ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P)2557/12
DATE: 2015-11-20

B E T W E E N:

HER MAJESTY THE QUEEN

Ananthan Sinnadurai, Counsel for the Respondent

• and -

NIRANJAN KALAICHELVAM

Self-Represented

HEARD: November 20, 2015

REASONS FOR JUDGMENT

Barnes, J.

INTRODUCTION

1Mr. Kalaichelvam is charged with four criminal offences: possessing a credit card forgery device; illegal possession of credit card data; breach of recognizance and obstructing a peace officer.

2The Applicant seeks an order staying the charges until the Respondent (Attorney General of Ontario) funds counsel to represent him. He seeks a Rowbotham order. The Applicant represents himself in this application.

BACKGROUND FACTS

3The Applicant’s first lawyer was John Filberto. The services of counsel was funded by the Ontario Legal Aid Plan. The Applicant discharged Mr. Filberto in 2012. The Applicant submitted a change of solicitor request to Legal Aid Ontario. Legal Aid Ontario denied his request.

4The Applicant brought a Rowbotham application in 2012. The Respondent choose to resolve the application and entered into a funding agreement with the Applicant. Pursuant to the agreement the Applicant retained new counsel, Ed Royle and Associates. New counsel was funded in accordance with the terms of the agreement.

5The Applicant discharged Ed Royle and Associates in November 2015. Trial dates scheduled in December 2013, were vacated. The Applicant retained the services of Ed Royle and Associates a second time. He terminated this retainer in March 2015. As a result, trial dates scheduled for April 2015, were vacated.

6Ed Royal and Associates have agreed to act as amicus curiae to assist the trial court, if appointed.

7The Applicant is now unrepresented. His trial is scheduled for February 2016.

ISSUES

8There are two issues before this court:

a) Has Applicant met the test for a Rowbotham order?

b) If the Applicant has met the test for a Rowbotham order, has he disentitled himself because of his conduct?

LAW

9To be successful, the Applicant must prove, on a balance of probabilities, that he has met the following three conditions: R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302 (C.A) at para. 17-21:

a) he has been refused aid and has exhausted all appeals from that refusal;

b) he is indigent and lacks the means to employ counsel; and

c) his right to a fair trial will be materially compromised without state funded counsel.

10On the issue of indigence, Justice Stromberg-Stein in R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.C.S.C.) at para 23, provides a helpful outline of the type of financial information required to support a clam of indigence. Financial evidence to demonstrate:

a) extraordinary financial circumstances;

b) attempts to obtain funds to retain counsel;

c) prudence with expenses and prioritization of payment of legal fees;

d) efforts to save for the cost of counsel and to raise funds by earning additional income;

e) reasonable efforts to use his assets to raise funds, for example by obtaining loans;

f) whether the applicant is in a position to pay some of the costs of counsel; and

g) the income and assets of the applicant’s spouse and family.

11A claim of indigence cannot be based on cursory and unsubstantiated claims. There must be credible and relevant disclosure in support of the claim, before the remedy of a stay pending state funding should be considered: R. v. Edrissi, [2013] B.C.J. No.1562 (B.C.S.C.) at para. 7; R. v. Kizir 2014 ONSC 1676, [2014] O.J. No.1276 (S.C.J.) at para. 46; R. v. James, [2011] O.J. No. 4651 (S.C.J) at para 46. The amount of detail necessary to meet this criteria will vary depending on the circumstances of each case.

12Even in circumstances where an Applicant has discharged his onus for a Rowbotham order, the Applicant maybe disentitled to state funding in circumstances where the absence of state funding for the defence, has been created by the Applicant’s own conduct: R. v. Imona-Russel, [2008] O.J. No. 5405 (S.C.J.) at para. 17, 20, 22; R. v. Richer, supra at para.41.

ANALYSIS

Is the Applicant indigent and unable to retain the services of counsel?

13The Applicant says his main source of income is from the Ontario Works Program. He explains that he does not earn enough money to pay for the services of counsel.

14The Applicant has been unable to obtain the documentation needed to support his claim. He has requested more time to provide such information.

15I am satisfied that there is a high probability that he could produce evidence to satisfy this requirement. In the past the Applicant satisfied provincial authorities that he did not earn enough money to pay for the services of counsel. Legal Aid Ontario was prepared to fund the cost of his first lawyer and the Respondent was prepared to pay for the cost of the second.

16Ordinarily previous approvals for state funding to retain counsel, under a legal aid plan or some other agreement, will not be a substitute for credible and relevant disclosure; however, even if the Applicant had provided the necessary information, and satisfied all the criteria, he may not be entitled to a Rowbotham order because of his own conduct.

Does the Applicant require the assistance of counsel in order to have a fair trial?

17The Applicant submits that he requires the assistance of counsel in order to have a fair trial. The Respondent makes no submission on this point. I take this as a concession that the Applicant requires the assistance of counsel in order to have a fair trial and I make that finding.

Has the Applicant’s conduct disentitled him to a Rowbotham Order?

18The Applicant has changed lawyers three times. First, Mr. John Filberto and then Royle and Associates on two occasions. The Applicant said that this was due to break downs in his solicitor client relationships.

19Regardless of the reason, it is undisputed that the Applicant’s decision to terminate the services of counsel has resulted in the cancellation of two trial dates; caused delays in this matter and is the primary reason why he has no state funding to retain counsel.

20The Applicant finds himself in the current predicament because of his own conduct. To allow the application will be to allow the Applicant to determine when and how often he will retain counsel thereby, causing delays in the resolution of this matter and causing additional costs to the public purse.

21The Applicant is entitled to a fair trial; however, he has no absolute right to representation by counsel of his choice in every case. The administration of Justice must not be impeded by undue delays. The court process must not be subverted by unacceptable delays: R. v. Richer, supra at para. 41.

22By his own conduct the Applicant has disentitled himself to state appointed counsel under a Rowbotham order. His application is dismissed.

23The presence of the trial judge will ensure that he receives a fair trial. I will appoint Ed Royle and Associates as amicus curiae to assist the trial court. The amicus is to ensure that appropriate legal motions are brought before the trial court and address legal issues that may arise in the course of the Applicant’s trial. The amicus curiae is not to act as defence counsel for the Applicant but is to assist the trial court in ensuring that the Applicant understands applicable legal principles: See also Richer, supra at para.17; Morwald-Benevides, 2015 ONCJ 532, [2015] O.J.No. 5064 (S.C.J.) at para. 43.

Barnes, J.