CITATION: R. v. Weng, 2017 ONSC 6023
COURT FILE NO.: CR-17-114
DATE: 20171010
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
QI AN WENG and XIU QIN WENG
Applicants
David Morlog, for the Crown
John Kaldas, for the Applicant, Qi An Weng
Raymond Wong, for the Applicant, Xiu Qin Weng
HEARD: October 5, 2017
REASONS FOR DECISION
DE SA J.
Overview
[1] The Applicants seek an order for state-funded counsel pursuant to section 24(1) of the Charter. They submit that without the appointment of counsel, their constitutional right to a fair trial in accordance with the principles of fundamental justice under ss. 7 and 11(d) of the Charter will be violated. The Crown opposes the application on the basis that the preconditions for granting of such an order have not been established.
[2] For the reasons outlined below, I dismiss the application for state-funded counsel, and order that the preliminary hearing scheduled for October 16, 2017 proceed with or without counsel.
Background Facts
[3] Both accused were charged in March 2015 with several counts of arson and the production of controlled substances. On March 15, 2016, an explosion levelled the home where the Applicants had been living. As a result of the explosion, the Applicants and their three dependent children were all taken to hospital. Thankfully, all of them appear to have recovered from their injuries.
[4] An investigation by the Ontario Fire Marshall’s Office discovered butane cans within the debris and York Regional Police were notified and the excavation stopped. Officers attended the scene and it was determined that the explosion may have been the result of a clandestine butane hash oil extraction lab. Police obtained warrants to search the debris and discovered numerous items commonly used in the production of butane hash oil including 170 cans of butane, 4 propane tanks, Pyrex dishes, extraction vessels, a destroyed 100 lb propane tank, scales and a strainer. Police also seized 5-7 pounds of dry marijuana within the home debris, much of which was stored in glass bottles modified for extraction purposes.
[5] The accused were arrested and charged. Ms. Xiu Weng was released on a promise to appear and Mr. Qi Weng was held for a show cause hearing. Mr. Qi Weng was eventually released on a $50,000 surety bail with a $15,000 cash deposit.
[6] The home owner, Mr. Jian Lin was also arrested as a result of the investigation. Mr. Lin currently has counsel. All three accused are scheduled to proceed with a preliminary hearing that is set for 2 weeks commencing on October 16, 2017.
Analysis
[7] From the jurisprudence, it is evident that there are three well-established criteria that an accused person must satisfy in order to obtain a Rowbotham order. They are:
The accused person must have been refused legal aid;
The accused must lack the means to employ counsel; and
Representation for the accused must be essential to a fair trial.
1) Legal Aid Refusal
[8] In order to satisfy the first criterion, the Applicants must demonstrate that they have been refused legal aid and have exhausted all appeals for reconsideration of eligibility. There is no dispute that the Applicants have exhausted all appeals or requests for reconsideration in the legal aid context. However, there is a dispute between the parties as to whether they have satisfied the first criterion.
[9] The Crown takes the position that Legal Aid Ontario’s refusal is due to the Applicants’ intentional refusal to be transparent about their finances. In the Crown’s submission, the Applicants are precluded from claiming they have been refused legal aid if that refusal is caused by a lack of transparency. See R. v. Tang, [2011] O.J. No. 6694 (S.C.J.).
[10] I have no doubt that a wilful refusal to comply with the requests made by legal aid for information will create problems for an applicant on the first branch of the test. In this case, however, the Applicants’ failure to comply with the requests for “income” information seems at least partly attributable to a misunderstanding of the process, and what was required. The Applicants clearly have problems understanding English, and have relied heavily on their counsel to assist in the application. From the evidence I heard, I cannot say that their interactions with Legal Aid Ontario amounted to a “wilful” refusal to provide the required information. Nor were their dealings with Legal Aid Ontario of a nature that would necessarily preclude them from obtaining a Rowbotham order in this case.
[11] I am satisfied that the first branch of the test has been met.
2) Lacking Adequate Means
[12] In this case, Legal Aid Ontario refused to provide assistance to the Applicants on the basis that the information provided was not “credible” as it did not account for how the family had been supporting themselves since the date of the charge. The information disclosed to Legal Aid simply did not add up in terms of the family’s income and expenses.
[13] There is no doubt that I am not bound by the findings of Legal Aid in this regard. Nor am I simply to assess whether there was a basis for Legal Aid’s decision. On a Rowbotham application, under the second branch of the test, the Court is to assess whether or not the accused lacks the means to employ counsel. As the Court of Appeal explained in R. v. Peterman (2004), 2004 CanLII 39041 (ON CA), 70 O.R. (3d) 481( C.A.) at para. 22:
When a court makes a Rowbotham order, it is not conducting some kind of judicial review of decisions made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial.
[14] In the circumstances here, I am left with a certain measure of uncertainty as to the financial circumstances of the Applicants. They themselves appear to have limited income. I accept that Ms. Weng is the sole income earner in the family making about $1500 per month. Mr. Weng remains on a stringent bail which does not provide an exception for employment. While I accept that the Applicants’ personal income and assets are limited, I am not convinced that they would not have access to money from other friends and family. While the affidavits filed by family and friends suggest an unwillingness to provide any support, these affidavits are not consistent with the family’s ongoing and laudable assistance.
[15] At the time of Mr. Weng’s bail hearing, his surety (Sun Hao Yeh) secured his release with a recognizance in the amount of $50,000 and also posted $15,000 in cash. Mr. Yeh is also currently paying $400 per month for Mr. Weng’s electronic monitoring bracelet (a term of his release).
[16] In addition to his surety providing support, Mr. Weng has three uncles all residing here and who appear to be providing some measure of support to the Applicants and their family. For example, at some point when the family expanded with the addition of a third child, one of Mr. Weng’s uncles purchased the family a 2010 Mercedes SUV for just over $10,000 which was then registered in Ms. Weng’s name. This vehicle was “given” to the family with no expectation of return.
[17] The Applicants have also acknowledged support from other friends who reside in the jurisdiction. They have pointed to loans and/or donations totalling close to $8500 to assist them from friends other than the family referenced above. These other potential sources of income create additional uncertainty as to the Applicants claim that they lack adequate means.
[18] Obviously, if this “uncertainty” as to their financial circumstances were the only issue, this uncertainty would not be sufficient to make me refuse the application if it were sought at the time of trial. However, I also must also consider the fact that the proceeding at this point is only at the stage of a preliminary hearing. I find it necessary to also consider the potential impact of granting the application on the proceeding as a whole.
3) Representation for the accused must be essential to a fair trial
[19] In R. v. Valenti, 2010 ONSC 2433, Justice Fuerst considered whether a Rowbotham order should be made at the preliminary hearing stage. She was of the view, with which I agree, that this remedy is available only in exceptional circumstances at that stage in proceedings. At para. 17, she indicated as follows:
I conclude that while the availability of a Rowbotham order to an accused facing a preliminary hearing may not be foreclosed, it is a remedy that could be available in only exceptional circumstances. The limited powers of a preliminary hearing judge make it difficult to conclude that the conduct of the preliminary hearing will adversely affect the fairness of the accused person’s trial in such a way or to such an extent that representation at the preliminary hearing is essential to a fair trial. Rulings that are within the power of the preliminary hearing judge to make, including those about the admissibility of evidence, do not bind the trial judge. Further, the preliminary hearing judge has no jurisdiction to hear and decide Charter applications. [Emphasis added]
[20] The Applicants take the position that their ability to test the evidence, set up possible challenges to statements and warrants, scrutinize forensic reports, and explore relevant civilian witnesses will be diminished if the Applicants do not have representation. Given the language limitations of the Applicants, the benefits of the preliminary hearing will be substantially improved by having access to counsel.
[21] Obviously, it would be preferable for the Applicants to have counsel. However, that is not the test on a Rowbotham application. The question here is whether representation at the preliminary hearing is essential to the Applicants having a fair trial. I find it is not.
[22] There is no constitutional right to a preliminary hearing. The fact that the Crown can proceed by direct indictment confirms this. Serious offences also routinely proceed to trial in provincial court without a preliminary hearing. While preliminary hearings are a useful tool to explore the Crown’s case, they are not “essential” to a fair trial. Indeed, in the face of R. v. Jordan, [2016] 1 SCR 631, 2016 SCC 27, defence may have to accept that the ability to “discover” the crown’s case in advance of trial will become a thing of the past. The Crown’s ongoing disclosure obligation will ensure that an accused has access to all “relevant” information in the Crown’s possession prior to trial. The accused always has the ability to “test” the Crown’s case at trial.
[23] In this case, while it would have been preferable to have the representation of counsel at the preliminary hearing, I do not find that is “essential” to the Applicants having a fair trial. This is largely because the preliminary hearing is not essential to a fair trial. I also have concerns that granting the application at this late stage may delay the preliminary hearing, and impact the prosecution more generally given the presence of a co-accused. The limited function served by the preliminary hearing in the proceeding as a whole does not warrant a Rowbotham being granted at this stage of the proceeding.
[24] If the Applicants wish to pursue another application to Legal Aid following the preliminary hearing and/or a Rowbotham at a later stage of the proceeding when a trial date has been set, my decision here should not preclude that. Obviously, they should be more fulsome in the information provided, and disclose any and all potential sources of income/funding in any future application.
[25] On the basis of the above, I dismiss the application for state-funded counsel and order that the preliminary hearing scheduled for October 16, 2017 proceed as scheduled with or without counsel.
[26] I thank all counsel for their assistance in this matter.
Justice C.F. de Sa
Released: October 10, 2017
CITATION: R. v. Weng, 2017 ONSC 6023
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
QI AN WENG and XIU QIN WENG
Applicants
REASONS FOR DECISION
Justice C.F. de Sa
Released: October 10, 2017