COURT FILE NO.: CR-21-936-00 DATE: 2023 03 01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Respondent S. Nestico-Semianiw and M. Chung, for the Crown

- and -

VISHAL SHARMA Applicant S. Hundal, for the Applicant

HEARD: February 16, 2023

DECISION ON ROWBOTHAM APPLICATION

André J.

[1] The Applicant Mr. Sharma brings an application seeking a conditional stay of his upcoming jury trial, pursuant to section 24(1) of the Canadian Charter of Rights and Freedom until he is granted funding for his defence at trial. His counsel submits that there is a substantial likelihood that Mr. Sharma’s s. 7 and 11(d) Charter rights will be infringed if he is not represented at trial. The Crown opposes the application.

BACKGROUND FACTS

[2] The Peel Regional Police Force charged Mr. Sharma in February 2019 with five different criminal charges namely four counts of sexual assault, one count of assault, four counts of uttering threats, three count of extortion and one count of non-consensual distribution of intimate images. The police laid the charges after receiving a complaint from Mr. Sharma’s intimate partner.

[3] Mr. Sharma unsuccessfully applied for legal aid. His subsequent appeals of the refusal decision were denied.

[4] Mr. Sharma is not currently represented by counsel.

[5] Mr. Sharma came to Canada in September 2010 on a student visa. He subsequently attended the George Brown College, Hanson College, and Sheridan College. He obtained a three-year work permit and worked for a few companies during the period covered by the permit. He has been unemployed for the past two years.

[6] Mr. Sharma resides with a brother. His brother has assisted him financially and paid approximately $15,000 for Mr. Sharma’s legal representation at his preliminary hearing. Mr. Sharma’s brother has advised him that he cannot assist him to retain counsel for his upcoming trial.

[7] Mr. Sharma testified that he has asked his father, who lives in India for help; however, his father, who is retired, is unable to assist him. His father borrowed some money on his behalf but is unable to do so again. Mr. Sharma has a cousin living in Canada but his cousin told him that he cannot provide any financial assistance to him.

[8] Mr. Sharma testified under cross-examination, that he is engaged in online gambling and that his winnings were deposited into his bank account. He testified however, that between February 2019 to the present, he lost between $3,000 to $4,000 while gambling. He also testified that he incurred a $25,000 debt in India following the breakup of his marriage.

[9] The trial is set to begin on April 11, 2023.

POSITION OF THE APPLICANT

[10] Mr. Sharma’s counsel submits that the following factors collectively justify the order being sought by the Applicant;

i) Mr. Sharma has a limited command of the English language, ii) Family sources of funding have been depleted or cannot provide assistance, iii) Mr. Sharma has exhausted all legal aid applications, iv) The charges are both serious and complex, v) The Crown is seeking a penitentiary sentence if Mr. Sharma is convicted, vi) Counsel may save court resources by shortening the proceedings, vii) The Court of Appeal’s decision in R v. Rushlow, 2009 ONCA 461, at para. 24, that to grant a Rowbotham application, “it is enough that there is a probability of imprisonment and that the case is sufficiently complex that counsel is essential to ensure that the accused receives a fair trial.”

CROWN’S POSITION

i) Mr. Sharma has not provided full financial disclosure, ii) Mr. Sharma has not made sufficient attempts to gain employment, iii) Mr. Sharma has not taken all steps to gain employment or to obtain funds from his family and friends, iv) Mr. Sharma has engaged in online gambling and has incurred a loss, v) The case is not complex and therefore counsel is not required to ensure a fair trial, vi) Mr. Sharma’s understanding of the English language is better than he professes it to be, vii) The trial judge can assist Mr. Sharma by appointing counsel pursuant to s. 486(3) of the Criminal Code to cross-examine the complainant and can provide help to him in framing questions and explaining the trial procedure to him.

LEGAL PRINCIPLES

[11] In R v. Rowbotham, (1998) 41 C.C.C. (3d) 61, the Court noted that in an extreme case that the discretion to appoint counsel for an indigent accused may be exercised where,

a) A trial judge is satisfied that the decision by Legal Aid … is completely perverse, given the accused’s financial situation, b) The complexity and seriousness of the trial, and c) The substantial possibility of a lengthy term of imprisonment.

[12] To succeed in a Rowbotham application, an Applicant must establish on a balance of probabilities that;

a) He has been refused a legal aid certificate and has exhausted all available appeals, b) He lacks the financial means to retain counsel, and c) His representation by counsel is essential to a fair trial.

[13] Once charged, an accused must arrange his or her financial affairs to accommodate the expense of retaining counsel; see R v. Boateng, 2011 ONSC 739 at para. 25.

[14] The Court must be satisfied that despite every reasonable effort to save, borrow, and raise funds, the Applicant has been unable to pay for or otherwise contribute to his defense; see R v. J.S., 2020 ONSC 8112, at para. 25. Reasonable and sincere efforts to save, borrow, and raise funds must be made; ibid, at para. 29.

ANALYSIS

[15] The Crown concedes that Mr. Sharma has exhausted all appeals of the rejection of his legal aid application. However, it does not appear that Mr. Sharma has made real efforts over the past two years, to secure employment.

[16] This cannot be attributed to the restrictions on him using the internet given that he has engaged in online gambling since his release on bail. Furthermore, while he testified that his work with Uber was terminated when his employer found out about his charges, he presented no evidence regarding efforts he made to secure employment. While Mr. Sharma was denied a work permit on November 15, 2022, there is no explanation why he did not apply for one when he was in possession of a valid study permit.

[17] There is no doubt that Mr. Sharma has received financial assistance from his brother who has filed financial documents detailing his current financial circumstances. Mr. Sharma’s cousin did not provide similar documents. Mr. Sharma has also failed to explain his source of funds for posting bail on these charges. As a result of these omissions, Mr. Sharma has not provided full disclosure to show that he has exhausted all means to obtain the necessary funds to retain counsel for his trial.

Is retaining counsel essential for a fair trial in this case?

[18] Mr. Sharma’s counsel submits that it is partly because of his client’s limited proficiency in the English language. However, in my view, Mr. Sharma has intentionally downplayed his proficiency with the English language. Under cross-examination, he admitted that his lectures were all in English and that he did his assignments and oral presentation in English. He obtained diplomas from Sheridan College and Hanson College. Additionally, it appears that he has been employed in positions where the language spoken was English. He has lived in Canada for almost 13 years. The fact that he speaks with an accent is not evidence that his English language skills or the lack thereof would affect trial fairness.

Is counsel necessary to ensure a fair trial given the complexity of the issues?

[19] In my view, it does not. The Crown’s case against Mr. Sharma will be based, to a significant degree, on the complainant’s evidence. The charges Mr. Sharma faces are not complex or at the very minimum, not beyond the comprehension of an individual who has attained two diplomas in Canada, worked for different companies, and lived in this country for over twelve years.

[20] Additionally, to the extent that Mr. Sharma is unrepresented during his trial, the Crown would be tasked to bring an application under s. 486.3 of the Criminal Code, to appoint counsel to cross-examine the complainant and if necessary to bring any s. 276 application.

[21] If warranted, his application would significantly enhance trial fairness and Mr. Sharma’s right to make full answer and defence to the charges.

[22] Finally, the trial judge has a duty to assist an unrepresented accused. In this regard, the Court of Appeal noted in R v. Imona-Russel, 2019 ONCA 252, at para. 51,

the 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 its full force and effect.

[23] The duty to assist includes explaining the following to an unrepresented accused:

• The essential elements of each offence,
• The Crown’s burden of proving each charge beyond a reasonable doubt,
• The trial process and,
• Possible defences that are available to Mr. Sharma.

[24] In my view, these obligations of the trial judge to appoint counsel under s. 486(3), and Mr. Sharma’s education and work experience, coupled with his knowledge of the English language, lead me to conclude that the appointment of counsel to represent Mr. Sharma is not necessary to ensure trial fairness in this case.

CONCLUSION

[25] For the above reasons, the application is dismissed.

[26] Mr. Sharma is remanded out of custody, to April 11, 2023, at 10:00 a.m. for the commencement of his trial.

André J. Released: March 1, 2023