ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMMOT(P)902/15
DATE: 2015-09-14
B E T W E E N:
HER MAJESTY THE QUEEN
Brent Kettles, for the Respondent
Respondent
- and -
AHMED HANORAH
Jacob Stilman, for the Appellant
Appellant
HEARD: August 21, 2015
REASONS FOR JUDGMENT
Barnes, J.
[1] The Applicant is charged with fraud over $5,000. Mr. Hanorah’s matter is scheduled to proceed by way of a trial in the Ontario Court of Justice.
[2] The Applicant seeks a conditional stay of the charges against him until the Attorney General provides him with publicly funded counsel. This is known as a Rowbotham Order.
[3] I have concluded that the Application shall be dismissed. These are my reasons.
BACKGROUND FACTS
[4] The Applicant owned and operated a multimillion dollar company called Gold Link Telecommunications Inc. (“Gold Link”). This company’s core business was the sale of long distance cell phone cards.
[5] Discount long distance cards are presold by suppliers to Gold Link. Gold Link acted as an intermediary and sold the prepaid cards to the public.
[6] Gold Link had annual revenues of over $1,000,000. As of 2012, Gold Link was a significant business venture.
[7] The Applicant, as the alter ego of Gold Link, is alleged to have sold Gold Link to a private investor, Hyyan Zriek, who is a co-accused. The co-accused represented the interests of off shore purchasers. The Applicant, the company and co-accused are alleged to have defrauded the Royal Bank of Canada (“RBC”).
[8] It is alleged that the sale price for Gold Link was $1.6 million. Payment was issued in a series of post-dated cheques. Each cheque was for $85,000 to a total amount of $1.6 million.
[9] It is alleged that these were fraudulent cheques and the Applicant redeemed the cheques at different bank branches. The Applicant disbursed the money obtained to other individuals.
[10] The Applicant asserts that he was not part of a fraudulent scheme and the money was disbursed to creditors to pay business expenses. The total amount of money involved is $1,739,798.21.
THE LAW
[11] There is no constitutional right to the assistance of counsel in a criminal trial. This also applies to an accused who does not have the financial resources to retain the assistance of counsel.
R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 at pp. 65-66 (Ont. C.A.), R. v. Rain, 1998 ABCA 315, [1998] A.J. No. 1059 at para. 35 (C.A.), R. v. Hayes, 2002 NBCA 80, [2002] N.B.J. No. 356 at para. 13 (C.A.).
[12] Sections 7 and 11(d) of the Charter guarantee an accused’s right to a fair trial, in accordance with the principles of fundamental justice, in circumstances where the accused wishes to have counsel, but cannot afford one and representation by counsel is essential to the accused having a fair trial: Rowbotham at pp. 66-67, Rain at para. 31 and Hayes at para. 13.
[13] A Rowbotham Order may be granted where the following criteria are met:
(a) Legal Aid has been denied and the Applicant has exhausted all appeals;
(b) Where the court concludes that counsel is necessary to preserve the fair trial interests of the accused; and
(c) The Applicant is indigent and unable to pay for counsel privately.
R. v. Rushlow, 2009 ONCA 461 at paras. 17-21.
[14] The Applicant bears the burden of proving, on a balance of probabilities, that proceeding to trial without the representation of counsel, infringes his Charter rights: Rain at para. 68.
ANALYSIS
(a) Have all Legal Aid avenues been exhausted?
[15] The Applicant has been denied Legal Aid and he has exhausted all appeals. Legal Aid characterised the financial information provided by the Applicant to be incomplete and not credible.
(b) The Applicant’s right to a fair trial
[16] The parties agree that the charges are serious and the Applicant is facing a potential custodial sentence, if convicted.
[17] The allegations in this case involve the legitimacy of cheques the Applicant cashed as a result of the sale of his company to an alleged investor, his co-accused. The Applicant is very familiar with the transactions which form the crux of the charges.
[18] This is not a case beyond the abilities of the Applicant. The Applicant is alleged to have received the proceeds of the cheques and disbursed the proceeds of the cheques to creditors. The Applicant has explained that this is an important component of his defence.
[19] The Applicant was selling his company, he received the proceeds and he says he disbursed the proceeds to creditors. He was intimately involved in and familiar with the facts that form the core of the allegations and his own proffered defense.
[20] The Applicant has a limited grasp of the English language, and he depends on others to translate documents written in English. However, he was still able to supervise a work force of employees, and manage his company’s operations which generated an annual revenue of just over a million dollars.
[21] The Applicant has a co-accused in his trial and there is always the danger of the co-accused raising a defence that is adverse to the Applicant’s interest.
[22] The Applicant is intricately familiar with this case, as I have explained, and at trial he will have the benefit of an interpreter. The Applicant has extensive experience working with interpreters, he has successfully run a company marshalling resources of interpretation to provide direction and set the course for the corporation. There is the additional safeguard of a trial judge to ensure that the Applicant and co-accused receive a fair trial.
[23] The Applicant suffers from a Major Depressive Disorder and Post-Traumatic Stress Disorder. Psychiatrist Dr. Mohammed El-Sadi described him as stable while on medication. There is no indication that this condition will prevent him from successfully conducting his own defence in a trial.
[24] I conclude that the appointment of counsel to represent the Applicant is not essential to the Applicant having a fair trial.
(c) Is the Applicant indigent and unable to pay for counsel?
[25] The Crown submits that the Applicant did not disclose to Legal Aid that he was the owner of property and failed to properly prepare for his criminal trial by diverting funds to defend a civil matter.
[26] The Applicant responded that he did not inform Legal Aid that he owned a home because Legal Aid did not ask the question. He further explained that the home was in his name because an investor, Mr. Wahid Khanji, used the equity in the home to invest in his business Gold Link.
[27] The Applicant explained that the investor lived in the home. The Applicant testified that he resided at a different address. The Applicant said that he paid for the mortgage and taxes for the home from the profits obtained from Gold Link.
[28] The Applicant said that when the business failed, he sold the home to the investor’s daughter, Linda Khanji, because the home always belonged to the investor.
[29] The Applicant produced a promissory note dated March 17, 2010. The promissory note shows an agreement between the company, Gold Link, and the investor, Wahid Khanji. Mr. Khanji lent Gold Link $200,000. The promissory note is signed by the Applicant on behalf of Gold Link.
[30] The promissory note makes no reference to the Applicant obtaining a mortgage on Mr. Khanji’s home as part of the advance of $200,000. The $200,000, advance was to Gold Link as a company, and not the Applicant. This raises the question of why the mortgage on the home was not taken in the name of the corporation.
[31] The Applicant explained that it was Mr. Khanji’s daughter, Linda Khanji who purchased the home. The Trust Ledger Statement from the lawyer who handled the sale of the home, shows that sale proceeds of $95,138.17 were paid to the Applicant. The Applicant explained that the proceeds were paid to Linda Khanji because the Applicant owed her father Wahid Khanji money.
[32] The Applicant provided no proof that this money was ever paid to Linda Khanji. The cumulative effect of all of this is that, on balance, I have no choice but to question the veracity of the Applicant’s explanation.
[33] I am very mindful of the Applicant’s assertion that he does not read and write in English and that he depends on third parties to translate and prepare documentation for him, however, the explanation he has proffered to explain ownership of the home suddenly fizzles when it gets to the question of what happened to the proceeds of the sale.
[34] Simply stating that the proceeds went to Linda Khanji because of a financing scheme, which on its face raises questions about its legitimacy, without actual proof of the final destination of the proceeds, leads me to conclude that the Applicant’s assertion that he had no access to the proceeds of the sale of the home is not credible.
[35] The Applicant explained that he retained counsel in September 2013, to deal with a related civil matter. The Applicant explained that an investor named Mohamed Masri lent him $20,000 to pay the retainer in the civil matter.
[36] It is curious that although the retainer was signed in September 2013, the promissory note between the Applicant and Mohamed Masri is dated April 29, 2015. The Applicant explained that this is because an oral agreement was crystalized in writing on that date. While this whole transaction raises some questions about the Applicant’s veracity, there is no credible basis, on the evidence, to reject the Applicant’s explanation. I accept it.
[37] The Applicant was not forthright to Legal Aid on the issue of the ownership of the home, and he was not forthright to this court on what happened to the proceeds from the sale of the home. For this reason, while I am aware that the Applicant currently receives social assistance from the Quebec Government, I do not conclude that he is indigent and cannot pay for counsel.
CONCLUSION
[38] For all these reasons the Applicant’s request for publicly funded counsel to represent him at his trial is dismissed.
[39] I am prepared to reconsider my decision if the Applicant can provide legitimate proof of where the proceeds of the sale of the home went to and provide fulsome medical evidence on the impacts of his depression diagnosis on his ability to conduct his own trial.
Barnes, J.
Released: September 14, 2015
COURT FILE NO.: CRIMMOT(P)902/15
DATE: 2015-09-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
AHMED HANORAH
Appellant
REASONS FOR JUDGMENT
Barnes, J.
Released: September 14, 2015