ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Ramji, 2015 ONSC 445
COURT FILE NO.: CRIMJ(P) 197/13
DATE: 20150121
B E T W E E N:
HER MAJESTY THE QUEEN
Jeff Claydon, for the Respondent
Respondent
- and -
PARHEZ RAMJI
Antonietta F. Raviele, for the Applicant
Applicant
HEARD: January 16, 2015
RULING – ROWBOTHAM APPLICATION
Justice F. Dawson
[1] The applicant was arrested on March 25, 2012 on charges of assault, assault with a weapon and uttering threats in relation to his wife. On March 25, 2013 he was ordered to stand trial following a preliminary inquiry.
[2] After a long history of the applicant requesting delays in this court so he could obtain legal aid or otherwise retain counsel he now applies pursuant to R. v. Rowbotham, 1988 CanLII 147 (ON CA), [1988] O.J. No. 271, 41 C.C.C. (3d) 1 (C.A) for an order that the charges against him be stayed conditionally until such time as the state funds payment of a lawyer to represent him at trial.
[3] In Rowbotham the court held that the right to retain counsel provided for in s. 10(b) of the Charter does not extend to require that state funded counsel be provided to all indigent accused. However, the court noted that s. 7 of the Charter provides a constitutional right to a fair trial. The court held that in those cases where an accused can establish on a balance of probabilities that he is both indigent and that, having regard to the nature and complexities of the case, he cannot have a fair trial unless counsel is provided for him, his charges should be stayed until such time as the state provides the funding required for counsel.
[4] An applicant for a Rowbotham order must “show that he has made every attempt to apply for legal aid and, if initially denied, has exhausted all appeals available to him”: U.S.A. v. Akrami, 2001 BCSC 165, [2001] B.C.J. No. 174 (S.C.) at para. 32. He must also establish that he does not otherwise have the means to retain counsel and that he cannot have a fair trial if he is unrepresented: R. v. Williams, 2011 ONSC 7406, [2011] O.J. No. 5862, at para. 5.
[5] In this case the evidence is clear that the accused has applied for legal aid repeatedly. Each time he has been refused. His last refusal has been appealed unsuccessfully to the highest levels of Legal Aid Ontario.
[6] The applicant’s entire legal aid file is before the court as are his bank statements and a number of documents relating to his bankruptcy. The applicant was called as a witness on the application and he was examined and cross-examined extensively about his personal and financial circumstances.
[7] The applicant’s financial situation is somewhat complicated. He was working at two jobs but eventually lost them. Then he was on Employment Insurance benefits. He subsequently applied for a government retraining program which paid for his tuition at a private college and also provided him with a living allowance. He was living with his parents throughout this time. He also filed for bankruptcy during this time.
[8] Due to the bankruptcy the applicant was under a number of restrictions that led to his financial matters becoming intermingled with his parents to some degree.
[9] It appears that the legal aid authorities had some difficulty in accepting or understanding these financial circumstances. This application is not a review of the assessment or decision making process undertaken by Legal Aid Ontario in this case. However, I have had the benefit of extensive cross-examination of the applicant on many of the issues that apparently troubled the legal aid authorities. In my respectful view, the applicant has been able to adequately explain the interrelationship between his financial affairs and those of his parents. Unfortunately, the applicant’s parents have also run into financial difficulties and have been served with power of sale proceedings in relation to their home.
[10] I am satisfied that the applicant and his parents have not been trying to hide assets or deceive Legal Aid Ontario. I recognize this is not the test that must be applied but it is a finding of fact that I make on the evidence I have before me.
[11] The applicant appeared to me to be credible on the aspects of the financial circumstances which troubled legal aid. He explained how, because he was bankrupt, his father would make certain purchases for him on his credit card and he would reimburse his father. His parents varied the amount of rent they required him to pay from time to time to take his difficult financial situation into account. His parents permitted him to use the family car. Sometimes he would pay to have it serviced. This explained why there are debit payments on his bank statements to a car dealership although he does not own a car.
[12] He also credibly explained why there was uncertainty about the amount of a small RRSP that he had and why it could not be used to pay for a lawyer. An employer made some of the contributions to the RRSP, but it was a new plan. His job ended before the plan had vested and so the employer was entitled to recover part of its contribution. The creditors in his bankruptcy had allowed him to maintain the RRSP as a means of funding his education. He could not use it for other purposes. If not used for educational purposes it would have to be available to his creditors.
[13] The applicant has also explained how his parents assisted him in hiring a lawyer privately for some of the proceedings that have occurred to this point. He explained that as a result of assisting him his parents fell behind on their mortgage. Relatives who were initially willing to help finance a lawyer for the applicant for trial have now withdrawn that support as they feel they must devote their resources to helping his parents save their home.
[14] There are parts of the evidence that raise issues that are unresolved. For example, it is not clear how or why the applicant’s name got on title to his parents’ home. However, he has explained how any interest he did have in the home was eliminated in his bankruptcy.
[15] The only viva voce evidence before me is from the applicant. The rest of the evidence is documentary. As no one was called to explain the meaning or significance of important aspects of these documents there are certain limitations associated with their use. However, taking a step back and considering all of the evidence that has been presented, in overview I am satisfied on a balance of probabilities that the applicant has exhausted all avenues for obtaining legal aid and that he is financially unable to hire counsel privately, even at legal aid rates.
[16] An estimate of the fees one lawyer would charge at reduced rates is before the court. It outlines the cost of a trial without a s. 11(b) Charter application and without a third party records application, as well as with such applications. Based on my experience the fee estimates provided are modest and reasonable. I am satisfied the applicant does not have access to the amount of funds required to pay such fees.
[17] In my view, the more difficult hurdle for the applicant, and the one I conclude he has not been able to overcome, is demonstrating that the nature and complexity of the case is such that he will not obtain a fair trial unless state funding for counsel is provided.
[18] First, I would say that there is at least a reasonable prospect that the applicant will receive a jail sentence if he is convicted of these offences. In this respect the situation is serious enough to merit concern. I would not dismiss the application on the basis that the consequences of a conviction would not be serious.
[19] However, I have not been presented with sufficient evidence for the applicant to discharge his onus that the nature and complexity of the case is such that a fair trial will likely not be had without state funded counsel. In my view, based on the somewhat limited evidence placed before me, this is not a complex case. The main evidence comes from the applicant’s wife. During his testimony the applicant demonstrated that he has a good understanding of her evidence and of the credibility issues that are involved. He has an understanding of her testimony at the preliminary inquiry and an appreciation of evidence that could contradict her.
[20] I would also say that having seen and heard the applicant testify at some length I conclude he is bright and articulate. He was presented with numerous documents and records, including in cross-examination. He demonstrated a good grasp of the documents, including a number of details and implications that would have been easy to miss. I am aware of his limited education and lack of legal training but the applicant nonetheless showed a good understanding of many things, including the issues that will arise at his trial.
[21] As a number of cases mention, it must be remembered that the trial judge will have obligations to explain the trial procedures and processes to the applicant and to assist him to ensure a fair trial. Prospective trial fairness and the need for a lawyer must be evaluated in that context.
[22] I also observe that Crown counsel has brought an application pursuant to s. 486.3 of the Criminal Code for the appointment of counsel to cross-examine the complainant. While that application has not yet been dealt with the circumstances are such that I conclude it will almost certainly be granted.
[23] The prospect of a third party records application has been raised. There may be a basis for such an application in relation to hospital records of the complainant, although the applicant said some things in answer to questions I asked which tend to show that such an application is not necessary.
[24] If counsel is appointed pursuant to s. 486.3 to cross-examine the complainant it seems to me they will be required to consider whether a third party records application should be brought and, if appropriate, bring the application. The judge considering the s. 486.3 application may wish to consider this and I would request that Crown counsel ensure that these reasons are brought to the attention of the judge hearing the s. 486.3 application.
[25] Alternatively, a third party records application is something the trial judge can be asked to consider on behalf of the applicant. Assuming a third party records application is warranted, I am not persuaded that it will complicate the case to the extent that a fair trial is unlikely unless state funded counsel is provided.
[26] The other application that is contemplated is a s. 11(b) application. The first thing I would say is that it appears to me that such an application is substantially without merit. There was one year of delay between the laying of the charges and the conclusion of the preliminary inquiry. Some periods will have to be deducted from that for intake and neutral preparation time. Based on the evidence available it would appear that virtually all of the delay in this court has been occasioned by the applicant’s many requests for adjournments to retain counsel or to await decisions from Legal Aid Ontario. It appears that any institutional and Crown delay likely falls within the permissible range under the Morin guidelines: see R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. In my view, there is little merit in pursuing s. 11(b) at this point. Viewed objectively, a decision to use limited resources to pursue a s. 11(b) application in these circumstances appears to be unreasonable.
[27] However, even if s. 11(b) is pursued I am not persuaded that it raises the complexity level to the point where the trial will be unfair if state funded counsel is not provided. I am advised the transcripts of prior appearances have been ordered. The relevant factors to be taken into account are clearly set out in Morin and subsequent cases. There are no unusual circumstances I can see that will arise on a s. 11(b) application. The applicant, who is bright, articulate and well able to assert himself, demonstrated in his evidence that he has a good recollection of what occurred on various court appearances. I am satisfied that even if a s. 11(b) application is brought an unfair trial is improbable even if the applicant is representing himself.
[28] For these reasons the application for a conditional stay pending the provision of state funded counsel is dismissed.
Justice F. Dawson
Released: January 21, 2015
CITATION: R. v. Ramji, 2015 ONSC 445
COURT FILE NO.: CRIMJ(P) 197/13
DATE: 20150121
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
PARHEZ RAMJI
Applicant
RULING – ROWBOTHAM APPLICATION
Justice F. Dawson
Released: January 21, 2015