CITATION: R. v. Woods, 2016 ONSC 2374

COURT FILE NO.: 21/13

DATE: 2016 04 07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

R. Fetterly, for the Crown, and

J. Claydon, Counsel for the Attorney General of Ontario

• and -

ROBERT WOODS

Appearing in Person

HEARD: March 14, 2016

RULING #1: APPLICATION FOR STAY

PENDING APPOINTMENT OF COUNSEL

“ROWBOTHAM APPLICATION”

WEIN, J.

[1] Mr. Woods formally filed this application on the morning that his three-week jury trial was scheduled to commence. The jury panel had been brought in for the Sittings, for the planned selection of two juries. Mr. Woods’ application was heard immediately after the selection of the jury.

History of the File

[2] The charges of fraud, forgery, using forged documents, false pretenses, and perjury all relate to a construction contract entered into by Mr Woods and two homeowners in August of 2009, and to contract related dealings between August 2009 and February 2010.

Ontario Court Proceedings:

[3] DATE: EVENT:

• March 26, 2010 Arrest and Video Statement taken

• July 2011 Partial Retainer Greenspan Partners: Counsel 1

• August 18, 2011 Judicial Pretrial – peremptory on Defendant to

proceed with or without counsel

• October 4, 2011 Judicial pretrial

• June, July, Preliminary Hearing scheduled on

August, 2012 various dates

• March 24, 2012 Disclosure still forthcoming

• April 16, 2012 Further disclosure provided

• June 18, 2012 August preliminary hearing dates in June

and July vacated and August preliminary hearing

to be with or without counsel

• October 2012, April, Preliminary Hearing continues with new counsel

May and June, 2013 Preliminary hearing continues with Counsel 2

• June 14, 2013 ordered to stand trial

[4] Although there were changes of counsel throughout the proceedings in the Ontario Court of Justice, Mr. Woods was represented throughout and there is no suggestion that he did not have full disclosure.

Superior Court Proceedings

[5] DATE: EVENT:

• July 15, 2013 Pretrial scheduled for August 6

• August 12, 2013 Matter adjourned to September 9^th to set trial

dates “regardless if the accused has counsel”,

Bench warrant with discretion issued

• September 9, 2013 Matter adjourned to October 21^st, 2013 “as

accused is in process of retaining new counsel”,

“Accused advised to be ready to set trial date at

next Assignment Court whether he has counsel or

not”;

• October 21^st, 2013 Mr. Woods indicates Counsel #3 “about to be

retained”; adjourned to set JPT continuation date

with or without counsel; accused advised to

appear with counsel or a clear letter of retainer;

• November 12^th, 2013 Adjourned further to allow Mr. Woods to meet

counsel;

• November 26^th, 2013 A.M. Bench warrant issued as no one appeared;

• November 26^th, 2013 Afternoon: Mr. Woods phoned Duty Counsel who

advised that he wished an adjournment for two

weeks as he was in Sudbury Hospital –

investigation by police showed Mr. Woods not to

be a patient there, and no record of attending

Emergency there today; Bench Warrant to stand.

• March 5, 2014 Remanded in custody on bench warrant;

• March 11, 2014 Released on condition; Counsel #4 appearing

• May 26^th, 2014 Bench warrant with discretion; Counsel #4 unable

to attend

• June 23^rd, 2014 Charged adjourned to August 11^th, 2014 to be

spoken to by Counsel #4, (who is not fully

retained)pretrial in meantime;

• August 11^th, 2015 Pretrial scheduled to continue;

• October 20^th, 2014 Trial date to be set in Sittings commencing

November 2015, trial scheduled to proceed “with

or without counsel, estimated three weeks with a

jury”;

• November 12^th, 2014 Mr. Woods advises of schedule re: payment of

fees, trial date “remains with or without counsel,

remanded to May 13, 2015 to be spoken to”, the

accused to provide a letter from counsel

addressing retainer issue; trial set for November 9, 2015 Sittings

• May 13, 2015 Court advised that Counsel #5 has been

contacted but not retained, court orders trial date

to remain “with or without counsel”, bench warrant

with discretion to issue, remanded to June 12^th

Assignment Court at 9:00 a.m.;

• June 12, 2015 Trial date remains with or without counsel

with interim date in July to speak to retainer;

• July 29^th, 2015 Counsel #5 advises not retained and not

available for trial, court orders trial date to remain

with or without counsel in November;

• August 31, 2015 Counsel #5 appears and advises may be retained

if cheque clears, matter to remain on

November Sittings list; but to be potentially adjourned to accommodate counsel;

• September 25, 2015 Counsel #5 retained, November trial dates

are vacated and further pretrial peremptory on

defence to provide court dates; September 29,

2015 – Counsel #6 appears for Counsel #5

and advises he will be trial counsel, prepared to

set March 14^th to April 9^th as trial dates, listing of

the trial remains on a “with or without counsel

basis”;

• November 23^rd, 2015 Matter remains on trial list with or without counsel

as Counsel #6 “is unclear as to whether he will be

continuing to act”;

• January 4, 2016 Counsel #6 removed from record: “both Counsel

#6 and Mr. Woods understand that the trial of this

matter shall proceed on March 14^th”;

• March 7, 2016 Mr. Woods unclear whether he will have counsel,

but case is marked ‘ready to proceed with or

without counsel’, and March 14^th for jury

selection.

[6] In the few days before the trial was set to begin, Mr. Woods advised the trial office and the Crown that he would be seeking a stay. On the trial date, he formally filed an application for a stay.

[7] It is apparent from the long history of this file that Mr. Woods has been able to retain more than one counsel on more than one occasion, has partially retained counsel, has obtained adjournments on the basis he would be obtaining other counsel, and was advised by the Court more than five months ago that the trial date of March 14, 2016 would remain, on a “with or without counsel” basis.

[8] Having been unsuccessful in obtaining counsel for this date, Mr. Woods now appears requesting a stay on the basis that counsel is required to be appointed for him.

PART II – The Law

[9] The Charter does not require that every accused be provided with state-funded counsel in all cases. Neither the right to a fair trial nor the principles of fundamental justice require representation by counsel in every case. The appointment of counsel through the Legal Aid funding system is the primary method by which the state ensures its constitutional obligation to see that a fair trial and the right to full answer and defence are met.

[10] Courts have held that the Charter remedy of a stay of proceeding pending the appointment of publically-funded counsel depends on the satisfaction of three conditions as set out by the Ontario Court of Appeal in R v Rowbotham 1988 CanLII 147 (ON CA), [1988] O.J. No. 271 at p. 45. See also R v Williams 2011 ONSC 7406 at para 5.

[11] The Applicant is seeking an exceptional remedy which should only be granted when the Applicant meets the evidentiary burden for each element of the Rowbotham test.:

(a) Legal Aid: The Applicant must show, with supporting documentation, that he has been finally refused Legal Aid, and that the refusal was not the result of his own misconduct;

(b) Indigence: The Applicant must also provide a full and credible description of his finances to demonstrate that he is unable to retain counsel privately.

(c) Seriousness and Complexity: The applicant must prove that the charges are sufficiently serious and complex that the assistance of counsel is essential to ensure a fair trial.

[12]

Denial of Legal Aid

[13] To satisfy the first Rowbotham criterion, an applicant must have made an attempt to obtain legal aid prior to seeking Rowbotham relief. There should be a clear record before the court of the final denial of legal aid coverage:

The Applicant must also show that he has made every attempt to apply for legal aid and, if initially denied, has exhausted all appeals available to him. If the proceedings have been before the court for a lengthy period, it may be appropriate for the fugitive to re-apply for legal aid on the basis of a change in circumstances. In any event, he must make every attempt to obtain legal aid as the first precondition to the remedy sought. There should be a clear record before the court of the denial of legal aid coverage in the form of documentary evidence…

[14] Mr. Woods acknowledges that he did not apply for Legal Aid. He says that this was because he had been denied in a Sudbury matter, and was told that he would not get legal aid for this trial. It appears that the Sudbury application was in a family matter, but in any event Mr. Woods clearly felt he could retain his own counsel. He had counsel at the preliminary inquiry. He had different counsel, sometimes but not always as fully retained, at earlier stages before the Superior Court. It was on the basis of his changes of counsel over three years that the matter was adjourned repeatedly. Since well over five months before the trial actually started he was advised that the trial would proceed “with or without counsel” on this date.

Proof of Indigence

[15] To prove indigence, the Applicant must prove that his financial position is such that, after the date that he could reasonably have expected that he would require counsel, even after making reasonable sacrifices and efforts, he would be unable to retain competent counsel.

[16] The indigence requirement has been summarized as follows:

…to obtain a conditional stay of proceedings based on a violation of ss.7 and 11(d), certain financial criteria must be established. First, the applicant’s financial circumstances must be “extraordinary”. The applicant must provide detailed financial evidence of his or her financial circumstances, which includes supporting evidence. The applicant must save money to hire counsel or contribute to his or her legal fees, and make efforts to borrow money from friends or family. The applicant should try to obtain employment or additional employment if already employed. The applicant should try to find counsel who will be willing to work at LSS rates. The applicant must reasonably exhaust his or her own assets to pay for counsel before looking to the taxpayer to pay for a lawyer. The applicant must demonstrate that he or she is prudent with his or her personal living expenses and show foresight and planning of his or her financial affairs to pay for a lawyer. […]

The inquiry into the applicant’s financial circumstances commences when he or she reasonably knew a lawyer would need to be retained to defend criminal charges, and at the latest, when charges were laid[…]

The rationale for such a stringent test is justified in that such an order is “rare and exceptional” and that it must be the “clearest of cases” before a stay of proceedings is entered. This is based on the law that establishes that the judiciary should not be spending taxpayer money in cases where an accused chooses not to spend the money he has on his lawyer, and instead comes to the court cap in hand, expecting counsel to be appointed for him. In those circumstances, the cap will remain empty. R. v Crichton, 2015 BCCA 138 at paras 49, 51, 52

[17] The Applicant must show that he has made efforts to obtain counsel at reasonable rates. The Applicant must show planning and foresight, and in particular the Applicant must show that he has no assets which can be utilized or that every effort has been made to utilize what assets are available to raise funds.

[18] In R. v. Pilon, the Court noted that an Applicant should furnish “independent evidence” to support bald assertions of efforts to obtain assistance from family members and that family members are in fact unable to assist in the funding the legal defence.

[19] The Superior Court of Ontario has on a number of occasions stressed the importance of the Applicant providing a full and credible financial picture with supporting documentation. In R. v. Kizir, the court cautioned:

In Borean, at para. 8, the Court held that the inquiry into the applicant’s finances must be more than cursory, and a finding on the issue should not be based merely on unsubstantiated statements of alleged facts by the accused. A significant in-depth review of the facts is required...[the applicant is required to] come clean with this court in disclosing his assets…

[20] In R. v. Wright, the court held that:

…the applicant must adduce more evidence of his income and resources than merely his own viva voce testimony and an affidavit containing bald assertions. There must be some supporting documentation of the applicant’s income and resources.

[21] The supporting documentation filed by Mr. Woods suggests on its face that he has over $600,000 in assets, and his oral evidence suggested he may have more. He says it is all tied up and he cannot access it. He provides no evidence of any efforts he has taken particularly since counsel was removed from the record on the basis that the trial would proceed “with or without counsel” to arrange his financial affairs or to retain new counsel.

Ensurance of a Fair Trial

[22] The presumption that the trial judge can ensure a fair trial will only be rebutted where the Applicant demonstrates that the complexity of the case, the Applicant’s lack of competence or other circumstances are such that, despite the best efforts of the trial judge, the trial would be unfair without counsel’s representation of the accused. R v Rain, 1998 ABCA 315, [1998] AJ No. 1059 (C.A.) at paras. 38,87.

[23] In determining this issue, the court must consider:

(a) The seriousness of the charges;

(b) The length and complexity of the proceedings; and,

(c) The accused’s ability to participate effectively,

Williams, supra at para 9.

[24] In assessing the complexity of the proceeding, the Court may take into account the length of trial, the volume of disclosure, and any factual or legal complexity.

[25] The Crown has summarized several cases showing that fraud and theft charges do not necessarily give rise to a level of complexity necessary to require the help of counsel:

In R. v. Williams, the Superior Court denied the accused’s Rowbotham application despite the fact that the accused was charged with 37 counts of fraud under the Criminal Code, there were multiple co-accused, the trial length was estimated at 50 days, and there was “voluminous disclosure”. Williams is a case about an alleged mortgages and lines of credit fraud involving a licenced mortgage consultant, a real estate agent, a businessman, and a lawyer.

In R. v Solleveld, the Superior Court denied the accused’s Rowbotham application despite the fact that the accused was charged with fraud and conspiracy to commit fraud, there were multiple unrepresented co-accused, the trial length was estimated at six months, upwards to 100 witnesses would testify, and there was a large amount of disclosure. Solleveld is a case about an alleged fraudulent investment club involving over 100 investors.

In R. v. Goba, the Superior Court denied the accused’s Rowbotham application despite the fact that the accused was charged with a number of fraud-related charges, there were three other co-accused, and the trial was set for six months. The Court held that the issues underlying the charges were not especially complex. In Goba, the factual issue was simply whether the vehicles existed and the leases were valid or they were not.

…in R. v Getz, where the accused was charged with theft over $5,000, Zarzeczny J. denied a Rowbotham application based in part on the simplicity of the allegations underlying the charge.

[26] The charges against Mr. Woods are not factually complex. They all relate to a single contract to build a home addition, alleging that he defrauded the client, created and used false receipts for supplies, swore a false affidavit in support of filing a lien, and obtained credit by way of worthless cheques. This is a relatively short trial, with no expert evidence, and no complicating evidentiary issues.

[27] This case is not of sufficient complexity that Mr Woods’ fair trial rights will be materially compromised without his having counsel. He is articulate. He is familiar with most, and probably all, of the essential underlying documents. He has been and will continue to be assisted on procedural issues concerning the presentation of his case, and on the applicable law necessary for him to present his case and make his arguments.

Conclusion at Commencement of Trial

[28] Mr Woods has met none of the three prerequisites required to obtain a stay of proceedings.

[29] The evidence filed on the application, and the history of the case before this Court, show that the request is but one final attempt to delay the trial.

[30] The application must be denied.

Wein, J.

Released: April 7, 2016

CITATION: R. v. Woods, 2016 ONSC 2374

COURT FILE NO.: 21/13

DATE: 2016 04 07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

• and –

Robert Woods

RULING #1: APPLICATION FOR STAY PENDING APPIONTMENT

OF COUNSEL: “ROWBOTHAM APPLICATION”

Wein, J.

Released: April 7, 2016