DATE: 20170113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – XIU JIN TENG Applicant
Joshua Levy and Robert Fried, for the Respondent The Applicant is self-represented
HEARD: November 21, 2016
Ruling re ‘Rowbotham’ Application
MacDonnell, J.
A. Overview
[1] On November 21, 2016, in the midst of the jury selection process, the defendant filed a “Rowbotham” application seeking an order requiring the Attorney General to provide funding for counsel for the defendant’s trial. On November 22, I ruled that there was no merit to the application, and that rather than a bona fide effort to obtain counsel the application was in reality an attempt to avoid a trial on the merits. I indicated that I would provide reasons in writing for that determination. These are those reasons.
[2] In simple terms, the defendant is without counsel because on June 30, 2016, four months before the trial was to begin, she engineered the discharge of her lawyer, Daniel Moore, who was ready, willing and able to act for her, and she failed to make any meaningful effort to retain any other counsel to replace him. The discharge of Mr. Moore was objectively unreasonable but it was not without a purpose. In my opinion, the defendant made a strategic choice to orphan herself from counsel so that she could come before the court on the trial date and assert that to require her to proceed as a self-represented defendant would be unfair. In other words, the discharge of Mr. Moore and the failure to make a serious effort to retain other counsel was a strategem to avoid having this trial proceed on schedule and on the merits.
[3] To explain why I have reached that conclusion, it is necessary to review the history of this case before the discharge of Mr. Moore, what occurred at the time he was discharged, and what has happened since.
A. The Events Preceding the Discharge of Mr. Moore
(i) the discharge of Hicks, Adams
[4] On February 29, 2012 the body of Dong Huang was discovered inside the apartment that he shared with the defendant and their young daughter. Mr. Huang had been dead for several days. On March 5, 2012, the defendant was charged with first degree murder.
[5] On her first appearance in court, on March 5, the defendant was represented by Colin Adams from the law firm of Hicks, Adams. There were several court appearances in the months that followed, as the intake process unfolded. By June 6, disclosure was substantially complete and Crown counsel was pressing to have the case move forward to a judicial pretrial. The matter was adjourned to June 27. In the interval, the defendant decided that she wished to discharge Hicks, Adams and to retain John Rosen. Mr. Rosen was prepared to act provided that Legal Aid approved a change of solicitor. On July 5, with Legal Aid approval in place, Hicks, Adams was removed as counsel of record and replaced by Mr. Rosen. The change of counsel, however, required that the case be put on hold as Mr. Rosen’s office needed an adjournment, to August 3, “to give us time to get up to speed on the disclosure”.
(ii) the discharge of John Rosen
[6] In due course, the intake process resumed. On September 5, 2012, dates for a fifteen-day preliminary inquiry were set. Those dates were in three bunches, beginning on March 19, 2013 and ending on May 17, 2013. A focus hearing was scheduled for January 22, 2013.
[7] On January 22, 2013, the defendant advised the presiding judge that she wanted to discharge Mr. Rosen. Emily Lam, Mr. Rosen’s junior, informed the court that she and Mr. Rosen had only heard that morning that the defendant wanted to change counsel. Ms Lam said that a considerable amount of work had been done in preparation for the preliminary inquiry. She said that she and Mr. Rosen had met with the defendant a month earlier and that all had seemed fine. She further stated that when the change of solicitor from Hicks, Adams to Mr. Rosen was approved, Legal Aid had made it clear to the defendant that no further change of solicitor would be allowed. Accordingly, Ms Lam said, if the defendant wished to obtain other counsel “she will either have to do it privately, or a [Rowbotham] application to the court will have to be made…” The defendant responded that “I already have new counsel”, namely Devin Bains. She stated that she did not need Legal Aid, that she had funding “from another source”.
[8] The matter was adjourned to January 31. On January 31, Ms Lam informed the court that Mr. Rosen had attempted to speak to the defendant about the grounds for termination but that she had refused to talk to him and she had refused to sign a termination letter. Devin Bains was present on this appearance. He told the court that he had informed the defendant that he would not be able to proceed on the dates scheduled for the preliminary inquiry because of prior commitments. He also made it clear that there was no chance that the defendant would be able to privately retain him.
[9] It is unnecessary to review in detail what followed the defendant’s discharge of Mr. Rosen. Suffice it to say that the defendant’s decision to do that caused a fifteen-month delay in the commencement of the preliminary inquiry. The delay occurred because (i) Mr. Bains was unavailable for the dates that had already been scheduled for the preliminary inquiry, (ii) he had not yet negotiated funding for a third set of lawyers with the Ministry of the Attorney General, (iii) he refused to accept disclosure until funding was arranged, (iv) he refused to even set new target dates for a preliminary inquiry until funding was arranged, and (v) he was not available for the earliest dates for the preliminary inquiry that the court was ultimately able to offer.
(iii) the discharge of Devin Bains
[10] On August 22, 2014, at the conclusion of the preliminary inquiry, the defendant was committed for trial in the Superior Court. On November 4, 2014, a trial date of September 16, 2015 was fixed. On September 1, 2015, two weeks before the trial was to commence, Mr. Bains appeared before Justice Nordheimer and asked to be removed as counsel of record. Mr. Bains stated that as a result of advice he had received from both the Law Society and a senior member of the criminal bar he could not ethically continue to act for the defendant. Justice Nordheimer removed Mr. Bains as counsel and vacated the September 16 trial date. The matter was adjourned for three days for the defendant to receive independent legal advice about her situation.
[11] Paul Calarco, a senior member of the criminal defence bar, met with the defendant following the September 1 court appearance. On September 4, Mr. Calarco informed Justice Nordheimer that the Attorney General was prepared to continue to fund a lawyer for the defendant’s defence. Counsel for the Attorney General confirmed that this was so, but added that “should that arrangement in the future break down again and we revisit this situation, the Crown may take a different position.”
[12] Mr. Calarco advised Justice Nordheimer that he had provided the defendant with a list of five senior criminal defence counsel to consider. The matter was then adjourned for four weeks to permit the defendant to retain new counsel.
(iv) the rejection of Robert Nuttall
[13] The matter came before Justice McMahon on October 2, 2015. It appears from the transcript of the court appearance that a judicial pre-trial had occurred that morning, that Robert Nuttall had attended the pre-trial as a potential counsel for the defendant, and that a new trial date of November 2, 2015 had been offered by the court. It appears further that Mr. Nuttall had met with the defendant prior to October 2 and that he had received a direction from her to accept the disclosure from the Crown. However, his relationship with the defendant had not progressed to the point where he was prepared to go on the record as her counsel. Justice McMahon inquired of the defendant if she wished to retain Mr. Nuttall. She responded: “No, never”.
[14] To be fair, it is not clear whether Mr. Nuttall would have been ready to proceed to trial on November 2, 2015 had the defendant been willing to retain him. However, what was clear was that the trial was only going to begin on that date if the defendant had counsel who was prepared to proceed. As no such counsel was in place as of October 2, Justice McMahon concluded that the November 2, 2015 trial date was no longer feasible.
(v) the retainer of Daniel Moore
[15] The matter returned before Justice McMahon on October 14, 2015. At that time, the defendant indicated that she might be retaining Bob Richardson and Daniel Moore to act for her. The matter was adjourned to October 28. On October 28, a new trial date of October 31, 2016 was set. On November 17, 2015, it was confirmed that an agreement with the Ministry of the Attorney General to fund Mr. Moore and Mr. Richardson was in place. The matter was put over to January 2016 to continue with the pre-trial process.
[16] Between January and June 2016, the case returned before Justice McMahon on several occasions for case management purposes. In the course of that period, Mr. Richardson withdrew as counsel and was replaced by Anthony Moustacalis. Subsequent to that, Mr. Moustacalis also withdrew. Throughout, however, Daniel Moore remained on the record as the defendant’s lawyer and he was preparing to proceed to trial on October 31, 2016.
B. The Discharge of Mr. Moore
[17] On June 30, the matter came once again before Justice McMahon. A few days prior to June 30, Mr. Moore had faxed to the defendant notice of an application to be removed as counsel of record. Mr. Moore advised Justice McMahon that the only reason he had sent the notice was because the defendant had refused to sign the funding agreement with the Ministry of the Attorney General that would enable him to be paid for his services.
[18] The defendant conceded that she had refused to sign the agreement. She gave Justice McMahon two reasons for her refusal. First, she complained that notwithstanding the several dates that had been scheduled for a further judicial pre-trial in the preceding months, the pre-trial had not been completed. Because of that, she said, she was concerned as to whether Mr. Moore would still be her lawyer when the trial date was reached. Second, she said that she had recently received the fax from Mr. Moore indicating his intention to bring an application to get off the record.
[19] The second of those reasons was manifestly specious: the fax was the result of the defendant’s refusal to sign the agreement not the cause of it. With respect to the first reason, Justice McMahon explained to the defendant that an initial judicial pre-trial had been held the previous October, prior to setting the trial date, and that there was no reason to be concerned about the pace at which the second pre-trial was unfolding. For the defendant’s benefit, Justice McMahon confirmed with Mr. Moore, in open court, that if the defendant signed the funding agreement he would be her lawyer for trial. With considerable patience, Justice McMahon explained that in light of the reluctance of the Attorney General to fund a sixth set of lawyers [1], the defendant might be left without counsel if she did not sign the agreement. He stood the matter down to give her time to think about her position.
[20] When the case was recalled, Justice McMahon tried repeatedly to get the defendant to indicate whether she was going to sign the funding agreement and she persistently failed to answer the question. Justice McMahon clearly set forth what the defendant’s options were and again and again told her that if she did not sign the agreement Mr. Moore could not act for her. Still, she refused to provide a direct response to Justice McMahon’s questions. Eventually, Justice McMahon was left with no choice but to grant Mr. Moore’s application to be removed as counsel. He adjourned the matter for a week to consider the appointment of amicus curiae.
[21] Apart from what I have described, the defendant gave no reason for her refusal to sign the funding agreement. She made no other complaint about Mr. Moore’s competence as counsel or his diligence. She did not suggest that there had been a breakdown in communications. She made no complaint about the terms of the agreement itself. She simply refused to sign it. It was made abundantly clear to her that unless she did sign it Mr. Moore could not act for her. Her refusal was manifestly unreasonable. However, as I have said, it was not without a purpose.
C. The Events Following the Discharge of Mr. Moore
[22] The matter returned before Justice McMahon on July 7. The defendant asserted that she had spoken to two prospective lawyers but they would not be coming to court because “they said I have to get the approval from Legal Aid or get the funding first because no lawyer will come to the court before they get paid”. Justice McMahon reminded her that he had told her previously that if she discharged Mr. Moore, Legal Aid and the Attorney General would not likely be willing to fund a new lawyer. In response, the defendant stated: “Your Honour, I want to correct what you just said. It’s not me who discharged the lawyer… Mr. Moore removed himself.” Justice McMahon reminded the defendant that Mr. Moore had been quite willing to continue to represent her if only she would sign the funding agreement, and he told her that Mr. Moore might still be willing to do so. He told her as well that he was willing to put the matter over for two weeks so that she could bring one of her prospective new lawyers to court. But, he said, he would be appointing amicus curiae should she remain self-represented. The matter was adjourned to July 19.
[23] On July 19, Justice McMahon stated that he had received a fax from a lawyer in Ottawa, Mr. Baum, indicating a willingness to bring a Rowbotham application. Justice McMahon asked the defendant: “Is it your wish to have Mr. Baum bring that Rowbotham application so he can represent you at your trial?” Rather than answering the question, the defendant said that she had other issues that she wanted to discuss with the court, among them the fact that the interpreter had not been sworn or affirmed. She also said she wanted to discuss the qualifications of the interpreter. Further, she said she wanted to know whether the transcript of the previous court appearance, which Justice McMahon had agreed to obtain, was available.
[24] Justice McMahon attempted to bring the defendant back to the question he had asked her, namely whether she wanted Mr. Baum to bring a Rowbotham application. The defendant persisted in her refusal to answer the question directly:
Ms. Teng: I will answer this question after - - The Court: No. Ms. Teng: - - I want to answer your question, Your Honour, after the issues I’ve raised - - The Court: No, Ms. - - Ms. Teng: - - with you - - The Court: Ms. Teng - - Ms. Teng: - - about with - - The Court: Ms. Teng, I have a lot of cases on today. I’m trying to help you out to ensure you have a lawyer. My question I need you to answer now is would you like…Mr. Baum to bring an application to have the state fund him as your lawyer?” Ms. Teng: Your Honour, it’s very difficult for me to answer this question because like you said she already faxed the application yesterday.
At that point, Justice McMahon indicated that he was going to appoint Richard Litkowski as amicus curiae. The defendant stated “I’m totally against amicus, totally against it from now on. Sorry.”
[25] Justice McMahon tried again to get the defendant to indicate whether she wanted Mr. Baum to bring a Rowbotham application, and once again she would not provide a straight answer. The matter was held down to permit the defendant to consult with Mr. Litkowski. When the matter was re-addressed, Mr. Litkowski advised that the defendant had asked for a copy of the Supreme Court of Canada’s decision in the case of R. v. Jordan. He further advised that the accused “seemed to be agreeable” [emphasis added] with Mr. Baum proceeding with the funding application. It is clear, however, from what Mr. Litkowski said and from the discussion that followed, that what the defendant was focusing on was not a funding application but rather an application to stay the proceedings for delay, with which she was prepared to proceed on her own. Indeed, she had already prepared an affidavit in support of a delay application, which she wanted amicus to commission.
[26] Notwithstanding the defendant’s lack of interest in pursuing a funding application, Justice McMahon directed Crown counsel to contact Mr. Baum and to tell him that any such application should be brought in August. It does not appear that Mr. Baum ever received instructions from the defendant to proceed. He never appeared in court on the defendant’s behalf and it appears that he had no further involvement in the case.
[27] Between July 19 and the trial date of October 31 the matter was back before the court on eight occasions. The defendant did talk to a number of lawyers over that time period, but no lawyer agreed to act for her, and no funding application was ever brought by her or by anyone else. I am satisfied that the defendant’s lack of legal training did not play any role in her failure to seek funding. The defendant is an intelligent person. As a self-represented defendant she has filed many applications in writing to this court and those applications demonstrate insight into the court’s processes, an awareness of her rights and an ability to assert those rights. Indeed, by July 19, 2016, 11 days after the Supreme Court of Canada released its judgment in R. v. Jordan overhauling the law in relation to s. 11(b) of the Charter, she had already prepared an application to stay proceedings for delay, supported by her own affidavit. The quality of the written material that she filed on that application and the competence with which she made oral submissions in support of it attests to all of those things.
[28] From the time she fired Hicks, Adams in June 2012 until the trial began issues of how Ms Teng’s defence would be funded and discussions about how to obtain that funding were repeatedly on the table. I have no doubt that having gone through the funding process several times Ms Teng was aware of what was required. Between June 30, 2016 and the beginning of the trial, she was urged on multiple occasions to bring a funding application if that was what she wished to do. In my view, the fact that she never did demonstrates a calculation that she would be better off without such an application.
D. The Proceedings at Trial
[29] The trial began on Monday, October 31, 2016 with the defendant’s application to stay proceedings for delay. In his role as amicus, Mr. Litkowski had obtained the transcripts of all of the defendant’s court appearances from March 5, 2012 until August 5, 2016 (with the exception of the dates on which the preliminary hearing was in progress). He had also prepared a factum setting forth an approach to the application that would be of assistance to the defendant. The defendant prepared her own materials in support of the application.
[30] After hearing the submissions of the parties and of amicus, judgment on the application was reserved. On Thursday, November 3, the application was dismissed. After making that ruling, I attempted to ascertain whether the defendant was seeking an adjournment of the trial. I raised this issue because Justice McMahon had been unable to obtain a direct answer to that question in the course of the case management meetings he conducted prior to trial. I too was unable to obtain a direct answer. The defendant’s position, as I understood it, was that she had been denied the right to be represented by a lawyer, that if she did not have a lawyer a fair trial would not be possible, and that she objected to proceeding with an unfair trial. I interpreted that response as a request to adjourn the trial until she had a lawyer to represent her. For brief reasons delivered at the time, I held that the trial would proceed.
[31] In the course of the discussion with respect to whether she was seeking an adjournment, the defendant made it clear that she would not participate in the pre-trial motions or any other trial procedures. Further, she objected to the participation of amicus curiae in the trial and stated that she would not, except in certain limited respects, discuss the case with him.
[32] On the morning of Friday, November 4, the defendant advised the court that she intended to apply for leave to appeal to the Court of Appeal against the ruling dismissing her s. 11(b) application and against the direction that the trial proceed. She said that she was in the process of preparing a written notice in that respect. She requested that the trial proceedings be stayed pending the determination of the application for leave. That request was rejected. I directed that the pre-trial motions would proceed.
[33] On the morning of Monday, November 7, the defendant presented the court with the written notice of application that she had referred to on November 4. I told the defendant that I had already ruled that I would not stay the proceedings pending a determination of the application. The pre-trial motions continued on November 7, 8, 9 and 10. At the end of the day on November 10, I reminded the defendant that jury selection was to commence on November 17 and I attempted to determine if she intended to challenge prospective jurors for cause. I was unable to get a direct answer from her at that time. She indicated that she would not be able to challenge for cause without a lawyer, in part because she needed glasses and would not be able to see the prospective jurors. I moved on to inquire whether she intended to participate in the process of peremptory challenges. When I explained that she would be asked to ‘look upon’ the prospective juror, she stated again that she would not be able to do that because she needed glasses.
[34] This was the first time in almost five years of court appearances that the defendant had said anything about needing glasses. The written material that she has filed, some of which she has prepared while sitting in court, makes it clear that she does not need them to read. She has never complained at any other time of any difficulty with her vision. In the course of jury selection I offered her the opportunity to move closer to where the prospective jurors would stand for the purpose of peremptory challenges. She declined that opportunity. During the two days of jury selection she never complained of any difficulty with her vision. I infer that her claim that she would need glasses in order to participate in the jury selection process was simply an effort to avoid having the process proceed.
[35] On November 14, I provided the defendant with a written explanation of the procedure for jury selection. I inquired again as to whether she wished to challenge prospective jurors for cause. Once again it was difficult to obtain a direct answer but in the end I took her to be saying that she did. However, I also took her position to be that jury selection should not proceed because she did not have a lawyer. After a lengthy discussion, I told her that jury selection was going to proceed as scheduled on November 17.
[36] The next day, November 15, the defendant produced a notice of application to quash the search warrants that had been granted in the course of the police investigation of this case. The notice came as a surprise, not only because it had not been given prior to trial as required by the rules of court but also because it had never been suggested in any of the pre-trial appearances, including the judicial pre-trial in which Mr. Bains had participated, that any issue in relation to the search warrants would be raised.
[37] The defendant submitted that the application to quash the search warrants should be dealt with prior to jury selection. She also said, however, that she needed to prepare an application record and factum to support the application. The implication was that jury selection could not proceed on November 17. I informed the defendant that the application to quash the search warrants need not stand in the way of jury selection. I told her that the application could be heard after the jury was selected. In the course of the discussions that followed, the defendant indicated, for the first time before me, that she wanted to bring a Rowbotham application. She said she had many lawyers willing to act for her.
[38] Jury selection began on November 17, continued on November 18 and concluded on the morning of November 21. At the outset of the proceedings on November 21, the defendant filed her written application for funding. No specific lawyer was mentioned as being prepared to act for her. At no point in the proceedings before me has any prospective lawyer made an appearance or otherwise communicated a willingness to act.
E. Discussion
[39] The defendant has repeatedly asserted that she has been denied the right to have her own defence lawyer for the trial. That is simply not true. As I said at the outset of these reasons, the defendant is without counsel because on June 30, 2016, four months before the trial was to begin, she engineered the discharge of the lawyer who was ready, willing and able to act for her and she failed to make any meaningful effort to retain any other counsel to replace him.
[40] The discharge of Mr. Moore was objectively unreasonable but it was not without a purpose. At the time that it occurred, the defendant was well aware of the potential impact that a change of counsel or being without counsel could have on the scheduling of a criminal case. Prior to discharging Mr. Moore, the defendant had discharged Mr. Hicks, she had discharged Mr. Rosen, she had seen the withdrawal of Mr. Bains, and she had refused to retain Mr. Nuttall. What is common to all four of those events is that to varying degrees each of them took the case off the rails. Each of them at least temporarily prevented the proceedings from moving forward in the manner that they otherwise would have.
[41] With respect to any of those events, it does not matter whether the defendant did anything for the purpose of causing delay. The point is that the history of the case had made it very clear to her that the right to counsel is an extremely important right and that it includes the right to counsel of choice. It had been made clear that the courts would be very reluctant to require a defendant to proceed to trial in a serious criminal case without a lawyer or without her lawyer of choice. It had also been made clear that the courts would be prepared to afford new counsel an opportunity to prepare for trial, even if that meant further delay. In the circumstances, I have no doubt that the defendant was fully aware at the time she constructively dismissed Mr. Moore that being without a lawyer could provide her with a basis for arguing that her trial could not proceed as scheduled.
[42] It is in that context that the defendant’s objectively unreasonable refusal to sign the funding agreement that would enable Mr. Moore to represent her must be considered. The refusal was unreasonable not only because the reasons she provided for it were specious but also because she was well aware that obtaining public funding for a sixth lawyer was not going to be easy. Mr. Rosen had had difficulty persuading Legal Aid to authorize the first change of counsel, and it took Mr. Bains several months to come to an agreement with the Attorney General after she fired Mr. Rosen. Further, after Mr. Bains withdrew she was told that although the Attorney General would fund Mr. Moore, it was unlikely that the Attorney General would continue to provide funding if she changed counsel again.
[43] Between July 19, 2016 and the trial date of October 31 the matter was back before the court on eight occasions. The defendant did talk to a number of lawyers over that time period, but no lawyer agreed to act for her, and notwithstanding the constant urging of Justice McMahon no funding application was ever brought by her or by anyone else. The only thing that the defendant was interested in pursuing in that time period was her application to stay the proceedings for delay.
[44] When put into context, the defendant’s seemingly irrational decision to discharge Mr. Moore was not irrational at all. Rather, it was a tactic aimed at putting herself in a position where she could come before the court on the trial date and assert that to require her to proceed without a lawyer would be unfair. In other words, the discharge of Mr. Moore was the opening move in a strategy to avoid having the trial proceed on the merits.
[45] Unfortunately for the defendant, the strategy failed. After the s. 11(b) application was dismissed, I directed that the trial proceed. Rather than bringing a Rowbotham application, the defendant announced that she would refuse to participate in the trial. When the trial nonetheless proceeded, she announced that she was seeking leave to appeal to the Court of Appeal and requested that the trial proceedings be stayed pending that appeal. When that request was refused she said that she could not participate in jury selection because of a vision problem. When that did not lead to a postponement of jury selection, she produced a last minute application to quash the search warrants and insisted that jury selection could not proceed until that application was heard. Only after that submission was rejected, and jury selection was about to begin, did the defendant indicate that she was going to be bringing the present application.
[46] The timing of the application speaks volumes about its true nature. It could have been brought months earlier, as Justice McMahon had urged. It could have been brought at the outset of the trial. Instead, it was brought only after all of the defendant’s other efforts to halt the proceedings had failed. When the timing of the application is put into the context of all that preceded it, there is only one reasonable inference, namely that it was not in reality a funding application but rather only the latest maneuver in the campaign that began on June 30 to prevent the charge against her from being tried on the merits.
[47] For the foregoing reasons, the application was dismissed.
MacDonnell, J.
Released: January 13, 2017
[1] Legal Aid had agreed to fund Hicks, Adams and John Rosen. The Ministry of the Attorney General had agreed to fund Devin Bains, Rob Nuttall, and Daniel Moore.