Court File and Parties

COURT FILE NO.: CR-21-00015563

DATE: 20230207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Sergei Vanhalteren

BEFORE: J. Di Luca J.

COUNSEL: K. Kephalas, Counsel for the Crown O. Bykov, Counsel for the Defendant

HEARD: January 27 and February 1, 2023

ENDORSEMENT

[1] Mr. Vanhalteren is charged with one count of sexual assault alleged to have occurred on or about October 3-5, 2018. By way of brief background, it is alleged that Mr. Vanhalteren met the complainant through an online dating app and met her in person thereafter. On one occasion when the complainant was at Mr. Vanhalteren’s home, Mr. Vanhalteren allegedly made unwanted sexual advances that culminated in non-consensual sexual activity.

[2] Mr. Vanhalteren first appeared before me for trial on November 14, 2022. At that time, he indicated that he wanted to apply for a Rowbotham order and arrangements were made for him to apply through the Rowbotham pilot project administered by the Ministry of the Attorney General. That application was denied, and Mr. Vanhalteren then indicated that he wished to bring a formal Rowbotham application before the court.

[3] For oral reasons given at that time, the trial date was adjourned and Mr. Vanhalteren was directed to bring a formal application. Mr. Bykov kindly agreed to assist Mr. Vanhalteren in bringing the application. Mr. Vanhalteren indicated that should a Rowbotham order issue, he would be content to have Mr. Bykov represent him at trial.

[4] Mr. Vanhalteren’s judge alone trial is now scheduled to be heard on May 23, 2023. It is anticipated that the Crown’s main and perhaps only witness will be the complainant. The Crown may also call a friend of the complainant depending on how the case unfolds. A voluntariness voir dire is contemplated in relation to a statement made by Mr. Vanhalteren. The voir dire will be based on the evidence of two police witnesses.

[5] It is also anticipated that Mr. Vanhalteren may bring applications under s. 276 and s. 278 of the Criminal Code (the Code), though those applications have yet to be perfected.

[6] Mr. Bykov has been appointed as counsel under s. 486.3(2) of the Code. He will conduct the cross-examination of the complainant. I understand that the scope of his appointment includes applications under s. 276 and s. 278 of the Code, as the outcome of those applications will inform the scope of permissible cross-examination of the complainant.

Test on a Rowbotham Application

[7] In R. v. Rafilovich, 2019 SCC 51, at para. 80, the Supreme Court of Canada provided the following description of the nature of a Rowbotham application:

Rowbotham is an exceptional constitutional regime that addresses when an accused can insist upon state funded counsel because there would otherwise be a breach of the accused's right to a fair trial. It operates only in very discrete circumstances.

[8] The test for obtaining a Rowbotham order is well-established. As set out in R. v. Imona-Russel, 2019 ONCA 252 at para. 38, the applicant must satisfy the court, on a balance of probabilities, that:

a. he has been refused Legal Aid;

b. he lacks the means to retain counsel; and,

c. representation by counsel is “essential to a fair trial”.

[9] In assessing the third criterion, the court must consider the seriousness of the charges, the length and complexity of the proceedings and the defendant’s ability to participate effectively and defend the case, see R. v. Rushlow, 2009 ONCA 461 at para. 19. In this regard, the defendant does not need to establish that the case presents “unique challenges.” A Rowbotham order is not limited to “an extreme case”, see Rushlow at para. 24.

[10] Where the test is met, the remedy is a stay of proceedings conditional upon the provision of funded counsel.

Analysis and Findings

[11] In terms of the first branch of the test, there is no issue that Mr. Vanhalteren has been denied Legal Aid. The initial denial was made on September 23, 2022. That decision was confirmed by Legal Aid on October 24, 2022. Mr. Vanhalteren has no further avenues of appeal with Legal Aid.

[12] I turn next to the second branch which examines Mr. Vanhalteren’s means to retain counsel. On this issue, Mr. Vanhalteren has made financial disclosure which, when viewed in context with his viva voce evidence, provides a rough picture of his financial affairs, including his ability to pay counsel.

[13] Based on the evidence before me, I find as follows:

a. Mr. Vanhalteren has been gainfully employed with a large grocery company. He currently earns approximately $56,246 per year before taxes. In 2021, he earned approximately $59,558. In 2020, his income was approximately $52,171. In 2019, his income was approximately $55,247. There is some variation in his income as he is paid hourly and at times works overtime. He indicates in his evidence that he anticipates that his income this year may be lower as he is no longer physically able to work long overtime shifts.

b. In terms of net after-tax income, Mr. Vanhalteren earned approximately $43,000 to $48,000 per year in the years following his arrest on this charge, which occurred in February 2019.

c. Mr. Vanhalteren is single with no dependants. He currently resides with his sister in a rented accommodation. His current share of the rent, including utilities, is approximately $1,000 per month. While he used to live at his parents’ home, that is no longer an option given his lifestyle choices.

d. Mr. Vanhalteren’s rough monthly expenses are approximately $2,500. His average monthly after-tax income is approximately $3,750. Despite this evidence, Mr. Vanhalteren denies that he has over $1,000 per month in disposable after-tax income. He explains that he has other expenses and often helps out family members who are in financial need. I find that Mr. Vanhalteren has the ability to put aside a significant portion of his disposable after-tax income. He has prioritized other expenses over saving for legal fees.

e. Mr. Vanhalteren does not have a great credit rating. While not entirely clear on the evidence, it appears that he may have made a consumer proposal in relation to his debt load. He has a credit card, but it only has a $500 monthly limit. He has attempted to increase the limit on several occasions without success. I accept that he is unable to obtain a bank loan or borrow money from friends or family.

f. He owns a 2009 Infiniti vehicle which he purchased used for $5,000. The vehicle was purchased after the charge was laid in this case. He now pays approximately $320 a month in insurance and an additional $250 a month in fuel. While it would be inconvenient to do so, Mr. Vanhalteren could get to work using public transportation.

g. Mr. Vanhalteren explains that his food costs are close to $2,000 per month. He always eats out as he does not know how to cook or prepare food for himself.

h. Between October 19, 2021 and September 6, 2022, he paid his former counsel, Mr. Barrison, retainers totalling $7,000. It appears that Mr. Vanhalteren paid an initial retainer of $1,000, followed by later amounts ranging between $500 and $1,000. When Mr. Barrison was removed from the record, he rendered an account for $4,520 and returned $2,480 to Mr. Vanhalteren.

i. While Mr. Vanhalteren has consulted other counsel, he has not retained anyone. He claims that he has been quoted a fee of approximately $30,000 for the trial. His evidence does not reveal the extent of his search for alternate counsel, or whether he has attempted to find counsel who would accept a more modest retainer.

[14] In my view, Mr. Vanhalteren has not established the requisite degree of indigency warranting the appointment of state funded counsel. While I accept that he has relatively limited funds, the reality is that he earns a decent wage, has no dependents and has made choices about the allocation of his funds since the time he was charged. I am not prepared to find that he is simply unable to retain counsel.

[15] To the contrary, on the evidence before me, Mr. Vanhalteren managed to retain counsel and provide counsel with retainer payments totalling $7,000 made through periodic payments. Based on the financial evidence before me, I find that Mr. Vanhalteren would have been able to put aside amounts monthly starting when he was charged back in 2019. Had he done so, he would have been in the position to retain counsel for trial.

[16] As such, I find that Mr. Vanhalteren has not met the second branch of the test.

[17] While not necessary to do so, I turn lastly to considering whether, in this particular case, representation by counsel is “essential to a fair trial” as that phrase is understood in the case law.

[18] On this issue, I note that the question I must answer is not whether it would be better if Mr. Vanhalteren had funded counsel for his trial. The question is whether funded counsel is “essential” to a fair trial, see R. v. J.S., 2020 ONSC 8112 at para. 38 and R. v. Tang, [2011] O.J. No. 6694 at para. 9 (Ont. S.C.J.).

[19] In terms of the seriousness of the charge, Mr. Vanhalteren is charged with sexual assault. The Crown has elected to proceed by indictment and will be seeking a significant jail term if Mr. Vanhalteren is convicted. There is no issue that Mr. Vanhalteren is facing a serious charge.

[20] In terms of the complexity of the trial, I note that Mr. Vanhalteren’s trial is a judge alone trial scheduled to last approximately five days. There is only one main Crown witness. While I have not been given specifics, this does not appear to be a case with voluminous disclosure. Nor does it appear to be a case raising complex or technical legal and or factual issues. The five-day trial estimate appears generous.

[21] While no sexual assault trial can be fairly described as “easy”, this is a trial that appears to be relatively straightforward, with the main issue being the complainant’s credibility. Importantly, Mr. Vanhalteren will have the assistance of Mr. Bykov who has been appointed as s. 486.3 counsel. Mr. Bykov will conduct the cross-examination of the complainant. His appointment extends to preparing and conducting any required motion under s. 276 and s. 278 of the Code, see R. v. Furster, [2016] O.J. No. 1443 (Ont. S.C.J.) at para. 6, R. v. Stevens, 2020 ONSC 2960 at para. 5.

[22] As such, Mr. Vanhalteren will have the benefit of counsel on the most challenging and legally complicated aspects of this case. This is not an instance where Mr. Vanhalteren is required to personally navigate the complex issues relating to the scope and content of proper cross-examination in a sexual assault trial.

[23] In addition, I note that Mr. Vanhalteren has a high-school level education. He can read and write. I heard him testify and find that he presents as considered, thoughtful and organized. There is no suggestion that he has cognitive or communication issues that hamper his ability to defend himself in these proceedings.

[24] In terms of the aspects of the case that Mr. Vanhalteren will not have the assistance of Mr. Bykov, I note that the court is required to provide requisite information and assistance, see R. v. Chemama, 2016 ONCA 579 at para. 13-14. In this regard, Mr. Vanhalteren has been provided with a copy of a memorandum provided to self-represented litigants. The memorandum provides basic information regarding the criminal trial process. Mr. Vanhalteren is encouraged to review that document carefully and ask any questions he may have.

[25] Taken together, I am not satisfied that this is a case where the absence of funded counsel creates a very real likelihood that Mr. Vanhalteren’s fair trial rights will be violated. The application is dismissed.

[26] The parties are directed to arrange an appearance before me by Zoom in advance of the trial date. The purpose of the appearance will be to determine what pre-trial motions, if any, Mr. Bykov will be bringing on behalf of Mr. Vanhalteren and whether Mr. Vanhalteren will be bringing any other motions on his own behalf.

J. Di Luca J.

Date: February 7, 2023