Court File and Parties
COURT FILE NO.: CRIM J(P) 395/22 DATE: 2023-04-03 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: His Majesty the King v. R.M.
BEFORE: Stribopoulos J.
COUNSEL: Ella Leishman-Cyr, for the Crown / Respondent Richard P. O’Brien, for the Accused / Applicant
HEARD: March 21, 2023
Endorsement
[1] The accused, Mr. M, faces four charges: two counts of assault and two counts of sexual assault. The complainant, who will be the principal Crown witness at trial, is Mr. M’s ex-wife.
[2] The charges concern several discrete allegations spanning from 2017 to 2020. Mr. M was arrested and charged with these offences in June 2020.
[3] The Crown has elected to prosecute Mr. M by indictment, and he has elected to be tried by a judge and jury. His trial will likely last eight days, should he represent himself, and six days if counsel represents him.
[4] Mr. M, relying on R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.), seeks an order to stay the proceedings unless he is provided with state-funded counsel to represent him at his trial. For the court to make an order of that nature, Mr. M must establish: (1) that Legal Aid has refused his application; (2) that he lacks the means to retain counsel; and (3) that representation by counsel is essential to him receiving a fair trial: see R. v. Imona-Russel, 2019 ONCA 252, 145 O.R. (3d) 197, at para. 38.
[5] There is no issue between the parties that Mr. M has established the first precondition. Legal Aid Ontario refused his application because his earnings and assets exceeded their eligibility criteria, and his appeal of that decision, and a request for reconsideration, were all rejected.
[6] The parties disagree concerning the second and third requirements. Therefore, I will consider each of these in turn. I begin by addressing whether Mr. M lacks the means to retain counsel.
[7] During his testimony, Mr. M estimated that he has met with as many as six criminal lawyers since his arrest. He testified that they all quoted between $30,000 and $40,000 to represent him. I accept that a reasonably competent criminal lawyer would not agree to represent Mr. M at a jury trial expected to last six days for less than $30,000.
[8] The question is whether Mr. M had the means, since being charged in June 2020, to save that amount and hire a lawyer to represent him.
[9] The Crown maintains that had Mr. M arranged his finances differently since being charged, he could have retained a lawyer. In contrast, Mr. M insists that, given his limited assets and earnings, he lacks the necessary means to retain counsel to represent him.
[10] Mr. M is 43 years old. He is a qualified plumber and has worked sporadically in that field over the last few years. Unfortunately, periodic layoffs have disrupted his employment, with the latest coming just last month. As a result, his only source of income presently is Employment Insurance benefits; he currently receives $560 per week.
[11] Before his layoff in February, Mr. M earned approximately $12,000 in employment income this year. He still needs to file his tax return for 2022. However, it appears that he made about $52,000 last year based on the materials he filed. In 2021, he had a taxable income of $73,672; he was not laid off that year. Finally, in 2020, he had a taxable income of $47,134.
[12] Mr. M does not have any significant assets. His only substantial asset is his vehicle, which he values at approximately $15,000. He still owes half that amount on the vehicle under a financing agreement, for which he makes monthly payments. Mr. M also owes roughly $5,000 to TD Bank, the amount remaining on a debt consolidation arranged a few years ago after he could not pay an outstanding credit card balance. Finally, he has an outstanding tax debt to the Canada Revenue Agency of $8,309.
[13] As part of the record on the application, Mr. M provided a budget detailing his recurring monthly expenses. These include what he spends each month on the necessities of life, like rent, food, utilities, car payments, insurance, and gas. At present, he also pays child support under the terms of an interim court order. He has monthly expenses of approximately $4,900, equivalent to just slightly less than $60,000 annually.
[14] Given his earnings and his expenses over the last few years, it is unsurprising that Mr. M testified that “he is slowly going into more debt every single day.” Many months, Mr. M is forced to make difficult choices. For example, because of being laid off last spring, he could not pay his rent in June and July 2022. As a result, his landlord has initiated eviction proceedings against him, which remain ongoing.
[15] Given the precarious financial circumstances that led to his credit card debt consolidation a few years ago, Mr. M does not have access to credit. Unfortunately, he also has no family or friends who might be willing to loan him the money necessary to retain a lawyer.
[16] Although Ms. Leishman-Cyr for the Crown argued that Mr. M could have arranged his finances differently over the last few years since being charged to enable him to retain counsel, I find myself unable to accept that submission.
[17] The simple truth is that, like far too many litigants who come before this court, Mr. M earns too much to qualify for Legal Aid but far too little to afford to retain a lawyer to represent him.
[18] Based on all the evidence, the documentary evidence filed, and Mr. M’s testimony at the hearing, I am satisfied that he lacks the necessary means to retain counsel.
[19] Accordingly, I turn to consider whether Mr. M has established that his representation by counsel is essential to him receiving a fair trial. Unsurprisingly, he submits that it is. In that regard, Mr. M emphasizes his lack of prior experience with the litigation process. He claims that without a lawyer, he cannot represent himself effectively and, because of that, cannot have a fair trial.
[20] In contrast, the Crown argues that Mr. M will receive a fair trial even if self-represented. Ms. Leishman-Cyr makes a few submissions in support of that position.
[21] First, she notes that should the court deny Mr. M’s application, the Crown will move to have counsel appointed under section 486.3(2) of the Criminal Code, R.S.C., 1985, c. C-46 to cross-examine the complainant.
[22] Second, she points out that, as a self-represented litigant, Mr. M will have the trial judge’s assistance throughout the trial to help him navigate all procedural and legal issues that might arise.
[23] Finally, Ms. Leishman-Cyr relies on other decisions where accused persons faced charges involving greater factual and legal complexity and courts declined to issue Rowbotham orders. She points to these cases to support her argument that the court should not make an order in this case. In short, she argues that if the accused persons in the decisions she cites did not require counsel to ensure they received a fair trial, neither does Mr. M.
[24] Ultimately, I accept that the appointment of counsel under section 486.3(2) of the Criminal Code to cross-examine the complainant is a significant consideration. Undoubtedly, it would go some distance toward ensuring that Mr. M receives a fair trial. After all, the complainant is the main Crown witness, and her credibility will likely be one of the central issues at trial. Her cross-examination by a lawyer, rather than someone without any legal training or experience, like Mr. M, could unquestionably assist in ensuring that he receives a fair trial.
[25] That said, a fair trial requires more than just meaningfully challenging the Crown’s key witness. Mr. M has the right to make full answer and defence to the charges he faces. That includes taking advantage of all the opportunities provided at trial to respond to the case against him.
[26] Should Mr. M call evidence, that would involve making an opening statement to the jury, deciding which witnesses to call, preparing them to testify, and presenting their evidence effectively. Should Mr. M choose to testify, that would also include the presentation of his own evidence.
[27] Finally, the parties’ final submissions are a critical part of every trial. That is when the parties can make arguments based on the evidence and the law as to why the jury should decide the case in their favour.
[28] Counsel appointed under section 486.3(2) will only assist Mr. M with cross-examining the complainant. And although the trial judge will undoubtedly educate Mr. M on matters of law and procedure, as is their obligation, there are definite limits on how far the trial judge can go toward assisting him.
[29] For example, the trial judge cannot advise Mr. M on whether he should call evidence, including if he should testify in his defence. And should Mr. M choose to call evidence, he alone will be responsible for presenting any evidence he hopes to elicit. Finally, Mr. M would need to navigate, on his own, what to say to the jury during those limited but crucial opportunities he has to address them.
[30] To be sure, Mr. M is not unintelligent. Although he only has a grade 11 education, he successfully completed the courses and apprenticeship necessary to become a licensed plumber. However, given his limited experience with the justice system, his education, and his work experience, nothing about his background has prepared him to effectively represent himself at an eight-day jury trial.
[31] Most critically, having had the benefit of hearing Mr. M testify for nearly half a day, my inescapable impression is that he is not up to the challenge of representing himself at trial. I mean no disrespect to Mr. M in saying this. However, he is not an articulate person by any measure. As a result, he does not possess the necessary oral communication skills to represent himself effectively.
[32] Accordingly, I am satisfied on a balance of probabilities that Mr. M's representation by counsel is essential to him receiving a fair trial.
[33] For these reasons, an order shall issue staying the charges against Mr. M unless the Ministry of the Attorney General makes the necessary arrangements for him to be represented by counsel at his trial.
Signed: “J. Stribopoulos J.” Released: April 3, 2023