COURT FILE NO.: 687/18
DATE: 20190123
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
Andrew Gropp Applicant
Jeffrey Claydon, for the Crown
Nicholas Wansbutter, for the Applicant, Andrew Gropp
HEARD: January 15, 2019
Templeton J.
[1] The Applicant seeks an order staying the proceedings against him “until such time as the Attorney General of Ontario or the Ontario Legal Aid Plan undertakes to pay for such funding as may be necessary for him to make full answer and defence.”
[2] The test for the granting of such an order, commonly referred to as a “Rowbotham Order” has three components each of which must be satisfied on a balance of probabilities by the Applicant.
(a) that the Applicant is ineligible for, or has been refused, Legal Aid and has exhausted all available appeals;
(b) that the Applicant is indigent and has no means to retain counsel otherwise; and
(c) that the Applicant’s right-to-be fair trial with be materially compromised if he is forced to proceed to trial unrepresented by counsel.[^1]
[3] If any one of these three conditions is not met on a balance of probabilities, the application will be dismissed.
Background
[4] The Applicant is charged with one count of “impaired operation of a motor vehicle by drug” contrary to s. 253(1)(a) of the Criminal Code of Canada (the “Code’) and one count of “take motor vehicle without the owner’s consent-” contrary to s. 335(1) of the Code.
[5] The charges arise out of an investigation into a single vehicle rollover that occurred on a country side road on June 25, 2018. The Applicant was arrested and charged that same date. The car involved was owned by the Applicant’s grandfather.
[6] At the scene, the Applicant indicated to the investigating officers that he had lost control of the vehicle; that he had consumed alcohol the night before; and, that he had consumed “three cones of marijuana” earlier that morning.
[7] At the detachment and after speaking to Duty Counsel, the Applicant was observed by a constable identified as a drug recognition expert (DRE). The Applicant also provided a urine sample.
[8] The Crown has elected to proceed by way of summary conviction in the Ontario Court of Justice. It is anticipated that with or without counsel, the trial will take one day to complete. At the trial, the Crown anticipates calling the DRE and a toxicologist in addition to the lead investigator.
[9] The Applicant does not have a prior Criminal record. He is 19 years of age and attends school. He lives with and is cared for by his grand-father. He needs to complete only a few more assignments and then will receive his high school graduation diploma.
[10] In school, the Applicant was identified as “exceptional” by the Identification, Placement and Review Committee otherwise known as the I.P.R.C. by the Ministry of Education. This assessment was based on evidence of a learning disability and behavioral challenges.
[11] In the assessment:
(a) the Applicant`s overall cognitive function was found to fall within the low-average range;
(b) the Applicant`s verbal cognitive abilities including social comprehension and expressive vocabulary fell within the average range.
(c) tests relating to attention, working memory and processing speed placed him within the borderline range.
(d) tests that measured reading comprehension, decoding shells, word recognition shells, spelling, written expression shills, mathematical operations and reasoning, resulted in a finding that the Applicant`s intellectual abilities fell within the mentally deficient to borderline range.
(e) the Applicant has been and continued to be identified (as of 2011) as having attention deficit hyperactive disorder (ADHD) combined.
Analysis
1. Refusal of Legal Aid
[12] Initially, the Applicant was able to retain counsel privately thanks to funds provided by his grandfather. These funds were exhausted however and the Applicant applied for a Legal Aid Certificate. The initial Application was refused on August 10, 2018. On August 2, 2018, the Area Committee of London refused his appeal and on October 14, 2018 the decision of the Area Committee was upheld.
[13] The first of the three criteria on a Rowbotham Application has therefore been met.
2. Impecuniosity
[14] As I have indicated, the Applicant is in school and nearing completion of all requirements for a high school diploma.
[15] In his Rowbotham Application, he included bank statements from July to mid-August 2018 and from September 1 to October 4, 2018. He has acknowledged that he was employed from July to September 2018 during which time he earned $1314. He further acknowledged that there were other deposits into his account for a total deposit of $1700 in this time frame. Some of these funds were used to pay for the vehicle he crashed.
[16] During his testimony, the Applicant also acknowledged that he has no fixed expenses due mainly to the support he`s grandfather gives to him.
[17] The estimate for legal expenses is $1970. The Applicant`s employment ended not because he could not do the job but because the work ran out.
[18] But there is no evidence before me that the Applicant is incapable of maintaining employment even on a part-time basis; has looked for employment; or, that there is no employment available to him in the general geographical area in which he lives.
[19] A summary of the law with respect to this criterion may be found in R. v. Malik [^2]. The applicant must make efforts to:
a. save money;
b. borrow money; This include efforts to borrow from children or family members;
c. obtain employment or additional employment;
d. look for counsel willing to work at legal aid rates;
e. exhaust all efforts to utilize assets that the applicant owns to raise funds.
[20] The trial is scheduled to be heard on April 19, 2019. The Applicant has time to earn at least some of the funds required to retain counsel. I agree with the Crown that the Applicant, to his credit, has demonstrated that he can earn what would be a significant portion of the required fees in just-a few months while in school.
[21] For these reasons, I am not satisfied that the second of three criteria has been proven on a balance of probabilities particularly in circumstances in which there is no evidence that the Applicant`s grandfather would decline to meet his financial need of life while working and attending school to earn the fees required for representation at trial.
[22] In the event I am wrong in this regard, I move on to the third factor.
3. Right to a fair trial
[23] In other cases, the Court has held that representation by a lawyer is not a prerequisite to a fair trial[^3] and there is no positive obligation on the state to provide a lawyer to an accused at state expense.[^4]
[24] The Ontario Court of Appeal discussed the role of the trial judge in R. v. Tran[^5]. The Court wrote as follows:
It is not an enviable task for a trial judge to conduct a criminal trial where the defendant is without counsel. Although an individual charged with an indictable offence is guaranteed the right to counsel by the combined effect of ss. 7 and 11(d) of the Charter (R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1, 63 C.R. (3d) 113 (Ont. C.A.), there will be cases where, for various reasons, the defendant does not have a lawyer. When this occurs, the trial judge's duty is to ensure that the defendant has a fair trial, and to provide guidance to the defendant as the circumstances of the case may require. This duty was described by Griffiths J.A. in R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334, 31 O.A.C. 10 (C.A.) at p. 347C.C.C.:
Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must of necessity be a matter of discretion.
In McGibbon, the trial judge directed the Crown Attorney to have witnesses subpoenaed for the defendant and advised the defendant when certain evidence was irrelevant or not helpful in his defence.
Similar expressions of the duty of a trial judge to provide appropriate assistance to an unrepresented defendant to ensure the fairness of the trial were expressed by this court in R. v. Littlejohn (1978), 1978 CanLII 2326 (ON CA), 41 C.C.C. (2d) 161 (Ont. C.A.) per Martin J.A. at pp. 170-72; R. v. Taubler (1987), 20 O.A.C. 64 at p. 71 (C.A.); and R. v. Turlon (1989), 1989 CanLII 7206 (ON CA), 49 C.C.C. (3d) 186 at p. 191, 32 O.A.C. 396 (C.A.). In Taubler, Thorson J.A. stated at p. 71 O.A.C.:
While it is undoubtedly true that a trial judge has a duty to see that an unrepresented accused person is not denied a fair trial because he is not familiar with court procedure, the duty must necessarily be circumscribed by what is reasonable. Clearly it cannot and does not extend to his providing to the accused at each stage of his trial the kind of advice that counsel could be expected to provide if the accused were represented by counsel. If it did, the trial judge would quickly find himself in the impossible position of being both advocate and impartial arbiter at one and the same time.
In R. v. Dimmock (1996), 1996 CanLII 2292 (BC CA), 47 C.R. (4th) 120, 108 C.C.C. (3d) 262 (B.C.C.A.), the court was of the opinion that where a defendant is unrepresented, there is a heavy onus on the trial judge to assist the defendant. In that case, a new trial was ordered where the trial judge had not intervened to hold a voir dire as to the admissibility of certain evidence, or to obtain the defendant's informed waiver of the voir dire. At pp. 127-28 C.R., McEachern C.J.B.C. stated:
Mr. McKinnon emphasized that the accused was unrepresented by counsel at both the pre-trial conference and at trial. He refers to R. v. Darlyn (1946), 1946 CanLII 248 (BC CA), 88 C.C.C. 269 (B.C.C.A.), which was endorsed by this Court in R. v. Wheelton (1992), 1992 CanLII 2816 (YK CA), 71 C.C.C. (3d) 476 (Y.T.C.A.) at 488, and which places a heavy onus on the trial judge to assist the unrepresented accused. In Darlyn, at pp. 271-272, this Court said:
There are two traditional common law rules which have become so firmly imbedded in our judicial system that a conviction is very difficult to sustain on appeal if they are not observed. The first is, that if the accused is without counsel, the Court shall extend its helping hand to guide him throughout the trial in such a way that his defence, or any defence the proceedings may disclose, is brought out to the jury with its full force and effect. The second is, that it is not enough that the verdict in itself appears to be correct, if the course of the trial has been unfair to the accused. An accused is deemed to be innocent, it is in point to emphasize, not until he is found guilty, but until he is found guilty according to law.
There can be no doubt that the evidence of what the accused said to the police officers could not be admitted without a voir dire unless there was an informed waiver by the accused of the right to have voluntariness tested on a voir dire: Park v. R. (1981), 1981 CanLII 56 (SCC), 59 C.C.C. (2d) 385 at 389 to 392 (S.C.C.); Korponey v. Canada (Attorney General) (1982), 1982 CanLII 12 (SCC), 65 C.C.C. (2d) 65 (S.C.C.).
In R. v. Travers, 2001 NSCA 71, [2001] N.S.J. No. 154 (C.A.), another case in which the defendant was unrepresented, the Nova Scotia Court of Appeal also considered the effect of the trial judge's failure to intervene to rule on the admissibility of evidence obtained as a result of a warrantless search that infringed the defendant's s. 8 Charter rights. Oland J.A. held that the trial judge should have intervened. At para. 34 she stated:
In my view, the evidence at trial was more than sufficient to alert the trial judge that he should raise the question of the admissibility of evidence in light of possible Charter infringement. The trial judge should have conducted an inquiry into whether there had been any violation of the appellant's Charter rights. At that time, after hearing submissions from the appellant and the Crown, the judge could have considered any argument by the Crown based on exigent circumstances. If he found any infringement of rights, he should have then determined whether the evidence obtained pursuant to it, namely the clock radio, should be excluded under S. 24(2) of the Charter.
Applying R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.), Oland J.A. was of the opinion that, even when the defendant is represented by counsel, there are circumstances in which it is appropriate for a trial judge to raise Charter issues. These circumstances include when the evidence indicates a possible infringement of a defendant's Charter rights. In Arbour, where the defendant had counsel, this court stated at p. 372 C.R.R.:
We are of the view that once there was admissible uncontradicted evidence before the court, indicating that there had been an infringement of the appellant's rights under s. 10(b) of the Charter, it was incumbent on the trial judge to enter upon an inquiry to ascertain whether such an infringement had occurred. This was not done. Accordingly, the statement should not have been admitted in evidence or, having been admitted, should not have been considered as evidence in the circumstances.
Oland J.A. added at para. 37 that the principle stated in Arbour, that it is incumbent on a trial judge to inquire into any possible infringement of a defendant's Charter rights, "is equally applicable, if not more so, to proceedings involving a self-represented litigant who is unfamiliar with the law".
[25] It is clear therefore that in circumstances involving a self-represented accused, it is the responsibility of the trial judge to assist.[^6]
[26] The Applicant indicates that the following defences may be advanced at trial:
(i) Charter challenges arising out of his arrest and the subsequent search;
(ii) technical issues relating to drug impairment and the expert evidence;
(iii) evidence of a medical condition as a result of which he has an uneven gait and offers an explanation for his behavior as observed by police;
[27] The untested evidence before me is that on June 25, 2018 a witness who was in his barn was approached by the Applicant at approximately 9:30 a.m. and asked for help by towing a vehicle out of a ditch. The Applicant told the witness that he had been on a “bender” for two days driving around. The Applicant appeared confused. According to the police, the Applicant was wandering around the scene without shoes on and attempting to right the vehicle on its wheels by rocking it in the ditch. To the police, the Applicant appeared confused and unaware of the location and time of day.
[28] Ultimately the Applicant was charged on outlined above.
[29] In my view, there is no realistic possibility that the Applicant can satisfy this third criteria.
[30] The trial, in this case, will be short. It will not be complex in the sense that the procedural, evidentiary and substantive law that applies to this case will be relatively straight-forward particularly in light of two factors:
(a) the Applicant’s clear ability to understand questions, formulate answers and think logically as evidenced by his testimony at the hearing of the Application and the evidence that he is in the average range with respect to important comprehension and communication abilities; and,
(b) the role and responsibilities of the trial judge as described by the Ontario Court of Appeal in Tran. The trial judge is charged with ensuring that the trial is fair; with providing assistance to a self-represented accused person where reasonably necessary and appropriate and; applying his/her recognized expertise with respect to these offences.
[31] These charges are serious both to the Applicant and to the community. Of that there is no doubt. The seriousness of a drinking or drug impairment offence to members of this community cannot be overemphasized. And the seriousness of this offence cannot be and ought not be diminished on a spectrum relating to the availability of the public purse to defend charges of this ilk.
[32] That said, the Crown has indicated that the sentence sought either on plea or at the conclusion of a trial will not be a period of incarceration which is a factor I am bound to consider in this Application. For the reasons set out above, I am also satisfied that given an appropriate amount of time by the judge, the Applicant will be able to pay a fine.
Conclusion
[33] Taking into account the personal abilities of the Applicant, including his education, his challenges as assessed years ago, his employment background and financial circumstances, his ability to read and his facility with the English language; the complexity of the evidence in this case; the procedural, evidentiary and substantive law that applies to this 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, the Rowbotham Application is dismissed.
“Justice L. Templeton”
Justice L.C. Templeton
Released: January 23, 2019
COURT FILE NO.: 687/18
DATE: 20190123
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
Andrew Gropp Applicant
REASONS FOR JUDGMENT
Templeton J.
Released: January 23, 2019
[^1]: R. v. Williams, 2011 ONSC 7406, [2011] O.J. No. 5862 [^2]: 2003 BCSC 1439 [^3]: R. v. Rain, 1998 ABCA 315, [1998] A.J. No. 1059 (C.A.) [^4]: R. v. Peterman, 2004 CanLII 39041 (ON CA), 185 C.C.C. (3d) 352 (C.A.) [^5]: 2001 CanLII 5555 (ON CA), 156 CCC (3d) 1 [^6]: R. v. McGibbon, 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334 (C.A.)