Court File and Parties

Court File No.: CR-23-70000463-0000 Date: 2024-08-09 Ontario Superior Court of Justice

Between: His Majesty The King, Respondent – and – R.Y.D., Applicant

Counsel: Ram Rammaya, for the Respondent David Zbarsky, for the Applicant

Heard: July 31, 2024

Ruling on Rowbotham Application

(Subject to a publication ban that applies to any information that might identify the complainant, pursuant to section 486.4 of the Criminal Code)

Vermette J.

[1] The Applicant, R.Y.D., brings this Application for an order staying this criminal proceeding pending the Attorney General providing funding for his legal defence (i.e., a Rowbotham Application).

[2] The Crown opposes the Application on two bases. First, the Applicant has not established that he has made every effort to save, borrow and raise funds for counsel, and his financial disclosure is incomplete. Second, counsel is not essential to ensure a fair trial.

[3] I agree with the Crown that the Applicant has failed to adduce complete, accurate and credible evidence of his financial circumstances. As a result, I find that the Applicant has failed to satisfy his onus to prove on a balance of probabilities that he lacks the means to employ counsel. Therefore, the Application is dismissed.

I. Background

A. Evidence before the Court

[4] The evidence before me on this Application included the viva voce evidence of the Applicant (with the assistance of a Gujarati interpreter) and a number of exhibits, including:

a. The Applicant’s Application Record, which contained, among other things, a short affidavit of the Applicant, Legal Aid Ontario (“LAO”) documents and bank statements. b. The Respondent’s Application Record, which contained, among other things, a law clerk’s affidavit and bank statements. c. A bundle of additional documents filed by the Applicant, including a two-page signed but unsworn statement of the Applicant (“Unsworn Statement”). The Applicant confirmed the accuracy of the Unsworn Statement during his testimony in court.

B. Charges against the Applicant

[5] The Applicant is 55 years old. He is charged with one count of sexual interference with a person under the age of 14 contrary to section 151 of the Criminal Code, and one count of sexual assault contrary to subsection 271(1) of the Criminal Code. The offences are alleged to have taken place between August 21, 1989 and May 31, 1991. The complainant is the Applicant’s cousin. Two of the Applicant’s brothers are co-accused and are alleged to have committed a number of sexual offences against the same complainant.

[6] While the two counts that relate to the Applicant in the indictment refer to a time period of August 21, 1989 to May 31, 1991, the synopsis included in the Crown’s Application Record (and on which the Crown relied at the hearing) refers to a single incident that took place in the first half of 1991, likely in April 1991.

[7] This matter is proceeding by indictment before the Superior Court of Justice. The date for the trial has been set for January 6, 2025. The Crown estimates that the disclosure will take ten hours to review. The Crown also estimates that the trial will take approximately three weeks without counsel. With respect to the counts against the Applicant, the Crown intends to call the complainant, a civilian witness, and an investigating officer. The Crown will require services of Gujarati/Urdu interpreters for the examination of the complainant and the civilian witness.

[8] The Crown’s view is that:

a. expert and similar fact evidence will not be required; b. there are no voluntariness issues and no applications under sections 10(a) and (b) of the Canadian Charter of Rights and Freedoms; and c. there may be pre-trial motions and an application pursuant to section 276 of the Criminal Code.

[9] The Crown’s position on sentence is that a penitentiary sentence is called for. If the Applicant is convicted, the Crown will seek a DNA Order, and orders under sections 161, 490.012, 110 and 743.21 of the Criminal Code.

C. The Applicant’s request for legal aid

[10] On January 19, 2023, the Applicant was denied a legal aid certificate by Legal Aid Ontario (“LAO”) on the basis that he had failed to meet LAO’s financial requirements and his income or assets exceeded the amount necessary to qualify for legal aid assistance (“LAO Decision”). In his request for legal aid, the Applicant stated that he had been unemployed since February 2022 and that his wife’s income was $1,600.00 monthly or $19,200.00 annually. He declared four bank accounts and one vehicle, a 2017 Toyota RAV4.

[11] The Applicant requested a review of the LAO Decision. His request for a review states, in part (reproduced verbatim):

I [R.D.], wish to request a review of the decision of the Director General at GTA District made on the 19 January, 2023.

The reason of my request for review are: that my income or assets doesn’t exceed the amount necessary to qualify for legal aid, because the Scotiabank cheq joint account with my Late mother (who recently passed away this past January) whatever my Late mother had liability, I had paid them back, so there is only $850.00 in that joint account.

[12] The Applicant’s evidence is that his wife and children wrote this e-mail on his behalf while he was speaking to them.

[13] On March 7, 2023, the Eligibility Review Office confirmed the LAO Decision (“Review Decision”). The Review Decision reads, in part:

The Applicant applied for legal aid assistance on January 18, 2023, indicating that he was charged on December 24, 2022. He stated that he resided with his spouse and one dependant child. The Applicant indicated that he has not been employed since February 2022, and his spouse had been employed as a teacher with […] since 2021, earning $1,600 monthly or $19,200 annually. He declared four bank accounts: one sole account; his spouse’s sole account; and two joint accounts, one held with his spouse and the other with his mother. The Applicant indicated that the combined balance in all accounts was $33,090. He stated that the joint account with his mother contained only her funds, and was for her with banking and purchases.

LAO determines financial eligibility based on an income and asset test, which consists of three components: the family unit; the total gross income of the family unit; and the assets of the family unit. In this case, the Applicant was assessed as a family size of three.

As the maximum allowable assets amount for a family size of three is $6,014, the Applicant was refused legal aid coverage.

In his submissions to this office, the Applicant writes his late mother passed away in January 2023, with many debts which he had to repay, leaving him with $850. With his submissions to this office the Applicant provides a copy of a money transfer in the amount of $18,033 from himself to [Z.O.], as well as a $2,200 receipt for his mother’s burial.

This office asked the Applicant to provide statements for his accounts, as well as those of his spouse and the joint account with his mother for the period November 2022 to present. He was also asked to provide four pay statements for his spouse, and verification of any medical expenses. The Applicant provided statements for his sole account, his two joint accounts, and his spouse’s sole account. The bank statements show a combined balance of $58,765.87 on the day he was charged, as well as a combined balance of $4,198.62 as of February 28, 2023.

LAO financial policies are applied uniformly to all legal aid applicants. Ability to pay counsel is not the applicable test. LAO does not take into consideration an applicant’s actual debt or living expenses when determining financial eligibility. In this case, the Applicant had assets in the amount of $58,765.87 in his bank accounts at the time the need for legal services arose. LAO requires that an applicant prioritize the payment of legal fees. When an applicant is aware of the need for legal services, and uses available funds for other purposes, legal aid coverage will be refused.

For these reasons, the Applicant is not financially eligible for coverage, the decision of the District Office is confirmed.

D. Evidence regarding the Applicant’s financial circumstances

[14] The Applicant gives the following evidence in his affidavit regarding his bank accounts and financial circumstances:

I had a joint account with my late mother as she was disabled in order for me to withdraw her money whenever she needed me to buy her own necessities (diapers, her groceries, vitamins etc.). After her death but prior to my application I had to pay her debts and some funeral costs. I remain unemployed. Only my wife is working. I have included bank statements of my wife and myself [in] the Application Record. As of April 30th we had a total of approximately $2850.00.

[15] In his Application Record, the Applicant only provided two bank statements: (1) a bank statement for his Scotiabank joint account with his wife (“Wife Joint Account”) for April 2024; and (2) a bank statement for his personal TD bank account (“Personal Account”) for April 2024.

[16] In its Responding Record, the Crown included the following bank statements that the Applicant had provided to LAO:

a. bank statements for the Scotiabank joint account of the Applicant and his mother (“Mother Joint Account”) from October 18, 2022, to February 17, 2023; b. bank statements for the Personal Account from November 1, 2022, to February 24, 2023; c. bank statements for the Wife Joint Account from November 1, 2022, to January 31, 2023, and a statement showing transactions in February 2023; and d. bank statements for the Simplii Financial bank account of the Applicant’s wife (“Simplii Wife Account”) from October 31, 2022, to February 28, 2023.

[17] On June 28, 2024, Crown counsel sought the following additional information from the Applicant:

a. the period for which the Applicant had been unemployed and where he was working before; b. whether the Applicant received employment insurance or other income; c. the date on which the Applicant’s mother passed away and the documents that showed the payments of the debts and funeral costs; d. the bank statements of the Applicant and his wife; and e. explanation for money transfers and withdrawals for sums of $1,000 and above from the Mother Joint Account between October 18, 2022 and February 8, 2023, and any documentary evidence regarding these transfers and withdrawals.

[18] The Crown sent two follow-up e-mails on July 3 and 15, 2024.

[19] On July 22, 2024, the Applicant filed additional materials, including the Unsworn Statement that appears to be responding to the Crown’s requests for additional information. In the Unsworn Statement, the Applicant states that:

a. he has been unemployed since “around 2022” and was previously working as a private tutor; b. he does not receive employment insurance or other income; and c. his mother passed away on January 6, 2023.

[20] The Applicant attaches the following additional bank statements to his Unsworn Statement:

a. bank statement for the Personal Account from May 31, 2024 to June 28, 2024; b. bank statement for the Wife Joint Account for June 2024; and c. bank statement for the Simplii Wife Account from May 30, 2024 to June 26, 2024.

[21] The Applicant also attaches: (a) his notice of assessment for 2021 showing a total income of $9,300.00; (b) his notice of assessment for 2022 showing a total income of $0.00; and (c) his notice of assessment for 2023 showing a total income of $0.00.

[22] In addition, in the Unsworn Statement, the Applicant provides some explanations and documentation with respect to the payment of funeral costs and debts, including the following documents:

a. Scotiabank “Outgoing Payment / Transfer Summary Receipt” dated February 8, 2023 showing a transfer in the amount of $18,000.00 (plus charges of $33.00) to Z.O.. b. Receipts dated January 6, 2023 in the amounts of $2,200.00 and $1,200.00 in relation to the burial of the Applicant’s mother. The receipt for $1,200.00 states that payment has been received. c. Receipt dated May 15, 2024 of the Toronto Muslim Cemetery Corp. in the amount of $950.00 for “Marker – 14” x 12” (With Installation)”. The receipt states that payment of $950.00 has been received.

[23] The Applicant states in his affidavit that he has a Grade 9 level education from his country of birth and he did not go to school in Canada. He further states that he speaks very little English and is “unable to comprehend all the disclosure relating to myself and co-accused.”

E. Observations with respect to bank statements

1. Mother Joint Account

[24] As of January 6, 2023, i.e., the date on which the Applicant’s mother passed away, the account had $46,739.72 in it. The bank statements show the following subsequent withdrawals or e-transfers:

a. $2,000.00 on January 9, 2023; b. $400.00 on January 10, 2023; c. $1,000.00 on January 12, 2023; d. $2,000.00 and $1,000.00 on January 18, 2023; e. $2,000.00 and $3,000.00 on January 19, 2023; f. $1,000.00 and $1,000.00 on January 23, 2023; g. $2,000.00 on January 26, 2023; h. $3,000.00, $2,000.00 and $500.00 on January 30, 2023; i. $2,000.00 on January 31, 2023; j. $1,000.00 on February 1, 2023; k. $2,000.00 on February 4, 2023; l. $1,000.00 and $1,000.00 on February 6, 2023; and m. $2,000.00 on February 8, 2023.

[25] As of February 17, 2023, $845.32 was left in the account.

[26] The Applicant has not produced any bank statements for the Mother Joint Account for the period after February 17, 2023. During his testimony, he stated that this account was closed after the death of his mother, but he did not remember the date on which the account was closed. No document was produced showing what happened with this account after February 17, 2023.

2. Personal Account

[27] On December 22, 2022, i.e., two days before he was charged, the Applicant had $4,654.29 in this bank account. On February 27, 2023, the account balance was $1,508.24

[28] The bank statements for November 2022, December 2022, January 2023 and February 2023 show numerous e-transfers in the amounts of $50.00 and $100.00 being deposited into the Personal Account, as well as some e-transfers in the amount of $150.00.

[29] No bank statement was produced for the period March 2023 to March 2024, but the bank statement for April 2024 shows an opening balance of $692.22 and a closing balance of $441.74, as well as a few e-transfers being deposited into the account. No bank statement was produced for May 2024, but the bank statement for June 2024 shows an opening balance of $559.64 and a closing balance of $366.67, as well as some e-transfers being deposited into the account. The deposits made in the Personal Account in June 2024 totaled $814.02 and the withdrawals totaled $1,006.99.

3. Wife Joint Account

[30] At the end of December 2022, the account’s balance was $1,455.75. On January 30, 2023, $500.00 was transferred to the Wife Joint account from the Mother Joint Account. The closing balance at the end of January 2023 was $1,648.60. The document that was produced for February 2023 (which is not a formal bank statement) shows a balance of $1,507.40 as of February 20, 2023. On February 6, 2023, $1,000.00 was transferred to this account from the Mother Joint Account.

[31] No bank statement was produced for the period March 2023 to March 2024, but the bank statement for April 2024 shows an opening balance of $2,205.44 and a closing balance of $2,383.79. No bank statement was produced for May 2024, but the bank statement for June 2024 shows an opening balance of $675.80 and a closing balance of $500.72.

4. Simplii Wife Account

[32] The bank statements for November 2022, December 2022, January 2023 and February 2023 show numerous e-transfers in the amount of $50.00 being deposited into the Simplii Wife Account, as well as other e-transfers of different amounts (including $300.00, $75.00, $57.00, $200.00, $107.00, $100.00 and $250.00). The names of the people sending e-transfers appear on the bank statements and the same people generally sent e-transfers every month. The bank statements also show the salary of the Applicant’s wife being deposited into this account monthly (the amounts vary from $1,470.16 to $1,932.51).

[33] At the end of December 2022, the account’s balance was $2,110.97. The bank statement for January 2023 shows a number of withdrawals, including $1,000.00 on January 12, $700.00 on January 16 and $1,000.00 also on January 16, 2023. The account’s closing balance at the end of January 2023 was $372.29.

[34] The bank statement for February 2023 also shows a number of withdrawals, including $2,000.00 on February 6, $800.00 on February 8, $700.00 on February 9, $1,000.00 on February 15, $400.00 on February 16, and $1,000.00 on February 17, 2023. The closing balance at the end of February 2023 was $337.66. The deposits made in the Simplii Wife Account in February 2023 totaled $6,280.52 and the withdrawals totaled $6,315.15.

[35] No bank statement was produced for the period March 2023 to May 2024. The bank statement for June 2024 does not show any e-transfer being deposited into the account. It shows an opening balance of $125.92 and a closing balance of $390.36.

F. The Applicant’s viva voce evidence

[36] As stated above, the Applicant provided affidavit evidence. At the hearing, he was cross-examined by Crown counsel and re-examined by his counsel.

[37] The Applicant testified that his mother was buried the same day than she died, i.e., on January 6, 2023. The Applicant gave evidence regarding the expenses related to the death and funeral of his mother. Some of his evidence related to the grave for his mother. The Applicant stated the following on this issue in the Unsworn Statement:

The grave that was used for her burial was not hers but her sons [sic]. He let her be buried in it due to the sensitivity of time. The cost of purchasing a new grave for the son had also been given from this. - $4000

[38] The Applicant’s evidence on this issue at the hearing was different. He stated at first that he was not sure whether the grave in issue was his grave or his brother’s grave. He subsequently said that as far as he could remember, it was his grave. He also said that he had no idea how much purchasing a new grave would cost and that it could be more than $4,000.00. Thus, it appears that the $4,000.00 mentioned in the Unsworn Statement has not been spent on a new grave yet.

[39] With respect to the receipt dated May 15, 2024 in the amount of $950.00 for the nameplate for his mother’s gave, the Applicant acknowledged that the joint account with his mother had been closed by then, but he stated that he had already removed the money for this expense.

[40] The Applicant also gave evidence regarding the payment to Z.O. in the amount of $18,000.00. He said that this payment was to repay a debt of his mother. The debt in issue is not documented anywhere. The Applicant testified that his mother told him about this debt, which apparently was incurred in the 1990s, when the Applicant’s parents came to Canada with their children and Mr. O. helped them. According to the Applicant, Mr. O. was not in a hurry to be repaid, but his mother told the Applicant that he had to be repaid. The Applicant stated that Mr. O. advised him of how much was owing and the Applicant paid him, but the Applicant’s mother had also mentioned the amount owing to the Applicant.

[41] With respect to the money that was left in the Mother Joint Account after the payment of funeral expenses and debts, the Applicant testified that he took money from the account to run his household since he does not have a job. The Applicant also gave money – approximately $2,000.00 to $3,000.00 – to one of his siblings. The Applicant’s evidence was that: (a) the money in the account was his mother’s money and, accordingly, his siblings had a right to it, and (b) his mother had told him that whatever was left should be used for donations. The Applicant stated that he donated money to “poor people”, which his mother had asked him to do. He said that he gave approximately $4,000.00 to $5,000.00 to charity on behalf of his mother. He does not have any receipts for these donations. According to the Applicant, he put money in a few places where there were donation boxes.

[42] When asked about certain e-transfers made from the Mother Joint Account, the Applicant stated that he did not know where the funds went to. He stated that they most likely went to family (his brothers and sisters were in need of money), or they may have gone to his personal account or been used to pay for his house expenses that his mother was covering. The Applicant also said that the money may have been sent to his son who paid for funeral-related expenses and had to be reimbursed.

[43] The Applicant testified that he did not know anything about the Simplii Wife Account, that he did not ask his wife anything about it, and that he did not know who was depositing money – or sending e-transfers – into her account. He did not know if the money came from students, but he said that it could. The Applicant’s evidence is that his wife may tutor “on the side” and she may be getting paid for it, but he has no information about that. He agreed that, based on his wife’s bank account, his household income may have been higher than what he told LAO, which was based exclusively on his wife’s salary.

[44] With respect to the e-transfers sent to the Personal Account, the Applicant said that his children, friends and family sometimes gave him money or made gifts to him. He also said that sometimes his wife’s students made deposits into his account. He acknowledged that some of the deposits could have come from his students. He stated that people also gave him money to give to poor people.

[45] The Applicant testified that he has not taken a loan. He said that he borrowed some money from his children for legal fees, but he told them that he would give it back to them later. He stated that the expense was too much and that he could not handle it. The Applicant has not asked money from anyone because there is not anyone he could borrow from and who could give him such big help. The Applicant noted that his brothers cannot help him as they also need to pay for legal fees.

[46] The Applicant disclosed that he had credit cards, but no documentation has been produced about them.

[47] The Applicant testified that he has been living in Canada, more specifically in Toronto, since approximately 1990. He said that English is not his first language, but that he can understand some English. He worked as a jewelry plater for 15-20 years. He then did paper delivery and was teaching the Quran to children “on the side”. Most of his students spoke Gujarati. Some gave him $25.00 per month, some gave him $50.00 per month, and some did not give him anything. The Applicant said that he was doing teaching/tutoring when his mother was around, and that he is not doing it anymore. However, he stated that he was still looking for students.

II. Discussion

A. General principles

[48] The regime developed pursuant to R. v. Rowbotham (“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 and leads to a stay of proceedings unless funding is provided by the state. See R. v. Rafilovich, 2019 SCC 51 at para. 80 (“Rafilovich”).

[49] Under Rowbotham, the right to a fair trial is not engaged unless three preconditions are met: (1) the accused has been refused legal aid and has exhausted all appeals for reconsideration of their eligibility; (2) the accused lacks the means to employ counsel; and (3) representation of the accused by counsel is essential to a fair trial. See Rafilovich at para. 80, R. v. Imona-Russel, 2019 ONCA 252 at para. 38, and R. v. J.S., 2020 ONSC 8112 at para. 10 (“J.S.”). The three criteria are conjunctive and an applicant has the onus to establish each element on a balance of probabilities: see J.S. at para. 19.

[50] In order to meet the second branch of the test, an applicant must provide detailed evidence of their financial circumstances, including supporting evidence. The applicant must be clear and transparent in disclosing their financial affairs. See J.S. at para. 19, R. v. Vuong, 2016 ONSC 7277 at paras. 72-74 (“Vuong”), and R. v. Crichton, 2015 BCCA 138 at para. 49 (“Crichton”); application for leave to appeal to the Supreme Court of Canada dismissed: . The applicant must make full and complete disclosure of their financial circumstances beginning on the date when charges were laid, and make their best efforts to save, borrow or otherwise raise funds to retain counsel: see J.S. at para. 19 and R. v. Hewson, 2021 ONSC 5897, [2021] O.J. No. 4645 at para. 26. An accused is expected to contribute to their legal fees by making real efforts to find employment, as well as making efforts to borrow money from friends or family: see Crichton at para. 49, Vuong at para. 77 and R. v. Kazman, 2016 ONSC 4320 at para. 22.

[51] With respect to the third branch of the test, the courts have considered a number of factors in determining whether appointing counsel is essential in view of the complexity and seriousness of the case. Generally, the 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. The courts will also 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. See R. v. Rushlow, 2009 ONCA 461 at para. 20.

B. Application to this case

[52] There is no dispute that the first branch of the Rowbotham test is satisfied in this case, that is, that the Applicant has been refused legal aid and has exhausted all appeals for reconsideration of his eligibility.

[53] However, I find that the Applicant has failed to satisfy his onus to prove on a balance of probabilities that he meets the second branch of the test, i.e., that he lacks the means to employ counsel. In my view, the Applicant has failed to adduce complete, accurate and credible evidence of his financial circumstances.

[54] The Applicant’s evidence with respect to his financial circumstances was not detailed, clear and transparent. Rather, his evidence was evasive, inconsistent and lacked candour and credibility. Among other things:

a. The Applicant’s evidence at the hearing with respect to the grave issue was inconsistent with what he wrote in the Unsworn Statement, which he said was accurate. Not only was there a change in the Applicant’s evidence as to who the grave belonged to, but, more importantly, it became clear at the hearing that the $4,000.00 that allegedly had been spent in relation to the grave had not in fact been spent. b. The Applicant’s evidence that: (i) he did not know whether his wife was tutoring students and getting paid for it, and (ii) he did not know anything about the Simplii Wife Account and who deposited money into it, is not credible. The Applicant has had access to the bank statements that are before the Court for many months and it does not make any sense that he would not have asked his wife about her additional sources of income given the couple’s allegedly very limited income (i.e., approximately $1,600.00 monthly – the Applicant’s wife’s salary). In addition, the Applicant subsequently said during his testimony that the deposits in his Personal Account may have been made by his wife’s students, which suggests that, contrary to his earlier evidence, the Applicant knew that his wife had students who made payments to her. c. The Applicant’s evidence with respect to the alleged $18,000.00 debt was general, evasive and unconvincing. Further, the Applicant repeated many times – to explain why his mother had not paid this alleged debt while she was alive – that Mr. O. was not in a hurry to be repaid. There is no evidence that Mr. O. could not have waited a few additional years before being repaid, after having waited for more than 30 years. The Applicant should not have preferred the payment of a debt for which no demand had been made over his legal defence. See J.S. at para. 34. d. While the Applicant sometimes took the position that the money in the Mother Joint Account was his mother’s money and that he was limited with what he could do with it as a result, even after her death, this position is not supported by the evidence. There is no evidence before the Court with respect to any will of the Applicant’s mother or how her funds/assets were distributed after her death. Further, the Applicant’s own evidence shows that he felt entitled to take money from this account to, among other things, pay for his household expenses and give to his siblings who needed money. There is no explanation as to why the Applicant could not have taken more money from this account if he needed more money. e. The Applicant’s evidence with respect to alleged donations made using the money in the Mother Joint Account lacks credibility. Given the amount that he allegedly gave to charity, i.e., between $4,000.00 and $5,000.00, the Applicant’s evidence that he does not have any receipts for these donations and that he simply put thousands of dollars in “donation boxes” does not make any sense. f. With respect to the sum of approximately $30,000.00 that was withdrawn or sent by e-transfers from the Mother Joint Account between January 9 and February 8, 2023, it is not credible that the Applicant cannot explain with any degree of certainty where that money went. This is especially the case since the Crown asked more than one month prior to the hearing for explanations for these money transfers and withdrawals, and the Applicant should have been prepared to answer these questions. The funeral-related expenses can explain only part of this amount, and it is noteworthy that: (i) the withdrawals took place after the funeral expenses were incurred, and (ii) generally speaking, the amounts of the withdrawals and e-transfers do not correspond to the amounts of the alleged expenses (e.g., $1,200.00 and $2,200.00). g. It is similarly not credible that the Applicant could not explain with any degree of certainty where the multiple e-transfers deposited in the Personal Account came from. It appears likely from the amounts received that the Applicant was continuing his tutoring work and getting paid for it, but his evidence is that he has been unemployed (and not been a private tutor) since “around 2022”. Further, the Applicant’s evidence that people would send him e-transfers so that he could give money to “poor people” makes no sense. Among other things, there does not appear to be any valid reason for the senders not to give the money to charity directly. This is especially the case since the Applicant has allegedly no income and lives on $1,600.00 monthly with his wife. h. Generally speaking, and based on the incomplete set of bank statements before this Court, the flow of money going in and out of the bank accounts of the Applicant and his wife does not support the conclusion that the Applicant’s household only had a monthly income of $1,600.00.

[55] I also note that aside from a general statement during his cross-examination that he was still looking for students, the Applicant presented no information respecting meaningful efforts to secure income. See Vuong at para. 84.

[56] Further, no monthly budget was filed. See Vuong at para. 85. Among other things, there is no evidence with respect to the Applicant’s (or his household’s) monthly expenses (e.g., rent), their amounts, what money is used to pay them and where these funds are derived from. Without any information about the Applicant’s expenses, it is not possible to know whether they are reasonable and whether he has the ability to save money each month.

[57] In light of the foregoing and the Applicant’s failure to provide detailed, transparent and truthful evidence of his financial circumstances, I cannot conclude that the Applicant is unable to save, borrow or otherwise raise funds to retain counsel.

[58] As a result, the Applicant does not meet the Rowbotham test and it is not necessary for me to discuss the third branch of the test. [1]

III. Conclusion

[59] The Application is dismissed.

Vermette J. Released: August 9, 2024

[1] Defence counsel advanced the practical argument that a Rowbotham order may not be more expensive to LAO than an order appointing counsel under section 486.3(2) of the Criminal Code, who would likely have to bring an application under section 276 of the Criminal Code for the purpose of the cross-examination of the complainant. While this argument may have some practical attraction, it is irrelevant under the three criteria that have to be met in a Rowbotham application.