Court File and Parties

Court File No.: CRIMJ(P) 1258/18 Date: 2023-06-29 Ontario Superior Court of Justice

Between: His Majesty The King And: Hassan Hassan

Counsel: Mihaela Ion and Adam Mortimer, for the Crown/respondent Richard Mwangi, for the accused/applicant

Heard: May 25, 2023

Reasons for Decision

Rahman, J.

1. Introduction

[1] The accused/applicant, Hassan Hassan, is charged with extortion and aggravated assault. His trial is scheduled for three weeks beginning December 4, 2023. He applies for a stay of proceedings until state-funded counsel is appointed.

[2] Legal Aid Ontario (LAO) has denied the applicant funding for counsel. The applicant argues that he is indigent and unable to fund his defence. He further argues that he requires counsel to have a fair trial. He argues that his trial is too complex for him to defend without counsel. He also notes that, if convicted, he will be facing a penitentiary sentence.

[3] The Crown/respondent opposes the application. The respondent argues that the applicant has not demonstrated that he lacks the means to hire a lawyer. The respondent says that the applicant has not provided complete financial disclosure. The respondent also argues that the disclosure the applicant has provided shows that he has contributed a substantial amount of money to investment accounts and that he has not shown what happened to that money. Further, the respondent alleges that the applicant has disentitled himself to state-funded counsel because he has shown an inability to work with counsel. He has dismissed three lawyers and refused to work with a fourth. Finally, the respondent argues that the applicant does not need state-funded counsel to have a fair trial. Although the charges he faces are serious, he has not established that his case is so complex that he requires a lawyer to have a fair trial.

[4] I agree with the respondent that the application should be dismissed. The applicant has failed to establish that he lacks the financial means to employ counsel and that he requires counsel to ensure that he has a fair trial.

2. The criteria for obtaining a Rowbotham order

[5] An accused person seeking state-funded counsel (also known as a [Rowbotham, (1988) 41 CCC (3d) 1](https://www.canlii.org/en/on/onca/doc/1988/1988canlii147/1988canlii147.html) order), must establish all three of the following criteria on a balance of probabilities: [R. v. Imona-Russel, 2019 ONCA 252, at para. 38](https://www.canlii.org/en/on/onca/doc/2019/2019onca252/2019onca252.html)

1. The accused has been refused a legal aid certificate and has exhausted all appeals.
2. The accused lack the financial means to employ counsel.
3. The accused requires representation of counsel to have a fair trial.

[6] As I will explain below, the applicant has failed to establish the second two criteria.

2.1. Legal aid refusal

[7] There is no question that LAO has denied the applicant legal aid because it refused to transfer his certificate to new counsel. The applicant has also exhausted all appeals from that decision. However, the respondent takes issue with the applicant relying on LAO’s refusal. The respondent argues that the applicant cannot rely on the refusal because it resulted from his own conduct. [Imona-Russel, at para. 44](https://www.canlii.org/en/on/onca/doc/2019/2019onca252/2019onca252.html#par44)

[8] I will review the applicant’s history with counsel and LAO’s reasons for refusing to allow the certificate to be transferred to new counsel.

2.1.1. The applicant’s history with counsel

[9] The applicant successfully applied for legal aid after his arrest. Under that legal aid certificate, he was initially represented by Justine Fitzgerald. When Ms Fitzgerald was not able to act for the applicant anymore, [4] she retained an agent, Ms Bacchus, to conduct his trial. The relationship with Ms Bacchus also broke down (the applicant explained it was due to a “difference in ideas”). On the first day scheduled for trial, Ms Bacchus asked to be excused from conducting the trial. The applicant agreed to her request to be excused. This was the first of the applicant’s trial dates that were adjourned because he did not have counsel. Shortly after the trial adjourned, Ms Fitzgerald, who was still counsel of record, was removed from the record. On October 21, 2021, Ms Fitzgerald wrote to LAO asking it to approve a change of solicitor because of an ethical issue.

[10] The applicant then retained Mr. Goldkind. LAO approved a change of solicitor that allowed the applicant to retain Mr. Goldkind with his original certificate. When LAO granted the change of solicitor, it told the applicant that it would not grant another change of solicitor after this one. On November 30, 2021, a new trial date was scheduled for this court’s August 22, 2022 sittings. On August 12, 2022, the matter had a trial readiness conference and was endorsed as ready to proceed. It was adjourned for a so-called exit pre-trial four days later on August 16, 2022.

[11] At some point, the applicant’s relationship with Mr. Goldkind broke down. The applicant says that Mr. Goldkind told him that if he wanted his trial to proceed in person, Mr. Goldkind’s associate (David Palmer) would be the one who would conduct the applicant’s trial. The applicant did not want Mr. Palmer to conduct the trial because he felt that Mr. Palmer was too new to the file to be able to properly defend the applicant. The applicant also testified that Mr. Goldkind gave him a “set list of conditions” to agree to. The applicant said he was not comfortable with one of the conditions. On August 16, 2022, Mr. Goldkind successfully applied to be removed from the record. Because of Mr. Goldkind’s departure as counsel, the applicant’s trial set to begin on August 22, 2022 had to be adjourned. This was the second time the trial had to be postponed because of a breakdown in the solicitor-client relationship.

[12] The applicant applied to LAO for a change of solicitor on August 17, 2022, the day after Mr. Goldkind was removed from the record. LAO denied his application the same day. The applicant requested a review of this denial. On September 19, 2022, LAO issued its decision denying the review. LAO denied the applicant’s request to change lawyers because it was not apparent that counsel (Mr. Goldkind) had provided improper representation. LAO found that a reasonable client of modest means would not have incurred the additional cost of changing lawyers with a trial date that was imminent. The LAO decision also refers to correspondence from Mr. Goldkind in which he described the applicant as being unreasonable, uncooperative, and manipulative. Mr. Goldkind apparently told LAO that the applicant threatened to “go after” Mr. Goldkind and Mr. Palmer if the applicant were convicted. Mr. Goldkind explained that this was the “final straw” that led to his application to be removed from the record. LAO concluded that the breakdown in the solicitor client relationship was “a result of the Applicant’s unreasonableness, lack of cooperation, and demands of counsel.” The LAO decision also noted that the applicant had been advised after his first change of lawyer request (from Ms Fitzgerald to Mr. Goldkind) that no further changes of solicitor would be authorized.

2.2. The applicant has not disentitled himself to state-funded counsel

[13] I cannot find that the applicant has disentitled himself to state-funded counsel through his conduct. A Rowbotham applicant’s conduct should only disentitle them to counsel where there is something blameworthy about their conduct. The Saskatchewan Court of Appeal recently described what may constitute blameworthy conduct in [R. v. Pastuch, 2022 SKCA 109, at para. 97](https://www.canlii.org/en/sk/skca/doc/2022/2022skca109/2022skca109.html):

[97] However, the test to be applied is not whether the lack of counsel may be attributed to the conduct of the accused, but whether it can be attributed to their blameworthy conduct . The accused must be found to have been at fault. The question of whether the accused is at fault depends on the circumstances and may be concerned with whether they have acted sincerely, honestly, diligently, reasonably or in good faith. Blameworthy conduct may, depending on the circumstances, be made out not only where there has been intentional misconduct which demonstrates bad faith, abuse of process, or similar behaviour by the accused – such as repeatedly discharging counsel in order to delay the trial for tactical reasons . It may also be made out by a sufficient lack of diligence, such as a failure by an accused to avail themselves of legal aid counsel as a result of carelessness, despite having been advised that if they do not, the trial will proceed regardless. [5] [emphasis added]

[14] The respondent correctly observes that the circumstances certainly do not paint the applicant in a positive light in terms of his relationship with counsel. However, it is important to note that it was not the respondent who discharged his lawyers. In all cases, it was his lawyers who sought to get off the record. More importantly, on the second occasion, the applicant testified that he was uncomfortable with his file being handed off to an associate so close to the trial date. I am not in a position to find that his concerns were completely unreasonable. The applicant hired Mr. Goldkind, and expected Mr. Goldkind to act for him. It may be that there was a miscommunication, or that the applicant did not understand that Mr. Goldkind was not prepared to conduct a trial in person until very close to the trial date. Nonetheless, it is understandable that an accused would be uncomfortable having a newer, more junior lawyer come on his file shortly before the trial date.

[15] I am also not prepared to find that Mr. Goldkind’s statements about the applicant being unreasonable, uncooperative, and manipulative are accurate for the purposes of this application. Mr. Goldkind’s assertions about the applicant are hearsay. The applicant was unable to challenge them. While I have no reason to disbelieve Mr. Goldkind’s assertions, as a matter of adjudicative fairness, it is not appropriate to make findings at this hearing based on those assertions here. The applicant’s testimony presents a plausible basis for his discomfort with what Mr. Goldkind was proposing for the trial.

[16] Consequently, I am satisfied that the applicant has established that he has been refused legal aid and exhausted all appeals. I will next consider whether the applicant has demonstrated that he lacks the financial means to retain counsel.

2.3. Lack of financial means

[17] The applicant’s financial circumstances were the focus of the evidentiary part of the application. The applicant filed a short affidavit supplemented by viva voce evidence at the hearing. In advance of the hearing, the applicant also filed several months’ worth of bank statements from his chequing account [6] to demonstrate his financial situation. Because the respondent took issue with the completeness and recency of these statements, the applicant filed 20 more recent statements on the day of the hearing (from September 2022 to May 2023). The respondent (although within its rights to do so) did not ask to adjourn the hearing and counsel reviewed the new material over a break.

[18] The thrust of the applicant’s testimony was that his principal source of income, since he was charged in 2017, was from Ontario Student Assistance Program (OSAP) loans. The applicant acknowledged that he did get some income from part-time jobs and some money from the federal government’s Canada Emergency Response Benefit. The applicant deposed in his affidavit that he had four different tax-free savings accounts from July 2017 to November 2021. Only one such account was open at a time. The applicant explained that transactions described as “Investment Purchase” on his account statements were transfers from his Royal Bank of Canada (RBC) chequing account to one of these Tax-Free Savings Accounts (TFSA). He explained that he would transfer money to a TFSA account as a way of making it more difficult for him to access his money. The applicant said that he had “multiple tax-free savings accounts” that had a combined total of $25,778.88, but that he withdrew that money from those accounts over the years to meet living expenses.

[19] As I will explain, I find that the applicant was less than forthright about his financial situation and where his money went. I find that he was not a credible witness, and I do not believe his testimony about his financial situation. The principal problem with his credibility is his late-breaking admission that he had a savings account in addition to the chequing account for which he provided banking statements, and that he had recently tried to get statements from this account but could not because the account was closed. I will review how this problematic testimony unfolded below.

2.3.1. The applicant’s testimony about his bank accounts

[20] The applicant initially testified that the RBC account for which he provided bank statements was the only bank account that he had. This testimony came early in his cross-examination. When asked about an entry described as “Online Transfer to Deposit Account” for $1,022.08 on September 18, 2018, the applicant explained that this was a transfer to someone else with an RBC account, possibly his mother. He explained that it would have to be a transfer to someone else because the RBC account for which he had provided statements was his only account.

THE COURT: So that wouldn’t be, that wouldn’t be an account you had, that would be somebody else’s account? A: Yes, RBC is the only account I have.

[21] Although the applicant’s answer is phrased in the present tense, given the context, the clear implication of this answer was that any such online transfers were being made to someone else because the applicant did not have another account at that time.

[22] The applicant was then asked about a few more similar transfers of amounts over $1,000. He was unable to say to whom this money was being sent. Then, when asked about a transfer in July 2020, the applicant suddenly remembered that he had a savings account.

Q. So July 6, I believe? A. Yes. Q. It looks like an online transfer to deposit account? A: Oh I just – sorry so I have a chequing and a savings account. So I’m depositing it into a savings account. Q. A tax-free savings account? A. No just a regular savings account that no longer is, like I can log into my online banking and show you, it’s no longer active. But it’s not me actually using my – I just realized it’s going into my savings account, just my regular savings account. THE COURT: Is that what, that’s what the deposit account is? A. Yeah THE COURT: It’s not your mom’s account? A. I’m not too sure, but it would make more sense if it was a regular savings account. Because all of them have different numbers, there’s not this many people.

[23] Respondent’s counsel then asked the applicant to clarify whether the previous transactions she had asked about called “Online Transfer to Deposit Account” were transfers to his savings account.

Q. And so you’re saying that all of the transfers that we’ve reviewed so far are going to your savings account? A. Yeah so you [sic] have a chequing and a saving yes. Q. So you haven’t produced any statements from this account? A. The account’s been closed. There’s no way to access the statements. Q. And you haven’t gone to the bank to request – ? A. I did. I spoke with the bank teller and she told me she personally doesn’t have access to it. Q. She personally, but is there a way to get these statements from a different part of RBC? A. Um, none that I’m aware of. Q. Okay. A. This account’s been closed well over a year.

[24] The applicant explained that he would move money into his savings account and would later transfer it out of his savings account back into his chequing account in smaller amounts. These transfers back to his chequing account were shown on his account statements as numerous smaller deposits into his chequing account. When respondent’s counsel repeated that it was difficult to follow the flow of money with only one set of statements, the applicant repeated that he had tried to obtain his savings account statements without success.

A. As you can see, where it says deposit, it also says online banking transfer, so it shows that I’m depositing the money in my savings but I’m also taking it out with all of these smaller transactions. Q. Okay. A. So it’s coming out of the savings, the same way I’m just depositing it, if that makes any sense. Q. It is really difficult to see ­– you understand it’s very difficult for us to understand where the money is going with only one set of statements? A. Yes. But I did attempt to receive any info from the savings and there was no way I could.

[25] Respondent’s counsel then reviewed a number of online transfers that the applicant made in January 2022. The applicant explained that a January 10 transfer of over $2,600 involved him transferring OSAP money to his savings account. When shown a series of transfers from January 21, 2022 totalling over $4,000, the applicant acknowledged that these were transfers to his savings account. When asked whether he could obtain bank statements from this account, the applicant insisted that the bank told him that he could not get information from the accounts.

Q. But the bank has told you that they can’t provide statements from as recently as last year? A. I literally called them and there’s no way they can access it because the account’s been closed for quite a while. It’s been at least, I can almost guarantee you ‘cause – sorry the date on this is, January or – Q. January 10 and 21, 2022? A. I called them recently as of like a week and a half ago, and I asked them for the savings accounts, and they told me they just don’t have access to the information. Q. And they told you there’s absolutely no way to request something from as recently as a year ago? A. Unless there’s another way, the bank teller I spoke with told me, yes, there’s no.

[26] When respondent’s counsel pointed out that the applicant had no documents showing the opening or closing of any accounts, the applicant said that there was no documentation he could get. I note that the applicant did provide the exact dates that he opened and closed his four TFSA accounts in his affidavit. The applicant did not ask to adjourn the hearing to make another attempt to get any of the missing information.

2.3.2. The applicant has not shown he cannot afford counsel

[27] The applicant has the onus of demonstrating that he lacks the means to retain counsel privately. I cannot find that he has met his onus.

[28] The main reason the applicant cannot demonstrate that he lacks financial means is that I cannot accept his evidence about his financial situation. The applicant’s testimony is not credible.

[29] The applicant’s late realization of his savings account and his testimony about his alleged efforts to get statements from that account damage his credibility. The applicant initially said that the RBC account for which he had provided statements was his only account. The applicant then suddenly remembered that he also had a savings account. It is understandable that somebody might forget about an account that they had closed a year ago. But when asked why he had not produced any statements from that account, the applicant did not say it was because he had forgotten about it. Rather, he testified that he had inquired with the bank about getting information about the account only a week and a half before the hearing. It is not believable that the applicant would have tried to get statements for that account shortly before the hearing and then forgotten about it by the time he testified that he had that account, unless he was being untruthful about asking the bank for the savings account statements. The applicant was either not being honest when he “just realized” he had a savings account, or he was not being honest about making recent inquiries with the bank about getting statements for it. Indeed, when he was answering questions about his bank telling him they could not provide statements, he paused to confirm the date of the statements counsel was asking about. This pause seemed to be so that he could confirm the statements were from more than a year ago, so that he could (in his mind) plausibly say that they were not available. That portion of the cross-examination is set out again below:

Q. But the bank has told you that they can’t provide statements from as recently as last year? A. I literally called them and there’s no way they can access it because the account’s been closed for quite a while. It’s been at least, I can almost guarantee you ‘cause – sorry the date on this is, January or – Q. January 10 and 21, 2022? A. I called them recently as of like a week and a half ago, and I asked them for the savings accounts, and they told me they just don’t have access to the information.

[30] The applicant’s evidence that he could not access statements from his savings account is hard to believe. It strains credulity that the applicant was unable to access bank statements from an account that he closed only a year ago. Banks are very good at keeping records. Unless the records are very old, it is highly unlikely that a bank would be unable to access records for an account that existed until a little over a year ago. While I might accept the applicant’s explanation that he might have trouble accessing banking records from 2017, it is difficult to believe that he could not access records from 2022. That is especially so given his testimony that the savings account would have been visible if he logged in to his online banking account. His testimony that he could not access documents showing when he opened or closed this account is similarly hard to believe. [7]

[31] The applicant knew the purpose of the hearing. He knew why he had to provide bank statements. I find that he is not credible and that he chose not to be candid about his finances. I do not accept his evidence about his financial situation. On that basis alone, he has failed to meet his onus.

[32] However, even if I had not found a problem with the applicant’s credibility, I still would not have found that he met his burden to show that he lacked funds to pay for a lawyer. Rowbotham applicants have the onus of demonstrating that they cannot pay for a lawyer. They must provide fulsome financial disclosure, including documents supporting any assertions that they make about their financial situation. Hill J. set out these financial disclosure requirements in [R. v. Vuong, 2016 ONSC 7277, at para. 74](https://www.canlii.org/en/on/onsc/doc/2016/2016onsc7277/2016onsc7277.html):

[74] An applicant for government-funded counsel “must provide detailed financial evidence of his or her financial circumstances, which includes supporting evidence”: R. v. Crichton, 2015 BCCA 138, at para. 49 (leave to appeal refused [2015] S.C.C.A. No. 432); R. v. Drury, 2000 MBCA 100, at para. 44 (leave to appeal refused [2000] S.C.C.A. No. 619) (problem of affidavit with only “general financial information but without a detailed financial expense sheet”); R. v. Rowe, 2016 ONSC 6144 (SCJ), at paras. 16, 25, 29-30 (“applicant ... must provide extensive financial information to lend support to their application”; “the applicant is under an obligation to provide supporting documentation verifying the information contained in his affidavit”; failure here to provide bank documents to explain transfer of funds in accounts); Ontario v. Zreik, 2015 ONSC 6680, at paras. 10, 12, 16 (applicant’s financial disclosure incomplete – only “selected bank statements” filed and none for corporate bank account – “[t]here is no independent verification of facts alleged other than his selective filing”); R. v. Kizir, 2014 ONSC 1276, at para. 46 (“inquiry into the applicant’s finances must be more than cursory, and a finding on the issue should not be based merely on unsubstantiated statements of alleged facts by the accused. A significant and in-depth review of the facts is required ”); R. v. Solleveld, 2011 ONSC 3045, at paras. 19, 23, 46 (absence of documentary verification through relevant documents within control of applicant).

[33] In the case at bar, the applicant only provided information from one bank account. Despite a late-breaking acknowledgment that he had another account that he had never mentioned, he claimed not to be able to access its records. He did not ask to adjourn the hearing to make another attempt to get those records. Instead, he insisted that the statements were unavailable. And even regarding the chequing account for which he did provide statements, he was often not able to meaningfully explain where exactly the money was going when it left the account. The movement of money between the applicant’s various accounts is highly relevant to this application. The fact that the applicant acknowledged moving money into a savings account without providing any documents showing where that money went does not constitute full financial disclosure. It is entirely unclear that the large amounts of money he periodically moved to his savings account was actually moved back to his student account and then spent. It is not up to the court, or the respondent, to parse the applicant’s incomplete financial disclosure to determine whether he in fact spent all of his money. The applicant put a few dozen bank statements before the court, which did not cover all of his accounts, and then left it up to the court to figure it out.

[34] The applicant’s inability to show that he cannot afford to hire a lawyer is enough to allow the court to dismiss his application. However, for the sake of completeness and because the parties argued the issue, I will address why I have found that the applicant does not require counsel to have a fair trial.

2.4. Counsel is not required for a fair trial

[35] The applicant has not established that he requires counsel to ensure a fair trial. The applicant’s application record says very little about his case. As I set out below, the trial’s complexity is addressed in one paragraph of his affidavit. His materials say nothing about the allegations against him. It was the respondent who filed the Crown synopsis to explain the allegations against the applicant. I will first set out the allegations and then the reasons the applicant says his trial is so complex it requires counsel.

[36] The applicant and his former co-accused, Mr. Samatar, are alleged to have assaulted the complainant, Mr. Overton, and extorted money from him. In May 2017, the applicant and Mr. Samatar allegedly required Mr. Overton to give them money that he made panhandling. If Mr. Overton did not meet the “quota” that they gave him, they would beat him up. The Crown alleges that Mr. Overton would get beaten by various objects, such as broom handles, frying pans, and electrical cords. These beatings allegedly occurred through May to July 2017. The Crown also alleges that on July 10, 2017, the applicant beat Mr. Overton with a wooden chair leg so severely that he was hospitalized for days. Mr. Overton allegedly knew both the applicant and Mr. Samatar for a few years before the offences because he lived in the same building as they did. However, Mr. Overton did not know their real names.

[37] The applicant’s description of why his case is so complex that he needs counsel is set out in the following paragraph of the affidavit he filed on this application:

My case is scheduled for a three-week jury-trial [sic] in the Superior Court of Justice in Brampton beginning on December 4 of 2023. I do not believe I am capable of defending this case alone. I believe counsel is necessary to have a fair trial as the charges are extremely serious. The Crown is seeking a penitentiary sentence if I am convicted, and the case is far too complex for me to be able to defend on my own. There are anticipated motions, which my counsel assisting me on this Rowbotham application tells me include a constitutional challenge to s. 561, a voluntariness voir dire, an alternative suspect application and an alibi application. Disclosure is voluminous, I have no understanding of criminal law or procedure, and I have never been through a criminal trial before.

[38] In addition to the foregoing, Mr. Mwangi advised that there would also be a s. 10(b) application respecting the applicant’s statement to police, and that the Crown is relying on DNA evidence. The applicant’s submissions were that the foregoing issues make the case too complex for him to defend by himself. The court was not provided with many particulars about the applications. Mr. Mwangi said that he was simply “flagging issues.”

[39] In determining whether a case is complex enough to require counsel, a court must 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.” [R. v. Rushlow, 2009 ONCA 461, at para. 20](https://www.canlii.org/en/on/onca/doc/2009/2009onca461/2009onca461.html)

[40] The applicant has failed to establish that he requires a lawyer to properly defend himself at trial.

[41] First, though the charges against the applicant are serious, that is not, on its own, a reason for a court to order state-funded counsel. The charges themselves are not factually complex. They come down to an allegation that the applicant (and Mr. Samatar) told the complainant that if he did not turn over a certain amount of money to him, he would suffer physical harm, and that they did inflict such harm on him. These allegations are straightforward.

[42] Second, regarding the legal issues that the applicant has referred to, there is little to no information about most of them. But even taking a charitable view of these issues as they may present themselves at trial, I cannot find that they make the trial complex. I will review each of the issues that the applicant has “flagged” in turn.

1. Admissibility of the applicant’s statement : the Crown will have to prove that the statement is voluntary. There will be a voir dire to decide that issue. As a self-represented person, the applicant will be able to flag a potential s. 10(b) breach so that any voluntariness voir dire can include evidence relating to s. 10(b).
2. Third-party suspect application : A written application had already been filed before the last trial by the applicant’s previous counsel. It is in the court file. Again, this will serve to flag the issue for the court and Crown counsel.
3. Alibi : as discussed during submissions, alibi evidence does not require an application. The applicant simply needs to be informed that late disclosure of alibi evidence may result in the court drawing an adverse inference.
4. Constitutional challenge to s. 561 of the Criminal Code : In response to questions from the court, it was unclear from Mr. Mwangi’s submissions whether the applicant needs to mount a constitutional challenge to s. 561, or simply needs to challenge the Crown’s alleged refusal to consent to him re-electing to have a trial by jury. [10] In any event, there is nothing in the record that suggests such a challenge (whether to the statute or to the Crown’s discretion) has any merit. It is not enough for an accused to mention a constitutional challenge in hopes that it will make a case look complex. From my brief review of the law, it appears that only two cases have considered the section’s constitutionality. R. v. Koleff (1987), 33 C.C.C. (3d) 460 (Man. Q.B.); R. v. Forbes (1987), 89 A.R. 76 (Q.B.) Both upheld it. This dearth of caselaw on the section’s compliance with the Charter is likely explained by the fact that most accused persons take aim at the Crown’s decision to withhold its consent. R. v. Ng, 2003 ABCA 1; R. v. Nelson and Zahorchak, 2017 ONSC 25; R. v. Oland, 2018 NBQB 253 And those cases make clear that such challenges will only succeed where the accused can show that the Crown’s exercise of discretion amounts to an abuse of process. R. v. R.W., 2023 ONCA 250 at para. 31 Nothing in the record shows that there is a basis for such a challenge.

[43] I should not be taken as suggesting that a Rowbotham applicant must file a draft notice of application for potential Charter applications or provide lengthy submissions about legal issues that are expected to arise. However, something more than simply providing a laundry list of legal issues is required. For example, there should be something in the application that sets out a basis for Charter applications to show that they are not frivolous. [Vuong, at para. 131; R. v. Marr, 2019 NSSC 327 at paras. 54-55](https://www.canlii.org/en/on/onsc/doc/2016/2016onsc7277/2016onsc7277.html)

[44] Finally, I note that the applicant himself is not an unsophisticated person. In deciding whether counsel is essential because of the complexity and seriousness of a case, “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.” [Rushlow, at para. 20](https://www.canlii.org/en/on/onca/doc/2009/2009onca461/2009onca461.html) The applicant is educated. He obtained a three-year advanced diploma in electromechanical engineering from Sheridan College. When he decided that he did not want to work in that field, he enrolled in the practical nursing program at the same college and expects to graduate in a few months. I also had the benefit of seeing the applicant testify at this hearing. This confirmed the fact that he is not an unsophisticated litigant. He will be quite able to express himself and make decisions about his defence. Given the nature of the allegations, and the fact that this prosecution is not complex, the applicant will be able to defend himself satisfactorily without a lawyer.

3. Conclusion

[45] The application for a stay of proceedings pending the appointment of state-funded counsel is dismissed.

Rahman, J. Released: June 29, 2023