ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Mohseni, 2015 ONSC 2737
COURT FILE NO.: CRIMJ(F) 163/13
DATE: 2015-04-30
B E T W E E N:
HER MAJESTY THE QUEEN
Sabrina G. Montefiore, for the Respondent
Respondent
- and -
SHABAN MOHSENI
Michael Pierce, for the Applicant
Applicant
HEARD: April 24, 2015
REASONS FOR RULING
Lemon J.
The Issue
[1] Mr. Mohseni applies for a Rowbotham order to stay the proceedings until the Crown provides funding for his counsel at trial. At the end of the hearing, I dismissed the application for reasons to follow. These are those reasons.
Background
[2] Mr. Mohseni is charged with importing approximately 23 grams of opium into Canada. The Crown has served notice to obtain a pretrial ruling with respect to the voluntariness of Mr. Mohseni's statements.
[3] Mr. Mohseni is 70 years of age. He was born in Iran and came to Canada in 1999. His last employment was washing buses at the Toronto airport. He does not remember when he retired. He appears to speak very little English. He has a grade 6 education from Iran but he has no formal education in Canada. Throughout this motion, he required the use of a Persian interpreter.
[4] Mr. Mohseni is married and has four adult children. He and his wife survive on pensions totaling approximately $24,000 per year. They reside in subsidized housing.
[5] He initially had Legal Aid but that has been cancelled for two reasons. First, he retained new counsel without authority from Legal Aid. Second, and more importantly, his combined household income makes him ineligible for Legal Aid. Accordingly, he cannot obtain Legal Aid for his defence.
[6] He has counsel available if he can obtain funding.
Analysis
[7] It is clear that Mr. Mohseni has been denied Legal Aid.
[8] Mr. Mohseni gave rather vague and confusing evidence. I am not sure whether he was being evasive, untruthful or was simply honestly confused. For the purposes of this application, I am prepared to accept that he has difficulty understanding English and his circumstances. Given the combined seriousness of the charge, the legal issues involved and Mr. Mohseni's ability with the English language, I am satisfied that the assistance of counsel is necessary to ensure that he receives a fair trial.
[9] I am not, however, satisfied that, on a balance of probabilities, he has demonstrated that he cannot afford to retain counsel privately. I am not satisfied that he has exhausted all available means to retain counsel.
[10] There are no supporting documents to confirm his income and expenses. His evidence at the hearing was rather vague on his real income. Having said that, I suspect that, on his own means, he cannot afford to retain counsel.
[11] However, no evidence was led as to his wife's means other than her income and residence is the same as his. I do not know if she has assets that may be of assistance. His son provided him with $2000 to privately retain counsel at the commencement of these proceedings. Ms. Mohseni’s evidence was that this occurred five years ago. Since then, he has taken no steps to borrow money from friends or family. He has made no efforts to obtain a loan. While he did not think that his son could loan him more money, he did not know his son’s present financial circumstances.
Result
[12] Accordingly, the application was dismissed without prejudice to Mr. Mohseni to bring a fresh application which might provide further evidence with respect to his ability to retain counsel.
Lemon J.
Released: April 30, 2015
CITATION: R. v. Mohseni, 2015 ONSC 2737
COURT FILE NO.: CRIMJ(F) 163/13
DATE: 2015-04-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
SHABAN MOHSENI
Applicant
REASONS FOR RULING
Lemon J.
Released: April 30, 2015