COURT FILE NO.: 20-163-MO
DATE: 2020-12-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
J.S.
Applicant
M. Chung, on behalf of the Crown Law Office-Civil
R. Ford, on behalf of the Applicant
HEARD: December 23, 2020
Corrected Decision on January 25, 2021: Reference to FILE NO. 12-26349 in the citation information has been corrected to 20-163-MO. The Applicant’s full name has been edited to J.S. No change to content has been made.
A. J. GOODMAN, J.:
RULING ON ROWBOTHAM APPLICATION
[1] This is a Rowbotham application brought by the applicant, J.S., (“J.S.”) for an order conditionally staying the criminal proceedings, pending the Attorney General funding defence counsel at legal aid rates.
[2] J.S. is charged with seven offences alleging sexual misconduct against his grandchildren, pursuant to the relevant provisions of the Criminal Code.
[3] Having reviewed the relevant materials filed and hearing the submissions of counsel, at the end of the hearing I advised the parties that my decision would be under reserve, with reasons to follow. These are my Reasons.
Issue:
[4] 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 before a judge in the Ontario Court of Justice. At this juncture, no dates had been set for trial.
Positions of the Parties:
[5] The applicant is 72 years old. He graduated high school in 1967 and received a CLU degree and a LUATC diploma some time after. He has held management positions at London Life for many years. However, it has been years since the applicant has worked in a field related to his education. For nearly two decades the applicant had been working as a contractor for his business. Three years before these charges were laid, he was a part time bus driver for children with disabilities. More recently, J.S. is being treated for a serious concussion, which has affected his concentration and memory. He has no legal training and no experience representing himself. The applicant says that this case is complex. He asserts that he does not know how to adequately defend himself against these charges.
[6] 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 while an applicant must be prudent with his finances, he is not required to render himself destitute in order to retain counsel. Therefore, this is an appropriate case for state funding.
[7] In response, the Crown submits that the applicant is charged with various counts of sexual misconduct. The Crown says that exceptional circumstances are clearly not present in this case. The applicant has not discharged his onus to justify granting the remedy of a conditional stay and has not satisfied two of the three branches of the test.
[8] 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 a few days, a relatively small amount of disclosure is involved, no expert evidence is necessary, and the legal issues are not complicated. Further, the Crown will apply for s. 486.3 counsel to cross-examine the complainants.
[9] Moreover, the applicant has not demonstrated that he lacks the means to retain counsel. 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:
[10] 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.
[11] 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.
[12] 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.).
[13] 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.
[14] 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.
[15] 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. Specifically, Rosenberg J.A., writing for the court, held:
The 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.
[16] While commenting on the aspect of unique challenges, Rosenberg J.A. 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.
Discussion:
[17] As mentioned, the applicant’s case is in the Ontario Court of Justice. While the Crown has elected to proceed by indictment, it is anticipated that the trial will be held in the provincial court. Trial dates have yet to be scheduled.
[18] The parties addressed the overall legal principles and how they applied to the applicant’s circumstances. Before turning to the application of the requisite factors, I will briefly canvass the facts that are relevant to the exercise of my discretion.
J.S. is the step-father of the three complainants. During the ages of 5-12 years old, J.S. allegedly sexually assaulted all three grandchildren when they visited him at his residence.
During the time period between 2004-2010, one victim was between the ages of 7-12 years old. J.S. put his hand in CO’s pants while they cuddled on the couch and touched his penis. This occurred on a regular basis. J.S. kissed CO on the bare buttocks and the lips several times throughout the same time period.
During 2006, when CL was 5 years old, J.S. laid on the couch with her and put his hand down the front of her pants and fondled her vagina.
During the time period between 2001-2006 when CE was between the ages of 7-11 years old, J.S. put his hand down the back of CE’s pants while they cuddled on the couch and touched her buttocks. This occurred on a regular basis.
[19] Superior Courts have required 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. The authorities are clear that the court’s inquiry into the applicant’s financial means is a probing one: R. v. Vuong, 2016 ONSC 7277 at para. 74. As such, to establish indigence, an applicant must make full and complete disclosure of his financial circumstances, namely, beginning on the date when charges were laid at the very latest: R. v. Levy, 2016 ONSC 5362, 2016 ONSC 5263, at paras. 19, 24; R. v. Woods, 2016 ONSC 2374, at paras. 15-16). An applicant must provide supporting documentation to verify the information contained in his affidavit: R. v. Rowe, 2016 ONSC 6144, at para. 25. The three criteria act conjunctively, and the applicant has the onus to establish each element on a balance of probabilities: R. v. Munroe, 2015 ONSC 5705, at para. 7.
The Application for Legal Aid and the Applicant’s Conduct:
[20] The Court of Appeal has affirmed that an applicant cannot rely on a Legal Aid refusal where the applicant’s own conduct caused the refusal: R. v. Imona-Russel, 2019 ONCA 252, at para. 40. As such, those who seek legal aid funding [must] provide full, accurate and truthful information so that a fair decision can be made: R. v. Plange, 2017 ONSC 134. I accept the proposition that a court must ensure that indigent accused are not permitted to manipulate the legal aid system or play fast and loose with its rules: See also R. v. Thompson, 2015 ONSC 4070 at para. 9.
[21] An accused’s failure to make adequate and credible disclosure to Legal Aid Ontario (“LAO”) may disentitle him to a Rowbotham order. This is due to the fact that on a Rowbotham application, the court does not judicially review LAO’s findings and, accordingly, they are entitled to “appropriate deference”: R. v. Oduh, 2016 ONSC 6370.
[22] From my review, the Area Committee and Provincial Office made clear in their reasons that J.S.’s conduct resulted in his legal aid application being denied. J.S. was less than totally forthcoming about his financial situation when applying for legal aid. He failed to provide complete statements for his second Bank of Montreal (“BMO”) account and any documentation to explain his transfer of more than $8,000.00 from the 759 account to another BMO account.[^1] The Area Committee noted there was no documentation before it explaining these and other significant transfers between his accounts It highlighted through handwritten annotations, J.S.’s receipt of $2,000.00 from a BMO account in seven deposits between May and June 24, 2019. The Provincial Office determined that, accepting as true his explanation that the two transfers of $4,000.00 on May 3 and 13, 2019 were made in payment of personal debts, J.S. had nonetheless failed to prioritize his legal defence.
[23] I am persuaded that the applicant has not met this “stringent” onus. He has not provided a full and credible picture of his financial circumstances with supporting evidence; and from the limited and incomplete evidence on this application, The applicant’s financial disclosure is incomplete and lacking in corroboration. A claim of indigence cannot be based on unsubstantiated allegations, whether in the applicant’s affidavit or viva voce evidence. An applicant must disclose the full extent of his financial affairs, as of the day charges were laid, by way of detailed evidence and supporting financial documentation.
[24] Even with the late-breaking disclosure from the applicant, it seems that the transfers of monies were between accounts, one of which was not disclosed until this hearing.
[25] Nor has the applicant provided complete documentation to verify his personal debts, which LAO found to be unsubstantiated. Ultimately, he has done little to supplement not fully supplemented the record that was before the Area Committee and Provincial Office. In sum, I accept that the applicant has not been completely candid about the state of his finances. As such, the applicant knew or ought to have known that LAO would decline his application on the basis of financial ineligibility.
Has the applicant established that he has done everything possible to save, borrow and raise funds for counsel:
[26] To obtain a Rowbotham order, an accused’s financial circumstances must be “extraordinary,” and not merely difficult: R. v. Chrichton 2015 BCCA 138 at para. 49. The inquiry into an accused’s financial circumstances after being charged must be “significant and in-depth. The court must be satisfied that despite his every effort to save, borrow and raise funds, the accused has been unable to pay for or otherwise contribute to his defence: R. v. Coutts, 2018 ONSC 974, at para. 25.
[27] After charges are laid, an accused must arrange his financial affairs to accommodate the expense of retaining counsel. I must be satisfied that the applicant has done everything possible to place himself in a situation of being able to fund counsel but still cannot do so: R. v. Mostowy, 2014 BCSC 2479.
[28] As Fairburn J. (as she then was) held in Munroe, at para. 54:
When considering an accused’s financial picture, it is important to hold the individual to a standard of prudence. He cannot expect the taxpayer to fund his defence simply because he chooses to make himself indigent by refusing to work in circumstances where he is capable of doing so, or by directing his financial resources elsewhere. In an already heavily cash strapped criminal justice system, it is the obligation of accused individuals to make all reasonable efforts to fund their own defence when legally aided assistance has been denied.
[29] The law does not require perfection, but rather a degree of financial prudence. It requires some sacrifice on the applicant’s part, not destitution. Reasonable and sincere efforts to save, borrow and raise funds for counsel will suffice.
[30] Where an accused has not used available funds to contribute to his defence, his Rowbotham application will be denied. As my colleague explains in Woods, at para. 16: “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 court cap in hand, expecting counsel to be appointed for him: Woods, at para. 16.”
[31] The evidence on this application, while limited and incomplete, establishes that the applicant has not made every effort to save funds for counsel. First, statements for the 759 account show deposits totalling $6,399.06 $28,529.89 between May to July 2019 and September to November 2020 May 2019 to December 2020 that are clearly not pension payments, as more fully appears from Schedule C to his Factum. They include transfers from two BMO accounts, ending in -301 and -314, which total $2,450.00, $17,749.00 and $500.00, $570.00, respectively.
[32] Second, statements for the 759 account also contradict J.S.’s assertion that any funds at his disposal were directed solely toward “the necessities of life.” They reveal discretionary spending in the amount of $3,298.40 in six months alone $10,742.65 since charges were laid, as follows: $1,643.85 $6,835.05 on alcohol; $789.76 $1,440.80 on golfing, and travel and other entertainment; and $864.79 $2,466.80 on fast food and restaurant meals. I reject his explanations for these expenses in order to justify their utility. For example, some of the restaurant expenses are clearly substantial.
[33] The authorities establish that spending on alcohol, fast food and restaurant meals is inconsistent with some willingness to sacrifice on J.S.’s part.
[34] Assuming that J.S. used $8,000.00 to pay personal debts in May 2019, his decision to do so was not reasonable. After charges are laid, an applicant for state-funded counsel should not prefer the payment of unsecured debts over his legal defence. I am persuaded that J.S. failed to preserve funds for his legal defence. Given that Rowbotham orders are funded by government’s budget, permitting an applicant to do so would allow public funds to subsidize private debts. The applicant has not established that he has done everything reasonably possible to save, borrow and raise funds for counsel
Is Legal Counsel essential for a fair trial:
[35] What a fair trial requires in a given case is contextual. The inquiry is fact-driven and considers the applicant’s abilities in light of the anticipated evidentiary and legal complexity of the proceeding.
[36] 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.
[37] 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.
[38] As Nordheimer J. (as he then was) explained in R. v. Tang, [2011] O.J. No. 6694, at para 9: “the trial process itself would be better served if [an accused] had counsel. That is not the same thing, however, as saying that representation for [him] is ‘essential’ to a fair trial.”
[39] I must assess the applicant’s education, work history, facility in written and spoken English, and the nature of the untested evidence and legal issues to determine his ability to participate meaningfully in the trial process. A lack of legal training does not mean that an accused is incapable of effectively defending charges. The benefit of representation should not be conflated with the necessity of counsel.
[40] By his own admission, J.S. is university-educated and, with respect to his employment history, has held management-level positions and operated his own business. Considering his markup of his bank statements and appeal materials submitted to LAO, he is capable of reviewing records in detail and formulating submissions. J.S., nonetheless, says that he requires counsel due to “evidentiary issues that are unique to sexual assault cases.”
[41] The offences that befall J.S. involve alleged sexual misconduct. 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.
[42] Contrary to the applicant’s submissions, this proceeding involves no complexity. The trial will be primarily fact-based, concerning a few discrete incidents. The central issue in sexual offence trials is the assessment of credibility. Credibility assessments are not beyond the scope of self-represented accused persons of average education and intelligence who do not possess legal training, even in cases involving sexual offences: R. v. Brown, 2018 ONCA 9 at para. 20, Jennings, at para. 14.
[43] I accept the Crown’s assessment of this case as being a more reasonable characterization. The Crown estimates that the trial will take a few days, with or without counsel. Disclosure is not voluminous. The trial will likely not require any complex applications. Expert evidence will not be required.
[44] Further, as the applicant concedes, in this case, the trial judge may appoint counsel to conduct the cross-examination of the witnesses under s. 486.3(2) of the Criminal Code. I agree with the Crown that any credibility-based defence will be brought out with its full force and effect at trial, obviating the necessity of counsel, on account of the trial judge’s ability to appoint counsel to cross-examine the complainants and bring any necessary evidentiary applications and the trial judge’s duty to assist an unrepresented accused.
[45] The Crown’s intention to seek such an order may obviate the need for an additional Rowbotham order: Crichton, at para. 38, Mostowy, at para. 25..
[46] While J.S. observes that he cannot obtain records relating to the complainants without a production motion, counsel appointed pursuant to s. 486.3(2) would be responsible for bringing any evidentiary applications necessary to effectively cross-examine them: R. v. Furster, [2016] O.J. No. 1443 (S.C.) at para. 6. After s. 486.3(2) counsel has been appointed to conduct cross-examinations, the trial judge would be required to assist the applicant with the remaining aspects of the trial process. Indeed, there is a positive duty on the trial judge to assist a self-represented accused to the extent that he or she is able to do so in accordance with the well-established legal principles. This includes the trial judge reasonably accommodating any difficulties with memory or concentration that J.S. alleges he might have.
[47] I agree with the Crown that in this case, where the trial judge appoints s. 486.3 counsel and discharges her duty to assist the applicant, there is no “real and substantial risk” or “real likelihood” of his fair trial rights being breached.
Conclusion:
[48] The applicant has not met his onus in this application. I agree with the Crown’s position regarding the applicant’s conduct, his lack of full and frank financial disclosure at various stages of the process and on the indigence issue. The applicant cannot rely on LAO’s decision to deny his application where his own conduct caused the refusal.
[49] In any event, I find that the applicant’s rights are not impacted to the extent that he would not be able to have a fair trial. Section 486.3 counsel will be appointed to conduct the cross-examinations of the complainants. 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.
[50] Therefore, the Rowbotham Application is dismissed.
A. J. GOODMAN, J.
Date: December 29, 2020
COURT FILE NO.: 20-163-MO
DATE: 2020-12-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
J.S.
Applicant
RULING ON ROWBOTHAM APPLICATION
A. J. GOODMAN, J.
Released: December 29, 2020
[^1]: The applicant attempted to remedy the situation by providing additional BMO banking records just prior to the hearing of the application.