ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-C1695
DATE: 2014/03/10
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MELISSA DEGRAY
Applicant/Accused
Ann Christian-Brown, counsel for the Crown
Monick L. Grenier, counsel for the Applicant/Accused
HEARD: March 6, 2014
REASONS FOR JUDGMENT
ON A ROWBOTHAM APPLICATION
LAFRANCE-CARDINAL, J.
[1] This is a Rowbotham Application brought by Melissa Degray.
[2] There is a three-prong test to a Rowbotham Application. It can be described as follows:
a) Has the applicant been refused Legal Aid;
b) Does the applicant have the means to retain counsel on a reasonable basis;
c) Would the applicant’s right to a fair trial be materially compromised if she had no lawyer.
[3] The Crown has conceded that the first two-prongs of the test have been met and that consequently only the third prong of the test needs to be argued.
[4] Both defence and counsel agree that the onus is on the Applicant. (R. v. Williams, 2011 ONSC 7406 (S.C.J.)) and that all three prongs of the test must be satisfied, on a balance of probabilities, in order for the application to be granted.
[5] Mr. Justice Malloy in the decision of R. v. Williams, supra states at paragraph 9 and I quote:
“It must be recognized at the outset that there is no absolute right to counsel in order for a trial to be considered “fair” within the meaning of the Charter or at common law. In determining whether an applicant’s right to a fair trial would be materially compromised if he is required to proceed without counsel, the court must 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.””
[6] The accused is charged with mischief and criminal harassment. She concedes that if the only charges that she would be facing would be that of mischief, that a Rowbotham Application would not be successful. However, it is her contention that the criminal harassment charge is of such complexity that she would need the assistance of a lawyer in order to have a fair trial. It is the Applicant’s contention that the Crown must prove five essential elements, in order to prove the offence of criminal harassment, which to a lay person, such as the Applicant, can be considered complex and difficult to comprehend without the assistance of counsel.
[7] The probability or possibility of incarceration is not sufficient to satisfy the Court that the charges are serious. See Manitoba (Attorney General) v. Legal, [2009] M.J. No. 227 (P.C.) and R. v. Rain (1998), 1998 ABCA 315, 130 C.C.C. (3d) 167 (Alta. C.A.).
[8] In this case I have no information as to whether or not the Crown would be seeking incarceration should the applicant be found guilty, however it is acknowledged that on a plea of guilt the Crown offered a suspended sentence and probation.
[9] The Crown argues that other than the test that must be met by the Crown in order for them to get a conviction on criminal harassment, this case is not complex and with the guidance of the Court this lady can effectively represent herself and obtain a fair trial.
[10] The Ontario Court of Appeal in R. v. McGibbon, [1998] O.J. No. 1936 (C.A.) states and I quote:
“Consistent with the duty to ensure that the accused has a fair trial, 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. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must of necessity be a matter of discretion.”
[11] The Applicant contends that this matter is complex as she may need to bring a Motion for third party records having to do with C.A.S. files and police files. However, I note that every matter in both Ontario Court and Superior Court, in this jurisdiction, has a benefit of a pre-trial and of course the Applicant would have the benefit of a pre-trial where the judge would advise her as to the steps to take in order for her to bring such a Motion. The Crown has also indicated that they will be asking for a section 486(3) Order in order for the complainant to be cross-examined by a lawyer rather than by Ms. Degray and that too would somewhat assist her in getting the proper information before the Court. In R. v. Bain, the Alberta Court of Appeal states:
“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.”
[12] In the case before me the Crown has required a trial of four hours which will be held in September of 2014. This is not a lengthy trial nor are the proceedings complex. The question becomes whether the accused has the ability to participate effectively and defend her case. The evidence that I have is that Ms. Degray is 28 years old. She is a stay-at-home mom. She left grade 12 when she was pregnant for her first child. She has four children, she is presently raising three of them. She is in a common-law relationship, on social assistance. The Applicant has a criminal record. She was convicted of assaulting a police officer in 2006 for which she received six months’ probation. At that time she was represented by counsel. I have no evidence of employment nor do I have any evidence of mental or physical health issues. I have no evidence that she cannot understand the charges, her past criminal record would leave me to believe that she has at least some experience with the criminal justice system.
[13] I have come to the conclusion that although it is not ideal to have anyone represent themselves in criminal proceedings, in a case such as this one Ms. Degray does not have to be represented in order to have a fair trial. The charges are serious but there are much more serious offenses in the Criminal Code, and are not so serious and complex as to require the participation of counsel in order to have a fair trial. This four hour trial involving limited disclosure is not complex.
[14] The Applicant has not met the onus of satisfying the Court that counsel is needed in this case in order to ensure a fair trial. The application is dismissed.
Madam Justice Lafrance-Cardinal
Released: March 10, 2014
COURT FILE NO.: 13-C1695
DATE: 2014/03/10
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
MELISSA DEGRAY
Applicant/Accused
REASONS FOR JUDGMENT
ON A ROWBOTHAM APPLICATION
Madam Justice Lafrance-Cardinal
Released: March 10, 2014