Court File and Parties

COURT FILE NO.: CR-22-70000091-00MO DATE: 20230217 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – CAROLYN BURDEN

Counsel: Adam Mortimer, for the Crown Kristy Wong, for Ms. Burden

HEARD: September 16, 27, and 29, 2022

R.F. GOLDSTEIN J.

[1] On September 29, 2022, I dismissed a Rowbotham application by Ms. Burden. I indicated that my reasons would follow. These are my reasons.

Background

[2] Between 2011 and 2017 Ms. Burden was the controller of a company called Desini Fine Homes Inc. She managed day-to-day financial transactions for the company. Using the software program Quickbooks, she was responsible for tracking income and expenses. She was also responsible for processing invoices and issuing cheques. Cheques had to be signed by one of the two co-owners of the company. In January 2017 the owners fired Ms. Burden. The Crown alleged that Ms. Burden issued cheques to herself. She forged the signatures of the owners. She then deleted the Quickbooks entries to cover her tracks. She allegedly issued 385 cheques to herself totaling $1.2 million.

[3] Ms. Burden was arrested and charged in January 2018. She was issued a Legal Aid certificate in August 2018. She retained David Maubach, an experienced criminal defence lawyer. Mr. Maubach’s associate, Mr. Gray, handled the file as Mr. Maubach was scaling back his practice in contemplation of retirement. The relationship between Mr. Gray and Ms. Burden broke down. In December 2021 Ms. Burden requested a change of solicitor. Legal Aid denied the request. Ms. Burden appealed. On February 15, 2022, Legal Aid dismissed the appeal. In doing so, Legal Aid stated (I provide excerpts):

The Applicant complained that counsel Gray did not meet with her to review the materials as she had requested. She stated that she had no input having counsel Gray handle the case and that it was not her choice. The Applicant indicated that counsel Gray had not taken the steps that counsel Maubach advised would be taken.

Counsel provided a detailed responding letter dated December 8, 2021… Counsel noted that the Applicant’s matter was set for a three week jury trial in the Superior Court. Counsel described that Mr. Gray had negotiated a favourable resolution position with the Crown as instructed by the Applicant. Mr. Gray emailed the Applicant to seek her instructions as the position was time sensitive, however, and the Applicant became completely unreachable. They emailed and called the Applicant repeatedly, but she was not responsive to any emails sent by Mr. Gray or Mr. Maubach. Further, the Applicant missed her trial confirmation hearing. Counsel described the Applicant has being completely uncooperative and informed that she had not provided instructions, making it impossible to assist her. He stated that he was unwilling to continue to represent the Applicant.

The District Office refused to grant a change of lawyer as the breakdown in the solicitor and client relationship was directly caused by the Applicant.

Based on the information provided, it does not appear that counsel provided improper representation to the Applicant. The allegations regarding counsel have no basis. It appears as though the Applicant’s matter has proceeded normally and that counsel has handled the matter appropriately. The breakdown in the relationship is a result of the Applicant’s unrealistic expectations and failure to participate or provide instructions.

[4] Ms. Burden then brought an application for state-funded counsel. The Crown opposed the application. I heard it on September 16 and 27, 2022. Ms. Burden’s trial date – October 11, 2022 – was fast approaching so rather than taking time to write reasons I issued a “bottom line” ruling on September 29, 2022 with reasons to follow.

[5] On October 11, 2022 Ms. Burden pleaded guilty to and was convicted of fraud over $5000 by my colleague P. Campbell J. As of the time of the writing of these reasons, she has yet to be sentenced.

Analysis

[6] Section 10(b) of the Canadian Charter of Rights And Freedoms guarantees the right to counsel upon arrest or detention. The Charter itself does not guarantee that every person has a right to a state-funded lawyer when they are charged with a criminal offence. Section 7 of the Charter does, however, guarantee the right to a fair trial. There may be circumstances in which it is essential for an accused person to be represented by counsel to ensure that a trial is fair. Provincial legal aid plans generally cover those who lack the means to pay for a lawyer. But what about those who have been rejected by a legal aid plan? In R. v. Rowbotham, 1988 CarswellOnt 58, [1988] O.J. No. 271, 41 C.C.C. (3d) 1, the Ontario Court of Appeal stated that the remedy can be state-funded counsel at para. 183:

… in cases not falling within provincial legal aid plans, ss. 7 and 11 (d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require funded counsel to be provided if the accused wishes counsel but cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial.

[7] Thus, in exceptional cases, a trial judge has an inherent power to appoint counsel for an indigent accused to ensure a fair trial. Under those rare circumstances the trial judge may stay the proceedings until the government funds counsel. This remedy is available either at common law, or pursuant to s. 24(1) of the Charter: Rowbotham at paras. 193-194.

[8] Molloy J. set out the well-established test in R. v. Williams, 2011 ONSC 7406 at para. 5:

In order to obtain a “Rowbotham Order”, an accused must establish three things:

(1) that he is ineligible for, or has been refused, Legal Aid and has exhausted all available appeals;

(2) that he is indigent and has no means to retain counsel otherwise; and,

(3) that his right to a fair trial will be materially compromised if he is forced to proceed to trial unrepresented by counsel.

[9] As there is no question that Ms. Burden was refused legal aid and exhausted her appeals, the only issues were whether she was indigent and without the means to retain counsel; and whether her fair trial rights would have been materially compromised if she were unrepresented.

(a) Was Ms. Burden indigent with no means to retain counsel?

[10] In her affidavit, Ms. Burden stated that:

• Her sole source of income was from self-employment with her business solutions company, Altruisant Business Solutions. She submitted her 2020 T1 income tax returned. She earned $16,370.00.
• In 2021 she earned about $23,000.00.
• At the time of the Rowbotham hearing she paid $2750 per month in rent in a house she lived in with her two adult sons. She had monthly expenses of about $1000.00.
• She owned no property and did not own a car. She did own a house but lost it in a civil lawsuit brought by Desini Fine Homes Inc. Desini and the co-owners were the victim of the fraud.
• One of her sons has mental health challenges but is now attending Centennial College.
• She is separated and receives sporadic child support payments from her former spouse.
• She has no ability to borrow money thanks to her fraud convictions, and her bank accounts are empty.

[11] Crown counsel asked Ms. Burden for more documentation after reviewing her materials. Ms. Burden provided copies of bank statements and other documents in response, but did not provide certain documents, such as Visa statements.

[12] Ms. Wong, for Ms. Burden on the application, argued that Ms. Burden only earned $1916.00 per month. That is far below what is necessary to retain counsel. Losing her Legal Aid certificate was not her fault, and, in any event, it is not up to this court to review Legal Aid’s decision. Legal Aid’s original decision to issue a certificate shows that she did not have the means to retain counsel. In contrast, Mr. Mortimer, for the Attorney General, argued that Ms. Burden’s actual income was significantly higher than the $20,000.00 she reported.

[13] I agree with counsel for the Attorney General. The onus is on Ms. Burden to show that she is indigent. I find that on a balance of probabilities she has not done so. Ms. Burden was not forthcoming about her financial picture in her original affidavit. She provided further material when Crown counsel pointed out the scarcity of documents. It became clear in cross-examination that the additional documentation she provided showed discrepancies between the financial situation she presented and her actual financial situation.

[14] Without going into a micro-review of Ms. Burden’s financial transactions, there are many unexplained transactions. She has failed to account for many of the deposits into her accounts, and many of the withdrawals. For example, she mentioned a business with which she has an agreement. That business was the source of some of the larger payments. Ms. Burden provided no documentation backing up that agreement, and frankly it was very unclear to me what those payments were for. I agree with Mr. Mortimer that when all of the transfers are added up, including government assistance, arrears of child support, and business income, her actual income averages $3000-$4000 per month, or over $52,000.00 per year.

[15] Ms. Burden also indicated that she paid for things for her mother, such as groceries, and that her mother reimbursed her. She indicated that her mother’s expenses were about $1000.00 per month. It is unclear to me how she could afford to float her mother $1000.00 in cash each month when she was in such a dire financial situation.

[16] Ms. Burden’s spending is also unclear. She provided her Meridian banking accounts but did not provide her Visa statements. It is true that she said during cross-examination that she could obtain them, but she knew perfectly well before the hearing that her spending would be an issue. Ms. Burden is experienced in the criminal justice system. It was clear from the Crown’s response to her original affidavit that she would be questioned about her spending. I draw an adverse inference from her failure to produce her visa statements.

[17] In any event, since 2018, Ms. Burden appears to have withdrawn about $150,000 in total from her Royal Bank and Meridian bank accounts (mostly from Meridien – the Royal amount is very small). She provided a very limited explanation for how this money was spent.

[18] Ms. Burden claimed that she paid $2750 in rent each month. She claimed that she only makes about $2000.00 per month. It is unclear how she makes up the deficit. She was unable to properly explain how she pays. I have reviewed the compendium of withdrawals from her accounts prepared by the Crown. There are no withdrawals or e-transfers in the amount of $2750. It is possible she pays in small amounts, but it is equally possible she pays in cash and has not disclosed that to the court. It is also very possible, indeed more than merely possible, that she has been untruthful about her living arrangements or the cost of her living arrangements. In any event, I draw an adverse inference from her inability to explain how she pays her rent.

[19] One particularly troubling expense is alcohol. A reviewing court should certainly not pass judgment about the personal habits of the applicant. Having an occasional drink is certainly no sin and even an indigent applicant is not expected to give up absolutely everything. That said, between May 2018 and July 2020 Ms. Burden spent just over $46,000.00 on alcohol – respectfully, enough to fund her defence. Ms. Burden explained that her son has a serious drug and alcohol dependency. He is prone to seizures when he goes into withdrawal. She testified that at least two doctors have said she needs to keep supplying him with enormous amounts of alcohol or it could be fatal. She supplies him with alcohol to, in essence, keep him alive. Since his friends come over on occasion, she sometimes supplies them with alcohol as well.

[20] Ms. Burden provided no documentation to back up this supposed diagnosis. I draw the inference that there is no documentation. I find it very difficult to believe that a doctor would prescribe more alcohol as a remedy for drug and alcohol dependency. If a doctor did so, then the College of Physicians and Surgeons should at the least do some kind of practice review of that doctor. She may well consume that alcohol herself, or give it to her son, or sell it for cash. I am unable to say, but I do not accept Ms. Burden’s evidence on that point.

[21] For someone who claimed to have no money, Ms. Burden’s finances were surprisingly opaque. Many of Ms. Burden’s assertions were dependent on her credibility. I found her not to be credible, and that her evidence was unworthy of belief. Ms. Burden has a criminal record that consists entirely of crimes of dishonesty. In 1986 (albeit at the age of 20) she was convicted of theft under $5000.00. In 2010 she was convicted of fraud under $5000.00. In 2014 she was convicted of fraud over $5000.00. She was on probation for the 2014 conviction when she committed the fraud at issue here.

[22] It is not up to this court to review the reasons for the Legal Aid refusal or to second-guess that decision: R. v. Peterman (2004), 70 O.R. (3d) 481 (C.A.) at para. 22. A court can, however, have regard to those reasons when evaluating the credibility of the applicant. The reasons reveal that Ms. Burden was unresponsive to her original defence counsel. Counsel would not work with her again. In her affidavit, Ms. Burden blamed defence counsel and blamed counsel’s failure to use the proper email address. I find that to be an unlikely explanation.

[23] During her evidence I also found Ms. Burden’s answers to be dismissive, bordering on arrogant. She seemed to be offended that the Crown would question why she needed to spend $800-$900 a month on alcohol for her son, and her son’s friends. Her explanation is troubling. As I have said, I simply do not believe that a real medical doctor prescribed more alcohol for her addicted son, especially in the absence of a written diagnosis. Moreover, Ms. Burden seemed not to understand that others – the taxpayers, for instance – might look askance at paying for a lawyer for someone who is spending close to $1000 per month on alcohol while claiming to be broke.

[24] I therefore find that Ms. Burden did not meet her burden of showing that she could not afford to retain counsel. As Nordeimer J. (as he then was) stated in R. v. Goba, an unreported decision of the Superior Court dated November 26, 2007, at para. 7:

There is a limit to the government’s resources to fund legal representation. Those funds ought not to be directed towards persons who simply choose to organize their affairs so that their ability to obtain counsel may be compromised. To determine otherwise would fundamentally undermine the principles upon which state funded representation is provided.

[25] That finding, of course, ends the matter. For the sake of completeness, however, I will deal with the next issue.

(b) Would Ms. Burden’s fair trial rights be materially compromised if she were unrepresented?

[26] Prior to pleading guilty, Ms. Burden faced charges of fraud over $5000. The matter was set for a two-week jury trial. Ms. Wong argued that many factors made the case too complicated for a self-represented person. Ms. Burden faced a significant penitentiary sentenced – 8 years – if convicted. Jury trials are always highly complicated – many defence counsel simply won’t do them. Ms. Wong argued that Ms. Burden was unable to identify important legal issues due to her lack of legal training. Disclosure consisted of over 5000 pages. There was a possibility of a hearsay application due to the age and ill health of one of the complainants.

[27] The case against Ms. Burden, while somewhat complicated, was not so complicated that her right to a fair trial would have been compromised if she were required to represent herself.

[28] In R. v. Rushlow, 2009 ONCA 461, [2009] OJ No 2335, [2009] CarswellOnt 3163, 245 CCC (3d) 505, 96 OR (3d) 302 (C.A.), Rosenberg J.A. set out the factors a trial should consider when determining whether to appoint counsel:

… the trial judge is required to consider the seriousness of the charges, the length and complexity of the proceedings and the accused's ability to participate effectively and defend the case…

Courts have considered a number of factors in determining whether appointing counsel is essential in view of the complexity and seriousness of the case. Generally, the courts look at the personal abilities of the accused, such as their education and employment background, their ability to read and their facility with the language of the proceedings. The courts will also consider the complexity of the evidence; the procedural, evidentiary and substantive law that applies to the case; the likelihood of especially complex procedures, such as a voir dire; the seriousness of the charges; the expected length of the trial; and the likelihood of imprisonment…

In considering whether counsel is essential, the court will also take into account the prosecution's duty to make full disclosure and the trial judge's obligation to assist the unrepresented accused.

[29] Ms. Burden has a bachelor’s degree in business management from Toronto Metropolitan University (formerly Ryerson University). She has studied and worked in the areas of finance, financial reporting, and taxation. She has run her own business, which she advertised as providing accounting, taxation, and business solutions. She is a “certified Quickbooks advisor”. In other words, Ms. Burden is educated and experienced in sophisticated areas of business and financial management.

[30] Although this case involved an alleged fraud, it was hardly the most complex type of fraud. It essentially involved the Crown introducing cheques into evidence and having the co-owners testify that they did not sign them. Quickbooks was the software for issuing and entering the cheques. There would have been no significant legal issues. The case would have turned almost entirely on factual issues – factual issues that Ms. Burden would have been well-placed to deal with. She was the controller of the company for many years and intimately familiar with its finances. As well, Ms. Burden is well familiar with Quickbooks, having worked with the software for years. Ms. Burden has advertised her skills with Quickbooks publicly. Crown counsel has indicated that there will be no need for a hearsay application.

[31] Crown counsel relied on unreported decisions of this court and the Ontario Court of Justice where accused persons were charged with relatively complex frauds, but their Rowbotham applications were dismissed. See, for example: R. v. Sollevad, an unreported decision of the Superior Court dated May 11, 2011 (Whitten J.); R. v. Pilon, an unreported decision of the Superior Court dated June 5, 2015 (Parfett J.).

[32] Given Ms. Burden’s education, background, and knowledge of the facts; and given the nature of the case and the level of complexity, I find that Ms. Burden is capable of self-representation. Her right to a fair trial would not be compromised if she did not have counsel.

Disposition

[33] As noted, the application was dismissed on September 29, 2022.

R.F. Goldstein J. Released: February 17, 2023