SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-11-10000017-00AP

DATE: 20140303

RE: R. v. Mangal Mahadeo

BEFORE: M.A. Code J.

COUNSEL:
Lori Anne Thomas, for the Appellant

Megan Petrie, for the Crown Respondent

HEARD: February 13, 2014

ENDORSEMENT

A. OVERVIEW

[1] The Appellant Mahadeo was charged in a two count Information with impaired care or control of a motor vehicle and with “over 80” care or control. The Crown proceeded summarily at a trial before Mocha J. in the Ontario Court of Justice.

[2] The Appellant was self-represented and the trial proceeded over four days, between September 9, 2010 and January 5, 2011. On the latter date, Mocha J. found the Appellant guilty on both counts, entered a conviction on the impaired count, and stayed the “over 80” count. The Appellant was sentenced to a fine of $1,200 and to the mandatory twelve month driving prohibition. He appeals to this Court against his conviction.

[3] In this Court, the Appellant was again self-represented. However, he has been ably assisted on the appeal by students from the University of Toronto Faculty of Law who volunteer at Downtown Legal Services, and by Ms. Thomas who acted as counsel on the appeal. I am grateful to Ms. Thomas and the Downtown Legal Services students for their very helpful factum, fresh evidence Application, and oral argument. The Appellant attended the appeal and made some additional submissions of his own, after Ms. Thomas completed her submissions.

[4] There are three grounds of appeal against conviction, all of which relate to the Appellant’s self-represented status at trial. First, it is submitted that the trial ought to have been adjourned in order to allow the Appellant more time to recover from mental health issues and in order to bring a Rowbotham Application, if so advised. Second, it is submitted that the judges of the Ontario Court of Justice ought to have advised the Appellant of the availability of a Rowbotham Application, pursuant to their duty to assist a self-represented accused. Third, it is submitted that the trial judge did not sufficiently assist the Appellant during the trial itself.

[5] It can be seen that the three grounds of appeal relate to trial process issues. None of the grounds of appeal challenge the trial judge’s fact finding or her analysis of the law. The evidence of all three officers who testified, including the Breathalyzer technician, was that the Appellant was impaired. The Appellant did not seriously dispute this fact in his own testimony. The Breathalyzer readings were 150 and 130. The trial judge found as a fact that he was “severely impaired”. The only real issue in the case, relating to the merits, was whether the Appellant was in “care or control”. The police found the Appellant at the roadside of a major highway, seated in the driver’s seat of his car. There was no room for any other occupant in the car as the other seats were full of boxes of merchandise. The car had been in a single vehicle accident, striking the guardrail and a post before coming to a stop. No other cars or persons were in the vicinity. Once again, the Appellant did not seriously challenge this evidence. However, he testified that he had been a passenger in a second car, together with a group of male friends, and that his car was being driven by a female friend named Jasmin when the accident occurred. The Appellant got out of the car in which he was a passenger and got into the driver’s seat of his own damaged car, in order to call a tow truck. His male friends and Jasmin drove off in the second car. None of these friends testified at trial. The trial judge found as a fact that the Appellant was in the driver’s seat of his car and that he was “in care and control of a vehicle that could have accidentally been set in motion”.

B. DENIAL OF AN ADJOURNMENT

[6] I will address the first ground of appeal, concerning denial of an adjournment, without referring to the Rowbotham issue. If the second ground of appeal succeeds, concerning a duty to advise this particular accused of the availability of a Rowbotham Application, that would necessarily require an adjournment in order to prepare the Application.

[7] It is well-established that trial judges are given a “wide discretion” to grant or refuse an adjournment. The decision in this case, to deny the Appellant an adjournment on September 9, 2010, can only be reversed on appeal if it was based on some error in principle, if it was not made judicially, or if it resulted in an unfair trial. See: R. v. Darville (1956), 1956 463 (SCC), 116 C.C.C. 113 (S.C.C.); R. v. Nichols (2001), 2001 5680 (ON CA), 148 O.A.C. 344 (Ont. C.A.); R. v. Hazout (2005), 2005 30050 (ON CA), 199 C.C.C. (3d) 474 (Ont. C.A.); R. v. Wood (2005), 2005 13779 (ON CA), 196 C.C.C. (3d) 155 (Ont. C.A.).

[8] On the date scheduled for trial, the case came on before Bassel J. and the Appellant requested an adjournment. The relevant circumstances at that time included the following:

• The offence was alleged to have occurred on September 28, 2008, that is, almost two years before the September 9, 2010 trial date. This is a significant trial delay for a summary offence in the Ontario Court of Justice;

• Crown disclosure was provided on the first appearance, on November 5, 2008, and there were no indications of any difficulties with disclosure;

• On the seventh appearance, on May 6 , 2009, a trial date was set for five hours on February 19, 2010, “with or without counsel”;

• On the first trial date, on February 19, 2010, the Crown was ready to proceed with all its witnesses present;

• The Appellant obtained an adjournment of the first trial date, without any prior notice, on the basis that “I would like some time to have a lawyer … I tried to retain a couple of lawyers but financially, I couldn’t afford it” and “Legal Aid wouldn’t grant me … because the Crown is not seeking jail time”. The Legal Aid decision was made nine months previously and no appeal was taken. In addition, the Appellant provided a note from his doctor dated in June 2009, some eight months before the trial date, advising that the Appellant was receiving therapy and medication for depression because, as the Appellant stated, “I am going through a divorce”. The Appellant advised that he had been separated from his wife in 2008;

• The adjournment of the first trial date was granted by Zuker J., after he twice told the Appellant, “that the next date will be peremptory. The matter must proceed with or without counsel”, and that “whatever date is available, the matter will have to proceed”. It was noted on the Information that the new trial date was “peremptory on accused, to proceed with or without counsel”;

• The Crown and the Appellant attended on the Trial Coordinator in order to obtain a new trial date. The Appellant, who was receiving social assistance, rejected early dates starting on April 26, 2010 as well as dates in May, June and July of 2010. He agreed to a later date, on September 9, 2010. The Crown returned to court and set this date. It appears that the Appellant thought that the new trial date was set by the trial Coordinator and so he did not return to court to formally set it before Zuker J. He was given a copy of the Trial Verification Form from the Trial Coordinator, setting out the new trial date;

• The adjournment application before Bassel J. on the second trial date, on September 9, 2010, was similar to the earlier proceeding before Zuker J. on the first trial date. Once again, the Crown had all its witnesses present and was ready to proceed. No prior notice was given of the adjournment application. The Appellant advised Bassel J. that he had a lawyer for his divorce “paid for by Legal Aid” but that “I don’t have anybody” for the criminal trial. He also provided the Court with a handwritten note from his psychiatrist, dated August 27, 2010, stating that the Appellant has suffered from “depression and anxiety since …2007”, he was receiving medication and psychotherapy, and he was “under significant stress lately caused by painful divorce and custody battle”. The doctor opined that the Appellant is “not medically good enough to face the stress of going to court” and asked the court “to consider postponing the court date to allow for progress of his emotional status”;

• While making submissions on the adjournment application, the Appellant advised Bassel J. that “I’m very very depressed … my psychiatrist is my lifeline, between being in the asylum and being in the grave … I’m fortunate even to be alive today due to my psychiatrist”. This submission caused Bassel J. to conduct a brief fitness inquiry in which the Appellant indicated that he understood the charges, the pleas available to him, the potential consequences, the duty to be truthful, and the roles of the various participants. Bassel J. concluded the inquiry by stating, “I have absolutely no concerns of this gentleman’s fitness … [he] passed with flying colours as far as complete understanding of the court process … in my view he is fit”.

[9] In light of the above circumstances, Bassel J. refused the adjournment application. He held as follows:

“I am sorry he is going through some divorce and other problems but in my view there is absolutely no merit to grant him an adjournment to vacate today’s trial date. It is the second date. It is peremptory with or without counsel. The officers are here. He made no effort prior to today, other than this letter [from his psychiatrist] to do anything to alert anyone. So my Ruling is that the adjournment is not granted and that the trial has to proceed.”

[10] I am not persuaded that Bassel J. erred in refusing the adjournment. He gave the Appellant an opportunity to state his case, he inquired into the Appellant’s fitness, and he took a number of relevant factors into consideration. The adjournment application was weak as the Appellant had already had two years to retain counsel and he did not hold out any prospect of being able to retain counsel in the near future. It was open to Bassel J. to regard the note from the psychiatrist as unpersuasive. He saw and heard the Appellant first hand and could assess whether his “emotional status”, due to the “divorce and custody battle”, was such that he was “not medically good enough to face the stress” of a trial. Finally, the trial had already been adjourned once, from February to September, and the Appellant had been told by Zuker J. that it would proceed on the new date “with or without counsel”. In all these circumstances, it was entirely reasonable to refuse any further adjournment.

C. THE ROWBOTHAM ISSUE

[11] I will assess whether this refusal of an adjournment caused an unfair trial, when discussing the second and third grounds of appeal. Bassel J. did not conduct the trial, after he refused the adjournment. His court was offered assistance by Mocha J. and the case was traversed to her court. She declined to revisit the adjournment application but the Appellant told her, “I’m not confident enough to represent myself”. He also told her that he was without counsel because “I don’t have any other choice”. The second ground of appeal is based on the submission that the trial judge was obliged to advise the Appellant, before starting the trial, that a Rowbotham Application was available to him as a means of securing counsel.

[12] Ms. Thomas, counsel on the appeal, acknowledges that there is no authority holding that trial judges must advise self-represented litigants in drinking and driving cases that they can bring a Rowbotham Application. She also acknowledges that her argument cannot succeed unless it is shown that a Rowbotham Application was likely to be granted in this case.

[13] Ms. Thomas’s submission proceeds from first principles, namely, that a Rowbotham Application must be granted where counsel is “essential to a fair trial” and that the trial judge’s duty to guide and assist a self-represented accused is based on “the duty to ensure that the accused has a fair trial”. Therefore, she submits, where a Rowbotham Application is likely to succeed, the trial judge must advise the self-represented accused of its availability in order to ensure a fair trial. See: R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 at 69 (Ont. C.A.); R. v. Rushlow (2009), 2009 ONCA 461, 245 C.C.C. (3d) 505 at paras. 17-21 (Ont. C.A.); R. v. McGibbon (1988), 1988 149 (ON CA), 45 C.C.C. (3d) 334 at para. 32 (Ont. C.A.); R. v. Tran (2001), 2001 5555 (ON CA), 156 C.C.C. (3d) 1 at paras. 21-33 (Ont. C.A.).

[14] There are three requirements that must be met on a Rowbotham Application, namely: that Legal Aid has been refused; that the accused is indigent and unable to retain counsel privately; and that the nature of the proceedings is such that representation by counsel is “essential” to the accused’s right to a fair trial. See: R. v. Rowbotham, supra; R. v. Rushlow, supra.

[15] The Crown does not concede that the first two requirements have been met in the present case, due to various inadequacies in the record. The Appellant tendered fresh evidence on the appeal, in an effort to satisfy these two requirements, and I admitted the evidence. See: R. v. W. (W.) (1995), 1995 3505 (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.); R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.). However, there are still certain deficiencies in the record relating to the first two Rowbotham criteria. In particular, the Appellant did not appeal the refusal of Legal Aid. In addition, there is no evidence as to the extent to which Legal Aid Ontario allows the “personal circumstances” of a particular accused to outweigh its general reliance on the “likelihood of jail” as a basis for denying Legal Aid. More importantly, there is no sworn evidence from the Appellant as to his financial circumstances. All that is available to the court is his unsworn assertion that he receives social assistance, together with his income tax returns. He appears to be reasonably young and able-bodied and he drives a car. It is, at best, unclear whether he is incapable of securing sufficient funds for the kind of drinking and driving retainer that a client of modest means would pay.

[16] I would be inclined to overlook the above deficiencies, relating to the first two Rowbotham criteria, if I was persuaded that there was a likelihood of success on the third criteria. It must be remembered that this ground of appeal only asserts that the trial judge should have raised the issue and not that a Rowbotham Application was bound to succeed.

[17] Turning to the third Rowbotham criteria, it requires consideration of the length, complexity, and seriousness of the proceedings, as well as the particular accused’s capabilities. In R. v. Rushlow, supra at paras. 19-21 and 24, Rosenberg J.A. described this criteria in the following terms:

In considering whether to appoint counsel the trial judge is required to consider the seriousness of the charges, the length and complexity of the proceedings and the accused’s ability to participate effectively and defend the case. Because of the pervasiveness of legal aid, it will be the rare and exceptional case that the court will find it necessary to appoint counsel. This does not mean that counsel is only required in exceptional cases. Rather, it is the fact that legal aid is available for accused who cannot afford a lawyer that Rowbotham orders are exceptional.

Courts have considered a number of factors in determining whether appointing counsel is essential in view of the complexity and seriousness of the case. Generally, the courts look at the personal abilities of the accused such as their education and employment background, their ability to read and their facility with the language of the proceedings. The courts will also consider the complexity of the evidence; the procedural, evidentiary and substantive law that applies to the case; the likelihood of especially complex procedures such as a voir dire; the seriousness of the charges; the expected length of the trial; and the likelihood of imprisonment: see R. v. Wood (2001), 2001 NSCA 38, 191 N.S.R. (2d) 201 (N.S.C.A.); R. v. Wilson (1997), 1997 NSCA 204, 163 N.S.R. (2d) 206 (N.S.C.A.); R. v. Hayes (2002), 2002 NBCA 80, 253 N.B.R. (2d) 299 (N.B.C.A.); R. v. Drury (2000), 2000 MBCA 100, 150 Man. R. (2d) 64 (Man. C.A.); R. v. Rain (1998), 1998 ABCA 315, 223 A.R. 359 (Alta. C.A.) and R. v. Chemama, 2008 ONCJ 31 (Ont. C.J.).

In considering whether counsel is essential, the court will also take into account the prosecution’s duty to make full disclosure and the trial judge’s obligation to assist the unrepresented accused: see R. v. Wilson and R. v. K. (K.K.) (1997), 1997 NSCA 135, 159 N.S.R. (2d) 357 (N.S.C.A.).

The authorities hold that the case must be of some complexity, but a requirement of unique challenges puts the threshold too high. It is enough that there is a probability of imprisonment and that the case is sufficiently complex that counsel is essential to ensure that the accused receives a fair trial.

[18] In my view, there was no realistic prospect that the Appellant could satisfy this criteria. The trial was short, the issues were relatively straightforward, the offences charged were amongst the least serious in the Criminal Code, the Ontario Court of Justice judiciary are experts in conducting drinking and driving trials and are eminently capable of assisting a self-represented accused in this kind of case. Finally, and most importantly, there was no “probability of imprisonment” and we now have the benefit of the trial transcript which reveals that the Appellant was reasonably effective at defending himself, when assisted appropriately by the trial judge. His depression and anxiety, advanced as grounds for an adjournment before Bassel J., did not appear to interfere with his ability to defend himself.

[19] I note that the great weight of authority is against granting a Rowbotham Application in this kind of case. See, e.g.: R. v. Rau, [2013] O.J. No. 4067 (S.C.J.) and R. v. Rain (1998), 1998 ABCA 315, 130 C.C.C. (3d) 167 (Alta. C.A.), where the reported decisions are reviewed in detail. I should also note that McArthur J.’s careful and thorough judgment in R. v. Fleischman (2012), 100 W.C.B. (2d) 255 at paras. 37 and 43 (O.C.J.), where a Rowbotham Application was allowed in a drinking and driving case, turned on “a number of unique factors in this case, both with respect to the complexity of the matter and the significant health issues suffered by the applicant”. McArthur J. acknowledged that “there are many impaired driving cases that do not present with any particularly difficult or complex issues”.

[20] For all these reasons, the second ground of appeal cannot succeed.

D. THE DUTY TO ASSIST A SELF-REPRESENTED ACCUSED

[21] The third ground of appeal alleges that Mocha J. failed to adequately assist the unrepresented Appellant at his trial. The root case describing this duty is R. v. Darlyn (1946), 1946 248 (BC CA), 88 C.C.C. 269 at 272 (B.C.C.A.), where O’Halloran J.A. stated, “if the accused is without counsel, the Court shall extend its helping hand to guide him throughout the trial in such a way that his defence, or any defence the proceedings may disclose, is brought out to the jury with its full force and effect”. Many years later, in R. v. McGibbon, supra at 347, the Ontario Court of Appeal effectively adopted and restated O’Halloran J.A.’s formulation of the rule. Griffiths J.A. gave the judgment of the Court and stated, “the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect.”.

[22] In two decisions decided at much the same time as McGibbon, namely, R. v. Taubler (1987), 20 O.A.C. 64 at paras. 30-31 and 40-41 (Ont. C.A.) and R. v. Turlon (1989), 1989 7206 (ON CA), 49 C.C.C. (3d) 186 at 191 (Ont. C.A.), the Court qualified the duty to “aid” and “guide” the self-represented accused by holding that it did not go so far as to require the trial judge to take on the role of defence counsel. In Turlon, the trial judge had “engaged in extensive cross-examination of the principle Crown witnesses” and this was held to render the trial judge an advocate for the accused. In Taubler, it was held that the trial judge had no obligation to inquire into “the identity or whereabouts of all of the witnesses who the Appellant might think could help his case” or to explain to the Appellant “more fully … what evidence might be given by him in chief” or to instruct him on “how he might make use of documents in his possession”. These kinds of detailed interventions in the conduct of the defence were held to involve “the kind of advice that counsel could be expected to provide”.

[23] Most recently, in R. v. Tran, supra at paras. 30-33, a case where the trial judge provided no assistance to the self-represented accused, the Court held that the “minimum level of assistance that is required”, in order to ensure a fair trial, includes the following: raising any “genuine issue” as to the admissibility of evidence, including Charter issues; ensuring that expert witnesses are properly qualified; explaining the right to testify and call defence evidence, the right not to testify or call evidence and some of the risks inherent in either course; explaining the course of evidence at a criminal trial, at the outset, including examination-in-chief, cross-examination, objections, and closing arguments. The Crown, of course, can also be asked to assist by arranging for defence witnesses to be subpoenaed or documents to be produced.

[24] It can be seen that the duty to assist an unrepresented accused involves a delicate balance between, on the one hand, giving the accused general instructions about the trial process and helping to raise legal issues that become apparent and, on the other hand, inquiring into the details of the defence and taking over conduct of that defence.

[25] I have read the entire transcript of the Appellant’s trial and I am satisfied that Mocha J. skillfully carried out the trial judge’s duty to assist the Appellant, in accordance with the above principles. In particular, she took the following steps:

• She ensured that the Appellant had full disclosure at the start of the trial;

• She inquired as to whether the Appellant had any defence witnesses present at court, should he wish to call them;

• She explained basic trial process to the Appellant;

• She explained the burden of proof on the Crown and the right to remain silent;

• She repeatedly explained the difference between evidence and argument and the right to make submissions at the end of the case;

• She ensured that the Appellant had a pen and paper;

• She explained how to use the disclosure to cross-examine on prior inconsistent statements, should any inconsistencies arise;

• She instructed the Crown to question its witnesses in areas where potential Charter issues might emerge and she identified a potential s. 8 Charter issue, when it emerged, and helped the Appellant to ask questions in this area. She then deemed the Appellant to have brought a s. 8 Charter Application;

• She took the lunch recess, at the end of the examination-in-chief of the main Crown witness, to allow the Appellant time to prepare. She then took the afternoon recess, when the Appellant appeared to be finished after fifty-five pages of cross-examination, and encouraged him to review his notes. Upon resuming, the Appellant cross-examined this main witness for another twenty-five pages. The trial judge then adjourned the case to the next day and, upon resuming, the Appellant completed his cross-examination. In other words, the trial judge was solicitous in allowing the Appellant every opportunity to prepare and conduct a thorough cross-examination;

• The trial judge repeatedly helped the Appellant re-frame his questions, in order to effectively get at an issue that he was raising. Crown counsel also helped in this regard. Similarly, the trial judge helped the Appellant to cross-examine on a document, helped him bring out an inconsistency between two police witnesses, and helped him in getting a witness to draw a diagram;

• The trial judge explained to the Appellant those issues on which he would have to testify, if he wished to bring them out;

• At the close of the Crown’s case, the trial judge again explained the burden of proof, the right to remain silent, and the right to call defence evidence. She explained that the Crown would have the right to cross-examine him, if he testified. She also explained the Appellant’s right to testify solely in relation to the s. 8 Charter issue. Finally, she explained how the Appellant could put certain medical evidence before the Court after he raised the issue of medication that he was taking at the time of the accident;

• The trial judge then took the lunch recess in order to allow the Appellant time to consider his position, before he decided to testify on both the trial and on the Charter Application;

• At the end of his cross-examination by the Crown, the trial judge asked the Appellant if there was anything new or additional he wanted to bring up, arising out of the cross-examination;

• The trial judge again asked the Appellant, after he had testified, whether he had any other witnesses to call and he advised that he did not;

• During submissions on the s. 8 Charter Application, the trial judge challenged the Crown on certain weaknesses in her argument. The trial judge then explained the s. 8 issue to the Appellant and advised that she was inclined to find a s. 8 violation, when the arresting officer did a pat search of the Appellant and found the car keys, shortly before he had developed sufficient grounds to arrest for impaired driving. She asked the Appellant to direct his submissions to the s. 24(2) issue of whether the car keys were inevitably discoverable, a few seconds later, once the officer had observed sufficient indicia of impairment. This became the basis on which the trial judge then decided the Charter issue.

• Before hearing submissions on the merits, the trial judge succinctly explained the law relating to the central issue of “care or control” to the Appellant;

• After the Crown’s submissions, the trial judge gave the Appellant a right of reply, which he exercised.

[26] In my view, the trial judge’s efforts to assist the Appellant were a model of what is appropriate. Furthermore, the Appellant was reasonably effective in conducting his own defence, once he had the trial judge’s assistance. For example, he advised the trial judge that he had found “two mistakes” in the disclosure and she told him how to bring out these “mistakes”. With some assistance from the trial judge, the Appellant put a helpful passage to the arresting officer, from his notes, and got him to adopt it. Again with help from the trial judge, the Appellant conducted a persistent and effective cross-examination of the arresting officer on the s. 8 Charter issue until he eventually got the officer to give a favourable answer, which the trial judge then had the officer repeat. The Appellant cross-examined the officer effectively on certain medical issues, eliciting a helpful answer. The entire cross-examination of this main Crown witness extended over ninety pages, after an eighteen page examination-in-chief. The Appellant was obviously prepared and, with patient and repeated assistance form the trial judge, he achieved reasonable success. It also appears that he consulted with duty counsel on at least one recess. The Appellant was coherent and persistent and showed no signs of the medical issues that he had raised before Bassel J. When the Appellant raised these medical issues again, before Mocha J. on the second day of trial, she responded “it seemed to me you actually handled yourself very well” on the first day of trial.

[27] For all these reasons, I am satisfied that the Appellant had a fair trial precisely because the trial judge effectively carried out her duty to assist him. The third ground of appeal is, therefore, dismissed.

[28] One suggestion I would make is that it may be helpful to ask the Crown to give an opening and to outline the evidence, at the beginning of the trial. This rarely happens in summary trials in the Ontario Court of Justice but it might help, where the accused is self-represented, by allowing the trial judge to identify the issues in the case from the outset. In addition, it may be helpful to give the self-represented accused a photocopy of any relevant sections of the Criminal Code, if he/she does not already have them. In the case at bar, Mocha J. came to appreciate the issues as the evidence unfolded, and she advised the Appellant of the relevant legal principles as the case proceeded. The minor improvements I have suggested were not essential to a fair trial in this case.

E. CONCLUSION

[29] As none of the three grounds of appeal have succeeded, the appeal from conviction is dismissed.

[30] The stay of the Appellant’s twelve month driving prohibition expires upon the release of these reasons.

M.A. Code J.

Date: March 3, 2014