R. v. Gorman, 2013 BCSC 2053

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Gorman, 2013 BCSC 2053 Date: 20131022 Docket: 30249-2 Registry: Dawson Creek Regina v. Brent Kenneth Gorman Before: The Honourable Mr. Justice Truscott Oral Reasons for Judgment on Rowbotham Application In Chambers Counsel for Attorney General of British Columbia: J.L. Ingram Counsel for Crown: T.A. Golinsky Brent Kenneth Gorman: In Person Place and Date of Hearing: Dawson Creek, B.C. October 22, 2013 Place and Date of Judgment: Dawson Creek, B.C. October 22, 2013 [ 1 ] THE COURT: Mr.

Gorman has been charged with one count of committing the theft of monies of a value in excess of $5,000 - I understand to be in the order of approximately $45,000 - from Canada Safeway on or about 11 July 2010 at or near Dawson Creek.

He is scheduled to be tried on this charge before a judge and jury, and if convicted, I understand the Crown will seek a period of incarceration. [ 2 ] He now applies for a conditional stay of proceedings pursuant to s. 24(1) of the Charter on the basis that he has been denied state-funded counsel through Legal Services Society, and his rights pursuant to s. 7, s. 10 (b) , and s. 11 (

d) of the Charter have been infringed if he does not obtain a conditional stay. If granted the conditional stay, the proceedings would be stayed until such time as state funding is provided for counsel for him for his defence. [ 3 ] He initially applied to Legal Services Society to appoint counsel to represent him, and a Mr. Paul McMurray was appointed as his counsel.

Subsequently, in January 2012, he was notified by Legal Services Society that his financial eligibility for legal aid was being reassessed, and in February 2012, he was told he was no longer financially eligible for legal aid and the appointment of Mr. McMurray as his counsel was cancelled by Legal Services Society. Mr. McMurray then withdrew as his counsel, which has led to this application made by Mr.

Gorman in person. [ 4 ] A faxed letter of what appears to be September 12, 2013, apparently from the Legal Services Society, indicates that based on the information that he gave them, they found that he was over their financial guidelines. The faxed letter also indicates that they found that he had access to funds to pay his legal fees (seized assets) "which you are not utilizing" for his legal fees. The letter does not give any further detail as to what it means by seized assets or any further detail on his access to funds, but in any event, that is the decision of Legal Services Society.

There is no indication that Mr. Gorman appealed internally that decision of the Legal Services Society. [ 5 ] He has sworn an affidavit on this application on March 22, 2013, stating that he is 31 years of age and, at that time, unemployed, living at the time in Surrey and supporting himself on employment insurance.

He says in this affidavit he has been employed seasonally by Over the Top Window Cleaning where he works from approximately mid-March to mid-December, depending on weather conditions, and his affidavit indicates that he was informed by his employer that he will be returning to work in mid-March 2013 full-time. There is no further information on employment since that date. [ 6 ] He says in his affidavit that when he is employed he earns a salary of $2,000 to $2,400 per month but that his rent, groceries, utilities, transportation, and other expenses consume all of his earnings.

He says he has no savings, and his assets are limited to his household furnishings estimated to be of a value of approximately $1,000. [ 7 ] He says he completed grade 9 but only part of grade 10 and that he also has some form of disability which has never been diagnosed, to his knowledge. He says his father is deceased, and his mother and sister live in Ontario but they both are of limited means and in no position to assist him financially to retain a lawyer.

He says in his affidavit that he has been denied legal aid because his earnings exceed the financial limits for eligibility for legal aid. [ 8 ] He considers that because of the seriousness of the charge and his limited abilities, he does not feel capable of properly defending himself without a lawyer.

[ 9 ] On this hearing, he appears with a number of documents that he says include bank statements and credit card statements and perhaps other documents as well. [ 10 ] He was ordered on two separate occasions in the past by two separate judges of this Court to provide all documents that he was going to rely upon to the Attorney General's department, the latest order being on September 1, I believe it was, where he was ordered to provide any documents he was going to rely upon by, at the latest, October 10, 2013.

He did not provide any documents to the Attorney General's department by October 10, 2013, including any of the documents he presents in court today.

Since the Attorney General's counsel has had no opportunity to review these documents, I have denied him the right to add these documents to the court process today for the Court's consideration, having not complied with two previous court orders for production of those documents. [ 11 ] The Crown that intends to prosecute his criminal charge informs the Court that the Crown's case will take three or four days of trial and will centre around a surveillance video of the cash room of Canada Safeway from the evening of Sunday, July 11, 2010, that apparently shows Mr.

Gorman in the cash room at closing time and captures some of his activities in the room at closing time. The Crown intends to put the video evidence into the evidence at trial and also call the Safeway employee who followed Mr. Gorman into the cash room and who apparently is expected to say that the money was missing. [ 12 ] The Crown intends to ask the jury to draw what it will submit is the only reasonable inference that it was Mr.

Gorman who took the money, even though the video does not record all of his activities in the cash room at closing. [ 13 ] The Crown intends to also call a taxi driver who is expected to say that she picked up Mr. Gorman at his residence around midnight that night to take him to Grande Prairie, Alberta, and that cab driver is expected to say that Mr. Gorman told her that he had a flight out the next morning. [ 14 ] The evidence will also include evidence from Canada Safeway that Mr.

Gorman was to be at work on July 12, 2010, but did not show up for work. [ 15 ] The requirements for a conditional stay order on such an application are set out in R. v.

Melik , 2003 BCSC 1439 , where the court said that it must be an exceptional case, where legal aid has been refused, where it is essential that the accused be legally represented in order to get a fair trial, and where the court is satisfied that the accused lacks the means to employ counsel before the court can stay the proceedings until necessary state funding of counsel is provided to the accused. [ 16 ] Here, legal aid has been refused for financial reasons, but there is no evidence that the decision was appealed internally by Mr. Gorman.

The law is that the accused's financial circumstances must be extraordinary, and difficult circumstances are not enough to satisfy this requirement. [ 17 ] An accused must provide detailed financial evidence of his financial circumstances, which Mr. Gorman was ordered to do previously but has not done. Mr. Gorman has indicated that he is working and as of March 2013 was going to work full-time. I am not satisfied that Mr.

Gorman has made every best effort to get the necessary financial funding to employ counsel either from his employment or from additional employment he might pursue or from any other sources if he considers that he needs counsel to assist him. It is his onus to prove a serious risk of a breach of his Charter rights if he does not have counsel, and while that onus is on a balance of probabilities, it still has to measure up to be a real and substantial risk before that onus is satisfied. [ 18 ] If I should be wrong in my conclusion that Mr.

Gorman does not satisfy the requirements for financial ineligibility, I conclude that while the charge of theft in itself is a serious charge and it may lead to incarceration if proven, the evidence at trial I do not consider to be particularly complex or difficult and certainly not impossible for Mr. Gorman to receive a fair trial if he is unrepresented at trial. [ 19 ] The result of the trial apparently will come down to the clarity of the video of what is alleged to be Mr.

Gorman in the cash room at closing time, the truthfulness of the following employee as to her evidence that the money was missing and perhaps that she had nothing to do with that, and the ability of the Crown to have the jury draw the only reasonable inference that the video shows Mr. Gorman in the cash room and he must have been the one to take the money. [ 20 ] At all times, Mr.

Gorman has the ability to rely on the onus that exists on the Crown at all times to prove his guilt beyond a reasonable doubt, and he has the ability to give evidence himself or call other evidence in support of his position if he so wishes. He is not required to do so. [ 21 ] He will get considerable assistance from the trial judge as to how to run a trial from his perspective and how a trial is otherwise conducted and what rights he has in giving evidence or not giving evidence, if he chooses, and in cross-examination of Crown witnesses. I am satisfied a trial will not be too complex by any means for Mr.

Gorman to handle even with his limited education, and he will, as I say, obtain considerable assistance from the trial judge short of the trial judge acting as his counsel, as the trial judge must remain neutral at all times. [ 22 ] The application for a conditional stay of the charge pending state funding is dismissed. That concludes my decision. “The Honourable Mr. Justice Truscott”