ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-G20060

DATE: 2014/03/19

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

VOLKAN KIZIR
Applicant

Mark Rieger, for the Crown

Alexandre Kaufman, for the Applicant

HEARD: March 13, 2014 (at Ottawa)

DECISION ON APPLICATION FOR ROWBOTHAM ORDER

lalonde j.

BACKGROUND

[1] The Applicant is charged with more than 75 offences under the Criminal Code and the Controlled Drugs and Substances Act. The charges include weapons offences, proceeds of crime, and trafficking and conspiracy charges related to marijuana, cocaine, methamphetamine, ecstasy, and heroin.

[2] The charges against the Applicant emanate from an Ottawa Police Service investigation that was more than a year in length. The investigation was called “Project Sleepwalker.”

[3] In June 2010, the Ottawa Police Service drug unit began conducting surveillance and making undercover purchases of heroin. Investigators then located a “stash” house. Ottawa Police subsequently used physical surveillance, covert entries, tracking warrants, general warrants, video, and Part IV authorizations to continue their investigation.

[4] Multiple surreptitious entries and searches were made of the stash house. Authorizations were also obtained to install video cameras in the stash house and to intercept communications of the Applicant and other persons of interest.

[5] On December 5, 2011, Criminal Code and Controlled Drugs and Substances Act warrants were executed at twenty Ottawa area addresses and one Toronto address, including the home of the Applicant – his parents’ home at 293 Columbus Avenue.

[6] After searching the Applicant’s residence, the police seized $55,080 in cash, $14,665 in silver bars, and a 2003 Volkswagen Jetta with an approximate value of $7,000. The Applicant was arrested at this time.

[7] Pre-trial motions are scheduled for two weeks beginning September 2, 2014. A ten-week trial is to follow, starting October 14, 2014.

THE APPLICANT’S SUBMISSIONS

[8] The Applicant has been refused Legal Aid funding, and his appeals have also been denied. The Applicant does not have the means to fund counsel privately.

[9] The Applicant does not possess the education, confidence or legal training to defend this serious, complex, and lengthy case on his own.

[10] The Applicant submits that he will be unable to obtain a fair trial without the assistance of counsel. He requests that I make a finding that his rights under sections 7 and 11(d) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c. 11 (“Charter”) will be breached without the assistance of state-funded counsel. The Applicant applies for a “Rowbotham” order, staying the proceedings against him pursuant to section 24(1) of the Charter, until the Attorney General for Ontario makes arrangements to pay for the Applicant’s defence.

[11] The Applicant is 32 years old and a Canadian citizen. He was born and raised in Ottawa, Ontario.

[12] The Applicant was arrested in relation to these offences on December 5, 2011. The Applicant was released on bail on July 4, 2012.

[13] On or about December 13, 2013, the Applicant’s mother, Hilmiye Kizir, withdrew her consent to be a surety. The Applicant subsequently turned himself in to authorities and has been in custody since December 18, 2013.

[14] The Applicant is alleged to have committed very serious offences. If convicted, the Crown has indicated that it will likely be seeking 18 to 24 years of imprisonment for the Applicant.

[15] Legal Aid Ontario has refused to fund the Applicant’s legal defence. The Applicant’s request for assistance from Legal Aid was first denied on May 8, 2013. This refusal was upheld by the Area Committee on September 26, 2013, and the Toronto appeal office on November 8, 2013.

[16] Through the assistance of his family, the Applicant was able to fund counsel privately for his bail hearing; the Applicant’s mother lent him the funds.

[17] The Applicant’s mother is no longer able or willing to assist him in paying for his legal defence. The Applicant’s father, Bayram Kizir, lives in Turkey most of the year; he is retired and living off disability payments and his pension. He is unable and unwilling to provide financial assistance.

[18] The Applicant’s girlfriend, Faranak Rohani, is also unable and unwilling to help the Applicant with his legal costs.

[19] Counsel for the Applicant on this Application, Mark Rieger, has agreed to represent the Applicant on this application. Matthew Webber and Mr. Rieger, the Applicant’s counsel of choice, are willing to act for the Applicant in defence of his charges but are not willing to act pro bono publico.

CROWN’S POSITION

[20] The Crown argues that Mr. Kizir’s application for state-funded counsel should be dismissed for two reasons. Firstly, the Applicant has not applied to release any portion of the more than $87,000 of seized assets to pay for his legal expenses. It is well settled that an applicant for state-funded counsel is required to exhaust all reasonable avenues to obtain counsel with the financial resources available to him. The Applicant brought two applications under 462.34(4)(c)(ii) but abandoned them. Before he can obtain funding out of the public purse, he must first exhaust this procedure. Moreover, Courts should refuse to decide cases on Charter grounds where the subject-matter of the dispute could be addressed by alternate means.

[21] The Crown further argues that the Applicant does not make full and complete disclosure of his financial circumstances, which is another pre-requisite to obtaining state-funded counsel. In the 11-month period prior to his arrest, the Applicant made regular purchases of gold and silver bars worth $134,489.63, but only $14,577 worth of silver bars were recovered when police executed a search warrant at his residence. The Applicant provides no explanation as to what he did with these assets. The Applicant bears the onus of demonstrating indigence; he has not discharged it.

THE FACTS RELIED UPON BY THE CROWN

[22] Between January 11, 2011, and October 6, 2011, the Applicant purchased $134,489.63 in gold and silver bars from Kitco Metals Inc. (“Kitco”) in Montreal, Québec. The Applicant paid for these precious metals with large sums of cash, with the exception of one purchase which involved a bank transfer in the amount of $45,211.47.

[23] On June 6, 2011, the Applicant and Mr. Cheikhezzein (the “co-accused”) discussed buying more gold “soon” because the price is going up.

[24] On July 3, 2011, the Applicant informed his co-accused that Kitco was “raided”, along with 180 Montreal businesses that dealt with this company. The Applicant counselled his co-accused to “bury” and “hide everything ASAP.”

[25] On November 28, 2011, the police obtained warrants to search Mr. Kizir’s residence pursuant to section 11 of the Controlled Drugs and Substances Act and section 462.32(1) of the Criminal Code. They were executed on December 5, 2011.

[26] The police seized from the Applicant, inter alia, $55,095 in cash and five silver bars valued at $14,577. The Applicant previously swore that he has an exclusive ownership interest in the cash and the silver bars.

[27] The police also obtained restraint orders under section 462.33 of the Criminal Code in relation to two bank accounts belonging to the Applicant. The combined value of these accounts is $9,439.79. The Applicant also swore that he has an exclusive ownership interest in these accounts. The Applicant’s girlfriend and mother swore affidavits by which they denied any ownership interest in the cash seized, the silver bars, or the restrained bank accounts.

[28] On August 15, 2012, and February 20, 2013, the Applicant brought applications under subclause 462.34(4)(c)(ii) for the release of seized assets to pay for his reasonable legal expenses. Both applications were abandoned.

ISSUES

[29] This application raises the following issues:

(a) Whether the Applicant has exhausted all reasonable avenues to obtain privately funded counsel;

(b) Whether the court should refuse to entertain the Charter motion because the dispute can be adequately resolved on another basis; and

(c) Whether the Applicant has demonstrated that he cannot afford to retain counsel.

THE LAW

The test for obtaining a Rowbotham Order

[30] In R. v. Rowbotham, (1987), 1988 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.), the Court established that sections 7 and 11(d) of the Charter require that state-funded counsel be provided in exceptional circumstances where the accused wants - but cannot afford - a lawyer, and his or her representation by counsel is essential to a fair trial.

[31] Courts have adopted a two-part test to determine an applicant’s entitlement to state-funded counsel. First, the applicant must prove on a balance of probabilities that representation by counsel is necessary to have a fair trial. Applicants must “prove that the charges are so serious and so complex that the Charter would be infringed if they were required to proceed to trial without counsel.” The Crown concedes that the Applicant faces serious charges and that this case is complex.

[32] Under the second part of the test, applicants are required to demonstrate that they cannot afford to privately retain defence counsel. In order to do so, applicants must satisfy the court that every possible means to retain counsel has been exhausted, and that they have made full and complete disclosure of their financial circumstances. The Applicant does not meet his burden of proving either of these elements.

[33] R. v. Chemama, 2008 ONCJ 31, at paras. 21 and 24, is authority for the proposition that an accused person’s right to a fair trial includes the provision of state-funded counsel, and a conditional stay of proceedings until such counsel is provided if an accused person establishes, on a balance of probabilities, that:

• They are ineligible for, or have been refused Legal Aid, and have exhausted all available appeals;

• They are indigent and have no other means to retain counsel; and

• Counsel is essential to a fair trial, based on factors including the seriousness of the charges, the complexity of the proceedings, and the ability of the accused person to participate effectively in the proceedings against them.

[34] The Applicant submits that he meets the above criteria, and thus that the proceedings against him should be stayed conditionally until such time as state-funded counsel is provided to him.

DECISION

[35] The first branch of the Rowbotham application is met in that I accept that legal aid was applied for and refused. The appeal from the legal aid decision was rejected. I agree also that the Applicant faces serious charges and that this case is complex.

[36] However, I find that the Applicant did not meet the burden of satisfying the Court that he has used every possible means to retain counsel, nor has he made a full and complete disclosure of his financial circumstances.

[37] After hearing the submissions of both counsel and reviewing the Crown’s evidence, I am left with several unanswered questions on Mr. Kizir’s ability to pay a lawyer to defend himself on the present charges. It is quite possible that Mr. Kizir is sheltering undisclosed assets while asking the taxpayers of this country to pay his legal bills.

[38] Even more importantly, I find that Mr. Kizir has not exhausted every possible means to retain counsel. I find that he needs to bring an application under subclause 462.34 (4) (c) (ii) of the Criminal Code and to apply to have the seized assets released to pay for his legal expenses. One has to wonder why he brought such an application on two different occasions and abandoned each application prior to a hearing.

[39] In Canada (Attorney General) v. Borean, 2007 NBQB 335, S.J. McNally J. underlined the same two problems I was confronted with in this case at para. 12:

This [s. 462.34(4)] is another potential source of funds available to Mr. Borean to pay for legal counsel. He was previously advised by the court of the possibility of making such an application but has not done so, choosing instead to bring the present motion for a stay unless and until state-funded counsel is provided. In doing so, Mr. Borean has obviously not exhausted this possibility of obtaining funds to retain counsel by virtue of these provisions. (emphasis added)

[40] Assets seized from the Applicant may be used to pay for counsel privately. In Wilson v. R. (1993), 1993 8665 (ON CA), 15 O.R. (3d) 645 at para. 45, the Ontario Court of Appeal held that seized assets are presumptively legitimate assets because the court has not determined them to be proceeds of crime, nor has there been a finding that the applicant has committed any crime:

When a person applies for release of property under s. 462.34, there has not been any finding that the property is in fact the proceeds of crime. There has only been a finding, following an ex parte hearing, that there are reasonable grounds to believe that the property is the proceeds of crime. It may well turn out that the person from whom the property was seized is entitled to possession of that property. Nor, when an application for release of funds is made, has there been any finding that the person who seeks the release of those funds has committed any crime. Furthermore, when a person applies for release of property under s. 462.34, he or she will be facing proceedings in which the assistance of counsel is needed.

[41] The Applicant is entitled to apply for the release of these assets. On an application under section 462.34(4) of the Criminal Code, the presiding judge must be satisfied of the following three points:

1. The applicant has an interest in the property that was seized under a warrant or restraint order: s. 462.34(1);

2. No other assets or means are available for the purpose of meeting the applicant’s living expenses and legal expenses: s. 462.34(4)(c); and

3. No other person appears to be the lawful owner of or lawfully entitled to possession of the property: s. 462.34(4)(c).

[42] With respect to the first and third branches of this test, the Applicant swore that that he has an exclusive interest in the cash, the silver bars, and in the restrained bank accounts. His girlfriend and mother have denied any proprietary interest in these items. Accordingly, the Applicant must concede that he believes that he is entitled to apply for the release of these assets.

[43] I agree with Crown counsel’s submissions that the failure to apply for the release of seized and restrained assets over which Mr. Kizir has control is a complete bar to his entitlement to state-funded counsel. Defence counsel argues that following a trial, in the event these assets are found to be proceeds of crime, in a forfeiture application, the court will order a fine in the amount released to counsel under a section 462.34 (4) application and that will translate to a substantial jail term for Mr. Kizir. While this may come to pass, this is the scenario that the Parliament of Canada that manages what is in the Criminal Code, intended.

[44] The second branch of the test – demonstrating that he has no assets or means of meeting his legal expenses – must also be met to obtain state-funded counsel. As will be explained below, the Applicant will face the same obstacle under section 462.34(4) as he does on a Rowbotham application, as he fails to account for over $119,000 worth of precious metals.

[45] The intercepted conversations of Mr. Kizir with his co-accused raise the real possibility that Mr. Kizir managed to hide assets.

[46] In Borean, at para. 8, the Court held that the inquiry into the applicant’s finances must be more than cursory, and a finding on the issue should not be based merely on unsubstantiated statements of alleged facts by the accused. A significant and in-depth review of the facts is required.

[47] In the Applicant’s affidavit, filed in these proceedings, he is completely silent on the issue of the substantial amounts of gold and silver he had purchased in the 11-month period which preceded his arrest.

[48] In a previous affidavit filed in support of one of his abandoned applications under section 462.34(4), he acknowledged that he was “at one time in possession of further amounts of precious metals” but that he is “not in possession of any now.” The Applicants swears that he has not “hidden, traded, given or otherwise disposed of any silver bars since [his] arrest.”

[49] If the Applicant has not hidden, traded, given or disposed of the silver bars since his arrest, then he must have done one of these things before his arrest. Even if the Applicant was involved in trading precious metals prior to his arrest, as he swears, then it is logical to assume that he would have received something of value for $119,000 worth of gold and silver bars. Yet the Applicant provides no evidence as to what he received and where those assets are located.

[50] Moreover, the intercepted text messages of July 3, 2011 - in which the Applicant advised his co-accused that he should “hide” and “bury” everything following raids on Kitco - strongly suggest that the Applicant did just that. It is noteworthy that the only precious metals that were found at his residence are the five bars he purchased on October 6, 2011, and that all of the silver and gold purchased prior to the July 3, 2011 text messages have not been found.

[51] In Borean, the Court speculated that the applicant’s failure to provide details of his assets was either due to a concern that such disclosure would result in further seizures, or that it was an effort to conceal from the court the true state of his financial affairs. The Court concluded that, no matter what the reason for this failure to disclose, the applicant did not meet his onus of proving that he could not afford counsel. The same conclusion applies here.

[52] Defence counsel argues that when a Rowbotham application is before the Court, the assistance of counsel will be needed as will be the case if and when Mr. Kizir applies for the release of property. That need has a constitutional underpinning and must be given weight. I agree but it does not help Mr. Kizir who has not exhausted his obligations of asking that seized funds be released and of disclosing where the silver bars acquired during the months immediately preceding his arrest have gone.

[53] I do not believe that Mr. Kizir has come clean with this court in disclosing his assets. I believe that the interests of justice demand that I dismiss his Rowbotham application. The application is dismissed.

Lalonde J.

Released: March 19, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

VOLKAN KIZIR

Applicant

DECISION ON APPLICATION FOR ROBOTHAM ORDER

Lalonde J.

Released: March 19, 2014