Her Majesty the Queen v. Harold Kelley
COURT FILE NO.: CR19-32
DATE: 2019-09-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
HAROLD KELLEY
Applicant
COUNSEL:
J. Chan, S. Burnett, on behalf of the Crown Law Office-Civil, M. Dean for the Crown Attorney
C.O. Spettigue, on behalf of the Applicant
HEARD: August 22, 2019
A. J. GOODMAN, J.:
RULING ON ROWBOTHAM APPLICATION
[1] This is a Rowbotham application brought by Harold Kelley for an order conditionally staying the criminal proceedings, pending the Attorney General funding defence counsel at legal aid rates. Mr. Kelley is charged with one count of fraud over $5000, pursuant to s. 380(1) of the Criminal Code.
[2] Having reviewed the relevant materials filed and hearing the submissions of counsel, at the end of the hearing I denied the Application, with reasons to follow. These are my Reasons.
Issue:
[3] The central issue is whether the applicant’s right to a fair trial requires that he be granted funding from the Attorney General for counsel to represent him both for the preliminary inquiry and, if committed, at trial.
Positions of the Parties:
[4] The applicant moves for a stay of proceedings pending the granting of this Application.
[5] The applicant is 51 years old. He completed grade nine. He has been employed as a truck driver since July 2018. He has a criminal record but no criminal trial experience. He asserts that he does not know how to adequately defend himself against this fraud charge.
[6] The applicant says that the Crown seeks 60 - 90 days jail if convicted. The alleged offence is said to have spanned approximately 4 years having been discovered in 2017 as a result of an anonymous tip. The prosecution commenced in 2018. The Crown has made initial disclosure to date and lists 11 civilian witnesses. The Crown brief has 492 pages and the prosecution has served a Notice pursuant to the Canada Evidence Act.
[7] The applicant says that this case is complex. The applicant submits that a potential issue for trial will be the admissibility of various documents; pre-charge delay and various Charter applications. Agents of the Crown have failed to interview at least one material witness and it will be necessary to call that witness at the preliminary hearing on behalf of the defendant. The preliminary hearing is expected to last five days. At trial, the applicant would call between zero and four witnesses. A jury trial of this nature will last approximately 10 to 12 days. Abuse of process is also an issue for trial.
[8] The applicant submits that he has made full and proper financial disclosure of his income and expenses. He says that it is clear that he cannot retain counsel privately. He submits that, spouses aside, the income and financial means of all other family members is irrelevant to this issue. A family member’s failure to cooperate with Legal Aid or to finance an applicant’s defence is not a bar to success on this Application. While an applicant must be prudent with his finances, he is not required to render himself destitute in order to retain counsel.
[9] The applicant submits that based on the estimate provided, he cannot afford to retain counsel even at Legal Aid rates. He lacks the ability to represent himself at either a preliminary hearing or at trial. The applicant submits that the administration of justice benefits when counsel is appointed, especially when there are large volumes of documents to consider. Therefore, this is an appropriate case for state funding at a preliminary hearing.
[10] In response, the Crown submits that the applicant is charged with one count of fraud. This application is premature as it has been brought prior to the preliminary hearing. Relief for this type of application at such an early stage is only available in exceptional circumstances.
[11] The Crown says that exceptional circumstances are clearly not present in this case. While prematurity is grounds for dismissal by itself, in addition, the applicant has not discharged his onus to justify granting the remedy of a conditional stay. In particular, the applicant has not satisfied two of the three branches of the test.
[12] The Crown says that the applicant has not demonstrated that his fair trial rights will be materially compromised without counsel. The trial is expected to take three to five days, a relatively small amount of disclosure is involved, no expert evidence is necessary, and the legal issues are not complicated.
[13] The Crown adds that various courts have consistently held that counsel is not essential to ensure a fair trial in larger and more complex fraud trials than this one. Moreover, the applicant has not demonstrated that he lacks the means to retain counsel. In particular, there is no evidence to suggest that his annual self-reported family income of $57,000 per year is insufficient to permit retaining private counsel for trial. There is no evidence of any reasonable steps taken by the applicant to arrange his financial affairs so as to be able to retain private counsel. Accordingly, the Crown submits that this application should be dismissed.
Legal Principles:
[14] In accordance with the Rowbotham principles (R. v. Rowbotham, (1988) 1988 CanLII 147 (ON CA), 25 O.A.C. 321, (1988), 41 C.C.C. (3d) 1), a 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 conditions:
i. The applicant is ineligible for or has been refused Legal Aid and has exhausted all appeals for reconsideration of his eligibility;
ii. The applicant is indigent and unable to privately retain counsel to represent him; and
iii. The applicant’s right to a fair trial will be materially compromised absent public funding for counsel.
[15] The applicant must adduce evidence of each of these factors including a basis to establish the likelihood of a Charter violation. Mere speculation regarding the potential complexity of the matter is not sufficient.
[16] In assessing the complexity of the proceeding, the court may take into account the length of trial, the volume of disclosure, and any factual or legal complexity: R. v. Rain (1998), 1998 ABCA 315, 130 C.C.C. (3d) 167 (Alta. C.A.).
[17] It is true that the more complex the case, the more likely that counsel is required for a fair trial. In respect of the accused’s ability to participate effectively and defend the case, a court must consider the personal characteristics of the accused such as his education, verbal and intellectual skills, employment background, ability to read, facility with the language, and experience with the criminal justice process.
Discussion:
[18] The applicant’s case is in the Ontario Court of Justice. While there has not been an election, it is anticipated that a preliminary inquiry is to be scheduled.
[19] The parties addressed the overall legal principles and how they applied to Mr. Kelley’s circumstances. Given the Crown’s assertion of prematurity, there was a focus on the timing and applicability of the relief sought before the preliminary inquiry.
[20] Before turning to the application of the requisite factors, I will briefly canvass the facts that are relevant to the exercise of my discretion.
On October 12, 2017, the applicant was charged with one (1) count of fraud over $5,000, for collecting social assistance from the City of Hamilton Ontario Works (“OW”) that he was not entitled to. From April 1, 2013 to April 30, 2017, the applicant received $30,265.60 in OW assistance overpayments.
The applicant applied for OW assistance benefits on August 10, 2011. As part of his OW application, the applicant signed the “Rights and Responsibilities” portion of Form 1. By signing Form 1, the applicant was informed of his responsibility to declare all income, living arrangements and relationship statuses to the City of Hamilton. At the time, the applicant declared to be single and residing at 40 Honeywell St. in Hamilton where he was renting a room.
As a result, the applicant was granted social assistance benefits with OW.
On or around May 2013, the applicant’s case was flagged for review due to a discrepancy between the address on his Canada Revenue Report and his OW Social Assistance Maintenance System form. The applicant declared that he was still living at 40 Honeywell Dr. and submitted a landlord form to OW, listing Catherine MacDonald as his landlord.
On December 2, 2015, OW received an anonymous tip that the applicant was not renting an apartment from Catherine MacDonald and instead was living with his wife, Heather Kelley. The applicant met with an OW Case Manager. The applicant declared that he was paying $400.00 per month to Catherine MacDonald in rent and that he was single since Heather Currie was his girlfriend and not his wife. The applicant completed a Statutory Declaration confirming the same information. Further, he submitted a rental letter and 6 months of rent receipts with the address of 40 Honeywell Dr. being paid to Catherine MacDonald.
The applicant’s OW assistance benefits continued based on the submitted information.
On March 21, 2017, the applicant submitted his monthly statement of income along with a new address listed as 46 Huxley Ave. N. in Hamilton with the same landlord identified, Catherine MacDonald.
On March 27, 2017, OW received an anonymous tip that the applicant was living with his wife and not at the address he declared to OW. An Eligibility Review Officer (“ERO”) was assigned. After a thorough investigation, it was discovered that the applicant and Ms. Currie were married on September 21, 2013 in Hamilton and that the applicant had resided at two other addresses that were never declared to OW: 2310 King St. E. Apt. 4 and 1280 Main Street E.
Effective April 31, 2017, the applicant was deemed ineligible for all assistance that was issued from April 1, 2013 to April 30, 2017, which resulted in an overpayment of $30,265.60.
The file was then forwarded to Hamilton Police Service for fraud charges. On May 7, 2018, the applicant was charged with one count of Fraud over $5000.
[21] Generally speaking, the evidentiary burden of proof requires an applicant to demonstrate on a balance of probabilities that the assistance of publicly-funded counsel is essential to ensure his right to a fair trial: R. v. Grant, [2003] M.J. No. 403 (Q.B.). For a prospective or an anticipated breach of the right to fair trial, relief is available only on proof there is a sufficiently serious risk that the alleged violation will in fact occur.
[22] It is settled law that a trial judge has a discretion to order a stay of proceedings pending state-funded counsel in accordance with the jurisprudence: R. v. Rushlow, 2009 ONCA 461, 2009, 96 O.R. (3d) 302 (C.A.) The applicant suggests that the Court of Appeal in Rushlow cautioned against setting too stringent a threshold. Specifically, Rosenberg J.A., writing for the court:
This Court has never said that a Rowbotham Order is limited to an extreme case where Legal Aid’s decision is completely perverse and there is a substantial possibility of lengthy imprisonment. Nor need the case be one posing “unique challenges.” The authorities hold that the case must be of some complexity, but a requirement of unique challenges puts the threshold too high. It is enough that there is a probability of imprisonment and the case is sufficiently complex that counsel is essential to ensure that the accused receives a fair trial.
[23] I am not entirely convinced that any degree of stringency has been watered down by Rosenberg J.A.’s comments. While commenting on the aspect of unique challenges, the learned jurist does not change the landscape for such applications, as he opines that the case be “sufficiently complex” in order to ensure counsel is appointed to protect the fair trial interests of an accused.
[24] Various Superior Courts have held that there is an evidentiary burden on the applicant and requires the applicant to demonstrate that all aspects of the application for publicly-funded counsel are properly supported and substantiated on the record: R. v. Kizir, 2014 ONSC 1676.
[25] A court should begin from the premise that the trial judge can, to the best of the judge’s ability, ensure a fair trial. This presumption will only be rebutted where the applicant demonstrates the complexity of the case, the applicant’s lack of competence or other circumstances are such that, despite the best efforts of the trial judge, the trial would be unfair without representation.
[26] While every litigant and the trier of fact would benefit from the assistance of counsel; that is clearly not the test. Unfamiliarity with the legal system does not mean one is incapable of representing themselves.
[27] The offence that befalls Mr. Kelley involves fraud. It is a documents case. While the applicant’s arguments regarding complexity requiring counsel are superficially attractive, on closer examination, it seems that the applicant overstates the nature of the issues for this trial. It is not complicated.
[28] I accept the Crown’s assessment of this case as being a more reasonable characterization. A preliminary hearing has not yet been scheduled. The Crown estimates that the trial will take approximately three to five days, with or without counsel. Disclosure is 604 pages. In fact, most of the documents in disclosure are forms completed or signed by the applicant in order to obtain OW. The trial will be fact-based, concerning the applicant’s declarations to OW on his relationship status and living arrangements. The trial will not require any complex applications such as seeking to admit similar fact. Expert or forensic evidence will not be required. The preliminary inquiry can proceed with the relevant documents being filed under s. 540 of the Code.
[29] It is settled law that Rowbotham relief is available pursuant to the constitutional guarantee to a fair trial under ss. 7 and 11 of the Charter. As a preliminary hearing is not a trial and the preliminary hearing judge has very limited powers, it is arguable whether the constitutional guarantee is triggered. To that end, I adopt the reasoning provided by Fuerst J. in R. v. Valenti, [2010] O.J. No. 1689 (S.C.), at para. 17:
I conclude that 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. 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.
[30] Accordingly, I accept that Rowbotham relief for a preliminary hearing has been consistently held to be a remedy that could be available only in rare or exceptional circumstances. Various courts have held that exceptional circumstances may exist where the applicant can demonstrate that, without counsel, they would be erroneously ordered to stand trial.
[31] Some of these cases where success has been achieved for Rowbotham relief is where the preliminary hearing is the only available venue to deploy a positive defence or cross-examine a witness, in which case the absence of counsel at the preliminary hearing could affect the applicant’s fair trial rights downstream. Or, the failure to make a Rowbotham order for the preliminary inquiry would further delay the proceedings. Such is not the case here.
[32] That does not mean that there are not some cases where the application was granted prior to the preliminary inquiry. However, the cases provided by counsel can be distinguished on their particular facts or circumstances.
[33] For example, in R. v. Abbott, 2016 ONSC 1284, the applicant intended to call known accomplices at the preliminary inquiry in order to explore potential defences such as duress and necessity. The case of R. v. James, 2011 ONSC 5985 (S.C.), involved a charge of attempted murder with other factors including the Crown’s concession that it was a complex case.
[34] On numerous occasions, Ontario Superior courts have found that fraud prosecutions, often quite lengthy and complicated, did not give rise to a level of complexity necessary to warrant a Rowbotham order. In fact, many of the cases where such applications have been denied are far more complex than the case at bar.
[35] For example, in R. v. Williams, 2011 ONSC 7406, [2011] O.J. No. 5862, Molloy J. held that despite a trial estimate of 50 days, voluminous disclosure and multiple accused, the case was not particularly complex. It is not lost on me that, unlike the applicant, the judge determined that Mr. Williams was well-educated and had familiarity with the financial issues implicated in the case.
[36] In R. v. Solleveld, 2011 ONSC 3945, my colleague, Whitten J. denied the accused’s Rowbotham application for charges of fraud and conspiracy to commit fraud. In that case there were multiple co-accused, the trial length was estimated at six months, upwards to 100 witnesses would testify, and there was a large amount of disclosure. Solleveld involved an alleged fraudulent investment club involving over 100 investors and the judge determined that any alleged complexity arose from the machinations of the accused persons.
[37] Justice Nordheimer had occasion to dismiss two Rowbotham applications. The case of R. v. Tang, [2011] O.J. No. 6694, involved a single charge of fraud where the accused was alleged to have defrauded over 200 investors to the tune of over $50 million. The application was brought after the preliminary inquiry, wherein the applicant apparently was able to represent his interests at that proceeding. While Mr. Tang had some degree of sophistication, his representations to the court were rejected as less than credible in support of the application.
[38] In R. v. Goba, unreported, the case involved a car insurance fraud scheme. The court held that the issues were not so complex as to require counsel as the central issue was whether cars had in fact existed and been leased. The case involved co-accused, and the trial was set for six months.
[39] In R. v. Pilon, unreported, the accused faced a 10 day trial by judge and jury on charges of fraud over and theft over. The Crown alleged that the accused falsified invoices in the course of her employment. The Court dismissed the application, finding that the trial would be mainly fact-based, and that the proposed defence of officially-induced error did not add sufficient complexity.
[40] In R. v. Shaikh, 2017 ONSC 4826, the Crown alleged that the accused obtained fraudulent bank loans over three years with the assistance of three co-accused. The disclosure was voluminous. The co-accused were represented by counsel. The court dismissed the application finding that the Crown’s allegations were straightforward, with little or minimal complexity flowing from the manner in which the financial transactions were conducted.
[41] In R. v. Coutts, 2018 ONSC 974, the accused and his wife were building managers who were charged in relation to a rent diversion scheme wherein they were alleged to have diverted rent cheques and money to a personal account. The accused argued defence counsel was necessary as he was facing a jury trial which he expected to last three weeks on numerous charges with four binders of disclosure and a co-accused. The Crown argued that the evidence was fact-based and straightforward, there were no expert witnesses, anticipated Charter applications or pretrial motions. The Crown estimated the trial at eight days. In the result, the application judge found that the evidence being fact-based, such that the judge would be able to assist the accused.
[42] In Coutts, the applications judge noted that the accused’s high school education and ability to read and understand English meant he was capable of representing himself against an allegation that he forged documents and diverted funds during his employment as a building manager. The court opined that it does require that a self-represented accused have legal training in order to receive a fair trial.[^1]
[43] As recognized in Valenti, although it may be accepted that the applicant may benefit from the assistance of counsel at the preliminary inquiry, that is not sufficient to establish that the assistance of state-funded counsel is essential to a fair trial. There is no cogent basis to conclude that the applicant risks being erroneously committed to stand trial. Moreover, it may be that the applicant desires to build a foundation from which to raise Charter issues or challenge the admissibility of evidence. The applicant’s Charter rights are not currently engaged, despite some suggestion that issues will be raised at trial.
[44] I agree with Fuerst J. that these factors do not establish that the assistance of state-funded counsel at the preliminary inquiry is essential to a fair trial: at para. 23. See also R. v. Carr, [2016] O.J. No. 1743 (S.C.)
[45] Further, the applicant has not shown that there are any compelling exceptional circumstances that could arise at the preliminary hearing and that would result in an unfair trial. The issues are primarily fact-based.
Conclusion:
[46] For all of the aforementioned reasons, I agree with the Crown’s position.
[47] I accept the ratio in Valenti and find that it wholly applies in this case. Suffice it to state that I find that the applicant’s rights at the preliminary inquiry stage of the proceedings are not impacted to the extent that he would not be able to have a fair trial.
[48] More significantly, I am persuaded that this case does not arise to anywhere near the level of sufficiently complex requiring a conditional stay of proceedings pending the state-funding of counsel. The applicant has not demonstrated exceptional circumstances warranting this extraordinary remedy. Given these reasons, I need not address the indigence issue.
[49] Therefore, the Rowbotham Application is denied. This order is made without prejudice to the applicant to renew this Application if Mr. Kelley is committed to trial in the Superior Court of Justice, and should the appropriate factors be satisfied warranting such a reconsideration.
A. J. GOODMAN, J.
Date: September 16, 2019
COURT FILE NO.: CR 19-32
DATE: 2019-09-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
HAROLD KELLEY
Applicant
RULING ON ROWBOTHAM APPLICATION
A. J. GOODMAN, J.
Released: September 16, 2019
[^1]: I am familiar with this case as the trial judge. In fact, the trial took one week and both accused elected to be tried before me as a judge sitting alone.