R. v. Morris, 2017 ONSC 78 — Superior Court of Justice | minicounsel

CITATION: R. v. Morris, 2017 ONSC 78

COURT FILE NO.: 16/1455

DATE: 20170202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TREVOR LAWRENCE MORRIS

Applicant

R. Morin, for the Crown

M. Owoh, for the Applicant

HEARD: December 13, 2016

REASONS FOR JUDGMENT- ROWBOTHAM APPLICATION

This Judgment is subject to a Non-Publication Order issued by the Honourable Mr. Justice Joseph Michael Fragomeni

Fragomeni, j.

[1] The Applicant, Trevor Morris, is charged with importing cocaine. He has a trial date scheduled in the Superior Court of Justice from July 31, 2017 to August 7, 2017. The trial date is set on a with or without counsel basis.

[2] The Applicant had a Legal Aid Certificate for this matter until May 2016. His certificate was cancelled pursuant to a financial re-assessment by Legal Aid. The financial re-assessment conducted by Legal Aid determined that the Applicant’s gross annual income disqualified him for a certificate.

[3] The Applicant claims to be indigent and to be in need of legal representation in order to have a fair trial.

[4] At paragraph 4 of his Notice of Application the Applicant sets out the following:

It is not possible for the Applicant to have a fair trial without counsel for the following reasons:

i. There are serious issues to be dealt with at trial, including the Applicant’s statement to authorities and the issues of knowledge and willful blindness;

ii. The disclosure is voluminous and includes a search warrant of two mobile devices;

iii. The Applicant has no legal training;

iv. The trial is lengthy, and

v. The charge is very serious and will result in a significant jail sentence if the Applicant is convicted after trial.

The Applicant’s Charge and Investigation

[5] The Applicant’s charge arose from a short investigation conducted by the CBSA in the context of international travelers arriving to Canada. At approximately 7:50 p.m. on May 22, 2014, the Applicant arrived at Pearson International Airport from Montego Bay, Jamaica. He first left the secure area of the airport without collecting his two checked suitcases, but he then later returned with an Air Canada permission form to collect his suitcases.

[6] As part of their routine duties, CBSA officers selected the Applicant for a secondary examination. In the course of the secondary examination, the Applicant answered routine questions and his luggage was examined. The search of his luggage revealed 3,909 grams of cocaine secreted in seven different food products – such as cans of coffee, cans of instant chocolate mix and a bag of coconut powder. The Applicant was arrested by CBSA under the Customs Act and informed of his rights to counsel. The secondary examination and arrest were completed at approximately 9:00 p.m.

[7] The Applicant was then arrested by the Royal Canadian Mounted Police (“RCMP”) under the Controlled Drugs and Substances Act and was again informed of his rights to counsel. At 1:41 a.m., after speaking to duty counsel, the Applicant provided a 40 minute audio/video recorded statement to the RCMP.

[8] He denied knowledge of the cocaine but stated that he received the food products from a person who he did not know very well. He thought the food products were ‘ok’ since the person showed him a receipt for the purchase of the food products. He also explained that someone he did not know was going to call him when he returned to Toronto to pick up the food products. The Applicant was then transported to the police station to be brought to court in the morning.

[9] The case is currently before the Superior Court of Justice. No judicial pre-trial has been held but a judge and jury trial is set to commence on July 31, 2017.

The Anticipated Trial

[10] The Crown submits that this case is not complicated. It involves observations of the accused at the airport, answers to routine border questions, the search of his luggage and his arrest. A total of nine officers were involved in the entire case – four CBSA officers and five RCMP officers.

[11] The CBSA officers conducted the active investigation that led to the charge. The RCMP processed the exhibits and took a statement from the Applicant following his arrest.

[12] At trial, the Crown will not be relying on any evidence obtained from the searches of the Applicant’s mobile devices. Further, the Crown will not lead the Applicant’s post-arrest statement at trial. The Crown will seek a ruling on the voluntariness of his post-arrest statement only for the purpose of cross-examination if necessary.

[13] The Crown anticipates calling a total of eight witnesses for the voluntariness voir dire and the trial proper. This witness list will include an expert witness to testify on the value of the cocaine and method of importation. Disclosure has been provided and it is all in English.

Cross-examination on the Applicant’s Affidavit sworn November 13, 2016

[14] The Applicant acknowledged he had signed the Affidavit Form filed in support of his Application.

[15] The Applicant completed Grade 11 in Jamaica. He has not had any further education. The Applicant sets out in his Affidavit that his date of birth is March 11, 1960. He has permanent residence status in Canada.

[16] The Applicant testified that he ran his own business in the music industry. He ran this business for five years. At first he indicated 2012 was the last year he had the business. When he was shown his income tax returns for 2013 and 2014 he corrected himself and confirmed he ran the business until 2014. The Applicant confirmed he can understand aspects of business.

[17] He also worked in the plumbing trade while in Jamaica. At this time he has worked for Prasad Plastic in Mississauga since August 2015. He works five to six days per week. His pay slips show he works 40 to 44 hours per week.

[18] At paragraph 12 of his Affidavit he states that he works as a machine operator and takes home on average $430 per week.

[19] The Applicant testified that he is separated from his wife, although he is living in her residence pursuant to the conditions of his bail order. Their 12 year old son is also living there. His ex-wife also works various hours.

[20] The Applicant testified that at times he does work overtime but it would be difficult to obtain a second part-time job as he is needed to be home for his son.

[21] The Applicant confirmed that he has anywhere from $400 to $600 left over each month after covering his living expenses and financial obligations. At paragraphs 19, 20, and 21, the Applicant sets out those expenses as follows:

$100 per month for his son
$400 per month to his ex-wife while he lives with her
Phone bill - $40 per month
Food - $300 per month
Transportation $140 per month
Money Mart loan - $38.90 per week

[22] He testified that he sometimes gives his son more than $100 per month.

[23] The Applicant testified that he borrowed $5,200 from his brother and two friends. He does not feel that he can ask his brother or his wife to help pay for his legal fees.

[24] With respect to the trial issues the Applicant testified that his statement to the officers is the only issue he is concerned with.

Nature of the Application and Governing Legal Principles

[25] In R. v. Rushlow 2009 ONCA 461, [2009] O.J. No. 2335 (C.A.) M. Rosenberg J.A. set out the Rowbotham test at paragraphs 17 to 21 as follows:

In R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271, 41 C.C.C. (3d) 1 (C.A.), at p. 69 C.C.C., this court held that: [page308]

[A] trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided. (Emphasis added)

Whether the issue is financial ability or the necessity for counsel, the trial judge in considering whether to appoint counsel is not engaged in reviewing the decision of the legal aid authorities. As this court said in R. v. Peterman (2004), 2004 39041 (ON CA), 70 O.R. (3d) 481, [2004] O.J. No. 1758 (C.A.), at para. 22:

[W]hen 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. In considering whether to appoint counsel, the trial judge is required to 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. Because of the pervasiveness of legal aid, it will be the rare and exceptional case that the court will find it necessary to appoint counsel. This does not mean that counsel is only required in exceptional cases. Rather, it is the fact that legal aid is available for accused who cannot afford a lawyer that Rowbotham orders are exceptional.

Courts have considered a number of factors in determining whether appointing counsel is essential in view of the complexity and seriousness of the case. Generally, the courts look at the personal abilities of the accused, such as their education and employment background, their ability to read and their facility with the language of the proceedings. The courts will also consider the complexity of the evidence; the procedural, evidentiary and substantive law that applies to the case; the likelihood of especially complex procedures, such as a voir dire; the seriousness of the charges; the expected length of the trial; and the likelihood of imprisonment: see R. v. Wood, 2001 NSCA 38, [2001] N.S.J. No. 75, 191 N.S.R. (2d) 201 (C.A.); R. v. Wilson, 1997 NSCA 204, 1997 1501 (NS CA), [1997] N.S.J. No. 473, 163 N.S.R. (2d) 206 (C.A.); R. v. Hayes, 2002 NBCA 80, [2002] N.B.J. No. 356, 253 N.B.R. (2d) 299 (C.A.); R. v. Drury, 2000 MBCA 100, [2000] M.J. No. 457, 150 Man. R. (2d) 64 (C.A.); R. v. Rain, 1998 ABCA 315, [1998] A.J. No. 1059, 223 A.R. 359 (C.A.); and R. v. Chemama, [2008] O.J. No. 368, 2008 ONCJ 31.

In considering whether counsel is essential, the court will also take into account the prosecution's duty to make full disclosure and the trial judge's obligation to assist the unrepresented accused: see R. v. Wilson and R. v. Keating, 1997 NSCA 135, 1997 14379 (NS CA), [1997] N.S.J. No. 250, 159 N.S.R. (2d) 357 (C.A.).

[26] In R. v. Gour (July 29, 2011) at Barrie, Ontario 10-0187 (S.C.J.) Quinlan, J. noted the follow at page 9 relating to the evidentiary burden on an Applicant in these Applications:

The evidentiary burden of proof requires the applicant to demonstrate that this is a “rare and exceptional case” such that publicly funded counsel is required to ensure his right to a fair trial.

For a prospective of an anticipated breach of the right to a fair trial, relief is available only on proof there is a sufficiently serious risk that the alleged violation will, in fact, occur. The courts have held that the evidentiary burden on the applicant is “very heavy”, and requires the applicant to demonstrate that all aspects of the application for publicly funded counsel are properly supported on the record.” R. v. Rowbotham, R. v. Cai, 2002 ABCA 299, [2002] A.J. No. 1521 (Alia. C.A.) at paragraphs 6 to 7, 13 and 32, R. v. Malik 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.C.S.C.) at paragraph 22.

[27] In R. v. Crichton 2015 BCCA 138, [2015] B.C.J. No. 589 (B.C.C.A.) the court confirmed the principle that these orders should be rare and exceptional. At paragraphs 36:

The Court emphasized that it would be the rare and exceptional case where such an order is made.

[28] In R. v. Tang, [2011] O.J. No. 6694 (S.C.J.) at paragraph 5, Nordheimer J. notes:

There are three criteria that an accused person must satisfy in order to obtain a Rowbotham order. They are:

i. The accused person must have been refused legal aid;

ii. The accused person must lack the means to employ counsel, and ;

iii. Representation for the accused person must be essential to a fair trial.

[29] The Crown argues that the Applicant has not met his onus on the last two factors.

Issue: Whether the Applicant is Indigent and Has No Means to Retain Counsel

[30] In Crichton the Court outlined what steps an Applicant must pursue to support his position that his financial circumstances fell into the extraordinary category. At paragraphs 48 to 53 the Court states:

Under the constitution, the allocation of taxpayers’ dollars is not for the judicial branch of government to decide, except in the face of a Charter challenge or concern for judicial independence (Criminal Lawyer’s Association at para. 41). Yet, the constitution also imposes a duty on the government to fund a lawyer, outside of the provincially established legal aid scheme, in certain circumstances. An order staying the proceedings is a rare and exceptional order. As noted above, it is only to be invoked in the “clearest of cases”. Considering those factors, it is entirely appropriate to require an applicant seeking the funding of counsel by the taxpayer to establish strictly enforced guidelines for financial eligibility.

In summary, to obtain a conditional stay of proceedings based on a violation of ss. 7 and 11(d), certain financial criteria must be established. First, the applicant’s financial circumstances must be “extraordinary”. The applicant must provide detailed financial evidence of his or her financial circumstances, which includes supporting evidence. The applicant must save money to hire counsel or contribute to his or her legal fees, and make efforts to borrow money from friends or family. The applicant should try to obtain employment or additional employment if already employed. The applicant should try to find counsel who would be willing to work at LSS rates. The applicant must reasonably exhaust his or her own assets to pay for counsel before looking to the taxpayer to pay for a lawyer. The applicant must demonstrate that he or she was prudent with his or her personal living expenses and show foresight and planning of his or her financial affairs to pay for a lawyer.

The issue of whether a spouse’s assets are to be considered in the financial analysis was not raised in this case. As such, I would save that issue for when it arises on the facts.

The inquiry into the applicant’s financial circumstances commences when he or she reasonably knew a lawyer would need to be retained to defend criminal charges, and at the latest, when charges were laid.

The trial judge concluded at para. 41 that “a lack of financial prudence should not, by itself, result in a refusal of a remedy”. In my respectful view, the trial judge erred in this conclusion. The evidence and the facts found by the trial judge strongly supported his conclusion that the applicant did not meet the stringent financial test established by the authorities. The rationale for such a stringent test is justified in that such an order is “rare and exceptional” and that it must be the “clearest of cases” before a stay of proceedings is entered. This is based on the law that establishes that the judiciary should not be spending taxpayer money in cases where an accused chooses not to spend the money he has on his lawyer, and instead comes to the court cap in hand, expecting counsel to be appointed for him. In those circumstances, the cap will remain empty.

This conclusion recognizes that people of modest means often cannot pay for a lawyer, and may be entitled to a Rowbotham order. Those who are eligible will have taken whatever steps they could to save money or preserve assets that can be liquidated to pay counsel. Those who divest themselves of assets, or who place priority in spending what money they have on things other than the necessities of life, who make, as the LSS framed it “a consumer choice” not to retain counsel, will not be able to avail themselves of the taxpayer’s purse to fund their lawyer.

[31] In R. v. Sheikh 2011 ONSC 4942, [2011] O.J. No. 4435 (S.C.J.), Justice Ricchetti summarizes several principles which guide the courts in considering an applicant’s financial circumstances at paragraph 70 as follows:

There are several principles which guide the courts in considering an applicant’s financial circumstances in Rowbotham applications. The principles relevant to the present application are:

• The inquiry into the applicant’s financial circumstances go back to the time the applicant was charged; R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;

• the applicant’s income (actual and available income) is to be considered. See R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222 and R. v. Magda, [2001] O.J. No. 1861 at para 44;

• the applicant must provide detailed financial evidence of his/her financial circumstances. R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;

• the applicant must make efforts to save money, borrow money, obtain employment/additional employment and utilize any assets the applicant has. R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;

• the applicant must be prudent with his/expenses. R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;

• the applicant must show some attempt to plan his/her financial affairs to enable him/her to retain counsel. R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;

• the applicant must exhaust all reasonable efforts to make enquiries to find counsel to represent him/her. See R. v. Drury, 2000 MBCA 100, [2000] M.J. No. 457 (Man. C. A.) at para 48 and R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No. 2167 (B.S.S.C.) at para 222;

• whether the applicant had been offered a reasonable contribution agreement by LAO. See Drury supra at paras 59-63 and Martell supra;

• the law does not require that the applicant become destitute but that the applicant have a financial plan from the time of his/her arrest to plan for the cost of defending the charges. See Drury supra at para 58 and 65;

• the law requires some willingness to sacrifice on the part of the applicant. See Drury supra at para 58;

• if the applicant is not in a position to financially retain counsel, but this has been due to his/her voluntary choices, priorities and lack of foresight and planning, it is not an appropriate case to grant a Rowbotham order. See R. v. Nightingale, [2001] B.C.J. No. 2610 (B.C.S.C.) at para 9. In R. v. Pearen, [1998] O.J. No. 4119 (Gen. Div.) at para 19 Justice Nordheimer put it another way:

There is a limit to the government’s resources to fund legal representation. Those funds ought not to be directed towards persons who simply choose to organize their affairs so that their ability to obtain counsel may be compromised. See R. v. Goba (2007), File No. 070/07 at para 7.

[32] I agree with the position of the Crown on this issue. The Applicant has failed to establish on a balance of probabilities that he does not have and has not had the financial ability to retain counsel in this matter.

[33] The Applicant’s financial disclosure is incomplete, confusing and unreliable. He sets out that he assists his son with basketball at about $100 per month. When he is then asked about the fact that he swore in his Affidavit that he has $400 to $600 left over each month he asserts that sometimes he gives his son extra funds.

[34] The Applicant clearly states at paragraph 23 of his affidavit that “I have anywhere between $400 and $600 left each month after covering my living expenses and financial obligations…”

[35] The Applicant has been fully employed at Prasad Plastic since August 5, 2015. The $400 to $600 left over each month represents between $9,600 to $14,400 over a two year period.

[36] The Applicant also received $3,000 from Money Mart. In their reasons for refusal Legal Aid noted the following:

In June 2016 the applicant provided additional information to Legal Aid. At this time, he provided his banking profile which identified a tax-free savings account at the TD bank. This bank account was not previously disclosed to Legal Aid. The applicant confirmed that this son is residing with the ex-spouse. The applicant advised that he gives his son $100 or $200 for his basketball games. In these circumstances, I am prepared to accord the funds the applicant provides to his son for basketball as support payments which on an annualized basis totals $1,800. In addition, the applicant provided verification of loan repayments.

Based on a recalculation, the applicant has a gross annual income of $27,365 and a family size of one. This is based on the applicant’s year-to-date income as of June 5, 2016. Legal Aid financial policies allow a maximum annual debt deduction from income of $2,501 for a family size of one. In addition, the applicant has prescription medication expenses annually totaling $186 and he has annual support payments totaling $1,880. In these circumstances, the applicant has a gross annual income of $22,878 taking into consideration his debt, prescription medication and support payments.

Legal Aid policies require that, in order to qualify for legal aid certificate on a non–contributory basis, the gross annual income level for a family size of one must not exceed $12,863. In order to qualify for legal aid assistance with a contribution, the gross annual income for the family must be less than $14,888. In these circumstances, the applicant no longer qualifies financially for legal aid assistance. Legal Aid financial policies are applied uniformly to all legal aid applicants.

Accordingly, I am upholding the decision of the Area Committee.

[37] When the Applicant’s financial circumstances are considered in their totality I am satisfied that he can afford to retain counsel and is not indigent.

Issue: Whether Counsel is Necessary for a Fair Trial

[38] In R. v. Vuong, 2016 ONSC, 7277 released November 22, 2016, Justice Hill set out the governing principles at paragraphs 115 and 116 as follows:

In considering whether it is essential for a fair trial that counsel be appointed to legally represent an accused person, an application judge will “take into account the prosecution’s duty to make full disclosure and the trial judge’s obligation to assist the unrepresented accused”: Rushlow, at para. 21. “Representation by a lawyer is not a pre-requisite for a fair trial”: R. v. Rain (1998), 1998 ABCA 315, 130 C.C.C. (3d) 167 (Alta. C.A.), at para. 36 (leave to appeal refused [1998] S.C.C.A. 375).

The issue as to whether a trial will probably be unfair, in contravention of ss. 7 and 11(d) of the Charter, is necessarily a prospective evaluation. There is no closed list of factors which might become relevant depending upon the facts of a particular case. That said, our jurisprudence highlights factors which have attracted consideration including the following:

(1) the seriousness of the charge(s): Rushlow, at paras. 19, 27

(2) the length and complexity of the proceedings including evidentiary, procedural and substantive law applying to the case: Rushlow, at paras. 19, 26; Solleveld, at para. 40 (“[t]he length of the trial is not itself an indicator of complexity”)

(3) the volume of disclosure: Kazman, at para. 42 (the “fact that the materials are voluminous does not, standing alone, necessarily imbue the trial with complexity in the sense in which that term is understood for the purposes” of a Rowbotham application)

(4) education level of applicant(s): Rushlow, at paras. 20, 26 (grade 11 education; no legal training); Kazman, at para. 49 (“the applicant is an intelligent man”); R. v. Baron, 2014 ONSC 2660, at para. 20 (applicant “is clearly an articulate, educated businessman”); Williams, at para. 13 (applicant “is intelligent and well-educated” with a university degree)

(5) employment background: Rushlow, at para. 20; Adams, at paras. 21-22 (applicant “incorporated companies, ran or directed the running of at least two businesses…”); R. v. Angelis, 2012 ONSC 5833, at para. 5 (applicant worked in the accounting field for 15 years)

(6) ability to read: Rushlow, at para. 20

(7) facility with language of the proceedings: Rushlow, at para. 20

(8) the aptitude of the applicant in cross-examining at the preliminary inquiry: Angelis, at para. 5

(9) the potential likelihood of imprisonment: Rushlow, at paras. 20, 24, 27.

[39] In Vuong, Justice Hill states the following at paragraphs 27 to 30:

Accordingly, in the present application, drawing upon the languageof Molloy J. in R. v. Williams, 2011 ONSC 7406, at paras. 5-6, the parties agreed that a Rowbotham order applicant must satisfy the court on balance that:

[5] In order to obtain a “Rowbotham Order”, an accused must establish three things:

(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.

[6] The applicant must establish all three conditions on a balance of probabilities. If any one of the conditions is not satisfied, the application will be dismissed.

(footnote omitted)

While it is vitally important that the court not lose sight of the constitutional context for an accused person to be afforded a fair trial, “the decision on the Rowbotham application [is] … a discretionary one” to be exercised on a case-by-case basis: R. v. Tang, 2014 ONCA 632, at para. 12 (leave to appeal refused [2015] S.C.C.A. No. 486).

In R. v. Hafizi, 2015 ONCA 534, at para. 7, the court stated:

Where a court is satisfied that an accused person’s right to a fair trial guaranteed by ss. 7 and 11(d) of the Charter would be infringed if he or she was not represented by counsel, the court can make what is called a Rowbotham order. That is, pursuant to R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.), the court may order the state to fund counsel to represent the accused person so as to ensure trial fairness.

The government’s resources to fund legal representation are limited: R. v. Le, 2016 ONCA 798, at para. 17. The primary obligation to assist those in financial need to obtain counsel rests with legal aid: R. v. Lubin, 2016 ONCA 780, at para. 9 (citing Cromwell J.A. (as he then was) in R. v. Assoun, 2002 NSCA 50, at para. 47: “Because of the pervasiveness of legal aid, it will be the rare and exceptional case that the court will find it necessary to appoint counsel”: Rushlow, at para. 19).

Conclusion

[40] The Applicant submits that he would not have the confidence to conduct a jury trial. The Applicant acknowledges that the case itself is not really complex but it is the process of conducting a jury trial that is complex. The Applicant argues that he does not have the confidence or ability to examine witnesses and conduct a closing address to the jury.

[41] The Crown submits that the case against the Applicant is straight-forward. I agree. The only legal issue of concern to the Applicant that he identified in his cross-examination related to his post-arrest statement to the police.

[42] This importing charge is a one issue case, namely knowledge. The case involves observations and routine questioning and search of the Applicant’s luggage. The investigation involved four CBSA officers and five RCMP officers. The investigation relates to a time period of about an hour.

[43] The Crown has indicated in his submissions that he will not lead evidence from the search of the Applicant’s mobile devices or his post-arrest statement.

[44] The Crown will seek a voluntariness ruling only for the purposes of cross-examination only.

[45] The Crown has made full disclosure. The trial judge has an obligation to assist a self-represented accused. The trial is not lengthy.

[46] There is no doubt that the charge is serious and on conviction there is a strong likelihood of imprisonment. That fact alone cannot anchor the granting of the order.

[47] In R. v. Taylor [2014] ONSC 2193 D.A. Broad J. stated the following at paragraphs 17 to 19:

While the prospect of a sentence of incarceration is real if the applicant is convicted of the offence, the authorities make it clear that the possibility, or even probability, of incarceration following conviction does not, by itself, justify the making of an order for state funding. It is necessary to examine the nature of the charges in carrying out an analysis of the seriousness and complexity of the trial. In the case of Manitoba v. Legal, 2009 MBPC 26, 2009 MBPC 26 (Man. Prov. Ct.) at para. 60, the Court cited a number of cases in which an accused had been denied state-funded counsel when facing incarceration, but the charges had nonetheless been found not to be sufficiently serious to put the accused's section 7 Charter right to security of the person at risk. Justice Carlson, in that case, noted that the distinction between these situations and cases like Rowbotham and others, where state funding has been ordered, is that in the latter cases the offences carry the possibility of long-term incarceration and restriction on the accused's physical liberty.

In R. v. Tang [(September 29, 2011), Nordheimer J. (Ont. S.C.J.)] 2011/09/29 Endorsement of Nordheimer, J. (Ont. SCJ), in a case relating to alleged fraud involving over 200 investors and $50 million, Justice Nordheimer made the following comment at para. 10:

While all criminal charges are by definition serious, the charges here are not the most serious ones known to the law. [The accused] does face possible incarceration if he is convicted, but any such penalty, if imposed, would likely not be in the most serious range of possible sentences of incarceration.

From the evidence, it appears that the trial relating to the charges faced by the applicant in this case will be relatively brief and the issues discrete. The desirability and benefits of representation of an accused by counsel is acknowledged generally, however, that is not the test for a Rowbotham order. As indicated above, the authorities establish that it must be shown that representation by counsel is essential to a fair trial. I am not satisfied that this is a case of sufficient seriousness or complexity that this factor is present.

Conclusion

[48] In conclusion I am not satisfied that the Applicant has met his onus to establish that the order requested is warranted. The evidentiary record does not support the Applicant’s position that he lacks the means to employ counsel. Further representation for the accused is not essential to a fair trial.

[49] The Application is dismissed.

Justice J. Fragomeni

Released: February 2, 2017