NEWMARKET COURT FILE NO.: CR-17-9834-00
DATE: 20190918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Shaun Slowly
Applicant/Defendant
Martin Park, for the Provincial Crown
Kevin Kaczmara, for the Applicant/Defendant
HEARD: August 26, 2019
DECISION ON ROWBOTHAM APPLICATION
SUTHERLAND J.:
Overview
[1] The applicant, Shaun Slowly, brings a Rowbotham application seeking an order that the proceeding against him be stayed until such time as the Public Prosecution Service of Canada or Legal Aid Ontario agree to pay the reasonable legal expenses of the applicant’s counsel.
[2] The applicant has been charged with trafficking in a Schedule I substance (cocaine). The incident took place on October 19, 2017 while Mr. Slowly was waiting for his appointment with his probation officer. An undercover officer asked Mr. Slowly whether he could sell him cocaine. Mr. Slowly allegedly agreed, and sold a small quantity of cocaine to the undercover officer.
[3] After hearing submissions of the applicant and Crown, I advised the parties that I am dismissing the application with reasons to follow and endorsed the indictment accordingly.
[4] Below are my reasons.
Background
[5] The applicant is 38 years of age.
[6] He resides with his mother, Panseta Slowly, in Vaughan, Ontario.
[7] Mr. Slowly and Ms. Slowly filed an affidavit in support of the application.
[8] Both Mr. Slowly and Ms. Slowly testified on the application.
[9] Mr. Slowly deposed that he does not have the financial ability to pay for legal fees. He is not working. His mother has paid for his legal fees in the past and paid the retainer of $6,000 for the services of present counsel up to the preliminary inquiry. Counsel conducted the judicial pretrial pro bono. Mr. Slowly does not have a high school diploma. He recently obtained a full time job working construction. He applied for legal aid and was denied. He appealed the decision and the appeal was denied. Legal Aid recommended that he proceed with a Rowbotham application.
Legal Principles
[10] In R. v. Rowbotham[^1], the Ontario Court of Appeal set out the well-known principles for an accused to have is defense funded by the state where the accused has had is funding denied by legal aid. The court is to take into consideration seriousness and complexity of the case. The Court of Appeal indicated:
…However, in cases not falling within provincial legal aid plans, ss. 7 and 11(d) of the charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require funded counsel to be provided if the accused wishes counsel, but cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial.[^2]
[11] The onus is on the applicant requesting state funded counsel to show on the balance of probabilities that the accused has been denied legal aid; the accused cannot afford private counsel; and representation is necessary to ensure a fair trial.[^3]
[12] Thus, the onus is on the applicant to show that he cannot pay a lawyer and in so doing must provide sufficient information on his or her finances to satisfy a court on the balance of probabilities that he cannot pay a private counsel.[^4] A thorough inquiry is consequently required by the court on the accused’s ability to retain private counsel and the reasons for the refusal for legal aid.[^5]
Analysis
[13] The Crown concedes that the applicant has satisfied the first step, that is, he has been denied legal aid and has taken all reasonable steps to appeal the decision to seek legal aid.
[14] The Crown focused on the failure of the applicant to provide full and frank financial information to satisfy the court that on the balance of probabilities that he cannot retain private counsel.
[15] The applicant argues that he has. He argues that the testimony of his mother is credible and clear. She cannot afford to assist him with legal costs and thus, he cannot afford to pay a private retainer.
[16] I do accept that the applicant’s mother’s testimony was credible and clear. I can accept that his mother, who works two jobs at the age of 65, cannot afford or perhaps does not wish to pay for his lawyer. She is supporting her injured husband, her ailing mother and the applicant’s 19-year-old daughter who is attending university.
[17] The applicant is 38 years of age. I can understand and appreciate Ms. Slowly’s predicament.
[18] It is not Ms. Slowly’s testimony with which I have concerns. The applicant has not been transparent with this court on his financial circumstances. He did admit that he just recently obtained full time employment in construction. But he did not provide an employment letter or some documentary evidence to indicate how much he earns and any benefits he may receive. The applicant also confirmed he owns a 2007 BMW 3 series. No evidence was provided on the value of this car and if the applicant took any steps to use the value of this vehicle to retain private counsel and if he cannot do so why not.
[19] In addition, the court has concerns with the applicant’s explanation of the use of his girlfriend’s bank account. The applicant testified that he is on his girlfriend’s bank account to allow him to use this account because he does not have a bank account. In this bank account, there were deposits and transfers made by the applicant from another source. He could not explain these transfers and when he attempted to his explanations defied logic. For example, there was a deposit of $600 into the account from him. He testified that this was a birthday gift from his girlfriend. So if the court understood his explanation correctly, he deposited $600 he received from his girlfriend into is girlfriend’s account. This simply does not make sense to the court.
[20] I am cognizant of the principles relevant to full and frank disclosure of financial information in these types of applications, as described in R. v. Sheikh.[^6] These principles of disclosure of financial information include:
- The applicant’s income actual and available at the time of the charge and present.
- Detailed financial evidence of his or her financial circumstances.
- The applicant’s ability to save money, borrow money, obtain additional employment and/or utilize his or her assists to retain private counsel.
- What he or she has done or intends to do to plan his or her financial circumstances to retain counsel.
- What steps he or she took to exhaust all efforts to find counsel to represent him or her.
- What was his or her financial plan from the date he or she was charged to retain counsel to defend him or her.
- An indication by evidence what sacrifices the applicant has made to retain counsel.
- Has the conduct of the applicant shown that he or she has made voluntary choices on priorities or has his or her conduct shown a lack of insight, foresight and planning to retain or accumulate resources to retain counsel?
[21] The applicant concedes that he lives with his mother in an approximate 2,500 square foot home and pays no expenses. He has a vehicle. He did not indicate who pays for the gas, repairs or insurance on the vehicle. He uses a bank account that he has deposited monies into.
[22] The applicant did not provide any information on what is his plan if any to retain counsel, what sacrifices he has made or savings he has accumulated or attempted to accumulate to retain counsel. His evidence does not show that he has taken steps to retain private counsel but notwithstanding all these steps, he cannot afford to do so.
[23] In the end, the applicant’s evidence is so deficient that this court is not satisfied on the balance of probabilities that he is unable to afford to retain counsel.
Disposition
[24] As indicated at the hearing, the court is not satisfied by the financial information provided that the applicant does not have the financial means to retain counsel and thus, his application is dismissed.
Released: September 18, 2019
NEWMARKET COURT FILE NO.: CR-17-9834-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Shaun Slowly
Applicant/Defendant
Decision ON ROWBOTHAM APPLICATION
Justice P.W. Sutherland
Released: September 18, 2019
[^1]: [1988] O. J. 271 (CA) [^2]: Ibid. at para. 156. [^3]: Ibid at para.167; R. v. Peterman, 70 O.R. (3d) 481 (Ont. CA) [^4]: R. v. Montepellier, [2002] O.J. No. 4279 (SCJ), at para. 37. [^5]: R. v. Sheikh, 2011 ONSC 4942, at para.70. [^6]: Ibid