ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMMOT(P)902/15
DATE: 2015-12-14
B E T W E E N:
HER MAJESTY THE QUEEN
Brent Kettles, for the Crown
- and -
AHMED HANORAH
Jacob Stillman, for the Defence
HEARD: December 2, 2015
REASONS FOR JUDGMENT
Barnes, J.
INTRODUCTION
[1] The Applicant is charged with fraud over $5,000. The trial is scheduled to take place in the Ontario Court of Justice. On September 14, 2015, I dismissed Mr. Hanorah’s application for an order that his charges be stayed until the Attorney General provides him with publicly funded counsel. This is known as a Rowbotham Order.
BACKGROUND FACTS
[2] This is an application by the Applicant for a reconsideration of my decision. The Respondent submits that this is improper, the doctrine of res judicata applies and this constitutes an abuse of the court’s process. I do not accept this argument.
[3] In my reasons for decision, I indicated that I was prepared to reconsider my decision, if the Applicant provided legitimate proof of where the proceeds of the sale of his home went to and fulsome medical evidence on the effect of his depression diagnosis on his ability to conduct his own trial. On this basis, it is clear that my September 14, 2015, decision was a provisional one. This endorsement should be read in conjunction with my September 14, 2015 reasons, reported at R. v. Hanorah, 2015 ONSC 5659.
[4] In my reasons for decision, I concluded as follows:
(1) the Applicant had been denied legal aid and exhausted all appeals;
(2) in the context of my finding that the applicant was not forthright to Legal Aid that he was a property owner, I was not prepared to conclude that he was indigent and unable to pay for counsel; and
(3) the appointment of counsel is not essential to the Applicant having a fair trial.
[5] At the previous hearing, the Applicant provided a documentary trail relating to the sale of his home to show that the proceeds of the sale were paid to Linda Khanji. The Applicant was not forthright to Legal Aid about the existence of the home and his description of the use of the equity of the home, in an elaborate investment scheme, raised questions about the legitimacy of the whole scheme. Under those circumstances, I left open the option of a reconsideration of the issue of indigence, if additional evidence on the ultimate location of the proceeds of the sale of the home was provided to the court.
[6] On this application, the Applicant filed the affidavit of Linda Khanji, which confirms that she received the proceeds of the home. The home was part of an elaborate investment financing scheme. Her father, Wahid Khanji, was an investor in the Applicant’s company. The whole scheme raises questions about the legitimacy of the transaction; however, I conclude that it appears the Applicant does not have access to funds from the sale of the home. He appears to be indigent and unable to pay for the services of counsel.
[7] In my September 15, 2015, reasons, I noted that the Applicant has a limited grasp of the English language and he depends on others to translate documents written in English. However, he has supervised employees and managed a company with over a million dollars in revenue. The Applicant is adept at using interpreters to conduct his business; the alleged offences involve the issuance of cheques by the Applicant. The issuance of these cheques is not in dispute. The issue at trial will be whether this was all part of a legitimate or fraudulent enterprise.
[8] I also found that the Applicant is intimately familiar with the facts of the case against him and that the trial judge is an additional safeguard to ensure that the trial is fair. For all of these reasons, I concluded that the appointment of counsel was not necessary to ensure the Applicant had a fair trial.
[9] At the previous hearing, the Applicant submitted insufficient evidence in support of his assertion that he suffers from depression and, therefore, cannot represent himself at trial. On the previous application, he submitted a letter from a psychiatrist, Dr. Mohammed El-Sadi. Dr. El-Sadi said that the Applicant suffers from a Major Depressive Disorder and Post–Traumatic Stress Disorder. He said the Applicant was stable while on medication. There was no indication of the impact of this diagnosis on the Applicant’s ability to conduct a trial. On the contrary, the letter supports the inference that if the Applicant takes his medication, he will be able to conduct his own trial.
[10] At the first hearing, the evidence advanced in support of the Applicant’s psychiatric illness was insufficient to adequately assess the impact of his diagnosis on his ability to conduct his own defence. It is a serious matter if he truly cannot conduct his own trial because of his diagnosis. This is the primary reason why I left open the possibility for a reconsideration of my initial decision and requested more fulsome psychiatric information at the Applicant’s option.
[11] I conclude that the Applicant’s application shall be dismissed. The psychiatric evidence provided remains insufficient to reverse my finding that the appointment of counsel is not necessary to ensure that the Applicant has a fair trial. These are my reasons.
EXPERT EVIDENCE
[12] Rules 6.07 and 6.08 of the Criminal Proceeding Rules for the Superior Court of Justice (Ontario), SI/2012-7, stipulate that evidence on an application shall be give either by way of affidavit or by viva voce evidence. The opposite party is entitled to cross-examine.
[13] According to s. 657.3(1) of the Criminal Code, expert evidence may be tendered in proceeding if:
(1) the court recognizes the person tendered as an expert; and
(2) the expert opinion is provided in the form of a report and an affidavit setting out her qualifications.
[14] Expert witnesses have a duty to provide an objective and unbiased opinion to the court. Expert witnesses are expected to provide independent assistance to the court. In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, the Court stated, at para. 32:
Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her.
DISCUSSION AND ANALYSIS
[15] The Applicant swore an affidavit and was cross examined. He provided letters from his doctors as exhibits to his affidavit. The Applicant has been under treatment since November 2013. He was treated by Dr. Al-Dabbagh, a family physician. He was referred to Dr. El-Saidi, a psychiatrist. He was prescribed medication by Dr. El-Said in December 2013. His family physician, Dr. Al Sawaf, prescribed him additional medication and Dr. Wisebord increased his medication fourfold on his last visit. The opinions expressed in the letters indicate a course of treatment for depression, anxiety and paranoid ideation.
[16] The Applicant has not complied with any of the Criminal Code or Criminal Proceeding Rules for the Superior Court of Justice rules. The Applicant explained that he is unable to comply because of his impecunious circumstances. The authors of the letters are unavailable due to geographic and financial impediments. The Applicant submits that even if he has not complied with the rules, the letters from his doctors provide “credible and trustworthy” evidence which support his position that he is unable to defend himself because of his diagnosis.
[17] The Respondent submits that the Applicant has not complied with rules governing the introduction of expert evidence. The doctors have not been qualified as experts. Therefore, the evidence the Applicant seeks to introduce is inadmissible. The Respondent says he wishes to cross-examine the doctors, primarily because the nature of their qualifications is unclear, how the doctors arrived at their conclusions is unclear and there are inconsistencies in the doctors’ opinions.
[18] A proper evidentiary foundation must be put before the court to support the Applicant’s position. It is the Applicant’s onus. The Applicant’s position is that he cannot represent himself because of his psychiatric diagnosis. The Applicant is required to demonstrate that the proposed experts (the doctors) have special knowledge in the area they intend to give evidence: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, at pp. 23-24; R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, at pp. 242-44.
[19] It’s the Applicant’s burden to demonstrate that all aspects of his position are properly supported on the record: R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302, at paras. 14-16, 21 and 24. In circumstances where this objective can be achieved without irreparable prejudice to either party, strict adherence to procedural rules may not be necessary. Each case will turn on its own circumstances, although parties who choose not to adhere to the rules do so at their own peril.
[20] In this case, the Applicant says his impecunious circumstances prevented him from following the rules or making the doctors available for qualification as experts and cross-examination. The Applicant explained that, for financial reasons, out-of-court examinations of the doctors were not feasible. The doctors will have to travel to Brampton from Montreal.
[21] The Respondent offered to accommodate the Applicant by seeking leave of the court for testimony by video link (Skype), in an effort to reduce the associated costs. The Applicant provided no response on why the offer of testimony/questioning by Skype was not accepted.
[22] The doctors are not consistent in their opinions of the Applicant’s diagnosis and symptoms. All of the doctors agree that the Applicant suffers from depression and sleeps poorly. Drs. Al-Dabbagh and Wisebord say the Applicant has poor concentration, suffers from anxiety and has low tolerance for stress. Dr. El-Saidi did not reach the same conclusions. Dr. Wisebord found that the Applicant has suicidal and paranoid ideation. Dr. Al-Dabbagh and Dr. El-Saidi did not make this finding. Dr. El-Saidi did not find any abnormal form of thought, abnormal thought content or suicidal ideation. Dr. Wisebord and Dr. Al-Dabbagh state that the Applicant is unable to defend himself in court, how they reach this conclusion and their related qualifications to render such an opinion is unclear.
[23] This is not a circumstance in which the procedural rules should be applied strictly in the face of an impecunious Applicant’s inability to comply with them. This is a case where the evidentiary record put forward by the Applicant is so deficient that the Respondent’s request for an opportunity to cross-examine cannot be ignored. It was open to the Applicant to explore other options, for example, the preparation of an affidavit and cross-examination by video link or production for examination via video link. This is not an exhaustive list of options.
[24] The Applicant visited Dr. Wisebord. Dr. Wisebord increased his medication fourfold. The Applicant was not forthright with Legal Aid that he was an owner of property; his testimony raised questions about the legitimacy of the investment scheme which resulted in the proceeds from the sale of his home paid out to Linda Khinja. I have found the Applicant not to be credible. This is one of the reasons why the cross-examination of Dr. Wisebord is important.
[25] In the normal course, the reasons underpinning the doctors’ opinions are important. They are even more so in circumstances where those opinions appear to be based on reports by an Applicant who has been found not to be credible.
[26] For all these reasons, the Applicant has failed to discharge his onus on one prong of the three part Rowbotham test. The Applicant has failed to demonstrate that the appointment of counsel is necessary to ensure that he has a fair trial. The Applicant’s application is dismissed.
Barnes, J.
Released: December 14, 2015
COURT FILE NO.: CRIMMOT(P)902/15
DATE: 2015-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
AHMED HANORAH
REASONS FOR JUDGMENT
Barnes, J.
Released: December 14, 2015