COURT FILE AND PARTIES
COURT FILE NO.: CNJ Misc. 7836
DATE: 2013-09-09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. STEPHEN RAU
BEFORE: The Honourable Mr. Justice D.A. Broad
COUNSEL:
Abel Fok, for the Crown
David McCarthy, for the Accused/Applicant
HEARD: August 12, 2013
ENDORSEMENT
[1] This is an Application by the accused for an order pursuant to sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms staying the prosecution of the charges against him pending the Attorney General of Ontario or the Ontario Legal Aid Plan providing funding for his defense. This type of application is known as a Rowbotham application after the case of R. v. Rowbotham (1988) 1988 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.).
[2] The applicant is charged under the Highway Traffic Act RSO 1990, c. H.8 (the “HTA”) with failure to stop for the police contrary to section 216(1) (2) and (3). It is alleged that the applicant was speeding and then willfully refused to stop for the police while they were in pursuit of him. The Provincial Prosecutor has indicated that, upon conviction, a sentence involving incarceration would be sought. Subsection 216(3) of the HTA, which references a willful continuation to avoid police, provides for a minimum period of imprisonment of 14 days upon conviction.
[3] The applicant filed an affidavit in support of his application deposing that he is 62 years of age with a grade 12 education. He has not worked regularly since the 1980’s and since 2002 has worked sporadically, with the longest period of employment being nine months. Most of his work is on short contracts or through employment agencies. He last worked in a manufacturing/warehouse setting from November 2012 through June or July 2013. In his oral testimony at the hearing, he advised that he is now on Employment Insurance receiving $220 per week. His rent is $665 per month plus hydro-at $35 per month. He has a 2001 vehicle worth $1,500.00, provided by his sister on the basis that he pay her for it when he is able. He has $100 per month after payment of rent, hydro and cable (which he uses for telephone and internet service). He obtains his food from a food bank.
[4] Regarding his health, the applicant indicated that he has hepatitis C, is losing his hearing to some degree and has a sore back which affects his ability to do heavy manual labor or repetitive lifting.
[5] The applicant applied to Legal Aid Ontario for funding which was refused. He appealed to the area committee and the appeal was denied. His further appeal to the provincial office of Legal Aid Ontario was also denied.
[6] Based upon consultation with his proposed counsel, Mr. Mattson, the cost of his defense was estimated in the sum of $2,000.00 to $2,200.00. He did not approach any of his siblings to borrow funds for his defense as he has no prospect of paying them back.
[7] On cross examination the applicant acknowledged that he did not approach any other lawyers or paralegals to determine whether he would be able to obtain representation at a lower cost or on a payment plan.
[8] On an application such as this, the onus is on the applicant to show, on a balance of probabilities, that:
he has been refused legal aid and has exhausted all appeals in that regard;
he lacks the means to employ counsel; and
his representation by counsel is essential to a fair trial.
(See R.v. Rushlow 2009 ONCA 461 (CA) at para. 17)
[9] The Crown concedes that the first requirement has been satisfied, in that the applicant has exhausted his attempts to obtain legal aid funding for his defense. The crown also concedes that the applicant is indigent, however, it does not concede that he has organized his financial affairs since the date of the charge in order to prioritize funding his defense, or exhausted all private avenues to obtain funding.
[10] The Crown also argues that the circumstances do not show that the applicant's fair trial rights will be breached in the absence of representation by counsel.
[11] Setting aside the question of whether the applicant has demonstrated an inability to retain counsel, it is useful to consider whether the third ground, namely that representation by counsel is essential to a fair trial, has been made out by the applicant.
[12] The applicant argues that the trial will be serious and complex as it will turn on the cross examination of the police officers, and in particular of the arresting officer at trial or on any voir dire. He suggests that there is a possibility of an application related to a Charter violation. He argues that he is unsophisticated and has no experience, through his employment or otherwise, which would prepare him in any manner to defend himself in relation to the charges.
[13] The law is clear that representation by a lawyer is not a prerequisite to a fair trial. Where an accused represents himself or herself, there are other means by which his or her rights to a fair trial may be protected, the foremost being the duty of every trial judge to ensure that all persons receive a fair trial (see R.v. Rain 1998 ABCA 315 (Alta CA) at para. 36).
[14] The Court in Rain, at para. 87, made the following important observation:
In considering whether a charge is so serious and complex that court-ordered counsel is required the basic premise must be that the trial judge will do everything appropriate to ensure a fair trial. Counsel should be ordered only in cases where, notwithstanding the fullest use of the trial judge's authority, the complexity or length, and the seriousness of the case alter the trial process so as to make it unfair.
[15] While the prospect of a sentence of incarceration is real if the applicant is convicted of the offense under subsection 216(3) of the HTA, the authorities make it clear that the possibility, or even probability, of incarceration following conviction does not, by itself, justify the making of an order for state funding. It is necessary to examine the nature of the charges in carrying out an analysis of the seriousness and complexity of the trial. In the case of Manitoba (Attorney General) v. Legal 2009 MBPC 26 (Man Prov. Ct.) at para. 60, the Court cited a number of cases in which an accused had been denied state-funded counsel when facing incarceration, but the charges had nonetheless been found not to be sufficiently serious to put the accused’s section 7 Charter right to security of the person at risk. Justice Carlson, in that case, noted that the distinction between these situations and cases like Rowbotham and others, where state funding has been ordered, is that in the latter cases the offenses carry the possibility of long-term incarceration and restriction on the accused's physical liberty.
[16] In R. v. Tang 2011/09/29 Endorsement of Nordheimer, J. (Ont. SCJ), in a case relating to alleged fraud involving over 200 investors and $50 million, Justice Nordheimer made the following comment at para. 10:
While all criminal charges are by definition serious, the charges here are not the most serious ones known to the law. [The accused] does face possible incarceration if he is convicted, but any such penalty, if imposed, would likely not be in the most serious range of possible sentences of incarceration.
[17] Counsel were not able to point to any previous case in which a Rowbotham order has been made in respect of charges under the HTA. Although the HTA has criminal aspects to it, and indeed, in the present case incarceration upon conviction may be mandatory, it is in essence a regulatory statute, concerning itself with the regulation of vehicular traffic on public highways in the Province. The Supreme Court of Canada in R. v. Wholesale Travel Group Inc. [1991] 3. S.C.R. 154, at paras. 149 and 150, stated that a contextual approach is to be taken on a determination of the balance to be struck between individual rights and the interests of society under the Charter, and that the rights asserted by an applicant are to be considered in light of the regulatory context in which the claim is situated, acknowledging that a Charter right may have different scope and implications in a regulatory context than in a truly criminal one.
[18] From the evidence, it appears that the trial relating to the charges faced by the applicant in this case will be relatively brief and the issues discrete. The minimum sentence of 14 days upon conviction of the more serious charge under subsection 216(3) of the HTA is far from the most serious range of possible sentences of incarceration. In his testimony in the hearing of this matter, the applicant demonstrated an understanding of the nature of the charges, was able to put forward his own version of the underlying facts in an understandable and coherent manner, and demonstrated an ability to participate effectively in a court proceeding.
[19] Despite the suggestion of the possibility of a Charter application and the importance of an effective cross examination to a successful defense, I am not satisfied that this is a case of sufficient seriousness or complexity that representation by counsel is essential to a fair trial.
[20] The desirability and benefits of representation of an accused by counsel is acknowledged generally, however, that is not the test for a Rowbotham order (see R.v. O’Hearn, unreported decision of Perron, J. October 1, 2012, at pp. 5-6).
[21] The applicant has failed to discharge the onus on him to show, on a balance of probabilities, that his representation by counsel is essential to a fair trial of the charges against him under the HTA. In light of this is not necessary for me to make a determination as to whether he has arranged his affairs or taken appropriate steps to retain counsel privately in relation to the second prong of the test.
[22] For the reasons set forth above, the application is therefore dismissed.
D. A. Broad J.
Date: September 9, 2013