ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
KANWAR SALWAN
Applicant
COUNSEL: J. Bielefeld, for the Respondent C.S. White, for the Applicant
HEARD: November 14, 2016, at Brampton
RULING ROWBOTHAM APPLICATION
André J.
1Mr. Kanwar Salwan brings a Rowbotham application for state funding for his defence to charges of importing a Schedule I controlled substance, in a three week trial scheduled for March 2017. The Crown opposes the application primarily on the ground that Mr. Salwan has not provided evidence of financial hardship to justify an order for state assistance.
BACKGROUND FACTS
2Mr. Salwan and a co-accused stand charged with conspiring to commit the indictable offence of importing Ketamine into Canada, importing Ketamine into Canada and possessing Ketamine for the purpose of trafficking.
3Mr. Salwan was arrested on July 12, 2012. He borrowed $3,000 from family members to pay counsel to represent him at his show cause hearing.
4Mr. Salwan separated from his wife in July 2015. He shut down his import business in August 2012 because of poor sales of tobacco which was his main business activity. Mr. Salwan has been unable to find alternative employment largely as a result of health issues. He suffers from osteoarthritis which has severely limited his mobility. As a result he relies on a scooter to get around. Mr. Salwan had gastric bypass surgery in 2014. He also suffers from anxiety and depression and is under medical care.
5Mr. Salwan maintains that he borrowed funds from family members to fund his defence from July 2012 until August 1, 2015. These funds have now run out.
6Mr. Salwan continues to reside in the matrimonial home without paying any rent. He frequently attends the local temple where he is provided free meals. Mr. Salwan’s wife has filed an affidavit confirming that she is separated from Mr. Salwan and that she sold the couple’s home, which was in her name, in 2012.
LEGAL AID
7Mr. Salwan applied for legal aid funding in November 2015. His application was denied in January 2016 because the information he provided was not considered credible and because he did not meet Legal Aid Ontario’s financial guidelines, given his wife’s annual income of $45,000.
8Mr. Salwan appealed the decision. The appeal was denied partly because of a finding that Mr. Salwan had access to “significant funds”, evidenced by his past ability to borrow funds from friends and family members.
9Mr. Salwan subsequently appealed the Legal Aid, Area Committee’s decision. This appeal was also denied. Mr. Salwan has exhausted all avenues of appeal with Legal Aid Ontario.
IMPENDING TRIAL
10The trial is scheduled for three weeks. The Crown’s case is based on the anticipated testimony of 20 witnesses, surveillance evidence, evidence gleaned through the execution of a number of search warrants, and business records. It is anticipated that Mr. Salwan’s co-accused, who will be represented by counsel, will mount a cutthroat defence. The Crown concedes that this will be a complex trial and that Mr. Salwan, who faces a significant term of imprisonment if convicted, is in no position to defend himself.
GOVERNING PRINCIPLES
11The central consideration in determining whether an unrepresented accused should receive state funding for his or her trial is to guarantee an accused’s rights to a fair trial. Where a court determines that an accused lacks the means to employ counsel, and that legal representation is essential to a fair trial, the court should grant an application to ensure that the funding of counsel is provided: see R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271, 41 C.C.C. (3d) 1 (C.A.) at p. 69 C.C.C.
12In determining whether to grant a Rowbotham application, the court is not performing a judicial review of Legal Aid Ontario’s decision. Rather, it is performing its gatekeeping function of ensuring trial fairness: see R. v. Peterman (2004), 2004 39041 (ON CA), 70 O.R. (3d) 481, [2004] O.J. No. 1758 (C.A.), at para. 22.
13In Rowbotham, the Ontario Court of Appeal set out the following three requirements which an applicant must establish on a balance of probabilities, to succeed on a Rowbotham application:
(1) that Legal Aid has been refused;
(2) that the applicant is indigent in the sense that he is incapable of retaining counsel privately for the particular proceeding; and
(3) that the nature of the proceeding is such that representation by counsel is “essential” to the accused’s right to a fair trial. The length, complexity and seriousness of the proceedings, as well as the accused’s capabilities are important considerations in relation to this requirement.
14In R. v. Sheikh, 2011 ONSC 4942 Justice Ricchetti identified the following principles that are relevant to a determination whether an applicant meets the financial criteria to be successful on a Rowbotham application:
- The inquiry into the applicant’s financial circumstances go back to the time the applicant was charged; R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;
- the applicant’s income (actual and available income) is to be considered. See R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222 and R. v. Magda, [2001] O.J. No. 1861 at para 44;
- the applicant must provide detailed financial evidence of his/her financial circumstances. R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;
- the applicant must make efforts to save money, borrow money, obtain employment/additional employment and utilize any assets the applicant has. R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;
- the applicant must be prudent with his/expenses. R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;
- the applicant must show some attempt to plan his/her financial affairs to enable him/her to retain counsel. R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;
- the applicant must exhaust all reasonable efforts to make enquiries to find counsel to represent him/her. See R. v. Drury, 2000 MBCA 100, [2000] M.J. No. 457 (Man. C. A.) at para 48 and R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;
- whether the applicant had been offered a reasonable contribution agreement by LAO. See Drury supra at paras 59-63 and Martell supra;
- the law does not require that the applicant become destitute but that the applicant have a financial plan from the time of his/her arrest to plan for the cost of defending the charges. See Drury supra at para 58 and 65;
- the law requires some willingness to sacrifice on the part of the applicant. See Drury supra at para 58;
- if the applicant is not in a position to financially retain counsel, but this has been due to his/her voluntary choices, priorities and lack of foresight and planning, it is not an appropriate case to grant a Rowbotham order. See R. v. Nightingale, [2001] B.C.J. No. 2610 (B.C.S.C.) at para 9.
ANALYSIS
15The central consideration in this application is trial fairness. For Mr. Salwan’s application to succeed, I must be satisfied, on a balance of probabilities, that his inability to privately retain counsel would adversely impact his right to a fair trial. This involves an analysis of the three-pronged test set out in Rowbotham.
16Mr. Salwan’s legal aid application has been refused. He has exhausted all his appeals under the Legal Aid Plan. The Plan has denied his application because of incomplete information and a finding that the information he provided to them is not credible.
17The Crown does not dispute that the nature of the impending proceedings is such that representation by counsel is essential to Mr. Salwan’s right to a fair trial. However, she submits that Mr. Salwan’s application should be denied given that his claims of impecuniosity lack an evidentiary foundation for the following reasons:
(1) The $30,000 to $40,000 he paid to his first counsel is unaccounted for.
(2) There is no documentary evidence of the $70,000 he allegedly loaned from his family and friends.
(3) He has proven in the past to be resourceful in raising funds for his defence. To that extent, he should be able to do so for his trial.
(4) He has not provided any details about his attempts to obtain employment.
18Regarding the first submission, there are no documents confirming that Mr. Salwan borrowed the money from friends and family to pay his counsel. However, his wife, Monika, has deposed that she sold the family home following her husband’s arrest and received approximately $300,000. Of this amount, she paid $250,000 towards the outstanding mortgage on the home and $20,000 to $30,000 to Mr. Salwan’s counsel. She confirms that the couple separated in July 2015 and that she presently gives Mr. Salwan $150 to $200 a month to pay his car insurance, gas and to pay for some of his medication.
19The Crown has not cross-examined Monika Salwan and is therefore in no position to challenge her affidavit evidence which substantially corroborates Mr. Salwan’s testimony regarding his present financial situation.
20Mr. Salwan provided an Income Tax Summary for 2014 and maintained that he had no income from 2013 to 2015.
21The Crown is correct that Mr. Salwan should have provided his Income Tax Assessment from 2013 to 2015 to confirm his testimony that he had virtually no income during these years. However, Monika Salwan’s affidavit confirmed that he had little or no income during this period. Second, Mr. Salwan’s doctor’s reports dated March 16 and June 16, 2016, provide additional evidence that Mr. Salwan has been beset by serious medical problems that have undermined both his physical and mental wellbeing. Indeed, Mr. Salwan appeared very frail and unsteady during this application and walked with the assistance of a cane. It is therefore not surprising that Mr. Salwan is currently unemployed and has made little or no efforts to seek gainful employment in the last few years.
22The Crown submits that Mr. Salwan has not accounted for the money he claimed he received from his friends. However, the letter he received from Legal Aid Ontario dated April 21, 2016, indicates that Mr. Salwan provided Legal Aid Ontario with receipts from his counsel totaling $51, 616. He also provided copies of three additional statements from his counsel in the amounts of $6,780, $1,695 and $9,000. These records confirm, at the very minimum, that Mr. Salwan was billed, as he claimed, approximately $70,000 by his lawyer.
23Mr. Salwan testified that he borrowed this money from family and friends. There is no evidence to suggest otherwise. It would be speculative to conclude that he has a hidden stash of funds which he can access to retain counsel. Furthermore, there is no evidence that Mr. Salwan has dissipated or divested himself of funds or assets which could have been utilized to privately retain counsel.
24Mr. Salwan’s estranged wife and his friends have no legal obligation to financially contribute for his legal representation: see R. v. Eid, 2013 ONSC 7084 at paras. 31-36 and 65-66 and R. v. Dadshani, [2008] O.J. No. 455, at paras. 6-8. His inability to solicit additional funding from these sources should not disqualify him from receiving state assistance for his trial.
CONCLUSION
25For the above reasons, Mr. Salwan’s application is granted.
26Order to go that Legal Aid Ontario issue Mr. Salwan a legal aid certificate forthwith to enable him to retain counsel for his upcoming trial scheduled for March 2017.
André J.
Released: December 14, 2016
CITATION: R. v. Salwan, 2016 ONSC 7807
COURT FILE NO.: CRIMJ (F) 798/13
DATE: 20161214
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
KANWAR SALWAN
RULING ON ROWBOTHAM APPLICATION
André J.
Released: December 14, 2016