Court File and Parties

COURT FILE NO.: CNJ Misc. 101259 DATE: 2021-04-1

ONTARIO SUPERIOR COURT OF JUSTICE (CENTRAL SOUTH REGION)

BETWEEN:

HER MAJESTY THE QUEEN, IN RIGHT OF ONTARIO Respondent

– and –

ZUZANA NOVOTNY Applicant

Counsel: Matthew Chung, Crown Law Office Civil, Counsel for the Respondent Leah Gensey, Counsel for the Applicant

HEARD: March 29, 2021

BEFORE: The Honourable Mr. Justice C. S. Glithero

RULING ON ROWBOTHAM APPLICATION

[1] Both the Notice of Application and the Memorandum of Law and Argument filed on behalf of Ms. Novotny seek four forms of relief:

(i) An order directing the Attorney General of Ontario and/or the Attorney General of Canada to fund counsel to represent the applicant at her trial at the Legal Aid tariff.

(ii) An order for costs of the application calculated under the Legal Aid tariff.

(iii) An order staying the prosecution against the applicant pursuant to s.24(1) of the Charter due to the applicant’s inability to make full answer and defence unless counsel is appointed.

(iv) Such further relief as counsel may advise and the court permit.

[2] The application is brought in respect of a number of criminal charges outstanding in the Ontario Court of Justice. The applicant has filed two Informations alleging the following charges:

One single count Information charges the offence of having a blood alcohol concentration in excess of 80 mg. per cent, in Guelph, on or about March 1, 2020, contrary to s.320.14(1)(b).

A multi count Information charging one count of mischief by willful damage, one count of unlawful confinement, six counts of common assault and three counts of assault with a weapon. The alleged victim in all these charges is the applicant’s former domestic partner and the father of her two children and are said to have occurred on various dates in 2018, 2019 and 2020.

[3] The respondent’s application record furnishes the court with the Crown brief synopsis summarizing events giving rise to the charges.

[4] The over 80 charge stems from the applicant being apprehended by the police in Guelph, as a result of information received from another police force on the evening of March 1, 2020. In the car was found an open can of beer, with trace amounts remaining, and the applicant exhibited the smell of alcohol. There were two youngsters in the vehicle. Blood alcohol readings of 130 mg. per cent were obtained.

[5] The synopsis relating to the multi count Information indicates, in respect of one incident, that on March 1, 2020 the applicant attended at the complainant’s residence to pick up their children after an access visit. They argued, she punched him three times in the face. He contacted the police and the applicant was re-apprehended soon thereafter. The applicant’s brother is said to have observed this incident. During the incident the applicant is alleged to have kicked the complainant’s door. The police observed a dent in the door.

[6] The incident giving rise to the forceful confinement allegation is said to involve the applicant blocking a doorway and holding the complainant’s arm to prevent him from leaving during a verbal argument.

[7] Another assault charge involves an allegation that she punched him three times in the face while he was asleep, after going through his cell phone and finding contents objectionable to her.

[8] One of the assault with a weapon charges involves an allegation that during a verbal argument she threw a soup bowl at him and missed. Another assault charge flows from an allegation that on one occasion she was intoxicated, soiled the mattress, and when he placed her in the bathtub, she punched him.

[9] Another assault with a weapon charge involves an allegation that she threw a child’s toy at him which hit him in the ear during a verbal argument and then she punched him eight to ten times.

[10] Another assault charge stems from an allegation that during a verbal argument between the two of them, following her having collided with his truck, she is said to have jumped on his back, pulled his beard, and punched him in the head.

[11] On another occasion it is alleged that during an argument she threw a water bottle at him but missed, which lead to a charge of assault with a weapon, and that she then punched him in the face.

[12] The applicant was not detained on these charges. She has no criminal record.

[13] There has not yet been a judicial pretrial in either set of charges. This may well be the result of the applicant’s continued efforts to get representation.

[14] The applicant claims that a Crown screening form, which forms part of the disclosure, but is not produced before me, advises her that the Crown wants a jail term.

[15] The applicant claims that the offences are very serious, and the issues are very complex, but agrees that the Kitchener charges will turn on findings of credibility.

[16] She claims that the over 80 charge in Guelph is very complex but gives no particulars as to what would make it so. The respondent advises that on the Guelph charge, contact with the Guelph Crown Attorney’s office indicates a suggestion of a three day trial, with two police officers.

[17] Counsel for the respondent advises that contact with the Kitchener Crown Attorney’s office indicates an estimated 1-2 day trial, with three witnesses expected.

Legal Principles

[18] The parties agree there is a three part test that an applicant has the onus to establish on a balance of probabilities in order to obtain a Rowbotham order:

(i) Legal Aid funding has been refused;

(ii) The applicant does not have the financial ability to retain counsel; and

(iii) Trial fairness requires the appointment

[19] This three part test flows from R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271 (C.A.).

[20] Both sides agree that the complainant has exhausted, without success, all avenues with respect to Legal Aid.

[21] As to the second ground that she does not have the financial ability to retain counsel, counsel for the respondent has expressly chosen not to oppose the application on that ground and urges that I do not need to consider it.

[22] It is in respect of the third ground that the parties differ.

[23] The applicant’s position is that these are very serious charges, that she is facing very serious penalties with a real likelihood of imprisonment, and that the issues are very complex.

[24] The position of the respondent is that counsel is not essential for the applicant to have a fair trial. Counsel urges that the seriousness of charges is a comparative concept with some Criminal Code offences being much more serious than others, and within any particular offence charged, the degree of seriousness depends on the facts.

[25] Mr. Chung sites various authorities for principles of law relevant to a determination of these types of applications.

[26] R. v. Rau, 2013 ONSC 5573 at para. 15 is authority for the proposition that the possibility or even the probability of incarceration is not in itself a decisive factor. Trial fairness does not require that an accused be able to conduct her defence as effectively as would a lawyer, as if that were the test, every unrepresented accused would obtain a Rowbotham order: R. v. Neidig, 2018 BCCA 485 at 93 and 101; College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685 at para. 57.

[27] The determination as to whether counsel is required in order to afford a fair trial is “intensely contextual”: R. v. Imona-Russel, 2019 ONCA 252 at para. 38. The decision is fact driven considering both the evidentiary and legal complexities of the case, but also the applicant’s abilities to self-represent: R. v. J.S., 2020 ONSC 8112 at para. 18. On the issue the ability of the applicant to self-represent, factors such as her education, work history, and ability in English are all important: R. v. Rushlow, 2009 ONCA 461 at para. 20. A lack of legal training does not equate to a conclusion that an applicant cannot effectively represent herself: R. v. J.S. at para. 39.

[28] The respondent further urges the court to consider the trial judge’s duty to assist the applicant if she self-represents at a trial. Our Court of Appeal has held that a trial judge “must provide assistance to aid the accused in the proper conduct of his defence and to guide him, as the trial unfolds, in such a way that the defence is brought out with full force and effect.” Imona-Russel, para. 51. The trial judge must make sure that a defendant understands the process and the procedures involved: R. v. Richer, 2013 ONSC 995 at para. 36.

[29] A trial judge must also provide guidance to a self-represented accused with respect to cross-examination: R. v. Mahadeo, 2014 ONSC 1327 at para. 23. A person of average abilities, while self-represented, will be competent to conduct cross-examinations of civilian witnesses: R. v. Baksh, 2013 ONCJ 57 at paras. 29-30.

[30] The applicant leans heavily on the decision in R. v. Lewis, 2016 ONCJ 859. There, the accused was charged with assault causing bodily harm, with the accusation being that while he performed his duties as a member of the security staff at a nightclub, he pushed a patron down a flight of stairs and a broken arm resulted. The Crown had indicated in a disclosure package that, on a plea, the Crown would seek a sentence of six months in jail. That trial judge also considered that there may be a period of probation, a mandatory victim surcharge, a discretionary firearm prohibition and a DNA order and concluded it to be a serious case. It was predicted to involve five Crown witnesses and 3or 4 defence witnesses, and the trial judge surmised that there would also be police witnesses and possibly medical evidence. That case relies on an article written by the late Justice Marc Rosenberg, 2009, 45 Supreme Court Law Review, 2nd, which was an article written in respect of the impact of the Charter on various legal issues, one of which was the right to counsel at trial. The article discusses the positive developments of the Charter in affording a right to counsel. One cannot quarrel with that, but the right to counsel is not the same thing as a right to have the state pay for your counsel regardless of the nature of the case or your own abilities. The case also relies on a quote from the LeSage/Code report released in 2007. That report was the result of a consideration of large and complex criminal trials. Hardly the case here.

Discussion

[31] In my opinion these charges are not complex with respect to either legal issues or factual issues or evidentiary concerns. Most of them involve the applicant and her partner and no other witnesses. The incidents themselves are not complicated, although one would hope the court doesn’t have to go through blow by blow accounts of the arguments.

[32] In my assessment, having heard the complainant at some length, she is very capable of representing herself. She is very well spoken, very intelligent and very poised and self-confident. She demonstrated before me that she is quite willing to speak out, quite willing and able to understand the issues in this application and to answer the questions put to her by her counsel and in cross-examination logically and persuasively. She did not hesitate to bring forward those matters she thought advanced her position.

[33] Since 2009, she has been employed by Sun Life Financial, other than for one period as a financial analyst in a similar business in Alberta. Her work at Sun Life is that of a business analyst. She has a year of community college in the business field. She works for a project involving robotics and automation to equip agents to best care for the benefits and coverage of customers. She works from home for the most part, and obviously is very computer literate. For five years of her employment she was a restitution case manager. At one point, she worked for the TD Bank as a customer care representative but rose through the ranks to that of a team leader responsible for managing 10-15 employees.

[34] She has a profile on a website advertising herself to have an analytical success in evaluating businesses looking for clues as to how they can improve. Her resume on the website holds herself out to be a personal banking specialist. In terms of her Sun Life employment, the resume indicates her abilities in analyzing, identifying and resolving issues, and problem solving.

[35] She and a partner incorporated their own business and opened two retail outlets in 2017, which apparently did not go well, but nevertheless show some business experience.

[36] In the resume posted on the website she held herself out to be a law student, although in cross-examination admits that that is something she would like to become but has not yet started to do.

[37] In my opinion, the work experience she has had in analyzing businesses and resolving problems should stand her in good stead when it comes to being able to digest the disclosure in these kinds of cases, to analyze the issues and understand what evidence might be important.

[38] She indicates that her former partner, the father of her children, was a bartender, but is now unemployed. It would not appear that although he will be the main witness against her, that he has any experience or skillset superior to hers.

[39] In my opinion the duties of a trial judge in assisting a self-represented accused have become more defined, recognized and more enforced in the last few years than they had been previously.

[40] For these reasons, I reach the conclusion that the applicant has not demonstrated on a balance of probabilities that her right to a fair trial would be breached if she represented herself. I base this on my assessment of her abilities as demonstrated before me, and what I consider to be the relatively straightforward evidentiary and legal issues arising out of these charges.

[41] One would hope that with a good measure of common sense injected into the judicial pretrial process that the process may be further streamlined.

[42] As an alternative, the applicant requests that I appoint amicus. I am not prepared to do so, even assuming I have the jurisdiction to do so, as I am not the trial judge. Morwald-Benevides v. Benevides, 2019 ONCA 1023 at paras. 27 and 40 make clear that an appointment of amicus should not follow merely because an accused is self-represented. If particular issues arise, it would be for the trial judge to determine whether amicus should be appointed, and if so, on what terms and with respect to what issues.

[43] For these reasons, the application is dismissed.

C.Stephen Glithero J.

Date: April 1, 2021.