CITATION: R. v. Brenden Thompson, 2015 ONSC 4070
COURT FILE NO.: 1149/14
DATE: 20150623
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brenden Thompson
– and –
Her Majesty the Queen
Respondent
Ray Gemmill, for the Applicant
Eric Wagner, for the Attorney General of Ontario, Crown Law - Civil
HEARD: June 22, 2015
Gunsolus, J.
Background
[1] On November 6, 2013, the applicant was arrested and charged with the offence of conspiracy to commit an indictable offence and robbery with violence. The applicant applied for and has been denied Legal Aid and has exhausted all appeals through Legal Aid.
[2] On the 13th of February 2015, Mr. Thompson was committed to stand trial on all counts. He was also committed to stand trial on a count of conspiracy to trafficking narcotics.
[3] It is the position of Mr. Thompson that he lied on his original application to legal aid, or in the very least made reckless boastful statements. He now says that he is indigent, although he claims to be unable to produce any records. He says he has not filed tax returns, nor had a bank account because he did not want to be detected as a narcotics dealer.
[4] The Crown asks that the application be denied because the applicant caused himself to be denied legal aid. Further, the applicant has not provided any financial disclosure that would allow the Court to conclude that he is indigent, nor has he provided any credible explanation as to what happened to his assets and money.
[5] At the first Robowtham Application, the Crown cross-examined the applicant on his financial disclosure and his dealings with Legal Aid Ontario. The applicant admitted that he had misled Legal Aid Ontario when he disclosed that he had been earning $10,000.00 per week. He did live in what was described as a luxury condo contributing $1500.00 per month towards rent. He was unable to say how much money he had earned prior to his arrest, and was unable to specify how he had spent all his money beyond "party, buy cars and stuff".
Issues and the Law
[6] The respondent submits that this application raises the following issues:
(a) Whether the applicant caused his own legal aid denial; and,
(b) Whether the applicant can be said to be indigent, given his own conduct.
[7] It is conceded by the Crown that the charges against the applicant are serious and complex. I am satisfied, on the balance of probability, that the case is sufficiently complex with a likelihood of incarceration. As in R. v. Rushlow (2009) ONCCA 461, it is the financial means test that is at issue here.
[8] The Court's determination of whether to stay proceedings, pending the appointment of publicly funded counsel, in a "rare and exceptional case", depends on the applicant satisfying all three of the following conditions (the Rowbotham Test):
(i) The applicant is ineligible for or has been refused legal aid and has exhausted all appeals for reconsideration of his eligibility;
(ii) The applicant is indigent and unable to provide privately retained counsel to represent him at trial;
(iii) The applicant's right to a fair trial will be materially compromised absent public funding for counsel[^1](as stated above this has been conceded).
[9] In Montpelier[^2], it was noted that "an applicant cannot come to court relying upon legal aid's refusal when his failure, or in action, has been the cause thereof". Further, an applicant cannot be granted a Rowbotham order when he, himself, caused legal aid to be denied. "The Court must play its role in ensuring that indigent accuseds are not permitted to manipulate the legal aid system or play fast and loose with its rules and then attempt to shelter from the consequences of their actions under a façade of fair trial rights".[^3]
Discussion
[10] It is acknowledged that legal aid was denied to this applicant, as legal aid was "not satisfied that complete and credible financial information has been provided"[^4]. It is also conceded that, in addition to the applicant's failure to provide Legal Aid Ontario with credible financial information, the applicant lied to Legal Aid Ontario. On cross-examination at the first Rowbotham Application, the applicant stated that he lied when he told Legal Aid Ontario that he had been earning $10,000.00 per week before being arrested[^5].
[11] It is the applicant's position that he has no financial records because he is a drug dealer, and further, asks the Court to accept that any income he has in the past is inexplicably gone. The onus, of course, is on the applicant to provide complete and credible financial disclosure to this Court.
[12] Today, I am being asked by the applicant, Brenden Thompson, to accept his bare statements that he has no assets and, further, his lack of explanation as to what occurred to what assets he claimed to have prior to his arrest. I am also being asked to accept that he says he has never filed tax returns, held employment or a bank account, and yet I have received no evidence whatsoever as to whether what he is telling the Court today is accurate as opposed to what he said to mislead Legal Aid Ontario.
[13] Specifically, I have no evidence:
(1) As to what happened to the $10,000.00 in cash that the accused claimed to have prior to his arrest;
(2) As to what his income prior to his arrest might have been;
(3) That the accused has never filed tax returns nor held a bank account;
(4) On what he claimed to have spent his income on in the past, nor how much money he spent.
[14] The affidavit filed by Brenden Thompson in support of his application made little or no attempt to address his claimed indigent status. In a single paragraph, he makes the bald statement that he has no work history or job record and has not filed tax returns and has no bank accounts. He acknowledges having four children and claims not to be paying support for any of those children. He provides nothing more.
[15] In short, the applicant has not provided any evidence to satisfy me that he is, indeed, indigent. The applicant has created his own "catch-22 situation" as described by Justice Sosna at the first Rowbotham Application in this matter. As stated in Montpelier[^6], Mr. Thompson cannot rely upon legal aid's refusal when it was his own misleading information that caused legal aid to deny him. Further, Mr. Thompson cannot be permitted to manipulate the legal aid system or play fast and loose with its rules and then attempt to shelter from the consequences of his own actions under a façade of fair trial rights[^7]. It is not enough for the applicant to now simply advise the Court that he spent all his money on "party, buy cars and stuff"[^8].
Decision
[16] I am, therefore, denying Mr. Thompson's Rowbotham Application, as I am not satisfied, on a balance of probabilities, that Mr. Thompson has met the financial part of the test. I do so, however, on a without prejudice basis in order that he may bring a further more fulsome application, including more details as to his claim that he is indigent. It was also suggested by the Crown today that counsel would be available for cross-examination of the victim, and that Mr. Thompson may wish to consider an Amicus Application. That will be for he and counsel to decide.
D. G. Gunsolus, J.
Released: June 23, 2015
R. v. Brenden Thompson
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Brenden Thompson
REASONS FOR JUDGMENT
D. G. Gunsolus, J.
Released: June 23, 2015
[^1]: R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271 (C.A.) [^2]: R. v. Montpelier, 2002 34635 (ON SC), [2002] O.J. No. 4279 (S.C.J.) [^3]: R. v. Imona-Russel, [2008] O.J. No. 5405 (S.C.J.) [^4]: Schedule B of the Crown's Factum [^5]: Transcript of first Rowbotham Application, dated June 11, 2014, pages 3 to 6 – Schedule C [^6]: See note 2 [^7]: See note 3 [^8]: See note 5 – pages 3 to 6. Schedule C.