ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DANIEL BARNA
Defendant / Applicant
M. Williams and M. Sokolski, for the Crown
Daniel Barna, self-represented
HEARD: August 30, 2013
J. macdonald j.
Ruling
J. Macdonald, J. (Orally)
1Mr. Barna moves for a stay of the criminal charges against him until the Ministry of the Attorney General provides funding for him to retain counsel to defend him.
2The criteria for making such an order are established in R. v. Rowbotham 1988 147 (ON CA), [1988] 41 C.C.C. (3rd) 1 (Ont. C.A) at page 45 where the Court said,
“In our view, a trial judge confronted with an exceptional case where Legal Aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided.
3As stated above, the finding of Legal Aid officials that an accused has the means to employ counsel is entitled to the greatest respect. Nevertheless, there may be rare circumstances in which Legal Aid is denied but the trial judge, after an examination of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial.”
4Summarizing, Rowbotham orders may be granted where 1) the Applicant is indigent and unable to pay for defence counsel, 2) Legal Aid has been denied and all appeals have been exhausted, 3) it is necessary to ensure a fair trial that the Applicant be defended by counsel.
5The analysis of whether counsel is necessary to ensure a fair trial is fact-specific, and requires consideration of matters such as (a) the consequences which the Applicant faces if convicted, (b) the length of the trial, and (c) the complexity of the trial.
6In turn, the issue of complexity requires consideration of the Applicant’s ability to defend his interests at trial, if self-represented.
7The Court of Appeal also described the relief sought as arising rarely, in exceptional circumstances. The applicant bears the burden of proving on the balance of probabilities that he comes within the aforesaid criteria.
8In this case, the Applicant is charged with two counts of conspiracy to commit fraud over $5,000.00, two counts of fraud over $5,000.00, and two counts of what is commonly referred to as laundering the proceeds of crime, arising out of two separate transactions.
9Initially there were seven other co-accused; at present there are three other co-accused. The alleged victims include two banks. The conspiracies allegedly involved approximately 1.5 Million dollars but the actual losses are said to be in the range of $500,000.00.
10The trial before a judge sitting without a jury is scheduled to start in ten days’ time and will last six to eight weeks.
11I do not have a precise indication of the number of documents which are likely to be placed in evidence at trial but it does appear that there will be a substantial number, the proof of which will require a number of weeks of testimony. The applicant in his submissions placed emphasis on the number of documents in submitting that the trial will be so complex that it would prejudice his right to a fair trial if he is required to represent himself. Nonetheless, the Applicant conceded that he has admitted in two separate videotaped statements to police lasting a total of approximately seven hours that he committed the acts alleged while also denying any criminal intent, or any knowledge of the alleged criminality of the other alleged conspirators.
12In short, the actus reus of the crimes alleged against the Applicant is not in issue, he concedes, except to the extent that any potential inferences of a criminal state of mind may be sought therefrom. In addition, the Applicant concedes that the Crown disclosed and produced to his former counsel the documents upon which it relies and that that was done prior to October 2011.
13The fact that the documents on which the Crown will rely have been known to or available to the Applicant for approximately two years coupled with the fact that these documents will not be put in issue by the Applicant except as aforesaid helps in delineating the extent to which the volume thereof will result in a complex trial.
14My conclusions are as follows:
In analyzing the complexity issue, it is necessary to recall that every trial judge is responsible for ensuring that every trial is fair. If an accused person is self-represented, trial fairness requires the trial judge to provide that accused person with assistance within reason, to aid in the proper conduct of his defence, and to guide him through the trial in such a way that his defence is brought out with full force and effect. The scope of this responsibility is in part within the discretion of the trial judge and in part dependant upon the nature of the particular trial. See R. v. McGibbon 1988 149 (ON CA), [1988] OJ No. 1936 (Ont. C.A.) at page 12.
15While this assistance from the trial judge is not and cannot be a substitute for counsel, it is relevant here because this assistance is premised upon the accused’s fair trial rights, like a Rowbotham order itself. Consequently, such judicial assistance will lower the risk of an unfair trial occurring if the accused person is self-represented, and that is a factor to be considered in determining whether that accused person requires counsel to ensure that his trial is fair. See also R. v. Rain 1998 ABCA 315, [1988] 130 C.C.C. (3rd) 167 at par 87 (Abta. C.A.).
16The complexity of the trial must also be determined in the light of an accused person’s intelligence, education and knowledge of the events in issue.
This is an unusual case in that the Applicant has extensive legal training and experience. He obtained his Bachelor of Laws degree in 1979 and practiced law in Ontario for 25 years, until 2004. His practice included a substantial amount of counsel work. He acted in criminal cases in both the Ontario Court of Justice and in the Superior Court of Justice. He tried fraud cases but testified that he has never tried a conspiracy case. In addition, he has prepared his own motion to stay proceedings against him due to delay pursuant to Section 11(b) of the Charter, which motion is returnable at the opening of trial.
17In respect of the complexity issue, I find as follows:
I have no doubt that defence counsel would be of assistance to the Applicant and to the Court in this long trial. However, that is not the issue. The issue is whether counsel is necessary to ensure a fair trial taking into account inter alia the complexity of the case to be presented. The length of the trial is relevant also to the complexity issue.
18I conclude that the Applicant has failed to establish that counsel is necessary to ensure a fair trial herein as distinct from the question of whether counsel would be beneficial.
19I rest this conclusion on these findings:
While there will be a substantial number of documents tendered, from the Applicant’s perspective they are not substantially in issue and consequently there is little complexity arising from the number of documents;
That is because the Applicant, having been legally trained and duly cautioned, has admitted what I will describe as the facts constituting the actus reus of the charges against him, and bases his defence on not having had the required mental elements of the various charges;
The applicant knows better than anyone what his knowledge and intention were in respect of the acts in issue;
His legal training and his 25 years of counsel experience equip him to meet the demands of this trial to a far greater degree than almost any other accused person who is representing himself in his criminal trial. He is capable of eliciting through cross-examination of Crown witnesses evidence relevant to showing the absence of proof beyond a reasonable doubt that he had the requisite state of mind in each count, or relevant to proving affirmatively that he lacked the requisite state of mind;
The applicant is, as an educated person, well-spoken and, as an experienced advocate, capable of communicating effectively. If he chooses to testify in his defence he has little need of counsel to prepare him or to prepare questions which address the issues. In my view, the Applicant is well-equipped to do this for himself.
20I turn to the indigence criterion. The Applicant has testified that his has no assets and only a very small monthly income from occasional work in the area of law clerking. Bearing in mind the difficulty of proving negatives such as the absence of assets or income, the Applicant has put forward nothing except his word. The Respondent brings forward the documents which the Applicant filed with Legal Aid Ontario and upon which Legal Aid based its refusal to fund counsel. These documents are not supported by affidavit evidence, nor are they supported by the Applicant’s sworn testimony that all of these documents are true. He did say that he “gave them everything”, referring to Legal Aid Ontario.
21In respect of the indigence criterion I conclude simply by saying that in my view the Applicant has failed to meet the burden of proving this criterion.
22I rest my decision primarily on my conclusion that counsel is not necessary to ensure a fair trial in the circumstances of this case as I have found them to be.
23The application is therefore dismissed. I have endorsed the record accordingly.
Copies of this transcript bearing photostatic signatures are not certified and have not been paid for. Unless transcripts bear the original signature of Alana Trumpy, IN BLUE PEN, they are not valid, and accordingly, are in direct violation of Ontario Regulations 587/91, Court of Justice Act, January 1, 1990.
Mr. Justice John Macdonald
Released: September 20, 2013
COURT FILE NO.: CR133000018200MO
DATE: 20130920
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DANIEL BARNA
Defendant / Applicant
RULING
J. Macdonald J.
Released: September 20, 2013