ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-1104-00MO
DATE: 20151028
B E T W E E N:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Nansy Ghobrial and Jeffery Clayden, Counsel for the Respondent
Respondent
- and -
HAYYAN ZREIK
Applicant
David Holmes, Counsel for the Applicant
HEARD: October 26, 2015
JUDGMENT
SEPPI J.
[1] Hayyan Zreik’s application is to stay the proceedings upon grounds that his right to a fair trial, as guaranteed by section 7 and 11 (d) of the Canadian Charter of Rights and Freedoms (the Charter), is infringed. He has been denied legal aid. He submits he needs the assistance of counsel for trial fairness and is unable to retain counsel privately. He submits the proceedings ought to be stayed unless and until he is provided with state-funded counsel to defend the charges against him. The Order sought is generally referred to as a Rowbotham Order.
[2] The applicant was charged with fraud over $5000 on August 27, 2013. The Crown’s allegations are that the applicant and his co-accused, Ahmed Hanorah, defrauded the Royal Bank of Canada (RBC) in the amount of $1,739,798.21.
[3] The Crown alleges that on or about December 14, 2012 the applicant and his co-accused entered into an agreement for the applicant, through his company, to purchase shares in Gold Link Telecommunications Inc. (“Gold Link”), a company owned and operated by Mr. Hanorah. The business of Gold Link was to sell long distance cell phone cards to the public.
[4] It is further alleged that between December 14, 2012 and December 20, 2012 the applicant made out 19 cheques to Gold Link, which were almost immediately cashed at several different branch locations in the Greater Toronto Area (GTA). It is alleged these cheques were fraudulent, resulting in a loss to the RBC of $1,739,798.21.
THE LAW
[5] Charter rights under s.7 and 11(d) are engaged if the state fails to fund an indigent accused in circumstances where his legal representation is essential to ensure a fair trial. The onus is on the accused to establish his entitlement to state-funded counsel in the circumstances of the case. For the court to stay proceedings pending the appointment of publicly funded counsel the applicant must establish all three of the following conditions, on a balance of probabilities:
i. that he is ineligible for, or has been refused legal aid and has exhausted all available appeals of his eligibility;
ii. that he is indigent and has no means to privately retain counsel to represent him at trial; and
iii. his right to a fair trial will be materially compromised if he is forced to proceed to trial unrepresented by counsel.[^1]
[6] The applicant has elected to be tried in the Ontario Court of Justice. The trial is estimated to take two to four weeks. Disclosure is approximately two binders of documents. No expert evidence is anticipated by the Crown, other than the possible expert identification of certain cell phone records.
LEGAL AID REFUSED
[7] There is no issue on the first condition. The applicant applied for legal aid on August 28, 2013, and was initially issued a certificate. However, in June 2014 Legal Aid of Ontario (LAO) required the applicant to complete a financial re-assessment, as a result of which his certificate was cancelled. On the applicant’s appeal to the District Area Committee the cancellation was upheld on August 26, 2014. A further appeal to the LAO Provincial Appeals Department upheld the decision of the Area Committee on November 7, 2014. It found the applicant had failed to provide “complete and credible” financial information, and that certain assets of the applicant’s spouse, used for another purpose, disqualified him from receiving legal aid. The reasons also noted numerous failures of disclosure, including bank statements which do not have the applicant’s name on them, a deficiency which continued in his disclosure before this court. The applicant also failed to disclose the purchase of real property by his spouse and failed to explain large bank deposits, according to the LAO’s reasons for refusal.
[8] All appeals have been exhausted by the applicant for legal aid.
INDIGENCE OF THE APPLICANT
[9] On the evidence before me, the applicant has failed to prove on a balance of probabilities that he is indigent and has no means to retain counsel.
[10] The applicant has a heavy evidentiary burden yet he has still not provided complete financial disclosure. The evidence he provides shows selected bank statements of an unnamed TD bank account. Those statements reveal various unexplained deposits, some as large as $1000, and numerous regular payments for several credit cards including AMEX, Capital One, and VISA. The bank account purchase withdrawals are mostly for food, minor items such as ten dollar restaurant receipts. Credit card statements produced show a variety of expenses, some of which appear to relate to his wife or daughter’s purchases.
[11] Neither the bank statements he produced, nor any other evidence of his accounts, show a clear accounting regarding significant living expenses such as mortgage, utilities, realty taxes and insurance. Essentially the record is vague on any explanation as to how these living expense payments are made, other than his allegation that he lives on his wife’s ODSP monthly cheque of approximately $2300, and the assertion that his daughter in Qatar pays numerous expenses for the home. Statements do not show the deposits of any of the ODSP benefits paid which he claims to be his source of support. Neither is there any accounting evidence or statements to provide particulars of the rent received from tenants in his basement, other than a statement from the applicant’s wife that this rent goes to their daughter.
[12] Mr. Zreik has not produced bank statements for his Bank of Montreal (BMO) account, which he said he opened for his numbered company, registered in 2012. He resides in a home purchased in December 2013 for approximately $580,000 which is registered in the name of his wife and daughter. He claims the down payment of about $58,000 for this home was partly from a loan from his wife’s brother, who is a physician, and the rest from his daughter, who is a teacher in Qatar. He also claims his daughter provided funds for his legal fees in relation to a recent civil suit in the court. His wife deposes the money from her brother was not provided for his legal defence.
[13] Despite these claims the applicant provides no independent evidence from the brother-in-law, or daughter to establish the source of and purpose of such funds being used for his home, nor does he provide any evidence of an inability to access funds for his defence from the same source, from his home equity or from close relations.
[14] The applicant owns three vehicles. He initially alleged in his affidavit that these were worth only $6000. His new evidence filed shows a value of approximately $15,000 for two of the vehicles. The applicant’s three adult children are now in university and reside with him and his wife. He claims they live entirely on OSAP funds. He says he cannot sell the vehicles for funds because his children use them. He provides no supporting evidence to clarify these assertions.
[15] The applicant also claims he is unable to work because his wife is sick and needs him. He provides no independent evidence to support or confirm the suggestion his wife’s illness prevents him from working. He deliberately allowed his truck-driving license to expire due to what he claims was a prohibitive $300 licensing fee, yet the records filed show expenses paid by him or members of his family to be well in excess of $3000 per month. The realty taxes alone in his home are $4,730 for 2015. The monthly mortgage payment is $2,600 a month.
[16] Overall I find Mr. Zreik’s evidence about not being able to work and about having no source of income, or access to capital, is not credible. There is no independent verification of facts alleged other than his selective filing. He is not honest in his financial affairs. He admits to misrepresenting and lying about his real address to his automobile insurer, claiming he lives in Quebec, in order to get a reduced rate on his auto insurance. He admits to not declaring the cash income he earned from selling long distance calling cards to retailers from years 2005 to 2013. He claims he kept no records of these earnings. He suggests they were simple cash transactions, not worth recording. There is no evidence of how much he actually earned from this business.
FAIR TRIAL RIGHTS
[17] This court is also not persuaded the applicant’s fair trial rights would be compromised if he is not represented by counsel at trial. As has already been found by Justice Barnes in his reasons for the denial of the co-accused’s Rowbotham application, although the charges are serious and there is the potential for a custodial sentence in the event of conviction, the allegations in this case relate mainly to the legitimacy of certain cheques given to the co-accused written by Mr. Zreik. The crux of the charges is the transactions. The facts alleged against Mr. Zreik do not involve complex legal issues.
[18] In his evidence before me Mr. Zreik admitted he understood both the charges and his anticipated defence of good faith. Although he speaks and understands English, and agreed he has no problem reading numbers on bank statements, he also has the right to an Arabic interpreter at trial. In addition, the Justice at trial will be careful to ensure Mr. Zreik, as a self-represented litigant, has a full understanding of the procedures that will be followed at his trial.
RESULT
[19] In the result this application is dismissed.
Seppi J.
Released: October 28, 2015
COURT FILE NO.: CR-15-1104-00MO
DATE: 20151028
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Respondent
– and –
HAYYAN ZREIK
Applicant
JUDGMENT
Seppi J.
Released: October 28, 2015
[^1]: R v. Williams, 2011 ONSC 7406 (S.C.J.), at paras. 4, 5, 6