Her Majesty the Queen v. Shuaib Shafi, 2017 ONSC 1905

Court File No.: CRIMJ(F)1284/15 Date: 2017 03 23

Superior Court of Justice – Ontario

Between: Her Majesty the Queen Nansy Ghobrial, for the Crown

And: Shuaib Shafi Michael G. McLachlan, for the Defence

Heard: March 21, 22, 23, 2016

Reasons for Judgment Barnes, J.

Introduction

The Applicant is charged with fraud over $5,000, one count of personate a police officer, one count of forcible confinement, one count of use imitation firearm, two counts of laundering proceeds of crime, one count of possession of property obtained by crime, and one count of public mischief.

[1] The Applicant and his co-accused, Shabnam Shafi, are alleged to have defrauded 24 victims of approximately four million dollars. The trial is scheduled to take place in the Ontario Court of Justice.

[2] The Applicant seeks an Order that the charges against him be stayed until the Attorney General provides him with publicly funded counsel. This is known as a Rowbotham Order. In May 2016, I dismissed his application. These are my reasons.

Background Facts

[3] The Applicant applied for legal aid on July 29, 2015. Legal Aid Ontario (LAO) issued him a legal aid certificate. The Applicant was initially detained after his arrest. His counsel filed some documentation in support of the bail review application.

[4] LAO became aware that there were inconsistencies between the information he provided in support of his legal aid application and information he provided in support of his bail review application. As a result, LAO wrote to the Applicant on September 5, 2015. LAO requested additional documentation to support his legal aid application and a second interview. The Applicant did not provide the information requested.

[5] On September 16, 2015, the second interview took place. The Applicant provided LAO with certain information. On October 7, 2015, LAO revoked the Applicant’s legal aid certificate on the basis that the Applicant had failed to provide complete and credible financial records.

[6] On October 19, 2015, the Applicant appealed this decision to the LAO Area Committee. The Area Committee dismissed his appeal. The Applicant appealed this decision. On October 28, 2015, the LAO Provincial Office dismissed his appeal also citing the lack of complete and credible financial records.

Issues

[7] There are two issues before this court: a) Has the Applicant met the test for a Rowbotham order? b) If the Applicant has met the test for a Rowbotham order, has he disentitled himself because of his conduct?

Law

[8] The Applicant must prove, on a balance of probabilities, that he has satisfied these three criteria: R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302 (C.A) at para. 17-21: a) he has applied for financial aid, been refused aid and exhausted all appeals from that refusal; b) he is indigent and does not have the financial means to retain the services of counsel; and c) his right to a fair trial will be compromised, in a material way, without state funded counsel.

[9] These three criteria were established in R v. Rowbotham, [1988] O.J. No 271 (CA) (The Rowbotham test). An Applicant has the onus of proving that they meet all three criteria. Failure to meet all three criteria means the application must fail: R v. Montpelier, [2002] O.J. No 4279 (SCJ), at para. 37.

[10] Justice Stromberg-Stein in R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.C.S.C.), at para 23, provides a useful description of the type of financial information required to support a claim of indigence. The financial evidence to support a claim of indigence should be sufficient to demonstrate: a) Any extraordinary financial circumstances; b) attempts to obtain funds to retain counsel; c) prudence with expenses and prioritization of payment of legal fees; d) efforts to save for the cost of counsel and to raise funds by earning additional income; e) reasonable efforts to use his assets to raise funds, for example by obtaining loans; f) whether the applicant is in a position to pay some of the costs of counsel; and, g) the income and assets of the applicant’s spouse and family.

[11] There must be credible and relevant disclosure in support of any claim of indigence. Unsubstantiated claims are insufficient to warrant a Rowbotham Order: R. v. Edrissi, [2013] B.C.J. No.1562 (B.C.S.C.), at para. 7; R. v. Kizir 2014 ONSC 1676, [2014] O.J. No.1276 (S.C.J.), at para. 46; R. v. James, [2011] O.J. No. 4651 (S.C.J), at para 46. The circumstances of each case will dictate the degree of detail required.

[12] In circumstances where an Applicant has discharged his onus for a Rowbotham Order, the Applicant may be disentitled to state funding where the absence of state funding is due to the Applicant’s own conduct: R. v. Imona-Russel, [2008] O.J. No. 5405 (S.C.J.), at para. 17, 20, 22; R. v. Richer, supra, at para.41.

Analysis

Is the Applicant indigent and unable to retain the services of counsel?

[13] The Applicant was previously in the film production business. He said that his film production company is now defunct. He is currently unemployed although he is seeking employment. There is no suggestion that his prospects for employment are good or that he will be able to raise enough money to pay for his defence at this time.

[14] He lives with his spouse, his mother and father-in-law in Woodbridge, Ontario. He is unemployed. His spouse has modest income. His father-in-law has modest income. His mother-in-law’s income is unknown. The income levels described support a finding that his family members do not have the financial resources to assist or to pay for the Applicant’s defence.

[15] His father-in-law is his surety. The terms of the Applicant’s bail required his sureties to be with him whenever he left his place of residence. This condition had an adverse impact on his father-in-law’s income.

[16] The Applicant’s two sisters also report modest income. This is supported by the evidence. I conclude that neither of his sisters can assist the Applicant with paying for his defence. The Applicant’s friend, Mr. Irani, is a Real Estate Agent, who has lent the Applicant large sums of money in the past. He contributed funds to the money pledged in support of the Applicant’s bail. He has testified that he cannot lend or contribute any money to the Applicant’s defence. There is no basis to refute this claim and there is no basis to compel him to fund the Applicant’s defence.

[17] The Applicant’s legal aid application of the second instance, and at all levels of LAO appeal, was rejected on the basis that he had failed to provide complete and credible financial information. There is good reason to conclude that this continues to be the case.

[18] In his first application for the legal aid certificate, the Applicant advised LAO that he was single and had no dependents. He said he was self-employed and since 2009 had his own freelance film production company, BBuckwood Productions, with a gross annual business income of $20,000.

[19] In August, 2015, the Applicant filed an affidavit in support of an application for bail review. The affidavit came to the attention of LAO. In the affidavit, the Applicant stated that he was married and had a five month old child. The Applicant told the court that he did not tell the LAO official that he was single and had no dependents. He said the official was mistaken.

[20] Due to the discrepancy, LAO requested additional information from the Applicant and conducted a second interview on September 16, 2015. At this interview, the Applicant informed LAO that between 2009 and 2012, his business earned $3000. He told LAO that his wife was on maternity leave. She earned $1600 monthly and his rent was $1900 per month.

[21] The Applicant also told LAO that he and his sister had purchased a property for three million dollars. This property had been purchased for business purposes. This included staging Bollywood type movies. The property was located at 100 Rocmary Place, Vaughan, Ontario. The property was lost to a second mortgagee in 2014. He made a down payment in excess of one million dollars to purchase this property.

[22] The Applicant told the LAO that his business assets were all sold in 2014. The Applicant repeated all of these claims during his testimony in Court. He also refuted online search information on Buckwood Productions obtained by LAO.

[23] The online search revealed an expired listing of a property, linked to the Applicant, at 157 Antorisa Avenue, Vaughan, Ontario and listed at $1,099,000 with taxes of $6,500.00. The Applicant testified that this property was not owned, it was rented. He testified that the monthly rent was $3000.00. He had told LAO the monthly rent was 1,900.00.

[24] The search also revealed that Buckwood Productions had an annual revenue of 1.19 million and 10 employees. The Applicant said this is false. His wife was also listed as an executive director for Focus Direct Staffing. The Applicant explained that this is false. His wife confirmed this in her testimony. I place no reliance on information revealed in the on line search.

[25] The Applicant’s provided various explanations of how he earned income over the years. He was unable to provide documentary evidence to support many of his annual income claims. He conceded that the last time he filed a tax return was in the 2010/2011 calendar year.

[26] During the Rowbotham hearing the Applicant conceded that he provided false information in support of his application to obtain the mortgage for the Rocmary Place. In the application he listed his annual income to be $390,000.00; his savings as $160,000.00 and his assets to be 1.8 million dollars. The Applicant said this information was false. He explained he provided this information only because the mortgage brokers told him to. The Applicant reported an annual income of $20,000 to LAO.

[27] When confronted with inconsistent information provided to LAO he explained that the LAO official recorded the information he provided incorrectly. When confronted with false information provided in support of a mortgage application he said that it was the mortgage brokers who made him do it. I conclude that the Applicant was dishonest to the court. He sought to mislead this court and therefore I reject his evidence in its entirety.

[28] The Applicant has complained about the failure of the Provincial LAO to provide him with an opportunity to make oral submissions. This is not a review of the decision of LAO. This is a hearing to determine whether a Rowbotham Order should be granted in favour of the Applicant.

[29] The evidence in this hearing is assessed to determine where the Rowbotham criteria have been met. I conclude that the Applicant by his own conduct has failed to demonstrate, on a balance of probabilities, that he is indigent because he has been dishonest to the court. He has failed to provide complete and credible information to this court.

[30] Even if I conclude that the Applicant has discharged his onus under the other two Rowbotham criteria, his application must be dismissed because he has failed to satisfy the indigence criteria. My finding on the indigence issue is determinative of this application and therefore the Applicant’s application is dismissed.

Barnes, J. Released: March 23, 2017