ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-G30003
DATE: 2014-12-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
GHASSAN ZAHRAN
Defendant/ Applicant
Alexandre Kaufman, for the Crown
Mathew Day, for the Defendant/Applicant
HEARD: December 17, 2014
T.D. RAY, J.
[1] The applicant brings this Rowbotham application for an order for public funding of his defence of 21 criminal offences, including 8 criminal organization offences, arising out of ‘project sleepwalker’ which is scheduled for a 4 month judge-alone trial at Ottawa commencing March 2, 2015 along with two other represented individuals. He was arrested December 5, 2011, at which time $45,000 was seized from his vehicle.
[2] Specifically, the applicant seeks a conditional stay of proceedings pursuant to ss. 7, 11(d) and 24(1) of the Charter of Rights and Freedoms on the ground that he requires funding in order to make full answer and defence, and to receive a fair trial. This is not brought before me as the trial judge, but as a Superior Court Judge at the pretrial stage.
[3] The Ontario Court of Appeal established the parameters for such an application in R v Rowbotham[^1] when it is claimed that the rights of an accused to a fair trial may be compromised because of the lack of financial resources. A two part test is required to be met by an accused: first, that the case is so serious and complex that his rights would be infringed if he was required to proceed to trial without counsel; and secondly, that the accused cannot afford to privately retain counsel.
[4] The onus is upon the applicant to meet the test on a balance of probabilities.
[5] The applicant’s position is that counsel is essential for his representation because of the seriousness of the charges wherein the Crown will seek a seven to eight year sentence, the trial will be long and complicated, the applicant has a stress related disorder, no legal training, and all others are represented by experienced counsel. He also contends that legal aid has turned him down, and he has no other means available to him to retain counsel. The applicant’s counsel estimates the cost of counsel for the four month trial will be $75,000.
[6] The respondent’s position is that the applicant fails to meet either part of the test. Firstly, it contends that the case against the applicant is not so serious or complex; and that the applicant has demonstrated a solid grasp of his case and the strength of the case against him. Secondly, the respondent argues that while the applicant has been turned down by Legal Aid, he has failed to show why he chose to have family resources devoted to paying towards a condominium in Toronto that he agreed to purchase on February 11, 2011 instead of assisting him in defending these charges. In addition, it is argued that it would be open to the applicant to seek an order to have the seized funds released for his legal expenses. In short, it contends that the applicant has not demonstrated that he has exhausted every possible means.
[7] The applicant was committed for trial August 28, 2013 on 21 counts: 4- participating in activities of a criminal organization, 4- conspiracy to possess a controlled substance, 4 – conspiracy to commit an indictable offence, 6 – trafficking in a schedule 1 controlled substance, and 3 – possession of proceeds of crime. The two co-accused are facing several counts that do not concern the applicant. They are represented by experienced counsel.
[8] From February 8, 2012 to September 11, 2012, the applicant was represented by counsel who removed himself because the applicant said he could no longer afford him. From September 11, 2012 to November 12, 2013, the applicant represented himself. This included a contested bail hearing in August, 2012 and a preliminary hearing in March and April of 2013. From November 12, 2013 to September 3, 2014, he was represented by other counsel who argued an unsuccessful certiorari application to quash the committal. That lawyer is currently appealing to the Court of Appeal. He has been unrepresented since then, except for the current counsel who has prepared this application.
Counsel is essential
[9] Very little has been disclosed in the application to suggest why this is a complex case or why the applicant requires counsel to assist him, beyond the numbers of counts and their description, the bare assertions of a former counsel in an affidavit, and the applicant’s own bare assertion in his affidavit. No synopsis was included in the material, and counsel candidly said he knew very little about the case. The applicant asserts he is suffering from an anxiety related affliction and might have difficulty representing himself. However, it is not supported by any medical evidence.
[10] However the respondent concedes that the charges are serious and ‘with some complexity’, but that the applicant is capable with the assistance of the trial judge to defend the counts.
[11] What is apparent however is that the applicant is well educated, having received a commerce degree from the University of Ottawa, and is currently employed in sales with Rogers Communications. His written submissions at the preliminary hearing are part of the respondent’s record, are articulate and well-reasoned. They show a thoughtful analysis of the evidence.[^2] An email exchange with the lead detective in which the applicant was seeking his support for bail revisions, show not only an articulate analytical mind familiar with the disclosure, but also a grasp of the issues. In that exchange he says “But I won’t be paying a lawyer as it makes no sense because I would likely do 6 months or maybe less”.
Inability to retain private counsel
[12] The applicant has been denied legal aid. His appeal was unsuccessful. Legal Aid turned him down because he was a homeowner with an income of $37,000, and who according to the documentation submitted to them was on short term disability but continuing to receive his income.
[13] It is difficult to ascertain the applicant’s current income. He shows his bank statement which if correct has his last shown deposit for the two week pay period ending October 11, 2014 gross pay of $2,915.31. While he says he was employed by Rogers, he says that because of anxiety and stress he was on disability income which started September 14, 2014. No medical documentation is included, and nothing from any disability carrier is in the material. In light of the conclusion of Legal Aid in rejecting his application, one would have expected documentation at least on this point.
[14] The applicant says his only assets are a 2006 Audi that was seized at the time of his arrest, and a condominium he purchased February 11, 2011 under an agreement of purchase and sale for $374,262.00. It is to close March 15, 2015. The agreement required a series of payments of $18,713.00. The applicant made the first two payments in March, 2011, and May, 2011. He says that his brother and a friend made the second two payments in April, 2012, and May, 2012. (total $37,500), and the final payment is due on closing. He asserts in his affidavit that he “may have to take a high risk mortgage for the balance of the purchase price”. Yet in submissions argued that the condominium actually belonged to the family now because of the funds they had invested. If that were the case, then one would expect the family to arrange the mortgage by way of preserving their asset. He says the condominium is still in his name because he is prevented by the terms of the agreement of purchase and sale from assigning it. Yet there is nothing in the material to support that contention. One would expect a complete set of the legal documentation for such a significant asset.
[15] The debt of $7,000 for the Audi, according to the applicant in his evidence, has since his arrest been paid in full. However he claims that the car is only worth $2-$3,000. However, no documentation is included in the material. His explanation in his evidence for choosing to pay the Audi debt instead of for legal fees is that he was being pressed. In submissions, he said that in any event the amount was negligible
[16] The applicant claims a number of outstanding debts. However the documentation is not current. One would expect if the applicant had overdue debt obligations that he would have current documentation from the creditors.
Analysis
[17] While I have some doubt about the applicant’s need for the assistance of counsel based on his demonstrated ability, his management of his case to date, and his admission to the detective, the Crown concedes there is some complexity.[^3] It is undoubtedly serious. I am not unmindful that the trial judge is a senior experienced trial judge who would be well placed to assist the applicant. However, and with considerable doubt, I am satisfied on the balance of probabilities that it is essential that the applicant have the assistance of counsel, even if the applicant himself expressed some doubt about needing a lawyer.
[18] I have serious concerns about the applicant’s apparent unwillingness, rather than inability, to retain counsel. It is clear that it would be open to him to bring an application for access to the funds that were seized at the time of his arrest. His complaint in his affidavit that the respondent had not consented to the release of the funds to pay his legal fees is answered simply by him bringing an application. In evidence, he was asked if he would agree to a repayment scheme if an order were made. He said he would not. In evidence, he was asked about the $45,000 that was seized at the time of his arrest. He said it was not his; and when asked, said he would consent to a forfeiture order. However, when pressed, he declined to agree to the forfeiture. He would be aware that the funds seized would be presumptively his in the event he is acquitted; and that if an order were made that his defence be funded from public funds with no repayment term, he would likely be debt free at the end of the trial and with $45,000 in his pocket that he claims is not his.
[19] Similarly, he chose to have his brother and a friend pay his car loan; and make payments to his condominium rather than for his legal expenses. Perhaps the answer is contained in the email to the detective that he didn’t intend to pay a lawyer himself. Public funds are not available under the Rowbotham principles to an applicant who would prefer to maintain his assets rather than fund his defence. While an applicant is not expected to become indigent, some sacrifice and financial planning is required. While solid financial planning is evident, sacrifice is not. It does not surprise me that the applicant graduated from the University of Ottawa with a Bachelor’s Degree in Commerce.
[20] I have additional concerns about the adequacy and thoroughness of the material supporting this application. If the applicant were genuinely serious about this application, one would expect complete and detailed supporting documentation instead of bald assertions in an affidavit and outdated documentation. One example is his car loan for his 2006 Audi which was seized at the time of his arrest. He claims the car loan is with Prudential, and that he had to have assistance in paying the loans. He claims the car loan documentation is attached as an exhibit. The exhibit contains only two deposit slips to the TD Bank.
[21] I am not satisfied on a balance of probabilities that the applicant has met the onus of the second part of the test.
[22] The application is dismissed. The applicant has not met the onus on him.
Honourable Justice Timothy Ray
Released: December 17, 2014
COURT FILE NO.: 12-G30003
DATE: 2014-12-17
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
GHASSAN ZAHRAN
Defendant/ Applicant
REASONS FOR DECISION
Honourable Justice Timothy Ray
Released: December 17, 2014
[^1]: R v Rowbotham,(1988) 1988 147 (ON CA), 25 O.A.C. 321, 41 C.C.C. (3d) 1, 35 C.R.R. 207, 41 C.C.C. (2d) 1
[^2]: The certiori judge commented favourably on the applicant’s grasp of the factual and legal issues. R v Zahran, 2014 ONSC 2678, O.J. No. 2020, paragraph 31.
[^3]: R. v. Rushlow 2009 ONCA 461, 250 O.A.C. 75, 66 C.R. (6th) 245 (paragraph 24)