Court File and Parties
COURT FILE NO.: CV-17-2037-MO DATE: 2019/03/28 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – KYLE BANCROFT Applicant
COUNSEL: C. Teresa Yang, Attorney General for Ontario, for the Respondent Crown Tobias Okada-Phillips, for the Applicant
HEARD: February 7 and March 21, 2019
Decision on Rowbotham Application
ratushny j.
[1] The applicant, with the assistance of counsel, seeks an Order pursuant to s. 24(1) of the Charter conditionally staying a total of 40 criminal charges currently scheduled for trial in Ottawa, Pembroke and Belleville until the Attorney General for Ontario funds the cost of his defence according to a Rowbotham Order. The applicant also seeks a Peterman Order to allow his defence counsel of choice, based in Ottawa, to receive funding for accommodation and travel to Pembroke and Belleville.
[2] For reasons that follow:
- The Rowbotham application in respect of the Ottawa charges is granted so that the Ottawa charges comprised of all counts in Information #17R2037 are conditionally stayed to allow the Attorney General for Ontario to arrange funding of counsel for the applicant in this proceeding, failing which the applicant is able to apply to the court for a permanent stay of this proceeding;
- The Rowbotham application and accordingly, the Peterman application in respect of the Pembroke and Belleville charges are dismissed.
1. The Test on a Rowbotham Application
[3] Counsel agree the court’s determination of whether to stay proceedings pending the appointment of publicly funded counsel depends on the applicant satisfying all three of the following prerequisites on a balance of probabilities: (a) Legal Aid: The applicant is ineligible for or has been refused legal aid and has exhausted all appeals for reconsideration of his eligibility; (b) Indigence: The applicant is indigent and unable to privately retain counsel to represent him at trial; and (c) Seriousness and Complexity: The applicant’s right to a fair trial will be materially compromised absent public funding for counsel: R. v. Rowbotham, (1988), 41 C.C.C. (3d) 1 (Ont. C.A.), at pp. 45-46.
[4] For the prerequisite of indigence, 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: R. v. Crichton, 2015 BCCA 138, 319 C.C.C. (3d) 504, at para. 51, leave to appeal to the S.C.C. dismissed, [2015] S.C.C.A. No. 432, referred to in R. v. Woods, 2016 ONSC 2374, at para. 15.
[5] The court is not reviewing the decision of Legal Aid on a Rowbotham application but is fulfilling its independent obligation to ensure the accused receives a fair trial: R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302, at para 18.
[6] In considering the issue of a fair trial, the Ontario Court of Appeal stated in Rushlow (at para. 19):
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.
[7] In the usual situation governing Rowbotham applications involving, as in the present case, a prospective or anticipated breach of the right to a fair trial, relief is available only on proof there is a “sufficiently serious risk” or a “real and substantial risk” or a “very real likelihood” or a “high degree of probability” that the alleged violation will in fact occur: R. v. Cai, 2002 ABCA 299, 9 Alta. L.R. (4th) 28, at paras. 6, 7, 13 and 32, leave to appeal to the S.C.C. dismissed, [2003] S.C.C.A. No. 360, referring to Cory J.’s remarks in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, at p. 159, that deciding prospectively whether there will be a Charter breach is really an exercise in conjecture and it is hard, therefore, for the applicant to show the high degree of probability required.
[8] This reference to a high degree of probability could be understood to move the burden of proof to one that is higher than a balance of probabilities, however, I do not understand these comments to affect the burden of proof and do not apply them in this way. The third branch of the Rowbotham test requires a contextual determination that the applicant’s right to a fair trial will be materially compromised absent public funding for counsel and this, in my view, addresses the issue of the need for a high degree of probability as referred to in Cai.
2. The Applicant’s Circumstances
[9] The applicant has been in custody since September 6, 2017 and remains in custody at the present time.
[10] He recently resolved 49 counts of fraud in the Ontario Court of Justice in Pembroke and was sentenced to three years’ incarceration, for which he has approximately 6 months left to serve. He was self-represented.
[11] He applies for Rowbotham relief in respect of a total of 40 outstanding criminal charges against him for which trial dates have been set in Ottawa, Pembroke and Belleville. They involve allegations of crimes committed between August 19, 2015 and September 6, 2017. The applicant was arrested on the latter date. None of the charges appear to have been laid earlier than 2017 or before his arrest.
[12] These charges principally involve charges of robbery, robbery with a firearm, theft, break, enter and theft, and multiple frauds. There is one charge of counselling arson. The charges expose the applicant to a risk of further incarceration if he is convicted.
[13] The Ottawa charges involve nine counts on one information. A trial in the Ontario Court of Justice is scheduled for 6 days in May and June 2019. There is one co-accused. The allegations are serious, involving robbery with a firearm and will involve forensic disclosure and the testimony of a purported co-conspirator.
[14] The Pembroke charges involve a total of 30 counts and four different trials. The trials have been scheduled in the Ontario Court of Justice for dates in April to June 2019. There are no co-accused on any of the four informations. One of the trials is scheduled for four days, another for three days and the other two for one-day trials. One trial (one day) is for one count of fraud and a breach of recognizance. Another trial (one day) is for failure to attend. Another trial (3 days) involves 23 counts, primarily of fraud. The other trial (4 days) is regarding theft of a tractor, possession of a stolen tractor, possession of proceeds of crime and possession of a stolen tractor for the purposes of trafficking.
[15] The Belleville charge is one count of robbery against the applicant with four co-accused. It has been scheduled in the Superior Court of Justice for a three-week judge and jury trial commencing in April 2020.
[16] The applicant has a Grade 11 education. He has been self-employed for most of his life in selling lumber. He states that since his incarceration in September 2017, not only has he had no source of funds, but he has had no one to assist him in his quest for legal aid funding of counsel and this has brought him to the stage of a Rowbotham application. While he recently resolved 49 Pembroke fraud and related charges without the assistance of counsel, he indicated unhappiness with the result of a three-year sentence of incarceration.
[17] He applied to Legal Aid Ontario for the Ottawa charges in September 2017 and was finally denied on September 18, 2018 because of a failure to provide complete and credible financial information. He did not apply for legal aid for his Pembroke and Belleville charges until some months ago, when he filled out an application and gave it to one of the guards at the jail. He has heard nothing further on these applications. After he was denied legal aid for the Ottawa charges, because he remained in custody without any change in his financial situation and continued to be unable to obtain the financial records required by Legal Aid Ontario, he initially thought it would be futile to apply again.
[18] He has not seen any disclosure for any of the charges. He did receive disclosure regarding his Belleville charge however, he says that while he has applied for the ability to review that disclosure according to jail regulations, the necessary arrangements have not yet been made. Disclosure on all of the charges is, no doubt, quite voluminous.
3. Analysis
Indigence
[19] With the assistance of his counsel on this Rowbotham application, missing financial documentation has now been provided including bank account records, information regarding his deceased parents’ ownership of properties, his accounting for a sum of $16,000 received under a life insurance policy, his deceased mother’s holograph will and pending family litigation over it. While the bank records show significant deposits to the applicant’s accounts in 2016 amounting to over $50,000.00 and withdrawals of over $10,000.00, the records from 2017 subsequent to his incarceration in early September 2017 indicate only a monthly balance of a few hundred dollars at most.
[20] The respondent disagrees that the applicant is indigent or has been indigent since his arrest in September 2017 and refers to these significant deposits and withdrawals and his lack of transparency with Legal Aid Ontario in the past regarding his Ottawa charges.
[21] However, the more recent disclosure indicates the applicant has proved on a balance of probabilities that he has been unable to privately pay for defence counsel since his incarceration in September of 2017 and up to the present time. I accept his explanation that before gaining the assistance of counsel, he was unable, because of his continued incarceration and lack of family to provide assisance, to provide satisfactory records to Legal Aid Ontario as requested. Now he has done so on this application and barring inappropriate speculation as to where the significant deposit and withdrawals in 2016 might have gone, there is no basis for a determination that these monies could be available to him from some other source. The applicant has the onus of establishing that beginning with his arrest in September 2017 to the present time, his financial position has been such that he has been and is unable to retain counsel. His assertions and the documentary evidence before me have established his indigent status for that period of time.
The Ottawa Charges
[22] For the Ottawa charges the applicant has satisfied all three branches of the Rowbotham test on a balance of probabilities.
[23] He has been finally denied legal aid; he has been found indigent; counsel agree, as do I, that the charges are serious and complex such that there is a very real likelihood his right to a fair trial will be materially compromised absent public funding.
[24] It is for these reasons, I grant the Rowbotham application for the Ottawa charges, as indicated previously, and order that the state funding for the trial, if not already provided in respect of this application, include preparation time for it.
The Belleville Charge
[25] For the Belleville charge the applicant has satisfied only one of the three elements of the Rowbotham test, namely that the charges are serious and complex, as counsel agree, and in particular given the presence of the jury and four co-accused, that there is a very real likelihood his right to a fair trial will be materially compromised absent the assistance of counsel.
[26] However in respect of the first element of the test, the applicant has not completed the application process for legal aid. His trial has been scheduled quite far in advance, for April 2020, over one year from now. He has time to continue his legal aid process.
[27] In respect of the issue of indigence, he will also have to give updated evidence to Legal Aid Ontario as to his financial situation, given that the Belleville trial is over a year away and the possibility that after completing his present sentence of incarceration and without convictions on other charges, he could apply for bail and be released and obtain money in time to privately retain counsel for that trial. If he remains incarcerated with little change in his financial situation, legal aid funding could well be available to him for the Belleville charge.
[28] It is for these reasons I dismiss the Rowbotham and Peterman applications for the Belleville charge.
The Pembroke Charges
[29] For the Pembroke charges the applicant has satisfied two of the three elements of the Rowbotham test.
[30] He has been determined to be indigent and will remain indigent for the trials scheduled to occur soon, in April, May and June 2019.
[31] Although he has not completed the application process with Legal Aid Ontario, I find that it has been effectively completed with his final denial in September 2018 and his unchanged financial status since that time. I agree with his counsel that it would be futile (R. v. Fournier (2006), 209 C.C.C. (3d) 58 (Ont. CA), at para. 9) to require the applicant to continue his application for legal aid for the Pembroke charges, given his present indigent status that is unlikely to change in time for these soon-to-occur trials.
[32] The applicant has not, however, satisfied the Rowbotham element in respect of the complexity of the 30 Pembroke charges. They are related to purchases of a wood processor and fraud. They involve no co-accused. They involve short trials before a judge without a jury. Only the number of charges contributes a degree of complexity.
[33] The applicant’s counsel submits that the Ottawa, Pembroke and Belleville charges are inter-related, thereby adding to their complexity. I do not understand this to be the case other than to suggest a pattern of alleged criminal activity by the applicant which, even if relevant, has little to do with the consideration of whether there is a very real likelihood that his right to a fair trial will be materially compromised absent the assistance of counsel.
[34] As the respondent has submitted, the allegations involve straightforward factual circumstances the applicant can understand, such as whether he was or was not involved in the alleged thefts, break-ins and frauds. As such, it appears the trials will be primarily fact-based and not legally complex. The trial judge will assist in procedural matters and in guarding the fairness of the trial process.
[35] I am unable to conclude on a balance of probabilities in respect of the Pembroke charges that there is any very real likelihood the applicant’s right to a fair trial will be materially compromised without the assistance of state funded counsel.
[36] It is for these reasons I dismiss the Rowbotham and Peterman applications for the Pembroke charges.
The Honourable Madam Justice Ratushny Released: March 28, 2019
COURT FILE NO.: CV-17-2037-MO DATE: 2019/03/28 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – KYLE BANCROFT Applicant DECISION ON ROWBOTHAM APPLICATION Madam Justice Lynn Ratushny Released: March 28, 2019