Court File and Parties
Court File No.: CR-14-10000126-OOAP Date: 2016-11-29 Superior Court of Justice Summary Conviction Appeal Toronto Region
Between: Her Majesty the Queen, Respondent – and – Ivanmarino Mazia, Appellant
Counsel: Ted Ofiara, for the Crown Jessica Laham, for the Appellant
Heard: November 16, 2016
K.P. Wright J.
Introduction
[1] On October 1, 2014, the appellant Mr. Mazia was found guilty on one count of theft under $5,000 after trial in the Ontario Court of Justice in which he represented himself.
[2] Today Mr. Mazia appeals that conviction on two bases:
(1) That the trial judge erred in law by failing to grant Mr. Mazia’s Rowbotham application; and
(2) That the trial judge erred in law by failing to provide adequate assistance to Mr. Mazia as an unrepresented accused with a visual impairment.
[3] He submits that these errors amount to a miscarriage of justice and requests that his conviction be set aside and a new trial ordered.
[4] In support of the appeal, Mr. Mazia also seeks to introduce fresh evidence establishing his visual disability.
Fresh Evidence
[5] I will first deal with the fresh evidence application.
[6] Mr. Mazia is requesting that the court receive fresh evidence to explain the vision problems from which he was suffering when he commenced his Rowbotham application and trial in September 2014.
[7] The fresh evidence record contains an affidavit from Mr. Mazia and supporting medical documents. The record indicates that, at the time of trial, Mr. Mazia was diagnosed with bilateral keratonous, a progressive disease of the cornea that results in severe vision loss. In Mr. Mazia’s case, it appears that he was legally blind at the time of his trial, suffering from a deterioration of the cornea in one eye and only seven percent vision in the other.
[8] Crown counsel did not seek to cross examine Mr. Mazia on his affidavit and filed no written material in response to this application.
[9] Sitting as an appellate court judge, I am mindful that I have broad discretion to admit fresh evidence on appeal if it is in the interests of justice.
Palmer v. The Queen, [1980] 1 S.C.R. 759, at para. 22.
[10] In this case, it is the fairness and the validity of the trial process that is being challenged. The fresh evidence sought to be admitted goes to the heart of these issues on this appeal. As such, I am satisfied that it is in the interests of justice that the fresh evidence be admitted.
R. v. Truscott, 2007 ONCA 575, 226 O.A.C. 200; [R. v. Widdifield (1995), 25 O.R. (3d) 161 (C.A.)]
Rowbotham
[11] The legal principles which apply on a Rowbotham application are not in dispute. In order to be successful, an applicant must satisfy three criteria on a balance of probabilities:
(1) That he has been denied legal aid and all available appeals have been exhausted;
(2) That he lacks the means to pay for counsel; and
(3) That his right to a fair trial will be materially compromised if he is required to proceed without a lawyer.
R. v. Williams, 2011 ONSC 7406, at para. 5; R. v. Munroe, 2015 ONSC 5705, at para. 7; R. v. Tang, 2015 ONCA 470, at para. 9.
[12] In assessing whether an individual’s right to a fair trial would be materially compromised if required to proceed without counsel, consideration must be given to the seriousness of charges, the length of the trial, the complexity of the trial, and the individual’s ability to participate effectively and defend the case against him.
Failure to Consider the Appellant’s Visual Disability
[13] At trial, Crown counsel conceded that Mr. Mazia had satisfied the first two criteria. It is the third criteria which was the sole focus of the Rowbotham application.
[14] The trial judge denied the Rowbotham application on the basis that the charges were neither serious nor complex. She found that Mr. Mazia was capable of representing himself and he had no health conditions that would impair his ability to proceed without counsel. She made no mention of his vision problems in her Reasons on the application.
[15] I am mindful that the trial judge was not made aware that Mr. Mazia was, in fact, legally blind. She did not have the benefit of the medical reports and Mr. Mazia made no mention of it in his handwritten application. He did, however, tell the Court repeatedly during the Rowbotham application that he had vision problems. At one point he said:
And, as well, my vision is one of the factors so I cannot participate in everything functionally.
Trial Transcript, September 4, 2014, at p. 36 (line 30).
[16] In my view, this statement alone should have alerted the trial judge that Mr. Mazia was suffering from a visual deficit and triggered an inquiry as to the extent of his problem. It did not.
[17] Later in the application, it became apparent that Mr. Mazia was having difficulty keeping up due to his vision problems. When he alerted the trial judge, the following exchange took place:
THE ACCUSED: I have a vision issue, so I will hear the comments, I have a problem with vision, if I can be assist (inaudible).
THE COURT: Well, can you see what she is - the paragraph she has been reading so far, in the small book?
THE ACCUSED: This was – the big one – I can’t find it.
Trial Transcript, September 4, 2014, at p. 16 (line 19 to line 27).
[18] Certainly, after this exchange, it was incumbent on the trial judge to recognize Mr. Mazia’s difficulty and to make inquiries to determine the extent of the problem. Regrettably, she did not.
[19] I am mindful that, all other things being equal, this case would be viewed as uncomplicated and straightforward. But, in Mr. Mazia’s case, all things were not equal.
R. v. Mazia, 2014 ONCJ 613, at para. 7.
[20] Mr. Mazia was legally blind and representing himself on a criminal trial without the assistance of counsel. I am confident that if the trial judge had made herself aware of his disability, she would have, without hesitation, granted the application. Unfortunately, she did not and her failure to recognize his disability undermined the appellant’s right to a fair trial. I am mindful of the significant volume of cases that the Judges in the Ontario Court of Justice manage on a daily basis, and the pressure on them to deal with matters efficiently. The pace of the court can be swift and this case was no exception. There was an obvious undercurrent of urgency driving the matter forward which in my view contributed to this unfortunate outcome. It serves as a reminder to all of us as justice participants that we must be vigilant in ensuring that integrity is never sacrificed for efficiency. Given the extent of Mr. Mazia’s vision disability, I am satisfied that the assistance of counsel was necessary to ensure that he had a fair trial and, on that basis, the conviction should be set aside and a new trial ordered.
R. v. Tran (2001), 55 O.R. (3d) 161, 156 C.C.C. (3d) 1 (C.A.)
Too Stringent A Test
[21] Moreover, I find that the trial judge erred in law by applying too stringent a test in determining whether to grant the Rowbotham application. On three separate occasions, the trial judge indicated to Mr. Mazia that he must persuade her that his case was “rare and exceptional” (emphasis added) and thus deserving of the assistance of counsel.
Trial Transcript, September 4, 2014, at p. 40 (line 24 to line 28). Trial Transcript, September 4, 2014, at p. 42 (line 12 to line 15). Trial Transcript, September 4, 2014, at p. 44 (line 18 to line 28).
[22] The Court of Appeal has expressly cautioned against such a strict application of the test. In Rushlow, that Court stated:
In considering whether to appoint counsel the trial judge is required to consider the seriousness of the charges, the length and complexity of the proceedings and the accused’s ability to participate effectively and defend the case. Because of the pervasiveness of legal aid, it will be the rare and exceptional case that the court will find it necessary to appoint counsel. This does not mean that counsel is only required in exceptional cases. Rather, it is the fact that legal aid is available for accused who cannot afford a lawyer that Rowbotham orders are exceptional.
R v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302, at para. 19
[23] In my view, the trial judge did not apply the correct test and I am satisfied that the test she did apply amounts to an error in law.
[24] Accordingly, I would allow the appeal, set aside the conviction, and order a new trial. As a result, I find it unnecessary to consider the Appellant’s second ground of appeal.
K.P. Wright J. Released: November 29, 2016
SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL TORONTO REGION
HER MAJESTY THE QUEEN, Respondent – and – IVANMARINO MAZIA, Appellant
REASONS FOR JUDGMENT K.P Wright, J. Released: November 29, 2016