Court File and Parties

Court File No.: 11-70000264-0000
Date: 20121016
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Nick Angelis

BEFORE: M. A. Code J.

COUNSEL:
Vanessa Glasser, for the Crown
Nick Angelis, representing himself

HEARD: October 9 and 10, 2012

ENDORSEMENT

[1] These are my Reasons for dismissing a Rowbotham Application brought by the accused, Nick Angelis (hereinafter, Angelis), at the beginning of his trial.

[2] Angelis is charged with a single count of “fraud over”. It is alleged that he defrauded his employer, Dayco Canada Corp., of about $1.3 million over a five year period while working in the company’s accounting department. On arraignment, he initially pleaded not guilty but quickly changed his plea to guilty and admitted facts establishing that he had defrauded Dayco of $303,000. He disputes the remaining $1 million fraud alleged by the Crown and we are now in the midst of a Gardiner hearing in which the Crown seeks to prove the larger fraud, that is, the total quantum of the fraud, as an aggravating factor on sentence. See: R. v. Gardiner (1982), 68 C.C.C. (2d) 477 (S.C.C.).

[3] The fraudulent means, already admitted by Angelis on his guilty plea, involved altering the name of the payee and then forging authorizing initials on a number of company cheques, totaling $303,000, so that the cheques became payable to him. The further fraudulent means that the Crown seeks to prove on the Gardiner hearing, involve allegedly unauthorized cheques made payable to Angelis, or deposited directly into a joint account that he held with his wife, as well as the unauthorized purchase of goods and services that were allegedly for his personal benefit and that were paid for with company cheques.

[4] The three requirements that an Applicant must establish, in order to succeed on a Rowbotham Application, are as follows:

(i) First, that Legal Aid has been refused. The Crown concedes this first requirement as Angelis has applied, been refused, and has exhausted his Legal Aid appeals;

(ii) Second, that he is indigent in the sense that he is incapable of retaining counsel privately for the particular proceeding. In this case, the proceeding in question is a Gardiner hearing that is anticipated to last three or four days and that involves three or four Crown witnesses and a large number of documents such as cheques and invoices;

(iii) Third, that the nature of the proceeding is such that representation by counsel is “essential” to the accused’s right to a fair trial. The length, complexity and seriousness of the proceedings, as well as the accused’s capabilities are important considerations in relation to this third requirement.

See: R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.); R. v. Rushlow, 2009 ONCA 461.

[5] I dismissed the Application at the end of oral argument because I was not satisfied that either the second or third criteria had been met. In relation to the third requirement, Angelis worked in the accounting field from about 1992 until 2006 and he studied the C.G.A. accounting program throughout this period. He almost completed that program. He clearly understands the transactions that are alleged against him and he is familiar with the relevant documents and business practices. He represented himself at the two day preliminary inquiry before Wolski J. where he cross-examined the Crown’s two principal witnesses, including the Crown’s forensic accountant. In his testimony on the Rowbotham Application, Angelis conceded that he thought the preliminary inquiry went reasonably well, that he understood the allegations, that he posed questions based on his understanding of the facts, and that he got answers that he understood. He also conceded that the documentary record is clear as to where the money went. Finally, he acknowledged understanding the basic concept of fraud alleged in this case, namely, the unauthorized taking of money from an employer by various allegedly dishonest means. His only concern is that there might be some legal complexities or some legal remedies or some unanticipated motions, that might arise at the hearing, but of which he is presently unaware.

[6] I am satisfied that the issues on the Gardiner hearing are relatively simple and that Angelis is capable of handling them. The hearing will be relatively short and, with some assistance from me in helping him to frame appropriate questions and to raise relevant issues, his right to a fair trial will not be compromised. In this regard, the present Application bears a number of similarities to two other recent Rowbotham Applications in large fraud cases that were heard in this Court. See: R. v. Williams, 2011 ONSC 7406 per. Molloy J.; R. v. Tang, September 29, 2011 per. Nordheimer J.

[7] Although it is not strictly necessary to go on and address the second Rowbotham requirement, I note the following four relevant circumstances:

• Angelis was on bail from November 2006 until April 2012, while his case proceeded through two levels of the Courts. During this extraordinary period of delay, he was working and earning income that could be utilized for his defence;

• Angelis did retain counsel privately from time to time, both in relation to the present criminal charge and in relation to related civil proceedings. He testified that he has paid about $17,000 in lawyers’ fees, of which some $12,000 was for the criminal matter;

• Angelis leased a second car for his family during the latter part of the period when he was on bail, that is, from 2009 to 2012. It was a Land Rover and the lease payments have totaled about $36,000;

• He obtained funds from his family to retain counsel for a two day bail hearing in the Ontario Court, on July 4 and 5, 2012, after he was taken into custody in April, 2012. He then obtained further funds from his family and retained counsel to bring an unsuccessful bail review in this Court on September 21, 2012, a few weeks before his trial was to commence.

[8] In all these circumstances, I am not satisfied that he is unable to retain counsel privately for this relatively short Gardiner hearing. He has clearly been able to obtain money, and to retain counsel, when the expenditure was a priority.

[9] I do not deny that it is a hardship for Angelis to defend himself, while he is in custody, and his present circumstances are undoubtedly difficult. I will do everything I can to ameliorate those difficulties and to help him have the time and the access to documents and any access to counsel that he needs, in order to prepare properly. However, his present circumstances simply do not meet the legal test for a Rowbotham Application.

[10] It is for these reasons that I dismissed the Application.

M.A. Code J.

Date: October 16, 2012.