SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CNJ 7837

DATE: 2013-09-09

RE: R. v. Natasha Swiech-Lemon

BEFORE: The Honourable 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 her pending the Attorney General of Ontario or the Ontario Legal Aid Plan providing funding for her 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 with assault causing bodily harm contrary to section 267 (b) of the Criminal Code of Canada. It is alleged that the applicant punched the complainant at a bar, and proceeded to punch her while she was on the ground, causing the complainant to suffer a concussion. The Crown Screening Form attached as an exhibit to the applicant's affidavit indicates that the Crown will seek a jail sentence if she is convicted.

[3] The applicant filed an affidavit in support of her application deposing that she is 37 years of age, graduated from high school in 1996 and holds a business diploma from Ontario Business College, a private business school in Kitchener. She has three children aged 17, 15 and 11 and is their sole financial support, receiving no support from their fathers. She deposed that she currently is in a relationship with a male who has lived with her off and on for one year, but he is not employed and she receives no money from him.

[4] The applicant further deposed that she is employed as a personal support worker and has been full-time in this occupation since August, 2012, prior to which she worked part-time and Ontario Works supplemented her income. Since July 16, 2013 the applicant has been on restricted duties having sustained a work-related injury, and works 37 hours per week, earning $13.90 per hour. Her line 150 income for 2012 was $27,249.57.

[5] The applicant stated in her affidavit that her education level would not allow her to conduct a criminal trial, and that she has never been before a tribunal, court or any government panel. She says that she would not be able to formulate a defense to present to the court.

[6] She deposed that she intends to present a defence of self-defence, but has been advised by duty counsel, who reviewed the Crown disclosure for her, that she would require a lawyer as self-defense is a complicated area of the law. The applicant was diagnosed with dyslexia as a child. However, she did acknowledge that this condition does not affect her comprehension.

[7] The applicant applied to Legal Aid Ontario and was refused funding. The reason given was that she failed to meet the financial requirements, as her income or assets exceeded the amount necessary to qualify for legal aid assistance. She appealed the decision to the Area Committee, which was refused, and appealed further to the provincial office of Legal Aid Ontario and was similarly refused.

[8] The applicant contacted a defense counsel, Mr. Mattson, but states that she could not afford the retainer suggested by him or the proposed fees for trial. On cross examination she acknowledged that Mr. Mattson did not provide her with an estimated cost of legal representation. She further acknowledged that she did not seek out any alternate counsel who would be prepared to take on the case for a reduced fee or on the basis of a payment plan.

[9] The applicant indicated that she has not been able to save money to hire a lawyer as she does not have any funds left at the end of the month given her expenses for herself and her children. She pays $1000 per month in rent, $250 for phone and cable, $400 for food, $100 for Hydro, $400 for a furniture lease, $240 for insurance and $350 in car payments.

[10] On an application such as this, the onus is on the applicant to show, on a balance of probabilities, that:

(a) she has been refused legal aid and has exhausted all appeals in that regard;

(b) she lacks the means to employ counsel; and

(c) her representation by counsel is essential to a fair trial.

(See R.v. Rushlow 2009 ONCA 461 (CA) at para. 17)

[11] It is acknowledged by the Crown that the first requirement has been satisfied in that the applicant has exhausted her attempts to obtain legally funding for defense. The Crown, however, does not acknowledge that she lacks the means to employ counsel and submits that she has not provided information on how she has attempted to arrange her financial affairs or sought the support of family members for assistance to privately retain counsel, nor has she provided proof of efforts to find a lawyer willing to act for her at a reduced rate or on a payment plan for a relatively short criminal matter. Although the applicant did not provide an estimate of the anticipated legal cost, counsel for the Crown estimated it at $1,500.00 based upon 15 hours at $100.00 per hour.

[12] 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.

[13] The applicant argues that she is unsophisticated and has no experience, through her employment or otherwise, which would prepare her, in any manner, to defend herself in relation to the charges, and points in particular to the complexity of the law of self-defence and provocation in light of recent amendments to the Criminal Code.

[14] 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).

[15] 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.

[16] 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.

[17] 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 applicant does face possible incarceration if she is convicted, but any such penalty, if imposed, would likely not be in the most serious range of possible sentences of incarceration. Moreover, it is far from clear and that the applicant will receive a custodial sentence even if convicted.

[18] From the evidence, it appears that the trial relating to the charges faced by the applicant in this case will be relatively brief. The Crown has indicated that the trial is estimated at less than four hours and the amount of disclosure is very brief. The Crown’s case will evidently consist of calling three witnesses, the complainant, a witness and the investigating officer.

[19] In R. v. Cooper unreported, 2011 April 27, the argument of the applicant in that case that proposed defences such as self-defence and defence of others are complex was rejected. Justice Hardman, at para. 25, pointed to the obligation of the trial judge to assist an unrepresented accused in understanding the process and to remain alert to any issues that arise that might be significant to the accused, indicating that testimony that raises the issue of self-defence would certainly attract the attention and scrutiny of any trial judge.

[20] In her testimony on the hearing of this matter, the applicant demonstrated an understanding of the nature of the charges against her and the Crown’s case, as well as an ability to participate effectively in a relatively simple court proceeding. The expected actual issues at trial are straightforward. There is no indication that the trial will require forensic, technical or other expert testimony, nor will there be any Charter or other pre-trial applications.

[21] 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).

[22] The applicant has failed to discharge the onus on her to show, on a balance of probabilities, that her representation by counsel is essential to a fair trial of the charge against her. In light of this is not necessary for me to make a determination as to whether she has arranged her affairs and taken appropriate steps to retain counsel privately in relation to the second prong of the test. However, I would observe that the onus is on the applicant to satisfy the court that she has exhausted all possible routes to obtain counsel to the extent necessary to ensure a fair trial in the particular circumstances of the case (see R. v. Drury 2000 MBCA 100 (Man CA) at para. 33). This would include, among other things, efforts to save for the costs of counsel and to exercise prudence with expenses and prioritization of payment of legal fees (see R.v. Malik 2003 BCSC 1439 (BC SC) at para. 23). The applicant has been employed on a full-time basis since the date that she was charged on October 3, 2012 and she has not, in the interim, demonstrated any effort or progress towards saving for the relatively modest amount required for her defence.

[23] For the reasons set forth above, the application is dismissed.

D. A. Broad J.

Date: September 9, 2013