Court File and Parties

COURT FILE NO.: CR-23-1 DATE: 2023 05 01 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Menna Nasr Applicant/Accused

Counsel: Ms. Wan Yao Chen, for the Respondent Crown Mr. Anthony G. Bryant, for the Applicant/Accused

HEARD: April 27, 2023

REASONS FOR DECISION ON “ROWBOTHAM APPLICATION”

Conlan J.

I. The Background

The Charges

[1] The accused/applicant, Menna Nasr (“Nasr”), stands charged with several criminal offences (six, to be precise) in two different jurisdictions. None of the charges is set for trial. All of the charges are in the Ontario Court of Justice.

[2] More specifically, in Halton, Nasr is charged with mischief under $5000.00 (damage to a motor vehicle) contrary to section 430(4) of the Criminal Code, dangerous operation of a motor vehicle contrary to section 320.13(1) of the Criminal Code, flight from police contrary to section 320.17 of the Criminal Code, and failure to stop after an accident contrary to section 320.16(1) of the Criminal Code.

[3] Those four counts all stem from an alleged incident that occurred in Burlington, Ontario on June 16, 2021. Succinctly put, it is alleged that Nasr attended in the vicinity of her former boyfriend’s residence, smashed that former partner’s motor vehicle with a guitar, then sped-off in her own motor vehicle, rammed another truck that tried to block her escape until the police arrived on scene, also struck an elderly lady who was trying to prevent her escape, drove off the roadway and around the responding police cars, then forced the police to pursue her in a chase, drove recklessly and at a very high rate of speed on public roads, failed to stop at a stop sign, and ultimately evaded the police when the pursuit was discontinued for public safety reasons. Nasr was arrested by the police two days later.

[4] Then, on February 24, 2022, it is alleged that Nasr was found by the police passed-out behind the steering wheel of her motor vehicle, after hitting a snowbank in Scarborough, Ontario. Emergency personnel had to break the window of the vehicle in order to remove Nasr and bring her to the hospital. She was completely unresponsive. She was charged with (i) impaired operation of a motor vehicle contrary to section 320.14(1)(a) of the Criminal Code, and (ii) failure to comply with her release order that was issued with regard to the earlier Halton charges (which order contained a condition that Nasr not operate a motor vehicle).

[5] The Halton matters, alone, have been screened by the Crown for significant jail time – “upper reformatory jail sentence”, plus probation for the maximum length permitted by law (three years), plus a driving prohibition order for two years, plus a DNA order.

Legal Aid Ontario and the subsequent Application to this Court

[6] For the Halton charges, Nasr was granted a legal aid certificate. After being arrested on the Scarborough charges, however, she was re-assessed and then denied legal aid on both sets of charges, for financial eligibility reasons. Her then lawyer on the Halton charges was removed from the record.

[7] Nasr appealed, but the appeal was denied by Legal Aid Ontario. She then, with the assistance of Mr. Bryant, applied to the Rowbotham Pilot Project of the Ministry of the Attorney General, but her application was similarly denied.

[8] Nasr has now applied to this Court for an order for state-funded counsel. The Respondent Crown opposes the application. The hearing of the application took place in person on April 27, 2023. Nasr testified, supplementing the information that had been supplied in her affidavit, including the exhibits attached thereto, and in the Supplementary Application Record. She was cross-examined by Crown counsel. No other viva voce evidence was called by either side. Submissions were then made on the basis of the oral testimony of Nasr, her affidavit, the Supplemental Application Record, the Respondent’s Application Record, the Supplementary Affidavit of Matthew Chimko (a law clerk at Crown Law Office, Civil), the facta filed by both sides, and the authorities provided by both sides.

II. Analysis

Much of the Application is Not in Dispute

[9] In terms of the facts, there is no dispute among counsel on many of the personal circumstances of Nasr. She is young, 22 years old. She works part-time at a fast-food restaurant. She lives with her parents. She is a student at the University of Guelph, having just earned a Bachelor of Science Degree. She has mental health difficulties, and in fact she received mental health diversion in criminal court in the past.

[10] There is no dispute among counsel about the law but only about its application in the circumstances of this case.

[11] There is no dispute among counsel that this Court has jurisdiction to hear the application and to make the order sought, even though the charges all remain in the Ontario Court of Justice. R. v. Blencowe, [1997] O.J. No. 3619 (Gen. Div.), at paragraph 39.

[12] There is no dispute among counsel that the order sought, if made, would apply strictly to the Halton charges but would, hopefully, be respected by Legal Aid Ontario and result in state funding for both sets of charges.

The Test for State-Funded Counsel

[13] It is the burden of Nasr to satisfy, on a balance of probabilities, all pillars of a three-part test: (i) has she been refused legal aid and exhausted all of her available remedies with Legal Aid Ontario; (ii) can she afford to retain counsel privately, or put another way, has she no other financial means to employ counsel; and (iii) can it be said that her representation by counsel is required (or essential) to her right to a fair trial? R. v. Munroe, [2015] O.J. No. 4814 (S.C.J.), at paragraph 7; R. v. Rafilovich, 2019 SCC 51, at paragraph 80.

[14] Those criteria act conjunctively. Each one must be proven on a balance of probabilities, otherwise the application is to be dismissed. Munroe, supra, at paragraph 7; R. v. Williams, 2011 ONSC 7406, at paragraph 5; R. v. Ramji, 2015 ONSC 445, at paragraph 4; R. v. J.S., 2020 ONSC 8112, at paragraph 19.

[15] Nasr, and no accused person, is guaranteed a constitutional right to state-funded counsel. Rowbotham is an exceptional constitutional regime, and what is being sought here is an exceptional remedy to redress what the alternative would be if Nasr is forced to proceed to trial without counsel, in other words to avoid a breach of this accused’s right to a fair trial. The order should not be made lightly. Rafilovich, supra, at paragraph 80.

[16] I would add this. The test for state-funded counsel is a rigorous one. It is not satisfied by a general feeling that having counsel at a criminal trial is better for the administration of justice and will result in a safer verdict. That may be true, but that is not the measurement. It is not satisfied by a general distaste for proceedings involving self-represented litigants who have not chosen to be unrepresented. It is not satisfied because of a desire to make a public pronouncement on the adequacy, or inadequacy, of legal aid funding, or by a desire to intrude on the role of government to expend limited public funds as it sees fit.

[17] Rather, the test for state-funded counsel in a criminal proceeding is satisfied when, and only when, the applicant demonstrates, on a balance of probabilities, all three criteria, and anything short of that must result in a dismissal of the application, no matter what residual sympathy the court may have for the accused’s plight.

The Test as Applied in our Case

No Dispute about the First Prong of the Test

[18] In our case, the Crown concedes that the first criterion has been met; Nasr has been denied legal aid and has exhausted all of her available remedies with Legal Aid Ontario.

[19] The application, therefore, turns on an assessment of the second and third prongs of the test. In my view, Nasr has met her onus on both criteria.

The Second Prong of the Test – No Money to Pay for a Lawyer

[20] Can Nasr afford to retain counsel privately? In my opinion, she cannot.

[21] I accept Nasr’s evidence that her only source of income currently is her part-time job at Wendy’s, earning minimum wage. She works less than 30 hours per week. Even at $16.55 per hour (which will be the minimum wage in Ontario commencing in October 2023) and working 30 hours per week (which is more than what Nasr is currently working), that amounts to a gross income of less than $500.00 per week/$2000.00 monthly.

[22] To put this in some perspective, the Law Society of Ontario’s fee schedule for a brand-new lawyer sets out an hourly rate of $165.00. This is public information readily available on the Law Society’s website. That hourly rate would apply to an outside counsel retained by the Law Society and with less than one year of experience. After such a lawyer bills for just three hours of work, Nasr’s total gross weekly income would be completely exhausted.

[23] Of course, many criminal defence lawyers bill on a block-fee basis rather than an hourly rate basis, but the point is that it is impossible for Nasr to pay for her own counsel, no matter how inexperienced the counsel is and no matter how the retainer arrangement is structured.

[24] Nasr was cross-examined, at some length, with regard to her finances. She explained a few entries in her extensive financial records filed that were of some concern to the Crown, and satisfactorily so in my opinion. For example, in terms of some deposits to her only bank account, she explained that she previously received (but no longer receives) some governmental assistance during the height of the COVID-19 pandemic. As another example, she explained that she sold her motor vehicle to a family member for a very modest amount of money. As another example, she explained that her father made a deposit to her bank account, as her parents do from time to time, but that money, according to Nasr, was/is to be used and was/is in fact used to make basic purchases for the family as a whole, like groceries. She readily acknowledged having made several purchases at a cannabis store, but that was not recently and in fact was around the time of the alleged offences committed in Scarborough. She stated that she has no friends or family, including her parents, who are in a position to gift or lend her money for the purpose of helping her retain a lawyer privately. She testified that she has one bank account, two credit cards, no savings except for a tax refund that she just received, a part-time minimum-wage job at a fast-food restaurant, and no other source of income of any kind.

[25] I accept all of that evidence from Nasr. In actuality, it was not seriously challenged in cross-examination. The questions raised by the Crown, at paragraphs 27 through 29 of its factum, for example, have been answered, and reasonably so in my view.

[26] In my assessment, Nasr’s financial circumstances are not merely trying or challenging but are extraordinarily difficult for someone who is facing the task of having to hire a lawyer to defend her on two sets of criminal charges in two jurisdictions. I am satisfied that she, through the collective of the materials filed and her oral testimony, has made full and complete disclosure of her finances, enabling the kind of significant and in-depth inquiry into her financial situation that is required of a court that is called upon to adjudicate this type of application. J.S., supra, at paragraphs 19, 23, and 26; R. v. Crichton, 2015 BCCA 138, at paragraph 49; R. v. Coutts, 2018 ONSC 974, at paragraph 25.

The Third Prong of the Test – Counsel is Essential to a Fair Trial

[27] Is counsel essential in order for Nasr to have a fair trial? I would answer that question in the affirmative, even after paying due respect to the principles that (i) the benefit of legal representation ought not to be conflated with the strict necessity of counsel, and (ii) trial fairness does not require that a self-represented accused be able to conduct her defence as effectively as a lawyer would, and (iii) there is a presumption that the trial judge can ensure a fair trial for an unrepresented accused by discharging the trial judge’s duty to assist the accused on informational and procedural matters throughout all stages of the trial. J.S., supra, at paragraph 38; R. v. Novotny, 2021 ONSC 2430, at paragraph 26; College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, at paragraph 57; R. v. Woods, 2016 ONSC 2374, at paragraphs 22-23.

[28] There is no exhaustive list of factors that a court should consider in assessing the third prong of the test for this type of application, however, I have taken guidance from what factors have been discussed in other decisions, including but not limited to R. v. Rushlow, 2009 ONCA 461, at paragraph 20, and Munroe, supra, at paragraph 10.

[29] In terms of the personal abilities of the accused, including education and employment background and the ability to read and write in the English language, Nasr would seem capable of representing herself at trial. That factor weighs against the granting of the application on the third criterion.

[30] It should be noted, however, that Nasr has significant mental health diagnoses. The medical documentation filed confirms that she has (i) a mild substance use disorder, (ii) a major depressive disorder, (iii) anxiety disorder, and (iv) personality disorder. Although she is doing fairly well currently in that she is stable with the help of medication, it is also true that she remains under the care of her family physician, a psychiatrist, and the Canadian Mental Health Association in order to ensure that she does not regress. Her mental health has been deteriorated enough in the past that Nasr was found to be likely to cause serious bodily harm to herself, according to the medical documents filed.

[31] This Court observed that Nasr, although fairly articulate, appeared to be extremely anxious in the courtroom, both in the witness box and while seated at counsel table. One can only imagine what the stress of representing herself at trial might do to her mental health.

[32] Given her mental health diagnoses, this Court is concerned about Nasr’s ability to participate meaningfully in her own defence at trial.

[33] In my opinion, several other factors weigh heavily in favour of granting the application on the third prong of the test.

[34] The charges are very serious, especially the Halton matters. In Halton alone, Nasr is accused of what can only be described as having engaged in a kind of maniacal rampage through the complex of her former boyfriend’s residence and then through the public streets of the surrounding area, nearly running down an elderly lady, causing property damage to more than one victim, and putting the public and the police at serious risk due to her dangerous driving. Upon conviction, the charges would almost certainly result in significant jail time in the upper reformatory or lower penitentiary range. The Scarborough charges would also likely result in further jail time, consecutive, upon conviction.

[35] Neither trial will be short. Neither trial will be simple. The Crown expects to call twelve witnesses at the trial in Halton – seven civilians and five police officers. The hearing is expected to last five days. There are three-hundred pages of disclosure. And there is a legal issue that will likely arise, one of some complexity for a self-represented accused – that is the mental state of Nasr at the time that the alleged offences were committed (the mens rea component of the offences). The factual allegations make that issue very clear; this was a truly bizarre incident according to the Crown brief synopsis. And we know from the materials filed on this application that Nasr has, and had at the time, significant mental health diagnoses. It may very well be that Nasr will be required to adduce medical evidence at trial through documents and through a professional witness and then try to relate that evidence not necessarily to a verdict of not criminally responsible but more likely to the question of whether the Crown can prove the “guilty mind” element of the charges beyond a reasonable doubt. That is no simple task; many lawyers would find the case to be a particularly challenging one. With regard to the Scarborough charges, the trial is expected to last two days, with six potential witnesses for the Crown, all professionals (five police officers and potentially a nurse from the hospital that Nasr was taken to after being forcibly extracted from her motor vehicle). The disclosure is voluminous and consists of hundreds of pages, a 9-1-1 recorded call, and two police body-worn camera recordings. Given the factual allegations, a complicating factor is likely to be that Nasr will have to mount a defence without having any recollection of what happened or did not happen.

[36] This Court cannot see how Nasr can do this herself and have a fair trial in either jurisdiction. She requires counsel. I am convinced that counsel is essential in these circumstances, even accounting for the assistance that Nasr will receive from the trial judge.

The Application is Granted, and the Order Made Requires Contribution from the Applicant

[37] For all of the foregoing reasons, the application for state-funded counsel is granted. There is a fairly standard order that is used in these cases; counsel shall jointly present a draft for my review.

[38] At the invitation of Mr. Bryant, and without objection or comment by counsel for the Respondent Crown, there shall be a term of the order that Nasr shall contribute $2000.00 (two-thousand dollars) to the funding of her counsel.

[39] I accept Nasr’s evidence that she very recently received a tax refund in that amount. She should be using that money to defray some of the public expenditures on her behalf, and thus the said term of the order is appropriate.

Conlan J. Released: May 1, 2023