CITATION: R. v. Mahamad, 2017 ONSC 6488
COURT FILE NO.: CRIMJ(F) 1175/16
DATE: 20171030
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
Crown
v.
SAMVATI MAHAMAD
Defendant
BEFORE: Ricchetti, J.
COUNSEL: E. Carley, for the Crown
J. Casey for the Defendant/Applicant
HEARD: October 27, 2017
RULING
THE APPLICATION
[1] This is a Rowbotham application.
[2] On the prior Rowbotham application heard on April 28, 2017, after this court made a ruling that Ms. Mahamad could be cross-examined on her prior trips abroad, the Rowbotham application was withdrawn.
[3] Ms. Mahamad renews her Rowbotham application with further evidence.
[4] For the reasons that follow, Ms. Mahamad's Rowbotham application is dismissed.
THE LAW
[5] The central consideration in determining whether an unrepresented accused should receive state funding for his or her trial is to guarantee an accused’s right to a fair trial. Where a court determines that an accused was denied Legal Aid, 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 CanLII 147 (ON CA), [1988] O.J. No. 271, 41 C.C.C. (3d) 1 (C.A.) at p. 69 C.C.C.
[6] In 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 gate keeping function of ensuring trial fairness: see R. v. Peterman (2004), 2004 CanLII 39041 (ON CA), 70 O.R. (3d) 481, [2004] O.J. No. 1758 (C.A.), at para. 22.
[7] In Rowbotham, the Ontario Court of Appeal set out the following three requirements each of which an applicant must establish on a balance of probabilities, to succeed on a Rowbotham application:
a) the applicant is ineligible for or has been refused Legal Aid and has exhausted all appeals;
b) the applicant is indigent in the sense that the applicant is financially incapable of retaining counsel privately for the particular proceeding; and
c) that the nature of the proceeding is such that representation by counsel is “essential” to the applicant’s right to a fair trial. The length, complexity and seriousness of the proceedings, as well as the applicant’s capabilities are important considerations in relation to this requirement.
POSITION OF THE PARTIES
[8] Ms. Mahamad's counsel for this application submits that all three criteria in Rowbotham have been met in this case.
[9] The Crown submits that none of the criteria have been met.
ANALYSIS
Has Legal Aid been refused?
[10] There is an issue whether an appeal continues to lie for Ms. Mahamad's claim for Legal Aid. The Crown submits there is. The Defence submits that Legal Aid has advised a further appeal will not be considered. This dispute does not need to be resolved on this application. I will proceed on the basis that Ms. Mahamad has exhausted all appeals for Legal Aid available to her.
[11] It is important to note that, not only must Legal Aid been refused, the defendant must have complied with all reasonable requests of information by the Legal Aid authorities.
[12] Ms. Mahamad applied for Legal Aid on August 24, 2016. She disclosed that she was on ODSP receiving $1,269 per month. She advised she had no other assets and no other means to pay for a lawyer. She advised her rent was $900 per month. Legal Aid considered Ms. Mahamad's case for funding.
[13] When questioned about the lengthy delay in commencing the Legal Aid application, Ms. Mahamad advised that two friends had loaned her money for a private retainer and that money had run out. One of the lenders included her surety, Mr. Mohamed Bashir. Legal Aid continued to consider whether Legal Aid funding was appropriate.
[14] Legal Aid requested Mr. Mohamed Bashir, Ms. Mahamad's surety and the person with whom she resided, to provide financial disclosure.
[15] Legal Aid was refused on September 26, 2016. Ms. Mahamad wrote to Legal Aid on September 29, 2016 advising that Mr. Bashir was just a friend:
... he only stand the bail for me and I stay by him but financially, I supported my self by getting Disability (ODSP) that is how I support my self...
[16] Ms. Mahamad's position was that Mr. Bashir's financial information need not be provided to Legal Aid.
[17] Legal Aid continued to insist on Mr. Bashir's financial information. Ms. Mahamad called Legal Aid and the notation in the file states:
Client stated that she thinks he will be hesitant to call as she owes him money and sometimes does not even want to speak with her.
[18] By February 2017, Mr. Bashir had not made financial disclosure to Legal Aid.
[19] Mr. Bashir spoke to Legal Aid and said he was just a friend and would not financially assist Ms. Mahamad any further with her legal fees.
[20] On February 15, 2017, Ms. Mahamad appealed Legal Aid's refusal.
[21] This Rowbotham application was commenced in April 2017. Ms. Mahamad provided an affidavit of April 12, 2017. In it Ms. Mahamad states:
I currently reside with my residential surety, Mohmed Bashir, at my home at 7555 Gorewary Drive, Unit 258, Mississauga. Although Mr. Bashir lives with me, he does not financially support me in any way. I personally pay rent for the apartment, which is approximately $900 per month, and I also pay for all of my own groceries, hygiene supplies, etc.
[22] In Ms. Mahamad's September 26, 2017 affidavit, she states that Mr. Bashir is:
...a casual friend that I met through a mutual friend. We got to know each other casually through various social functions over the years. We are not related to each other and we have never been romantically involved with each other.
[23] Mr. Bashir also provided an affidavit repeating what Ms. Mahamad said about their relationship in her September 26, 2017 affidavit.
[24] The evidence discloses that Mr. Bashir has significant assets, including a valuable home, and a substantial income. There is no doubt that, with financial support from Mr. Bashir, Ms. Mahamad would be in a position to retain private defence counsel.
[25] In the final analysis, the evidence of the relationship between Ms. Mahamad and Mr. Bashir is not clear. For example:
a) Counsel for Ms. Mahamad, submitted that Mr. Bashir is married. Mr. Bashir's tax returns shows that he reports himself as single;
b) Counsel for Ms. Mahamad submits that Mr. Bashir only moved in with Ms. Mahamad into her apartment with her grandson because she was required to live with him as her surety. This makes little sense. More importantly, none of the affidavits say this. The Recognizance of Bail simply requires that Ms. Mahamad reside with Mr. Bashir. There is no explanation why they would reside together with Ms. Mahamad's grandson in Ms. Mahamad's apartment rather than live in Mr. Bashir's home. Financially, for Ms. Mahamad, this makes little sense; and
c) The Recognizance of Bail shows Ms. Mahamad's address and Mr. Bashir's address as 8 Marbleseed Crescent Brampton, the home owned by Mr. Bashir and does not state that Mr. Bashir must live at Ms. Mahamad's apartment.
[26] On September 22, 2017 the condition requiring Ms. Mahamad to reside with her surety was removed. She testified she no longer resides with Mr. Bashir.
[27] On this evidence, this court has a number of concerns and questions regarding Ms. Mahamad's ability to raise funds from Mr. Bashir to retain counsel. However, the Crown waived the opportunity to cross-examine Mr. Bashir on his affidavit.
[28] Whether Ms. Mahamad has satisfied this requirement is a close call.
Is Ms. Mahamad indigent (does she have other means to hire defence counsel)?
[29] There must be credible and relevant disclosure in support of any claim of indigence. Unsubstantiated claims are insufficient to warrant a Rowbotham order. See R. v. Kizir, 2014 ONSC 1676, [2014] O.J. No.1276 (S.C.J.), at para. 46 and R. v. James, [2011] O.J. No. 4651 (S.C.J), at para. 46.
[30] The circumstances of each case will dictate the degree of details required to be disclosed by the applicant.
[31] First, let me state that I believe none of Ms. Mahamad's evidence. She was evasive, hesitant and "hedged" all her answers to avoid being tied down to any specifics. "Sometimes", "that was long ago", "I don't remember" were familiar responses repeated throughout her testimony. There were simply no details provided by Ms. Mahamad. She has no credibility.
[32] In addition, Ms. Mahamad's memory and explanations clearly demonstrate that her answers are not reliable. Many made no sense. She had an explanation for everything even when those explanations made no sense. A few examples will suffice:
a) after initially testifying that she had only used Western Union maybe one or two times (she "wasn't sure" - "a long time ago" - "not sure when"), the Crown produced two Western Union cards with her name on them - one with her maiden name and one with her married name. The Crown advised they were seized on May 28, 2015 from Ms. Mahamad's personal belongings. At first Ms. Mahamad did not recognize the Western Union cards, then admitted they were hers, then said she had lost them a long time ago and then said she had no idea how or from where they had been produced by the Crown. Later, she admitted she had wired money down to Guyana with Western Union;
b) Ms. Mahamad said she never sent more than $30, $40 or $50 dollars back to Guyana. Yet, she later admitted that she transferred back to persons in Guyana over $35,000 in the 10 months prior to her arrest on May 28, 2015. When confronted with this information, she explained that it was her sister who had borrowed $25,000 from a line of credit, given Ms. Mahamad cash, Ms. Mahamad took the cash to Western Union or a bank, and Ms. Mahamad would wire/transfer the funds down to Guyana. In other words, these were not her monies. She was asked why would not her sister just wire the money directly to Guyana? Ms. Mahamad explained her sister was busy working. This makes no sense! Remember, it is cash! When the amounts transferred to Guyana continued to increase, Ms. Mahamad explained that she had borrowed $14,000 and borrowed additional money from other people. Was this loan disclosed to Legal Aid? No. There was no explanation why she did not she use the $14,000 for her legal fees. There was a bald statement that she cannot borrow other money. Ms. Mahamad appears to have access to funds or loans when she needs the money for other purposes;
c) when the Crown produced a document showing a wire transfer from Canada Trust and a bank receipt from RBC, which contained Ms. Mahamad's name, her explanation was that she did not recognize the document, but, suggested that "someone used her name".
d) she files tax returns claiming she has a spouse and supports him. When questioned about this, she said someone prepares her tax returns and she simply signs them. She does not read them. Is she married to or divorced from her second husband? Good unanswered question. Ms. Mahamad testified they separated in 2015 and that she did not know if she was still married to him. But later in the evidence, testified that her second husband was married and had a child with his new wife. When this inconsistency came up, she suggested that her second husband went through a sermon - not a legal marriage. Why was this important? Because Ms. Mahamad had testified that her husband had, prior to the alleged separation in 2015, would send her money. She claims he has not sent her money since 2015. How much money did her husband make in Guyana? Ms. Mahamad could not remember; and
e) Ms. Mahamad took numerous trips to Suriname. Why? She explained that her grandson (born in Canada and had an OHIP card) had a skin condition, like eczema, that required treatment in Suriname and could not be obtained in Ontario. The treatment was $300 per treatment. It makes little sense that Ms. Mahamad, on ODSP, would make these trips to Suriname and pay for a skin treatment when her grandson had medical coverage in Ontario. On exactly which trips did Ms. Mahamad's grandson travel with her when she went to Suriname? Ms. Mahamad could not be sure.
[33] Ms. Mahamad has been on ODSP since 2010. She testifies she lives on approximately $15,000 per year since then until her arrest on May 28, 2015. To be fair, she acknowledged that her prior husband would send her up to $1,000 per year from Guyana until 2015. In the last year, she has started to receive less than $300 as temporary child care from the government social assistance for her grandson.
[34] Ms. Mahamad’s evidence was as follows:
a) given her expenses, Ms. Mahamad admitted she has no discretionary money at the end of the month. From 2010 until May 28, 2015, she received $1,269 per month from ODSP and her rent was approximately $900 per month. According to Ms. Mahamad, at times she would not have sufficient monies for her groceries. She would have to borrow money for groceries. Within the last year she has also taken on primary care of her grandson and her sole source of additional funds to take on this additional responsibility is that she receives $263 per month financial assistance from the government;
b) during this "tight" fiscal period, she made 18 trips between 2010 and May 2015 primarily to Guyana and Suriname. Ms. Mahamad's explanation that these trips were paid by others is rejected. It simply appears inconceivable that a disabled person, whose sole income was ODSP, would be able to take three to four trips abroad each year;
c) according to her passport and evidence, in the first five months of 2015 alone, she travelled to Guyana as follows:
• February 2, 2015 to March 24, 2015;
• April 5, 2015 to April 21, 2015;
• April 27, 2015 to May 11, 2015; and
• May 14, 2015 to May 28, 2015.
d) Ms. Mahamad admitted that most of her financial dealings are conducted in cash including purchasing tickets, wiring money etc.;
e) in the middle of Ms. Mahamad's May 2015 trip, there was a booked flight, in her name, for May 22, 2015 from Guyana to Toronto for $764 USD on business class! However, Ms. Mahamad could not recall or provide any information on this ticket despite the fact the ticket was in her name;
f) Ms. Mahamad admitted she transferred to Guyana in excess of $35,000 during the ten month period prior to her arrest. Some transfers were in excess of $5,000. As set out above, her explanations made no sense and were simply not believable. Like many other vague answers, when confronted with this large amount of monies sent to Guyana, Ms. Mahamad remembered sending "a lot of money" to Guyana but could not remember "specific dates" or "amounts"; and
g) then there is the suspicious timing of some of the money transfers to Guyana. Ms. Mahamad admitted, there were multiple money transfers shortly after she got back from trips to Guyana: her June 12, 2014 return; her March 24, 2015 return, and from her April 21, 2015 return. There were other transfers she could not remember when they were made leading to her "I don't remember" response. There appeared to be a consistent pattern that Ms. Mahamad would transfer monies back to Guyana shortly after she returned from Guyana.
[35] This court simply does not believe that Ms. Mahamad has accurately disclosed her true financial circumstances to Legal Aid or this court. The number of trips, the number and quantum of money transfer of monies, and her ability to borrow funds when needed such as the $14,000 and other monies, belies the life of a person living solely on a disability income. It would appear that Ms. Mahamad has access to funds when she needs to or wants to send monies to Guyana.
[36] It is essential that those who seek Legal Aid funding provide full, accurate and truthful information so that a proper decision can be made. Ms. Mahamad has failed to do so on this application.
[37] Very simply, Ms. Mahamad has not satisfied this court that she does not have the financial capability to retain defence counsel. Ms. Mahamad has not met the burden of proof on this requirement of the test. On this ground alone, the Rowbotham application is dismissed.
Is it essential for Ms. Mahamad to have counsel for a fair trial?
[38] When considering whether this requirement of the Rowbotham application has been met, the trial judge must have regard to a number of factors, including the following non-exhaustive list of considerations:
a) the seriousness of the charges;
b) the potential length and complexity of the proceedings, including any pre-trial motions and rulings;
c) the applicant’s ability to participate meaningfully in his or her own defence;
d) the applicant’s facility for the language of the trial;
e) the applicant’s level of education and ability to read and write; and
f) the likelihood of imprisonment if a conviction results.
See R v Williams 2011 ONSC 7406, [2011] O.J. No. 5862 at para. 9.
[39] I have had an opportunity to observe Ms. Mahamad as a witness. She is not a sophisticated person. She has a high school education.
[40] The charge is serious. If convicted, a significant sentence is likely.
[41] This is a "simple" importing case, where the real issue will be whether Ms. Mahamad had knowledge that the jar contained cocaine. At this point it is not clear whether there are any serious pre-trial applications. There is also a challenge for cause - a procedure which is difficult for someone without legal training.
[42] Considering the above, I would have had no hesitation concluding that the Defence has satisfied this requirement on a balance of probabilities.
Conclusion
[43] I am not persuaded that Ms. Mahamad has established, on a balance of probabilities, all three requirements for a Rowbotham order.
[44] The Rowbotham application is dismissed.
Ricchetti, J.
Date: October 30, 2017
CITATION: R. v. Mahamad, 2017 ONSC 6488
COURT FILE NO.: CRIMJ(F) 1175/16
DATE: 20171030
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SAMVATI MAHAMAD
RULING
Ricchetti J.
Released: October 30, 2017