adjourned court for the day. The following day, Mr. Singh did not attend court. Instead he advised the OSC that he was too ill to attend court and was returning to hospital. At that point I did ask for proof that he attended hospital. This matter was set to continue two weeks later but did not because the courts closed in response to the COVID 19 pandemic. A new date of March 2021 was set and six weeks of trial time was set aside.

[6] In the week prior to this matter proceeding in March 2021, Mr. Singh brought an adjournment application. In support of his application, he filed two affidavits, one from himself and one from a civil litigator who he had consulted to some degree about this case. Mr. Singh, in his affidavit stated that he is not prepared to attend court during the pandemic for health reasons and was unable to participate in a virtual trial due to the fact that he is completely computer illiterate and does not even own a computer. The civil litigator asserted in his affidavit that, in his opinion, no one facing document heavy charges could have a fair trial where the trial was conducted virtually.

[7] Counsel for the OSC advised that they while the doubted the veracity of Mr. Singh’s assertion that he was completely computer illiterate given his past business endeavors, his ability to email and communicate electronically with the OSC, his educational qualifications, the fact that a computer was located in his office at the time of arrest and the presence of work product from his businesses on this computer, they were nonetheless prepared to assist him with access to a computer and provide technical assistance during the entire trial. Specifically, the OSC offered to rent a computer for Mr. Singh, have it delivered to his residence, hire a technology firm to assist Mr. Singh with setting up the computer and then retaining this firm to assist Mr. Singh with the technology throughout the entire trial. Moreover, Mr. Singh already had paper and electronic copies of all the exhibits so Mr. Singh could choose to view the documents electronically or in paper form. In addition, the OSC prosecutor is providing Mr. Singh with all the transcripts of the proceedings and daily lists of what documents are being referred to in court by both their electronic and paper identifiers. After hearing all that the OSC was prepared to do to assist, Mr. Singh abandoned his adjournment application. I advised Mr. Singh that I would not compel him to attend the courthouse in the middle of the pandemic.

[8] Just as we were about to start hearing further evidence in this matter, Mr. Singh renewed his application for an adjournment stating that the OSC was refusing to pay for the tech support that he required and that he was still unable to use the computer. Counsel for the OSC assured me and Mr. Singh that the OSC was bearing the entire cost of the rental computer and the tech support for Mr. Singh. I adjourned the matter for the day so that Mr. Singh could meet (via telephone) with the tech support staff and set up his computer. I understood that this resolved his immediate concern.

[9] On April 2, 2021, we were on the second last day of Ms. Toldedano’s evidence, the first witness for the prosecution. Ms. Toledano was the lead investigator with the OSC and her role as a witness was to review the records filed as exhibits in this matter, and provide a source and use analysis of the bank and business records. We were not scheduled to sit the following week. Ms. Toledano’s final day of evidence in-chief was to be on April 12, 2021. I advised Mr. Singh that it would be wise for him to use the week off from trial to review Ms. Toledano’s evidence and the relevant documentation so that he would be ready to cross-examine her. On the day we were to continue the trial, Mr. Singh brought another adjournment application. This time, he alleged that the virtual trial was not working for him as he was unable to follow the evidence electronically and because he was too physically and mentally ill to absorb the evidence and represent himself. In support of his application Mr. Singh filed an affidavit repeating his physical ailments and his concern about his inability to use the technology and understand the proceedings on zoom. He also added new information about him feeling mentally unwell along with a letter from his family doctor. His family doctor, Dr. Hack, wrote that Mr. Singh is in distress and that his legal proceedings should be adjourned.

[10] Counsel for the OSC cross-examined both Mr. Singh and Dr. Hack. Mr. Singh maintained that he was both physically and mentally unwell, that he cannot concentrate, that he cannot engage with court documents electronically and that he cannot have a fair trial at this time. Dr. Hack confirmed in his evidence that he met with Mr. Singh over the telephone for five to ten minutes during which time Mr. Singh reported that he was very distraught and emotionally unwell. It was Dr. Hack’s opinion that Mr. Singh appeared to be in crisis. Dr. Hack attributed Mr. Singh’s mental health issues to these proceedings and as a result took the position that Mr. Singh’s trial should be adjourned until Mr. Singh has received some psychological assistance. Dr. Hack referred Mr. Singh for psychotherapy and CBT. Mr. Singh advised that he has an appointment in July 2021. Dr. Hack also testified that besides some complaints about dermatological concerns Mr. Singh has otherwise been healthy.

[11] I understand from Singh that since his arrest on these charges, he has struggled with his mental health. He has sought assistance at times but has at no point engaged in any counselling. At one point he was referred to a mental health practitioner but while some appointments were scheduled, they were all cancelled, and Mr. Singh has not made other attempts to access treatment and/or counselling. He was assessed by Dr. Pollandi back in 2019. The material in relation to this assessment was the subject of the earlier adjournment application which was granted.

Issues and the Law

[12] The essence of the adjournment application brought by Mr. Singh is that he cannot receive a fair trial and make full answer and defence at this time. He has identified the barriers as follows:

a) He cannot have a fair trial over zoom due to his computer illiteracy and the nature of virtual trials b) He cannot have a fair trial as he is too physically ill to engage meaningfully with the process c) He cannot have a fair trial because he is so mentally unwell that he cannot follow along with the proceeding, understand the evidence and formulate questions for cross-examination

[13] I will address each of these concerns separately and then together as I am mindful that all three factors combined may have a different effect than any one factor on its own. I do note, however, that Mr. Singh was provided with the option of attending in person for his trial. For good reason he does not want to come to the courthouse given the present state of the pandemic.

a) Computer literacy and virtual trials

[14] This argument as raised by Mr. Singh, has two components, the first is Mr. Singh’s ability to navigate a virtual trial and the second is whether, regardless of his capacity, can he have a fair trial if it is conducted virtually.

[15] In order to address this issue, I need not make a factual finding about whether or not Mr. Singh is capable of using a computer himself. This is because the prosecution has set this up so that Mr. Singh need not be responsible for any of the technology related issues that arise during a trial. They have provided him with a computer, they have hired a technology firm that can access his computer remotely so that they can log Mr. Singh into zoom, set up his computer screen and even post documents for him if necessary. In other words, Mr. Singh does not need to worry at all about any of the technology. This ensures that Mr. Singh can focus on the evidence instead of being distracted by technology.

[16] Mr. Singh has also indicated that he is not capable of following along when the exhibits are on the computer screen. Fortunately, he does not have to. Mr. Singh has a physical copy of all the exhibits. Moreover, the prosecutor for the OSC always provides both the electronic and paper citation for the documents we review in court. In many ways this virtual trial is identical to what was taking place in the courtroom back in March 2020. Ms. Toledano was on the stand and we all had the paper documents we could go through along with the witness. After giving my decision with written reasons to follow last week, I was advised by Mr. Singh for the first time that he did not have his paper copies with him because he had given them to a person who was going to assist him with his defence. I understand that Mr. Singh is taking steps to have the exhibits returned so he can make use of the physical exhibits during the next witnesses.

[17] In my view, all these steps taken by the OSC directly address any concern that Mr. Singh may have had about using a computer for this trial. I am satisfied that Mr. Singh’s lack of computer literacy does not impact his ability to defend himself in this case.

[18] The lawyer who signed the affidavit in support of Mr. Singh’s original application for an adjournment identified a host of concerns he had about Mr. Singh having a virtual trial. It was his opinion that it would be negligent to conduct or participate in a virtual trial. As hundreds of virtual trials have taken place since September 2020 in Ontario by extremely capable and talented lawyers I am confident that people can have fair trials over zoom and that it is not negligent for lawyers to conduct trials over zoom. Moreover, many of the factors cited by this lawyer for why a zoom trial is not viable, do not exist in this case. For example, the lawyer wrote in his affidavit that it is confusing when the exhibits are placed on a computer for viewing in a virtual trial and that it is difficult to comprehend the documents when they are scrolled through on the computer. Fortunately, in this case, Mr. Singh has paper copies of all the exhibits so he can look at the paper copies as the witnesses go through their evidence. The concern about not absorbing computer documents does not apply here. The lawyer also wrote that presenting the exhibits on the computer is confusing and fails to create an adequate record of what exhibit is being discussed. In the case at bar, the prosecution clearly states on the record the electronic and paper identifier for every page we look at. Moreover, he provides a written running list of the materials to Mr. Singh after each court date.

[19] The lawyer, in his affidavit also stated as follows:

i) That cross-examination of a witness located in the comfort of their own home was not effective ii) That body language is not visible in a virtual trial and this affects cross-examination iii) That counsel cannot properly develop submissions in a virtual trial because of the lack of access to transcripts and exhibits.

[20] I appreciate that the lawyer who filed the affidavit may believe that he cannot cross-examine a witness effectively when that witness is in the comfort of their own home as opposed to a courtroom, but he failed to explain what about being in the comfort of one’s home makes a cross-examination less effective. An opinion without any explanation for why the witness holds this opinion is of little evidentiary value. I fail to see what about a witness testing from home makes the cross-ex less effective and do not consider this to be a valid basis to adjourn Mr. Singh’s trial.

[21] Similarly, in relation to the body language issue, in the present zoom trial, the cameras clearly show the face, shoulder, upper body and arms of the witness. In fact, at times I have a better view of the witness over zoom than I do in some of the courtrooms at Old City Hall. I do not see how myself or the parties in this case are less able to see and assess body language in the zoom trial that has been taking place with Mr. Singh. I note that the lawyer who filed the affidavit has never attended the proceedings and therefore does not know what body language is visible in this case.

[22] Finally, in relation to the assertion that submissions cannot be developed, this opinion was based on Mr. Singh not having transcripts of the proceedings. I understand that Mr. Singh will be given transcripts of every single day in court. In my view, the accommodations provided to Mr. Singh will afford him ample opportunity to formulate and prepare submissions.

[23] In my view, this aspect of Mr. Singh’s motion must fail. Any concerns about conducting this trial over zoom have been adequately addressed. I am satisfied that Mr. Singh can have a fair trial and properly represent himself in this virtual trial. If at any point, however, Mr. Singh would rather convert this to an in person trial, I will have no difficulty accommodating this.

b) Physical Health

[24] Mr. Singh has also referenced physical health concerns throughout this trial. In the motion filed in March, 2021, Mr. Singh referenced being hospitalized back in March, 2020. With the greatest of respect to Mr. Singh, this is inconsistent with other information Mr. Singh has provided. It is my understanding that in March, 2020 Mr. Singh went to hospital as he was feeling unwell. I was advised that some tests were conducted and no diagnosis made and at no time was he admitted for observation or treatment.

[25] Mr. Singh indicated in his affidavit that he has thyroid disease and high blood pressure. There is no indication that these two ailments affect his day to day ability to work, listen and engage with the trial process. Mr. Singh also indicated that he has dermatological issues and that he was being referred for a biopsy. Dr. Hack was asked about Mr. Singh’s physical health. According to Dr. Hack, who is Mr. Singh’s family doctor, he has referred Mr. Singh to a dermatologist because he has complained about a skin irritation. Dr. Hack testified that Mr. Singh is otherwise is good health.

[26] I have also had the benefit of watching Mr. Singh over the past few weeks. I am satisfied that there is no immediate physical health issue that is interfering with Mr. Singh’s ability to represent himself. Mr. Singh can always provide me with additional medical documentation if there are ongoing health issues that interfere with his ability to attend his trial. If the proper medical documentation is provided, I am willing to re-address this aspect of his application.

c) Mental health

[27] The more complicated issue is Mr. Singh’s assertion that he is too distraught and emotionally fragile to listen to the proceedings and absorb what is taking place in court. He claims to not understand the evidence thus far, to not understand the legal concepts raised, and to being overwhelmed by the process.

[28] In my view, it is necessary to break this argument up into two pieces; i) fitness to stand trial and ii) ability to represent himself.

[29] Our criminal justice system prohibits any judge from proceeding with a trial where a defendant is unfit to stand trial. While everyone is presumed fit, once there is any doubt about a defendant’s fitness to stand trial, the trial judge has an obligation to make inquiries. The case of R. v. Taylor, [1992] O.J. No. 2394 (C.A.), is the leading case on fitness to stand trial. It is a relatively low tests and involves the defendant knowing the roles of all the participants in the trial, the nature of the proceedings that they are facing, understanding his/her plea options and having the ability to instruct counsel. In the case at bar, while Mr. Singh has indicated a history of being depressed and anxious, I am satisfied beyond a reasonable doubt that he is fit to stand trial. He knows the charges he is facing; he has consistently demonstrated an understanding of his plea options; the nature of the charges; the potential consequences if found guilty; and an ability to make meaningful submissions to this court.

[30] In many cases this would end the inquiry. I do not mean to minimize the stress associated with a criminal trial, but being depressed and/or anxious because one is facing serious criminal charges is not unusual nor is it a basis by itself to adjourn a trial. In the case at bar, however, Mr. Singh is self-represented. I therefore need to focus on whether or not Mr. Singh is capable of representing himself. At this stage, I note that Mr. Singh has been given ample opportunity to retain counsel and has not done so. While I appreciate that he maintains that he would like to retain counsel, I am satisfied that Mr. Singh has been given a sufficient amount of time to make this happen.

[31] While I would not grant an adjournment solely for the purpose of giving Mr. Singh more time to retain a counsel, given my finding that he has been given more than enough time to retain counsel and the absence of evidence that he will actually retain counsel if given more time. I am required to adjourn this matter, however, if Mr. Singh is not able to represent himself adequately. I must remind myself that Mr. Singh has a constitutional right to a fair trial and to make full answer defence. If he is not able to adequately represent himself, he cannot be said to have had a fair trial or be given a real opportunity to make full answer and defence.

[32] Mr. Singh has testified that he is depressed, overwhelmed by the process, cannot understand what is happening in court and that the evidence is lost on him. Dr. Hack testified that Mr. Singh sounded distraught when he spoke to him last week and self-reported anxiety. In opposing this application, the prosecution has alleged that Mr. Singh is faking this mental health issue and pointed to several things to support this position in particular

i) Mr. Singh told Justice Clark almost two years ago that he was on anti-depressants when this was not true; ii) Despite claiming mental health problems over the past three years, Mr. Singh has never followed through with any therapy or treatment; and, iii) Mr. Singh’s mental health issues only seem to come up when he is about to have to proceed with this trial.

[33] In my view, I do not have sufficient evidence to find that Mr. Singh is being untruthful about his present feelings of being overwhelmed and distraught. While I appreciate that they are suspect for the reasons highlighted by the prosecution, I am unable to make a conclusive finding on Mr. Singh’s credibly on this point. While Mr. Singh’s comments to Justice Clark that he was anti-depressants when he was not in concerning, I appreciate that at times people misspeak. I therefore cannot find that he was intentionally misleading to Justice Clark.

[34] I nonetheless am satisfied that Mr. Singh is capable of representing himself and that he can make full answer and defence. I am also satisfied that his right to a fair trial will not be compromised by this matter proceeding as scheduled. I reach this conclusion for a number of reasons. Firstly, Mr. Singh’s submissions on the adjournment application established that despite being distraught and overwhelmed, he is more than capable of listening to the evidence, keeping track of the evidence and make compelling arguments on his behalf. Secondly, Mr. Singh clearly must understand the essence of the allegations and evidence against him as he was able to explain to the court a potential defence to the charges – namely that he hired others to care for his business and thus was not responsible to the alleged mis-use of funds. Thirdly, Mr. Singh is a highly educated, successful businessman. His numerous certificates, degrees and qualifications were reviewed during his cross-examination at the earlier adjournment application. I have every confidence that Mr. Singh is capable of understanding the banking records and business documents that the prosecution is relying on in this case. I am further confident that Mr. Singh is capable of questioning witnesses. Fourthly, every step possible has being taken to make sure that Mr. Singh is not being asked to make any concessions about legal issues and the prosecution is being put to strict proof of every issue so as to ensure that Mr. Singh’s rights are protected. Fifthly, Mr. Singh has indicated that he does have at least one person in the community who is able to assist him with his defence. Sixthly, Mr. Singh has been permitted to delay his cross-examination of Ms. Toledano, the most complex witness, until the of the Crown’s case. This will give him ample time to consult with others, review the exhibits and the transcripts while he prepares his cross-examination. Finally, in order to reduce the stress associated with a long trial, Mr. Singh will be afforded as many breaks as he requires and has been given the option of sitting half days or every second day if this will assist him in gathering his thoughts.

[35] When I consider all the evidence, I am satisfied that while Mr. Singh may be anxious and distraught over this prosecution, he is still capable of focusing on the material, absorb the evidence, formulate questions for cross-examination and make meaningful argument on his own behalf. I have considered whether I should appoint amicus in this case. I have decided that at this time appointing amicus is not necessary. I note that the prosecution is not relying on any expert evidence and that the vast majority of the witnesses that the prosecution proposes to call are civilians who had personal contact with Mr. Singh. In my view, at this stage, I am satisfied that Mr. Singh can meaningfully represent himself and engage in his trial. I therefore dismiss his application for an adjournment.

Released April 20, 2021 Justice Mara Greene