Court File and Parties

COURT FILE NO.: MO 55/17; MO 73/17 DATE: 20170627 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. RUPERT FOLKARD; R. v. JOSEPH GOLDFINGER

BEFORE: MOLLOY J.

COUNSEL: Pharah Bacchus, for the Applicant, Rupert Folkard Roy Wellington, for the Applicant, Joseph Goldfinger Heather Burnett, for Her Majesty the Queen

HEARD: June 26, 2017

Endorsement

Introduction

[1] Rupert Folkard and Joseph Goldfinger are jointly charged with four counts of fraud over $5000 and Joseph Goldfinger is also charged with one count of uttering a forged document. The Crown alleges that both of the accused, along with Oliver Folkard (Rupert Folkard’s son), were involved in a company called BMFC Financial Services Ltd. (“BMFC”), which held itself out as being able to arrange investments, secure lines of credit, and fix poor credit ratings for clients. The Crown asserts that four BMFC clients were defrauded in that the funds they provided were not used for the purposes for which they had been advanced, but rather for the personal benefit of the accused. Oliver Folkard is no longer residing in Canada and is not named in the indictment. Both Mr. Folkard and Mr. Goldfinger applied for Legal Aid, but were refused. They brought applications for a “Rowbotham Order,” seeking a stay of criminal proceedings until such time as the Ministry of the Attorney General provides funding for them to retain legal counsel. The two applications were heard together.

The Legal Test

[2] The legal test is well-settled. All parties agree that the test is as set out in my decision in R. v. Williams, 2011 ONSC 7406. I will not repeat the elements of the test here, except to list the three things to be established by an applicant before a Rowbotham Order will be made, as follows:

(1) that he is ineligible for, or has been refused, Legal Aid and has exhausted all available appeals;

(2) that he is indigent and has no means to retain counsel otherwise; and,

(3) that his right to a fair trial will be materially compromised if he is forced to proceed to trial unrepresented by counsel.

[3] It is also well-settled that there is no absolute right to legal counsel in order for a trial to be considered “fair” within the meaning of the Charter or at common law. R. v. Rain (1998), 1998 ABCA 315, 130 C.C.C. (3d) 167 (Alta.C.A.) at para. 36. In determining whether an applicant’s right to a fair trial would be materially compromised if he is required to defend himself at trial without a lawyer, the court must 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.” Rushlow, 2009 ONCA 461, 245 C.C.C. (3d) 505 at para.19.

Issues

[4] The Crown argues that the applicants have failed to make full financial disclosure and that a finding should not be made that they are indigent or that they cannot afford counsel. In addition the Crown argues that this matter is not complex and requiring the applicants to proceed without counsel would not breach their right to a fair trial. Further, the Crown submits that this application is premature in that, at the very minimum, fair trial rights are not implicated before a preliminary hearing has been held.

Legal Aid

[5] Both applicants have been refused assistance by Legal Aid and have exhausted all of their appeal rights.

Indigence

[6] Both applicants testified before me. They have filed material that goes somewhat further than was before Legal Aid, and in their original materials filed on these applications. In my view, they have now made appropriate disclosure of their financial situations. I am satisfied on the material and from their testimony that for each of them, their sole income is from government programs such as CCP, OAS and the GIS, which amounts to somewhere in the vicinity of $2000 per month. Neither of them have any exigible assets.

[7] While that level of income puts these applicants above the financial cut-off to qualify for Legal Aid, the plain truth of the matter is that there is a huge percentage of the population who would not qualify for Legal Aid, but who nevertheless would find it impossible to pay for a lawyer out of their own financial resources. As Nordheimer J. noted in R. v. Moodie:

It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country. As just one comparator, in a report issued last year, Statistics Canada calculated the low income cut-off, before tax, for a single person living in a metropolitan area (more than 500,000 people) for 2014 at $24,328, or more than twice the figure that Legal Aid Ontario uses. The low income cut-off is the level of income below which persons are paying a disproportionate amount of their income for basic necessities (food, shelter and clothing). Some people equate this figure with the “poverty line” although Statistics Canada expressly states that this is not a measure of poverty. The reason for that is simple. There is no accepted definition of “poverty”. As Statistics Canada says “Decisions on what defines poverty are subjective and ultimately arbitrary”. Nevertheless, the fact that a person, below the low income cut-off, has his or her income largely consumed by those basic necessities obviously means that they do not have sufficient income to allow for extraordinary expenses, such as the fees necessary to retain a criminal defence lawyer to provide representation in a criminal jury trial. [Footnotes omitted]

[8] Mr. Goldfinger is 74 years old. He used to be a real estate agent, but has not done a real estate deal in the past two years. He has substantial debts he is unable to pay. His living expenses exceed his income by several hundred dollars every month, and he is only able to make do because of the generosity of friends. However, he has no family and no friends who are in a position to pay for his lawyer. He has received two estimates for fees, with a range of between $35,000 and $80,000, and with an up-front retainer of $5000. Those are reasonable estimates. He unquestionably does not have anything close to the ability to even fund the retainer.

[9] Mr. Folkard is 71 years old. He is a retired Chartered Accountant. He is homeless and lives in a shelter, having previously spent a number of months living in a public park. He has only one leg and uses a wheelchair. What limited income he receives is spent largely on his living expenses, including having to eat in restaurants fairly frequently as he has no home, and therefore no kitchen, and therefore no ability to prepare meals for himself. He also is simply without any financial resources of his own to retain a lawyer and has no friends or family who are able, or prepared to, assist him in that regard.

Fair Trial Rights

[10] The total amount that is alleged to have been obtained by fraud is $205,000. The Crown has stated an intention to seek a jail term upon conviction, but argues that given the personal circumstances of these two applicants they might not be imprisoned. That is speculative. If the Crown is seeking a prison sentence, the accused are in actual jeopardy of being deprived of their liberty. Given these factors, I consider the charges to be “serious.”

[11] The case is essentially fact driven and the underlying facts are not particularly complex. The Crown’s evidence will consist of corporate documents and banking records relating to BMFC and the four transactions at issue and testimony of the complainants as to what they were told. There are no complex legal issues relating to the charges themselves. The trial is estimated to be between two and three weeks.

[12] Neither of the applicants has any legal training or background. However, both are intelligent, articulate and educated. They are accustomed to reading documents of a financial nature and would have no particular difficulty understanding the documents and the issues involved.

[13] Mr. Folkard is a Chartered Accountant. He obtained his Bachelor of Arts degree and a Master’s degree before completing his Chartered Accountant degree at Queen’s University. Thereafter he was employed by one of the main accounting firms in the country for a period of five years and then ran his own accounting firm, with 14 employees for a number of years. For three years he wrote and taught a tax course at Sheridan College. Under cross-examination as to what he expected it would cost him to hire a lawyer, he replied that when he was representing individuals in tax evasion situations, he would have required a retainer of at least $5000, and he would expect a lawyer would do the same.

[14] Mr. Goldfinger’s academic credentials are not quite as impressive. He has one year of university and completed a two-year program at Algonquin College to obtain a certificate as a tool and die maker. However, he was a real estate agent, including commercial real estate, for 40 years. As such, he would have been accustomed to reading and preparing documents and understanding financial matters.

[15] In my view, both applicants have the necessary skills to understand the charges against them, to understand the evidence, and to represent themselves at trial. Indeed, both are better qualified for this task than are most people who find themselves at trial unrepresented by counsel. Obviously, they would be best served if they were represented by lawyers. However, that is not the test for requiring the state to fund counsel for an accused. If that were the test, a Rowbotham Order would be made in almost every case. The applicants are only entitled to a fair trial; not a perfect one. In my opinion, this is not the kind of situation that requires that the charges be stayed unless state-funded counsel is provided. This is amply supported by the case law. R. v. Rushlow, 2009 ONCA 461; R. v. Tang, [2011] O.J. No. 6694 (Ont.S.C.J.), aff’d 2015 ONCA 470; R. v. Woods, 2016 ONSC 2374; R. v. Pilon (5 June 2015), Ottawa CR-14-30290 (Ont. S.C.J. per Parfett J.); Ontario Securities Commission v. Gaudet, 2016 ONSC 4376. It is not an ideal situation, to say the least. However, I am not able to say that these applicants cannot have a fair trial without being represented by lawyers.

[16] At this point, disclosure has been given to both accused in digital format on a CD. At the hearing before me, both said that they had attempted to view the disclosure, but were unable to open the files on the CD. The Crown is required to provide disclosure in a format that can be used by the accused. However, neither of the applicants had previously advised the Crown of any difficulties. Both applicants have computers. The Crown has undertaken to meet with the applicants to ensure they understand how to use the programs required to open the files. Alternatively, the Crown is prepared to provide hard copies of the disclosure, which would be about 1 ½ banker’s boxes of material. While this might be a solution for Mr. Goldfinger, it presents more of a difficulty for Mr. Folkard, who is homeless, has mobility issues, and requires a wheelchair. He cannot easily ferry about two banker’s boxes full of documents in a wheelchair, nor can he easily store or access those materials at the shelter where he resides. He does, however, have access to other community facilities and hopes to be moving into a shared apartment at the beginning of August. He also may be able to view the documents on his computer if the appropriate program is downloaded and he is given instruction in its use. I agree with the Crown that these are logistical problems rather than issues of legal complexity. Solutions need to be found, but ordering a state-funded lawyer is not the only solution available.

[17] The defence raised a number of issues relating to legal complexity including the possibility of a motion to sever and a constitutional challenge to the validity of production orders obtained by the police. These are speculative at this time. There is nothing to suggest that a motion to sever would be brought, or even that it would be reasonable to consider bringing it. Likewise, there is no indication of any irregularity with respect to the production orders and no basis for concluding that a motion to challenge the production orders would be reasonable. The applicants were also asked in their evidence before me about their understanding of various legal concepts such as hearsay and parties to an offence. While these issues might well come up at trial, the trial judge will provide sufficient instruction for the applicants to understand these concepts. There is also a wealth of material available for unrepresented parties, particularly those who are intelligent and have a facility in the English language. Many self-represented parties, considerably less qualified than these two men, are able to obtain information and materials to adequately represent themselves at trial.

[18] At this stage of the proceeding, there has not even been a date fixed for the preliminary hearing. While I do not mean to trivialize the importance of a preliminary hearing, there is nothing about the issues in this case that would invoke fair trial rights at the stage of the preliminary hearing. There are no exceptional circumstances in this case to warrant the necessity of counsel for the preliminary hearing. R. v. Valenti, 2010 ONSC 2433; R. v. Tennina, 2010 ONSC 6246; R. v. Houle, 2012 ONSC 794.

Conclusion

[19] Accordingly, this application is dismissed. The preliminary hearing dates may be set on the understanding that these two individuals will not be represented by counsel. I make this decision based on what I know now about the likely complexity of the issues at trial. This is without prejudice to the rights of the applicants to bring a further application for a Rowbotham Order if there is a material change of circumstances with respect to the issues at trial.

MOLLOY J. Date: June 27, 2017