minicounsel

COURT FILE NO.: CR-22-45-MO

DATE: 2022/10/14

BETWEEN:

HIS MAJESTY THE KING

– and –

Bradley Campbell

Applicant

Marcus Campbell, for the Crown

Nicole Nuttal, for the Respondent

HEARD: August 25, 2022

Decision on Rowbotham application

Somji j

Overview

1The Applicant brings a Rowbotham application. He seeks a conditional stay of proceedings on his charge of assault until such time as the state funds his defence. He argues that he requires legal representation to have a fair trial as guaranteed by ss. 7 and 11(d) of the Charter.

2The Applicant is 69 years of age. He was charged with a single count of assault on his former partner in July 2021. The Crown has elected to proceed summarily. A trial date has yet to be set. The Applicant has been unable to obtain a Legal Aid certificate to retain counsel to defend him at trial and is unable to afford counsel given his annual income of approximately $20,000. Given his age, minimal education, memory issues, and the alleged complexity of the matter, he argues that he cannot adequately represent himself on the charge before the court.

3The test for the appointment of state funded counsel is set out in R v Munroe, 2015 ONSC 5705 at para 7. The Applicant has the burden of proving the following on a balance of probabilities:

a. He is ineligible for, or has been refused, legal aid and all available appeals have been exhausted;

b. He has no means to pay for counsel; and

c. His right to a fair trial will be “materially compromised” if he is required to proceed without counsel.

4While arguments were made with respect to each of the three elements, it is not disputed by the parties that the crux of the matter turns on the third prong of the test, namely whether the Applicant’s right to a fair trial would be compromised if he did not have counsel.

5Counsel for the Ministry of the Attorney General (the “Crown”) opposes the application. They argue that the matter is not sufficiently complex to warrant appointment of state-funded counsel, and the Applicant has the ability to defend himself.

6Upon review of the materials filed, the testimony of the Applicant, and the submissions of counsel, I find the Applicant has not established that his right to a fair trial will be materially compromised if he proceeds without counsel.

Issue 1: Has the Applicant Exhausted the Legal Aid Process?

7Both parties agree that the Applicant has exhausted the Legal Aid Ontario process. The Applicant was informed on February 9, 2022, that his application with Legal Aid Ontario was denied. His appeal of that decision was dismissed. I am satisfied that the Applicant has exhausted the Legal Aid process.

Issue 2: Can the Applicant afford to hire counsel?

8The Applicant is retired having worked most of his life in construction. He presently lives off his Old Age Security Benefits, Guaranteed Income Supplement, and income from odd jobs such as working on rural properties and scrapping. For example, he collects trailers from which he strips wood and metal for earnings of about $100/trailer. In 2021, his total income was $20,295 which was $1500 over the $18,795 threshold that would allow him to obtain Legal Aid funds. The Applicant relies on this income to cover his low rent, utilities, phone and telephone bills, wood for heating, and gas money to pay neighbours who assist him with transportation.

9The Applicant does not have any assets of value. He rents a rural lot where he lives in a trailer. He owns two vehicles: a 2005 Chevrolet truck and a 1989 Dodge van, neither of which are truly road worthy. He testified that he relies on his friends for rides into Kingston when they have appointments to attend. He expects to rely on these rides for his attendance at trial. In addition, he pays a local taxi driver to take him to the town of Tweed once a month so that he can use the bank machine to pay his bills once his CPP and OAS have been deposited.

10The matter is scheduled for 2–3-day trial. Counsel estimates that the cost of private counsel would be $200/hour. Just the cost of a 3-day trial at 8 ½ hours per day for 3 days would be $5000. Add another 25 hours for preparation time and for pre-trial applications, the Applicant would need at least $10,000 to retain counsel. The Applicant does not have such funds nor does he have family or friends from whom he can borrow.

11For the purposes of this application, the Applicant was able to put together a minimal retainer to obtain the assistance of an articling student under the supervision of counsel.

12The Applicant is held to a standard of prudence when the court considers his financial circumstances. An accused cannot expect the taxpayer to pay for his defence because he chooses to make himself indigent by refusing to work or failing to seek financial resources elsewhere: Munroe at para 8.

13In this case, there have been considerable delays with the Applicant providing all his financial disclosure to Legal Aid to verify his income sources. Nonetheless, I am satisfied based on the Applicant’s testimony that he makes genuine efforts to supplement his government income from other work but earns just enough for daily living. I find the Applicant does not have the financial means to pay for counsel nor sources from whom to access further funds.

Issue 3: Will the Applicant’s right to a fair trial be compromised if he is required to proceed to trial without counsel?

14In R v Rowbotham, the leading case in Ontario on the subject of state-funded counsel, the Ontario Court of Appeal made clear that the fair trial rights enshrined in ss. 7 and 11(d) of the Charter require that funded counsel be provided if the accused seeks counsel but cannot afford one and representation of the accused by counsel is essential to a fair trial: R v Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.) at paras 156 and 167.

15In determining if counsel is essential is necessary for a fair trial, the following non-exhaustive factors can be considered:

a. The personal abilities of the accused such as education and employment background;

b. Ability to read and write and facility with language;

c. Complexity of the evidence;

d. Procedural, evidentiary and substantive law that applies to the case;

e. The likelihood of especially complex procedures such as a voir dire;

f. The seriousness of the charges;

g. The expected length of trial; and

h. The likelihood of imprisonment if a conviction results: R v Rushlow, 2009 ONCA 461, at paras 19- 20; see also Munroe at para 10.

16The inquiry is fact driven. The assessment of what trial fairness requires is contextual based on a person’s ability to self-represent and the evidentiary and legal complexities of the case: R v Imona-Russel, 2019 ONCA 252 at para 48; R v Novotny, 2021 ONSC 2430 at para 27; R v JS, 2020 ONSC 8112 at para 35.

17Counsel for the Applicant argues that the Applicant’s personal frailties make it difficult for him to represent himself and have a fair trial. First, he is elderly and has memory issues. For example, when testifying at the Rowbotham application, he became confused when asked questions about some of his expenses. Second, he has limited education having only completed grade 10. Third, he has no legal training and would have difficulty accessing resources to prepare for trial given he does not have internet or transportation to a library. Finally, cross-examining the complainant would be emotionally challenging given the parties’ historical relationship.

18The Crown disagrees. They argue this is not a complex case and the Applicant has the cognitive ability to represent himself. The Crown points out that there are only three anticipated witnesses: the complainant and two officers. The case involves an allegation of common assault. Disclosure is limited to 87 pages. There are no complex evidentiary or procedural issues. Even if there is a voir dire on the admissibility of a statement, the trial judge is well equipped to provide the Applicant the necessary guidance.

19Upon reviewing the materials, hearing the testimony of the Applicant, and considering the relevant factors, I find the Applicant’s fair trial rights would not be materially compromised if he were to proceed to trial without counsel.

20I agree with the Crown that this case is not a complex, and this factor does not favour the assignment of state funded counsel. The Applicant is charged with assault of his former spouse. Crown election is by summary conviction. The allegations are that on July 20, 2021, the Applicant became upset with the complainant after she spilled beer, grabbed the back of her hair, pulled her to the ground, and then used his right foot to push her away making contact with her shoulder and hip. The complainant left the trailer. When she returned a short time later looking for cigarettes, she alleges the Applicant opened the door with force, knocked her to the ground, and placed his foot on her chest. She then called police. The Applicant was arrested and provided a cautioned statement to the police, the admissibility of which may be challenged at trial.

21The charge constitutes a discreet event involving the Applicant and complainant. The key issue is credibility. No technical or expert evidence is being called and no Charter applications are anticipated. The two officers scheduled to attend for trial are anticipated to give evidence about the 911 calls and their observations upon arriving at the scene. It is highly unlikely that their evidence would engage complex evidentiary rules as suggested by counsel for the Applicant.

22Courts have found charges of assault in similar circumstances to be straightforward and not requiring state funded counsel. For example, in Novotny stated funded counsel was denied where a person was charged with assault, assault with a weapon, and unlawful confinement on her former domestic partner: Novotny at paras 2 and 31. See also R v Brown, 2018 ONCA 9 at para 20 where the accused was charged with sexual assault and the only issue was consent.

23The Crown has indicated it may hold a voir dire on the admissibility of the Applicant’s statement. The Applicant indicates he may bring a third-party records’ pre-trial application for police to produce records of the complainant’s alleged discreditable conduct. I find these are not complex applications and can be managed by a self-represented person with the assistance of a judge. With respect to the third-party records application, I note the Applicant has not taken steps to bring such an application. The Crown only learned of it for the first time at this hearing.

24I also find based on the Applicant’s testimony that he is intellectually and mentally capable of representing himself. While the Applicant’s education is limited to grade 10, he can read and write and is also a fluent English speaker. At the Rowbotham hearing, he answered questions both in examination in-chief and cross-examination clearly. While he had trouble remembering some dates, this is not unexpected given he was being asked to explain withdrawals from his bank statements and could not be certain of all of them, many of which were to pay for gas for trips to town. I did not find his inability to explain each and every expenditure suggestive of poor memory or mental health. On the contrary, the Applicant appeared to understand the questions and follow along with the pace of questioning. There was no sign of any medical or cognitive disability that would favour the assignment of state-funded counsel.

25I find the Applicant’s lack of legal training does not mean that he is incapable of effectively defending the charges against him: JS at para 39. In complex proceedings involving multiple witnesses and expert proceedings, a lack of legal training can be determinative factor: Rushlow at paras 26 and 52. I do not find such is the case here. The majority of self-represented litigants come to court without any legal training and rely on the trial judge and the Crown in its quasi-judicial role for assistance.

26In addition, there is a guide available on the Ontario Court of Justice website for accused persons in criminal trials: https://www.ontariocourts.ca/ocj/self-represented-parties/guide-for-accused-in-criminal-cases/guide/. This guide covers a variety of topics including how to examine and cross-examine witnesses, how to use notes to refresh memory or identify an inconsistency, trial procedures, and what legal terms such as “voir dire” mean. In some jurisdictions, case management judges will provide guides at a pre-trial conference to self-represented persons to help them prepare for a criminal trial. This is not to say that the Applicant would not benefit from having counsel. However, there is distinction between having the benefit of counsel and counsel being essential for a fair trial: JS at paras 37- 38.

27Furthermore, the trial judge can provide guidance where required and in fact, has a duty to assist self-represented persons in all aspects of the trial: R v Richer, 2013 ONSC 995 at para 36; Novotny at paras 28 and 29; JS at para 46; see also R v Atkinson, (July 28, 2021) Ottawa, Court File No. 041-998-20-4599-00 (Ont.Ct.J.) , at pp.10-12. This includes areas such as:

The charge against the Applicant;
The essential elements of the charge the Crown has to prove;
The criminal standard of proof;
Possible defences that are available to the Applicant;
The trial process, including presentation of evidence and closing arguments; and
The Applicant’s right to call defence evidence and attendant risks: R v Mahadeo, 2014 ONSC 1327 at para 23;

28I disagree with counsel that the Applicant would be coming to “trial blind.” As per the Applicant’s testimony, this is not the first time he comes to court and has some familiarity with the criminal court processes, albeit not necessary a trial. As already noted, resources are available should the Applicant wish to take the time to avail himself of them. The Applicant has friends that he relies on for drives into Tweed and sometimes Kingston. On those occasions, he can make arrangements to obtain whatever print materials he may need to assist him in his preparation.

29While I recognize that the Applicant does not have a computer, accommodations can be made by the Crown to ensure that he has a paper copy of disclosure which is limited to 87 pages. In fact, I understand that the Applicant has picked up paper disclosure already. Any audios or videos should be transcribed so that the Applicant has a written transcript of the content.

30I am also not satisfied the emotional aspects of the trial are an impediment to self-representation. The Applicant expresses concerns about the emotional impact of cross-examining the complainant with whom he had a former relationship. He argues that “emotions will likely run high, and a legal professional is necessary to ensure those emotions to do not interfere with a proper cross-examination.” It is unclear if the Applicant is concerned about his own emotions and ability to effectively cross-examine the complainant or the complainant’s emotions interfering with her being able to give a truthful account of events. In either case, I do not find this factor in and of itself warrants appointment of state funded counsel.

31The trial judge is responsible for ensuring the applicant has a fair trial. If emotions run high, the trial judge can provide the necessary instructions to all parties to ensure fair and proper procedures are followed. In addition, the trial judge has the discretion pursuant to s. 486.3(3) of the Criminal Code, upon application by the Crown or a witness, to order that the accused not personally cross-examine the witness if the judge is of the opinion that it would allow the witness to give a full and candid account of the acts complained of or would otherwise be in the interest of the proper administration of justice. In short, the trial judge can appoint counsel for the limited purpose of cross-examination of the complainant if the ends of justice require it.

32Finally, the Applicant has been advised that he faces the possibility of jail should he be convicted. This factor favours the Applicant, but the probability of incarceration, in the absence of other factors, is not by itself sufficient to grant the application: R v Rau, 2013 ONSC 5573 at para 15, R v Bordeau, 2016 ONSC 6079 at para 15.

33In conclusion, upon weighing all the factors in the circumstances of this case, I find the Applicant has not established that his fair trial interests will be adversely impacted if he represents himself. The Application for a stay pending the appointment of state funded counsel is dismissed.

Somji J.

Released: October 14, 2022

COURT FILE NO.: CR-22-45-MO

DATE: 2022/10/14

ONTARIO

SUPERIOR COURT OF JUSTICE