COURT FILE NO.: 19-A9838
DATE: 20210426
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN, Respondent
AND
WILLIAM GOLDSMITH, Applicant
BEFORE: Aitken J.
COUNSEL: Ayah Barakat, for the Respondent
Neil Weinstein, for the Applicant
HEARD: April 6, 2020
ROWBOTHAM ENDORSEMENT
Nature of Proceedings
[1] The Applicant, William Goldsmith, seeks an order pursuant to ss. 7 and 11(d) of the Charter[^1] granting him a stay of proceedings pursuant to s. 24(1) of the Charter unless and until he is granted funding for legal representation in these proceedings by the Attorney General of Ontario, such funding being necessary for him to make full answer and defence to the charges he is facing.
Factual Background
[2] Mr. Goldsmith stands charged with aggravated assault and assault with a weapon under the Criminal Code, R.S.C. 1985, c. C-46. The offence of aggravated assault carries a maximum sentence of 14 years. The offence of assault with a weapon carries a maximum sentence of 10 years. These are serious offences with serious potential outcomes for Mr. Goldsmith.
[3] It is alleged that on June 10, 2019, when Mr. Goldsmith and Herrera Perez were both at a Century Roofing job site, Mr. Goldsmith confronted Mr. Perez regarding the disappearance of some tools. A dispute ensued. It is alleged that Mr. Goldsmith punched Mr. Perez in the right side of his face and then struck him with a hammer in the area of his right shoulder. Mr. Perez was transported to the hospital by paramedics and treated for a fractured shoulder. Mr. Goldsmith was arrested at the scene, transported to the police station, charged, and then released on a promise to appear.
[4] Mr. Goldsmith is 35 years of age. He has a criminal record, but the last entry was in 2012. Prior to being arrested for these charges, Mr. Goldsmith was residing in Ottawa with his spouse of ten years and four children (two of his own, and two stepchildren). Mr. Goldsmith and his spouse have now separated and are going through divorce proceedings. Mr. Goldsmith lives in a basement apartment. He sees his children every other weekend.
[5] At the time of the incident, Mr. Goldsmith had been working for cash as a sub-contractor for a man who in turn was a sub-contractor of Century Roofing. Over approximately two months, he had earned about $2,500.00. This money had been deposited into his spouse’s account to support the family.
[6] Following the incident resulting in the index charges, Mr. Goldsmith stopped working as a sub-contractor in the roofing industry. He stayed at home and cared for the children, doing the occasional construction job for cash. Since early 2020, opportunities to earn money have been limited due to COVID-19. Recently, Mr. Goldsmith has been hired on an as-needed basis as a pool tiler at his father’s company, working up to 20 hours a week at a rate of $20 per hour. This would produce an estimated annual income of $20,000.00.
Rowbotham Criteria
[7] In R. v. Rowbotham, 1988 CanLII 147 (Ont. C.A.), at para. 167, the Ontario Court of Appeal provided the following direction:
… a trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided. As stated above, the finding of Legal Aid officials that an accused has the means to employ counsel is entitled to the greatest respect. Nevertheless, there may be rare circumstances in which legal aid is denied but the trial judge, after an examination of the means of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial. In those circumstances, even before the advent of the Charter, the trial judge had the power to stay proceedings until counsel for the accused was provided. Such a stay is clearly an appropriate remedy under s. 24(1) of the Charter. Where the trial judge exercises this power, either Legal Aid or the Crown will be required to fund counsel if the trial is to proceed.
[8] Thus the three criteria that Mr. Goldsmith needs to establish on a balance of probabilities are that: (1) he has been denied legal aid and there is no further right of appeal or further right of reconsideration; (2) he is indigent and unable to privately retain counsel to represent him at trial; and (3) the charges are sufficiently complex and serious that counsel is essential to ensure a fair trial. Put slightly differently, Mr. Goldsmith’s right to a fair trial will be materially compromised absent public funding for counsel.
Analysis
Ability of Mr. Goldsmith to Conduct his Defence
[9] Mr. Goldsmith has a grade nine education. He left school early because he found it too difficult. He continues to have difficulty reading and writing and has trouble understanding what he does read. The offences with which he has been charged are serious, and the Crown is seeking a custodial sentence. The issue of self-defence is likely to arise at trial.
[10] There are a number of ways in which a trial may be rendered complex from the point of view of an accused. With some, it is because of the complexity of the evidence or the length of the trial. With some, it is because there are numerous accused individuals or numerous counts in the indictment. Finally, with some, it is the complexity of the legal issues that must be addressed. Here, the case relates to only one brief incident. There will be only two primary witnesses: Mr. Goldsmith and Mr. Perez. The trial will be short. What makes it complex for Mr. Goldsmith is that he does not have some skills that many people take for granted, such as reading and understanding what is read with ease. In that respect, he would not be considered a self-represented accused of average abilities. Understanding the essential elements of each offence and understanding the defence of self-defence would be challenging for Mr. Goldsmith and not something he could likely master through study and preparation or through listening to instructions from the trial judge. There is nothing in Mr. Goldsmith’s education or work experience that would prepare Mr. Goldsmith to respond to the allegations being made against him.
[11] After listening to Mr. Goldsmith testify at this hearing, I have significant concerns about his ability to make full answer and defence to the outstanding charges if he is not represented by counsel. In my assessment, he would have difficulty following trial procedure, identifying evidentiary issues, understanding the legal issues at play, cross-examining witnesses, and advocating effectively on his own behalf – even if he were provided a fulsome explanation by the trial judge. I conclude that representation of Mr. Goldsmith by counsel is essential for him to have a fair trial. He simply does not have the skills that would enable him to manage a criminal trial in any meaningful way.
Mr. Goldsmith’s Attempts to Get Legal Aid
[12] Following his arrest, Mr. Goldsmith retained an associate of Neil Weinstein privately, using $2,000.00 he had earned as a roofer and had received in cash from random jobs he did while he was staying at home looking after the children. After Mr. Goldsmith and his spouse separated, Mr. Goldsmith did not have sufficient funds to pay the further retainer required for trial.
[13] Mr. Goldsmith applied to Legal Aid Ontario (“LAO”) on August 21, 2020. He advised that he was living with a friend and earning some money through cash jobs that averaged $100.00 each. He did not have a bank account or any assets. Although he had worked in the past as a roofer, he was unable to find steady work in this field. It was Mr. Goldsmith’s hope to establish his own roofing company under the name Pure Gold Construction. He created an email account, he set up a Facebook page, and he opened a bank account; however, he did not activate the bank card. Mr. Goldsmith completed one job under the company name, at a loss, but did not obtain any further work. The company Facebook page has been dormant since February 3, 2019 – prior to Mr. Goldsmith applying for legal aid.
[14] LAO initially determined that Mr. Goldsmith qualified financially to receive assistance. However, once LAO became aware of Pure Gold Construction, it deemed Mr. Goldsmith to be high risk as a self-employed individual, and it requested additional information, including the notice of assessment and tax information for Pure Gold Construction. Mr. Goldsmith advised LAO that his spouse had handled all his paperwork but that they were not on speaking terms and he had no way of obtaining any of his financial documentation from her.
[15] On September 4, 2020, Mr. Goldsmith was denied legal aid as a result of his not being able to provide the requested documentation. From September to December 2020, Mr. Goldsmith or Mr. Weinstein contacted LAO on a number of occasions to ask that Mr. Goldsmith’s application be reconsidered. LAO requested copies of Mr. Goldsmith’s personal income tax returns, but he could not provide any because he had not filed an income tax return since approximately 1999. His evidence was that he had never earned more than $13,000.00 annually and therefore had not bothered to file tax returns. When living with his spouse, Mr. Goldsmith did not have a bank account. Instead, he deposited any income he earned into his spouse’s account. His spouse filed her own income tax returns. LAO asked for proof of how Mr. Goldsmith’s expenses of daily living were being paid, but Mr. Goldsmith did not have bank account or credit card statements to show LAO.
[16] On December 17, 2020, LAO advised Mr. Goldsmith that its initial refusal stood and that there was no further right of appeal.
Mr. Goldsmith’s Current Financial Circumstances
[17] Mr. Goldsmith has now obtained part-time employment with his father’s company that brings in approximately $400.00 per week gross. From this he must pay rent ($600.00 per month), food, and transportation expenses, as well as support his children when they are in his care. Additionally, his former spouse is seeking $700.00 per month in child support payments.
[18] Mr. Goldsmith now has a bank account. He produced statements showing his wages being deposited to the account and amounts being withdrawn to pay for such basics as food. He also produced statements from 2778831 Ontario Ltd., his employer, showing that his average net weekly income from September 28, 2020 to March 13, 2021 was $334.00. Finally, Mr. Goldsmith produced T4 statements showing the following:
• 2017: employment income of $2,681.95 and construction sub-contractor payments of $756.00;
• 2018: employment income of $8,067.33 and $4,423.38; and
• 2019: employment income of $1,037.40 and $488.00.
[19] None of this documentation was provided to LAO prior to its rendering its decision that Mr. Goldsmith was ineligible for legal aid.
[20] Mr. Goldsmith has no assets. He owns no property, no vehicle, and no savings.
[21] Mr. Goldsmith has no family members who would be willing to lend him money or pay for his legal expenses. He has had no contact with his mother since he was 12 years of age. His father is assisting by providing Mr. Goldsmith with work. Otherwise, Mr. Goldsmith is somewhat estranged from other family members.
[22] Crown counsel was critical of Mr. Goldsmith not providing further and better documentary evidence of his financial circumstances over the last number of years. However, in my view, Mr. Goldsmith has now, albeit belatedly, provided what he could. He is someone with minimal education who does not do well with paperwork. He has gotten by over the years by working odd jobs in the construction field. He and his spouse pooled their resources and divided responsibilities in their relationship, with Mr. Goldsmith often being the one staying home to care for the children. His spouse was the one who kept whatever records they had. Now that they have separated and are in the midst of court proceedings, Mr. Goldsmith cannot look to his spouse for assistance. It is interesting that it was Mr. Goldsmith’s current girlfriend who looked through the paperwork that he had in his possession and found some of the documentation that had been requested by the Crown. This reinforces my view that Mr. Goldsmith would not know where to begin to run a defence to the serious charges he is facing.
[23] On the basis of the oral evidence and documentation provided at the hearing, I am satisfied that Mr. Goldsmith does not have the financial ability to retain a lawyer to represent him for pre-trial motions and trial.
Decision
[24] Pursuant to ss. 7 and 11(d) of the Charter, these proceedings against Mr. Goldsmith shall be stayed under s. 24(1) of the Charter unless and until Mr. Goldsmith is granted funding for legal representation in these proceedings by the Attorney General of Ontario to enable Mr. Goldsmith to retain Neil Weinstein as counsel, with the Attorney General paying all reasonable fees attributable to his representation at the appropriate legal aid rates. The obligation of the Attorney General to pay for legal representation for Mr. Goldsmith shall cover all reasonable work done to date by Mr. Weinstein respecting this Rowbotham application.
Aitken J.
Date: April 26, 2021
COURT FILE NO.: 19-A9838
DATE: 20210426
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: HER MAJESTY THE QUEEN, Respondent
AND
WILLIAM GOLDSMITH, Applicant
BEFORE: Aitken J.
COUNSEL: Ayah Barakat, for the Respondent
Neil Weinstein, for the Applicant
Rowbotham ENDORSEMENT
Aitken J.
Released: April 26, 2021
[^1]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”).