Court File and Parties

COURT FILE NO.: CR-21-00000158-00MO DATE: 20211209

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JIAN WEI SUN Applicant

COUNSEL: James Clark, for the Crown Benjamin Moss, for the Applicant

HEARD: December 2, 2021

REASONS ON ROWBOTHAM APPLICATION

Schabas J.

[1] Jian Wei Sun is charged with a number of serious offences involving the production and trafficking of ketamine and methamphetamine under the Controlled Drugs and Substances Act. The charges were laid in March 2017, following a 5-month investigation that included a covert search of Mr. Sun’s house, extensive surveillance, and the execution of a number of search warrants.

[2] A preliminary inquiry was held in May 2018. There have been delays involving co-accuseds whose matters have now been resolved and as a result of the COVID-19 pandemic. Mr. Sun’s charges are now set for trial by jury commencing in February 2022. A 4 – 5 week trial is anticipated.

[3] Mr. Sun now brings a “Rowbotham application” to have the prosecution fund his defence. The application is named after the decision in R. v. Rowbotham, 1988 CanLII 147 (ONCA), which fashioned this remedy.

[4] The prerequisites to obtaining a Rowbotham order are well-established. As reiterated by the Court of Appeal recently in R. v. Imona-Russel, 2019 ONCA 252 at para. 38, the applicant must satisfy the court, on a balance of probabilities, of three things:

(a) that the accused has been refused Legal Aid;

(b) that the accused lacks the means to employ counsel; and

(c) that representation of the accused by counsel is “essential to a fair trial”.

[5] On this application, the first factor is not in dispute, although the Crown notes that the material filed in support of the accused’s application for Legal Aid was “extremely vague” as he did not file verification of income and past employment, among other things. In any event, following reconsideration, in November 2019, Legal Aid refused to fund Mr. Sun’s defence and he has satisfied the first prong of the Rowbotham test.

[6] The third factor, whether counsel is “essential to a fair trial” (see R. v. Teng, 2015 ONCA 470 at para. 9), is also established in this case. Although not conceded by the Crown, there are a number of factors which readily satisfy this ground. The accused is facing 9 Counts related to a conspiracy. The investigation was lengthy and raises many legal issues arising from searches and search warrants. The disclosure is extensive and it is all in English.

[7] The accused is a 38 year-old individual who immigrated to Canada from China when he was 17 years old. He had a junior high school education in China and has had no education in Canada. His English is poor. For the past few years following his arrest he has worked for an app-based delivery company making deliveries using his own car. If convicted, Mr. Sun would likely be facing a lengthy period of incarceration. Moreover, as he has never become a Canadian citizen, he would be subject to deportation.

[8] In R. v. Rushlow (2009), 96 OR (3d) 302, 2009 ONCA 461 at para. 39 Rosenberg J.A. stated:

The purpose of the right to counsel in the context of a Rowbotham case is reflected in the nature of the test itself. Counsel is appointed because their assistance is essential for a fair trial. In my view, fair trial in this context embraces both the concept of the ability to make full answer and defence and the appearance of fairness.

[9] And in R. v. Imona-Russel the Court of Appeal stated at para. 40:

Trial and motion judges must evaluate whether appointing counsel under a Rowbotham order is necessary for a fair trial on a case-specific basis, having regard to relevant factors, including the seriousness of the charges, the likelihood of imprisonment, the length and complexity of the proceedings in terms of the factual evidence and the procedural, evidentiary and substantive law that would apply. The judge must also attend to the possibility of specialized procedures such as voir dires, and the accused's personal ability to participate effectively in defending the case: Rushlow, at paras. 19-20. The trial judge has an obligation to assist unrepresented counsel, which can sometimes mitigate the need for counsel: Rushlow, at para. 21; Ontario v. Criminal Lawyers' Assn. of Ontario, [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43, 2013 SCC 43, at para. 116 (per Fish J., dissenting on other grounds).

[10] In my view, based on the nature of the charges including their seriousness and the serious consequences that will flow to Mr. Sun if convicted, the extent and complexity of the factual and legal issues including the likelihood of Charter issues arising and the need for voir dires, together with accused’s lack of proficiency in English and his limited education, the third prong of the Rowbotham test is met in this case.

[11] The issue in much dispute on this application is the second factor – whether Mr. Sun lacks the means to employ counsel.

[12] Mr. Sun has been using his car to do app-based deliveries since the fall of 2018. He has worked for a company called Fantuan since some time in 2019. His evidence is that he typically earns about $3,000 per month, before taxes, business and living expenses. Expenses include insuring and maintaining his car, gas, rent and food. He also has debts to friends of approximately $20,000 which he has been paying off when required. However, as his T4A for 2020 shows, in that year he earned just over $70,000 before taxes and expenses. He explained that his income rose in 2020 due to the pandemic and the increased demand for deliveries which he says has now declined. Bank records show that he was receiving the Canada Emergency Response Benefit (“CERB”) from the federal government of $1800 per month between March and September, 2021.

[13] It appears that much of Mr. Sun’s work is cash-based and he has limited documentation. However, as his rent is low (he seems to share accommodation with friends) the evidence is that he may have had as much as $40,000 after expenses in 2020. The limited evidence from 2021 suggests he may have several thousand dollars after his expenses. However, Mr. Sun told the court that he has been repaying debts and that he only has about $10,000 at his disposal. His bank balance as of September 2021 was about $1400.

[14] Mr. Sun said he consulted quite a few lawyers after he was charged in 2017 but they all wanted large retainers of tens of thousands of dollars to take on his defence. The Legal Aid file also makes reference to the need to come up with “lump sum retainers of $20,000 to $50,000 and [lawyers] are not willing to give client monthly payment options due to nature of his charges and severity of case.” It is not surprising, therefore, that Mr. Sun concluded that he did not have the means to retain counsel, or that saving funds would have provided him with those means when he expected to be tried within two years of his charges, and well before February 2022. Mr. Sun’s preliminary inquiry was held in May 2018. Although counsel could not give me all the details, a trial set for 2019 was adjourned due to the severance of a co-accused, and a trial date in March 2020 was adjourned due to the pandemic.

[15] The Crown argues that Mr. Sun’s financial evidence is vague and not adequate to satisfy the Court that he does not have the means to fund his defence. Further, the Crown argues that Mr. Sun chose not to save money for his defence, instead prioritizing the repayment of debts and other expenses.

[16] It was stated by Hill J. in R. v. Vuong, 2016 ONSC 7277, at para. 72 that “as a general rule, an applicant for government-funded counsel must be ‘clear and transparent in disclosing his [or her] financial circumstances’”, citing R. v. Staples, 2016 ONCA 362, at para. 4. I agree that Mr. Sun’s financial evidence is vague and incomplete. However, Mr. Sun is part of the new gig economy, much of which, he has said, is cash-based. He is not well-educated and likely has little documentation. Mr. Sun testified on the application and I accept that his income is limited. Unlike the situation in other cases, there is no evidence that he is not being open about his situation or not making full disclosure. If anything, I found his description of his business and living expenses to be low.

[17] Although over the past 4 years Mr. Sun might have been able to have saved $50,000, this would have been very difficult and it was not unreasonable of him to have concluded early on that the cost of defending himself was beyond his reach and therefore he did not take steps to save for that purpose. Nor did he, or anyone, anticipate that the trial would not take place until 2022, some 5 years after he was charged.

[18] In R. v. Woods, 2016 ONSC 2374, at para. 15, Wein J. stated:

To prove indigence, the Applicant must prove that his financial position is such that, after the date that he could reasonably have expected that he would require counsel, even after making reasonable sacrifices and efforts, he would be unable to retain competent counsel.

[19] In my view, in the circumstances of this case Mr. Sun has met his onus to demonstrate his financial position did not, and today does not make him able to retain competent counsel. He simply lacks the means and was unlikely to have ever had the means to afford counsel to defend him on charges of this kind. Accordingly, I conclude he has met the test for a Rowbotham order.

[20] Mr. Sun does have $10,000. He explained that he requires $5,000 in cash to operate his business. His delivery operation requires him to make cash payments and await repayment. However, through his counsel he agreed that he could contribute $5,000 towards the cost of counsel.

[21] Accordingly, I order that, subject to completing arrangements by which Mr. Sun contributes, forthwith, $5,000 towards the cost of his defence, the proceedings against Mr. Sun are to be stayed until the Attorney General of Canada provides funding for counsel. As it is anticipated that the Crown will arrange funding to be administered by Legal Aid Ontario, I am not vacating the trial date set for early 2022. If an adjournment of the trial is sought due to the appointment and availability of counsel, including needing more time to prepare, it seems to me that any resulting delay should fall on Mr. Sun for purposes of s. 11(b) of the Canadian Charter of Rights and Freedoms.

Paul B. Schabas J.

Released: December 9, 2021

COURT FILE NO.: CR-21-00000158-00MO DATE: 20211209

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JIAN WEI SUN

REASONS on Rowbotham Application

Schabas J.

Released: December 9, 2021