SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-A10255
DATE: 20120208

RE: R. v. Alvarez

BEFORE: Honourable Justice T.D. Ray

COUNSEL:
Moize Karimjee, Counsel, for the Crown
Marina Alvarez, applicant, self represented

HEARD: February 8, 2012

ENDORSEMENT

[ 1 ] Ms. Alvarez seeks an order for funding of the cost of transcripts for her pending Summary Conviction Appeal from her July 6, 2011conviction by Nadelle J of two counts of assault. She filed a typewritten copy of her argument just before argument – which I have reviewed. Her position is that her income exceeds the amount required in order to qualify for legal aid, and that she can’t afford the cost. She contends that the provisions for financial assistance for self represented litigants in the criminal process are inadequate. She argues that R v Rowbotham , 1988 147 (ON CA) , [1988] OJ No. 271 , 25 OAC 321 (ONCA) is wrong in that it sets too high a bar for judicial intervention.

[ 2 ] The Crown opposes her application on the ground that her material is inadequate in that it does not include her claim for legal aid nor evidence that her various avenues of appeal from her refusal have been exhausted.

[ 3 ] Ms. Alvarez has filed a typewritten sheet along with her argument that asserts her income is $26,000 and her family income is $57,911. She does not list or describe her assets and or liabilities, but says that her financial situation prevents her from finding the funds. In sum, no evidence of her financial position has been filed. From the file it appears the trial took one day. She advises that the transcripts would cost approximately $4,500 according to what was quoted to her. I find it hard to believe that transcripts would cost that much for a one day case. Her grounds of appeal consist of contending that Nadelle J. was wrong because she was telling the truth while the two police officers and the other family member witnesses were not. Ms. Alvarez also claims that there were Charter breaches and that the 911 tape had been tampered with.

[ 4 ] Ms. Alvarez was convicted of two counts of assault arising out of her assault of two Ottawa police officers who had been called by Ms. Alvarez’ family members to restrain her. Justice Nadelle sentenced Ms. Alvarez to a conditional discharge and imposed a twelve month probation period including a term that she attend for assessment and treatment as may be required. She told the court that she would not comply with any probation order. She later sought a variation of the probation order which was granted November 23, 2011, to remove the reporting requirement.

[ 5 ] Ms. Alvarez cannot perfect her summary conviction appeal without the transcript of the trial. There is no specific provision in the Criminal Code that allows for an appellant to obtain financial assistance for transcripts in order to proceed with the appeal. There is no automatic or enshrined right to public funding for criminal litigation. S. 684 provides for legal assistance to a party in the form of assigning counsel and funding where appropriate for an appeal. This provision has been interpreted to require that two express requirements be considered: a) interests of justice; and b) insufficient means. ( R v M(A), (1996) 1996 1112 (ON CA) , 30 O.R. (3d) 313 (ONCA) . By analogy, these principles would apply to a litigant such as Ms. Alvarez seeking financial assistance.

[ 6 ] Interests of justice: While Ms. Alvarez was convicted of two counts of assault, the sentence of a conditional discharge means that providing she completes her probationary period, no conviction will be registered. Ms. Alvarez’ probation will end in July, 2012. The reasons of Justice Nadelle are thorough, address R v. W(D) since Ms. Alvarez gave evidence, and summarize the evidence of all the witnesses. His reasons begin: “I find that the Crown’s case is simply overwhelming.....”. Nadelle J carefully weighed the evidence of Ms. Alvarez and the Crown witnesses according to his reasons. He did not accept Ms.. Alvarez evidence. Ms.. Alvarez contends that she was truthful and all the other witnesses were lying. She contends that the 911 tape was tampered with. Justice Nadelle was alive to the charter issues raised by Ms.. Alvarez and rejected them. No legal issues are in contention. From my review of his reasons, Ms. Alvarez would not likely succeed in her appeal. In any event, by the middle of July, providing she satisfactorily completes her probation, no conviction will be registered. The liberty of the subject is not here at issue as may be the case where bail review issues are in contention and may require funding. The merits of the appeal are an essential issue in determining the interests of justice. ( R v Robinson , 1989 ABCA 267 () , [1989] A.J. no 950 , 63 D.L.R. (4 th ) 289 , @paragraph 19. (Alta CA). I am not satisfied that the interests of justice require that Ms. Alvarez be funded from the public purse to enable her to continue with her appeal.

[ 7 ] Insufficient means: Ms. Alvarez has filed insufficient evidence to enable me to conclude that she has insufficient means.

[ 8 ] I cannot conclude that Ms. Alvarez has made out a case for an order for financial assistance to fund the transcripts for her appeal. The application is therefore dismissed.

[ 9 ] Ms. Alvarez must perfect her appeal within 90 days, failing which it shall be dismissed as an abandoned appeal.

The Honourable Timothy Ray

Date: February 8, 2012