ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-5328
DATE: 20140630
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LEGAL AID ONTARIO Respondents
– and –
YUK YUEN LEE Applicant
Stephen Dawson, for the Respondent Public Prosecution Service of Canada
Darren S. Sederoff, for the Applicant
HEARD: April 28, 2014
REASONS FOR JUDGMENT ON Rowbotham APPLICATION
FUERST J.
Introduction
[1] In June 2012 the applicant Yuk Yuen Lee was charged with two counts of production of marijuana, two counts of possession of marijuana for the purpose of trafficking, trafficking in marijuana, and theft of a telecommunication service. The charges relate to two marijuana “grow” operations, which Crown counsel describes as “sophisticated”. There are seven co-accused. Those charges are set to proceed to trial in the Ontario Court of Justice in November 2014.
[2] As a result of police surveillance of Mr. Lee after his release on bail, in July 2013 he was charged again, this time with two counts of production of marijuana, two counts of possession of marijuana for the purpose of trafficking, two counts of possession of marijuana, theft of hydro, and six counts of failing to comply with recognizance. The charges relate to another marijuana “grow” operation, which Crown counsel describes as “sophisticated”. There are twelve co-accused. No trial date has been set.
[3] In the event of Mr. Lee’s conviction, the Crown will seek a sentence of four to six years in jail.
[4] Mr. Lee applies for an order granting him funding “for his trials” and directing the Attorney General or Legal Aid Ontario to pay for such funding as may be necessary for him to make full answer and defence, or alternatively for an order staying the proceedings until such time as funding is provided by the Attorney General or Legal Aid Ontario (“Legal Aid”).
[5] Mr. Lee is represented by counsel for the limited purpose of this application.
Background
[6] Mr. Lee is 60 years old. He has a high school education obtained in China. He came to Canada in 1988. He is a permanent resident.
[7] Mr. Lee married a woman named Shiu Tao Cheung, in China. They have one child together. Included in the application materials is a copy of a court order made in November 1998. It deals only with custody of and access to the child of Ms. Cheung and Mr. Lee. No supporting documents or other Family Court orders were filed on this application.
[8] Mr. Lee was released on bail on the first set of criminal charges on a recognizance in the amount of $75,000 with two sureties, one of whom was Ms. Cheung. She signed in the amount of $60,000. She was identified in the recognizance as Mr. Lee’s “wife”. One of the bail conditions was that he reside with his “wife” at 527 Carlton Road in Markham.
[9] After Mr. Lee was arrested on the second set of charges, the recognizance was cancelled. Mr. Lee was released from custody on a new recognizance in the amount of $152,000 with his brother and a friend as sureties.
[10] Immediately after his initial arrest in 2012, Mr. Lee retained counsel privately. A statement of account for the period from late June 2012 to late October 2013 indicates that he paid his lawyer $33,500 and owed her an additional $17,000. He discharged her on October 22, 2013, which was scheduled to be the first day of a twelve day trial on the first set of charges. This caused a postponement of that trial.
[11] Meanwhile, Mr. Lee had applied for legal aid on October 3, 2013. He was refused on the basis that he failed to qualify financially. His appeal of the refusal was denied, on the basis that Legal Aid was not satisfied that he does not have access to other resources.
Mr. Lee’s Financial Circumstances
[12] Mr. Lee swore in his affidavit filed in support of this application that he has no financial resources to hire a lawyer privately, that he has borrowed money from his brother and another current surety, and that the surety assists him by paying the monthly fee for the electronic monitoring required by his bail conditions. Mr. Lee’s brother swore in his own affidavit that he is a retired factory worker and has no income from employment.
[13] In his affidavit, Mr. Lee described himself as having worked in “agriculture and construction” in the past. In his viva voce testimony, he said that he had worked in a factory, in a welding company and at a mushroom farm. He told Legal Aid that he had been the sole proprietor of a business, that he had worked for cash, that his income had been approximately $12,000 per year, and that he had not filed tax returns for seven years.
[14] Mr. Lee declared bankruptcy in 2010. In his viva voce testimony he said that the mushroom farm business did not do well and that he owed back taxes exceeding a million dollars.
[15] The bankruptcy documents indicate that as of February 2010, Mr. Lee owed over $2 million dollars to creditors, including $1,900,000 to Canada Revenue Agency.
[16] Mr. Lee swore in his affidavit that he has been unemployed for about two years and is currently unable to work for medical reasons. A note from his physician dated October 2013 states that Mr. Lee is not able to engage in any manual labour or any work that requires mental concentration, because he suffers from asthma, hepatitis B, anxiety and depression.
[17] In connection with his application to Legal Aid, Mr. Lee said that:
• He and Ms. Cheung had divorced several years ago;
• Before his arrest he lived as a non-paying boarder in the home she owned (referring to 527 Carlton Road);
• He had always lived there;
• Ms. Cheung worked as a waitress and he did not know her financial information.
[18] In the letter Mr. Lee submitted to Legal Aid in support of his appeal, he said that:
• He and Ms. Cheung “divorced” in 1998 because she had a child by another man in 1994;
• Since the “divorce” their “marital and financial relationship…was done and over with”;
• Ms. Cheung did not own the property at 527 Carlton Road at the time of their “divorce”, and he did not know when or how she made the purchase;
• Since the “divorce” he had earned only a minimal income, moved a lot and did not have a definite address. Accordingly, he asked his son to receive mail for him at 527 Carlton Road.
[19] On the hearing of this application, Mr. Lee:
• Swore in his affidavit that he and Ms. Cheung “divorced” in 1998 and that he no longer receives any financial support from her;
• Testified in examination in-chief that he considered that he and Ms. Cheung were no longer married as of 1993, because she had another partner in China, but he was told by a lawyer in Canada that because he and Ms. Cheung were not married in Canada, they could not finalize a divorce here. In cross-examination, Mr. Lee said that he and Ms. Cheung have not been divorced because the lawyer told him that since they never married, they could not get divorced. The only matter they dealt with in court was custody of their son;
• Testified before me that since 2003 he has used 527 Carlton Road as a “correspondence address”, that he lived there for only two or three months, and that he lived at a variety of other places before his arrest;
• Testified that after his arrest, Ms. Cheung paid $20,000 to his then lawyer for his legal fees, but was not willing to pay for his defence.
[20] The sworn bankruptcy documents from 2010 show Mr. Lee’s address as 527 Carlton Road, Markham. A police search of Mr. Lee’s driver’s licence history revealed that as of March 2003, his address was given as 527 Carlton Road. His address did not change in those records until February 2014.
[21] The tax assessment value of 527 Carlton Road is $740,000.
[22] Police investigation revealed that Mr. Lee and Ms. Cheung have two joint bank accounts. Mr. Lee testified that he and Ms. Cheung opened a joint bank account several years ago, but he never used it.
[23] On occasions in 2012 and 2013, Mr. Lee was observed driving a car that was registered to Ms. Cheung. Mr. Lee testified that he had access to the car because it was used by their son.
The Positions of the Parties
[24] On behalf of Mr. Lee, Mr. Sederoff submits that the application should be granted. The circumstances fall squarely within the decision in R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.). Both sets of charges against Mr. Lee involve voluminous disclosure, complicated legal issues and a number of co-accused, and he faces a significant penitentiary sentence if convicted. He has only a high school education and English is not his first language. His right to a fair trial under the Canadian Charter of Rights and Freedoms will be infringed if he is not represented by counsel. There is no evidence that he has, in law, a proprietary interest in the Carlton Road property. He testified that he does not have the means to retain counsel, and he should be taken at his word.
[25] On behalf of the federal Crown, Mr. Dawson submits that the application should be dismissed. Mr. Lee has failed to provide detailed and credible evidence about his financial situation, and so has failed to meet the onus on him to satisfy the court that he cannot afford private counsel. He provided inconsistent information about his residence prior to his arrest. He has used Ms. Cheung’s address for years. He has been inconsistent about the status of his relationship with Ms. Cheung. It is a reasonable inference that he has put assets in her name. Even if the financial evidence is credible, the application should be dismissed. Mr. Lee had privately retained counsel on his first set of charges, but chose to dismiss her. On the second set of charges, his application is premature.
Analysis
[26] In the Rowbotham decision, the Ontario Court of Appeal established that sections 7 and 11(d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require that state-funded counsel be provided where the accused wishes counsel but lacks the means to pay a lawyer, and his or her representation by counsel is essential to a fair trial. Where legal aid has been refused and the judge is satisfied of both criteria, but the prosecution insists on proceeding with the trial in breach of the accused’s Charter right to a fair trial, the remedy under s. 24(1) is a stay of proceedings until funded counsel is provided.
[27] The onus is on the applicant to establish on a balance of probabilities that he or she was refused legal aid, that he or she lacks the means to pay a lawyer, and that his or her representation by counsel is essential to a fair trial: R. v. Sheikh, 2011 ONSC 4942.
[28] It is not disputed that Mr. Lee was refused legal aid.
[29] On the evidence before me, I am not satisfied on a balance of probabilities that he lacks the means to pay a lawyer. His evidence that he has no financial resources to hire a lawyer privately is not credible.
[30] I find that Mr. Lee has two joint bank accounts with Ms. Cheung. He failed to disclose the existence of those accounts in his affidavit filed on this application. Once their existence was pointed out by Crown counsel, Mr. Lee failed to provide information about the transactional history and status of those accounts.
[31] Additionally, he has been inconsistent about the status of his relationship with Ms. Cheung, who owns a house having an assessed value of over $700,000. Mr. Lee claimed on this application that he and Ms. Cheung have been divorced for over a decade, or alternatively were never actually married. Yet, he recently signed a legally binding document, a recognizance of bail in respect of the first set of charges, that referred to Ms. Cheung as his “wife” and required him to live at the Carlton Road property with “his wife”. Although he contended on this application that he used the Carlton Road address in the past simply as a mailing address, he represented it as his residence for the purpose of his driver’s licence and also in a sworn document in the bankruptcy proceedings.
[32] In light of these blatant discrepancies, I am unable to find that Mr. Lee has no legal interest in the Carlton Road property, which is a substantial asset.
[33] Further, I am not satisfied on a balance of probabilities on the evidence before me that Mr. Lee’s representation by counsel is essential to a fair trial on either set of charges.
[34] I accept that English is not Mr. Lee’s first language, that he has a high school education, and that he has no legal training. The charges are serious and if he is convicted, he will face a significant prison term. In each case, there are several co-accused.
[35] The application materials assert that both sets of charges involve “complicated legal issues” including “possible” search warrant challenges. The description of those issues is vague. It is not clear, for example, whether Mr. Lee even has standing to participate in the search warrant challenges, or that they are anything more than a possibility. It is asserted that each trial is expected to be “lengthy”, but no detail is given. I note that the trial on the first set of charges will proceed before a judge alone in the Ontario Court of Justice. Previously, it was anticipated to be a twelve day trial. With respect to the second set of charges, it is unclear in which court the trial will proceed. No trial time estimate was provided.
[36] As the Ontario Court of Appeal pointed out in R. v. Rushlow (2009), 2009 ONCA 461, 96 O.R. (3d) 302 at para. 21, in considering whether counsel is essential to a fair trial, the prosecution’s duty to make full disclosure and the trial judge’s obligation to assist the unrepresented accused must be taken into account.
[37] I accept that it would be advantageous to Mr. Lee to be represented by counsel at both proceedings. That, however, does not render his representation by counsel essential to a fair trial.
Conclusion
[38] The application is dismissed.
FUERST J.
Released: June 30, 2014
COURT FILE NO.: CR-12-5328
DATE: 20140630
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
LEGAL AID ONTARIO Respondents
– and –
YUK YUEN LEE Applicant
REASONS FOR JUDGMENT
Fuerst J.
Released: June 30, 2014