Court File and Parties

CITATION: R. v. Tehrani, 2016 ONSC 2228

COURT FILE NO.: MO60/16

DATE: 2016-04-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Madjid Vaez Tehrani

BEFORE: Molloy J.

COUNSEL: Nansy Ghobrial, for the Crown (Respondent) Aaron Harnett, for the Applicant, Tehrani

HEARD: March 3, 2016

Endorsement

[1] Madjid Tehrani applies for a "Rowbotham Order", seeking a stay of the criminal charges against him until such time as the Ministry of the Attorney General provides funding for him to retain legal counsel.

[2] Mr. Tehrani is charged with two counts of fraud and a single count of committing an offence for a criminal organization. There are eight accused on the indictment, all of whom are alleged to have participated in various fraudulent schemes to obtain money through small business loans, which loans were then defaulted upon. The total amount of the loans in respect of the two charges against Mr. Tehrani is over $400,000. There will be an issue at trial as to whether the two corporations involved in the charges against Mr. Tehrani were real businesses, whether the invoices submitted to substantiate renovation costs were legitimate, and whether any work was done. If these transactions were fraudulent, there will be an issue as to the extent of Mr. Tehrani's knowledge and participation. There will also be an issue as to whether the various frauds alleged were carried out by the individuals charged as part of a criminal organization and whether Mr. Tehrani was complicit in that.

[3] There is no issue with respect to the test to be applied on this application. Both parties agree as to the essential elements of the test and that the applicant must satisfy all three prongs of the test on a balance of probabilities. In light of that, I will not set out that test in any detail here. It is well-defined in the case law,[^1] and I have set it out in my prior decision in R. v. Williams,[^2] which counsel agree is accurate.

[4] Mr. Tehrani applied for legal aid, but was refused on the basis of financial ineligibility. He has exhausted all rights of appeal.

[5] On the evidence before me, I am satisfied that Mr. Tehrani lacks the means to retain counsel to represent him. He has been essentially unemployed since November 2015 and has difficulty working because of back problems. Prior to that he worked as a courier. Occasionally, he works at night delivering food for Swiss Chalet. He is barely able to provide for his basic needs. He has no assets of any value. The trial is estimated to be four months in duration. Retaining counsel for such a trial is completely beyond Mr. Tehrani's financial means.

[6] The Crown argues that it was Mr. Tehrani's own failure to make proper financial disclosure that led to the refusal of his application for legal aid. I agree that this can be an appropriate basis for denying a Robotham application.[^3] However, I do not find it appropriate to do so on the facts of this case. It is not my function on an application such as this to essentially conduct an appeal or judicial review of the decision of Legal Aid Ontario. However, I do not find a material failure to disclose financial information, nor do I find sufficient discrepancies in the banking information to support a finding that Mr. Tehrani is hiding sources of income.

[7] Finally, in my view, Mr. Tehrani will not have a fair trial unless he is represented by counsel.

[8] The financial records and documentary disclosure in this case are voluminous. While the alleged fraud itself is not exceedingly complex, neither is it simple. Mr. Tehrani is 54 years old. English is not his first language. He has no background in law, nor in financial accounting and no prior experience with the criminal process. The legal issues, particularly involving party responsibility and issues relating to the criminal organization charges, are complex. Mr. Tehrani is ill-equipped to deal with these matters on his own. He would be unable to conduct meaningful or effective cross-examinations, particularly of expert witnesses. I also cannot see how he would be able to sift through all of the documentary disclosure and discern what is relevant for his defence. The trial is expected to take four months. If he is not assisted by counsel, he will be required to be there for every minute of the trial, meaning that he will not be able to earn any income. The charges are serious and upon conviction could result in a significant sentence, particularly with respect to the criminal organization charges.

[9] Accordingly, I find that Mr. Tehrani has satisfied all elements of the Rowbotham test. The charges against him shall be stayed unless and until the Ministry of the Attorney General provides funding at the Legal Aid tariff rates to enable Mr. Tehrani to retain counsel.

MOLLOY J.

Date: April 6, 2016

[^1]: R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1 (Ont.C.A.); R. v. Boatend, 2011 ONSC 6356, [2011] O.J. No. 6166 (S.C.J.); R. v. Imona-Russell, [2008 O.J. No. 5405 (S.C.J.); R. v. Montpelier, 2002 CanLII 34635 (ON SC), [2002 O.J. No. 4279 (S.C.J.)

[^2]: R. v. Williams, 2011 ONSC 7406

[^3]: R. v. Montpellier, supra Note 1; R. v. Williams, supra, Note 2; R. v. Tang, [2011] O.J. No. 6694 (S.C.J.); R. v. Solleveld, 2011 ONSC 3045