R. v. Crichton, 2013 BCSC 416

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Crichton, 2013 BCSC 416 Date: 20130313 Docket: 30289-1 Registry: Duncan Her Majesty the Queen v. Campbell Ernest Crichton Corrected Judgment: The front page of this judgment was corrected on March 20, 2014 to show Duncan, B.C. as the Place of Trial/Hearing and the Place of Judgment Before: The Honourable Mr. Justice Bracken Reasons for Judgment Counsel for the Respondent: F. Zaltz Appearing on his own behalf: C. E. Crichton Place and Date of Trial/Hearing: Duncan, B.C. February 20, 2013 Place and Date of Judgment: Duncan, B.C.

March 13, 2013 [ 1 ] The applicant is charged with 23 counts of sexual assault against females. The charges allege offences between 1994 and 2011. The alleged offences arose in connection with the applicant’s physiotherapy practice which he carried on for many years in Duncan, British Columbia. [ 2 ] The applicant applies for a conditional stay of proceedings pursuant to ss. 7 and 11(

d) of the Charter of Rights and Freedoms pending the authorization of Provincial Government funding for counsel to represent him at his trial. [ 3 ] The Attorney General of British Columbia (“Attorney General”) opposes the application on the ground that the evidence is not sufficient to establish the applicant’s assertion that he is incapable of paying for his own counsel. As noted by counsel for the Attorney General, there is no Charter protected right to legal representation.

The only remedy available to an applicant is for a conditional stay of proceedings until appropriate funding has been put in place. [ 4 ] The Attorney General filed extensive affidavit material respecting the finances of the applicant. The records were obtained with the co-operation of the applicant. The central argument of the Attorney General is that the applicant has not been prudent with his finances and has not prioritized his need for legal counsel against his other spending and obligations.

It is alleged that he has not limited his discretionary spending, has not explored all available avenues of funding other than the government, and he has given priority to other personal obligations such as repaying a debt to his mother rather than putting money aside to provide funds for his legal defence. [ 5 ] The Attorney General also submits that a fair trial is possible given the ability and education of the applicant.

It is also possible some assistance may be obtained by means of an order to have counsel appointed to cross-examine some, or perhaps all, of the complainants pursuant to s. 486.3 of the Criminal Code . [ 6 ] The applicant appeared on this application without counsel and he wished to supplement the financial material that was filed in his brief affidavit by oral testimony. He gave evidence under oath and was cross-examined on that evidence.

He was also cross- examined on some of the financial records that are in evidence. [ 7 ] The evidence before me indicates that the applicant was a licensed physiotherapist who practised in Duncan. He apparently had a successful practice and earned a significant income. He had a number of employees and operated from rented premises in downtown Duncan. When the initial allegations arose, it appears that there were 5 complainants.

The applicant alleges that the police issued a media statement and as a result of that statement, more complainants came forward, eventually increasing the number to 23. [ 8 ] Not surprisingly, these charges and perhaps earlier complaints about the applicant’s conduct to the College of Physiotherapists resulted in his suspension from practice. The applicant retained counsel to assist him in the review of his professional conduct. It appears that process was expensive and in spite of his efforts he is still suspended from practice.

Since he ceased practice, the lease for his office premises has expired and some of his practice assets have been sold. It is fair to say that he is not likely to be able to practice his profession for some time, if ever again. [ 9 ] The applicant also says that he has some health problems including high blood pressure and he is diabetic. He said that until

recently he had no coverage under the Medical Services Plan. [10] As a result of his circumstances, he now has no income and he is on Social Assistance. Since these problems arose, he hassold his house which realized about $29,000. That money was used to repay a loan from his mother. He admits that his mother was notpressuring him for repayment, but he felt obligated to repay her. He has also paid other personal debts with respect to credit cards and aline of credit. He has a car, a 2006 Chevrolet Impala that is unregistered and uninsured and, in any event, it is not in driveable conditionat the moment.

He is in arrears of his child and spousal support. The amount is not precisely stated, but it appears that it is in excess of$10,000. He also has various unpaid household debts. [11] His current expenses are not unreasonable. Social Assistance provides him with approximately $500 per month for livingexpenses. He resides with his mother in Duncan. [12] Given the nature of the allegations, it is reasonable to assume that he will have no income from a physiotherapy practice forthe foreseeable future. There is no evidence that he has sought alternative employment.

It also appears that he has spent a significantamount of money on legal counsel with respect to his professional discipline issues by cashing in some of his RRSP’s. It now appearsthat all of his RRSP’s have been cashed, his house has been sold, and he has no other assets. [13] It is anticipated that this trial will last somewhere between 6 and 10 weeks. He has received advice from one lawyer that thefees for trial would be in excess of $80,000. The allegations go back many years and he will be faced with what is no doubt a difficultand complex trial.

It is anticipated that over 60 witnesses will be called by the Crown. In addition, the Crown is proceeding by way of adirect indictment without a preliminary inquiry. [14] It appears the trial of this matter will be long and likely very expensive. The applicant has applied for and been denied LegalAid and he appealed that decision without success.

Since that time, he has exhausted his financial resources, partly to deal withprofessional issues and partly to deal with living expenses and the payment of other debts. [15] The Attorney General argues that the applicant has not provided sufficient financial information to prove he is incapable ofpaying for his own counsel or that he has disentitled himself from public funding by failing to be prudent in management of his financialaffairs. The Attorney General argues that the applicant does not meet the eligibility criteria for government-funded defence counsel. [16] The leading authority on this issue is R. v.

Rowbotham, (ON CA), [1988] O.J. No. 271 (Ont. C.A.). Counselfor the Attorney General in her thorough review of the law submits that the crucial issues for consideration are whether in all thecircumstances, the applicant will receive a fair trial if he is unrepresented by counsel and whether he lacks the means to retain counsel. The applicant bears the evidentiary burden and must establish his case on a balance of probabilities and the burden is a heavy one: R. v.Black Pine Enterprises Ltd., [2001] B.C.J. No. 2632 (B.C.S.C.). [17] The Attorney General referred to the decision of R. v. Malik, 2003 BCSC 1439.

In that case, the court stated the criteria thatmust be demonstrated by the applicant before a conditional stay of proceedings is appropriate. At para. 23 of Malik, the court stated: [23] The Rowbotham jurisprudence establishes that, to be eligible for state funding, Mr. Malik must present detailed financialevidence to demonstrate:

a) extraordinary financial circumstances;

b) attempts to obtain funds to retain counsel;

c) prudence with expenses and prioritization of payment of his legal fees;

d) efforts to save for the cost of counsel and to raise funds by earning additional income;

e) he has made all reasonable effort to use his assets to raise funds, for example by obtaining loans;

f) whether he is in a position to pay some of the costs of counsel;

g) the income and assets of his spouse and family. [18] At para. 22 of Malik, the court considered the Rowbotham decision. The court noted that the essential elements are that thecase is an exceptional one where Legal Aid has been refused and the court is of the opinion that representation of the accused by counselis essential to a fair trial. The court must also be satisfied the accused lacks the means to employ counsel.

However, even if thesecriteria are satisfied, funding may be denied in appropriate circumstances where the applicant has not been prudent with his finances andhas failed to show foresight and planning to allow him to pay for counsel. [19] Rowbotham does not require a perfect trial, only a fair trial. The right to taxpayer-funded counsel, if ordered, is to competentcounsel, not the best available counsel, or to a specific lawyer chosen by the applicant. [20] A second and important criterion is the issue of financial eligibility. It is that issue that is critical to this case. [21] In R. v.

Ho, 2003 BCCA 663, Southin J.A., in a separate concurring judgment to the decision of Low and Huddart JJ.A., notedat para. 72 that: If the Crown does not want to run the risk of a mistrial being declared or a conviction being overturned on the ground that in thecircumstances of the particular case the accused could not make full answer and defence (have a fair trial) without counsel, it will haveto proffer financial assistance sufficient to enable the accused to obtain counsel. [22] However, the majority decided the case on the ground that there was no evidentiary foundation upon which to conclude that

the applicant’s rights under s. 7 or s. 11(

d) of the Charter had been or would be breached as it appeared Legal Aid was available to theapplicant. Thus, there was no evidence that he could not receive a fair trial. A stay of proceedings that had been imposed at the triallevel was set aside on appeal. In that case, it was also noted that the court should not make orders or give directions as to the fixing offees for criminal defence counsel: see paras. 73 and 83. [23] Upon consideration of the several factors set out in Malik above, I conclude that the applicant is in extraordinary financialcircumstances at the current moment.

He has no ability to practice his profession, no savings and no assets. His sole source of income isSocial Assistance. He is living with his mother and has the support of a few friends. His car is unregistered and uninsured and in anyevent, is not driveable. [24] He has spent a significant amount of money, including money from his savings, on counsel to assist him in dealing with hisprofessional disciplinary issues. However, it also appears that he may have had access to funds to at least partially pay for legal counselsince he first became aware of this matter.

The charges were sworn in March 2011 and the applicant was aware of the complaints to theCollege of Physiotherapists and an ongoing police investigation by late fall 2010. Without providing any details, he says he is not able toborrow funds to pay for counsel. Given his current circumstances, and perhaps his future prospects, perhaps that is not surprising. [25] The issue of financial prudence is the main focus of the government’s submission.

The Attorney General argues that anapplicant must be able to demonstrate that he has been prudent with his finances and has made his anticipated legal expenses a priority. [26] The Attorney General relies on R. v. Guilbride, [2003] B.C.J. No. 494 (B.C.P.C.) for the principle that an applicant’s pastconduct may disentitle him to funding even though he lacks the funds for his trial. Although it should be noted from that case thatArnold-Bailey P.C.J. (as she then was), commented at para. 31 that Mr.

Guilbride had saved a substantial sum of money and that hespent some of it on a sailboat and a condominium while the charges against him were pending. In addition, he spent approximately$12,000 on improvements to his condominium after a previous Rowbotham application was denied. [27] Clearly, an applicant must make every effort to raise money to fund his defence from his own income and assets. Here, theapplicant did sell his house and the sale generated approximately $29,000.

However, instead of reserving those funds to retain counsel,he repaid an unsecured loan of $29,000 to his mother, even though she had not demanded payment. The Attorney General submits thatan applicant must prioritize available funds to pay legal expenses over debts to unsecured creditors: R. v. Goldberg, B.C. unreported,September 25, 2009, Victoria Registry No. 144495-1. [28] A conditional stay of proceedings should only be granted in rare and exceptional cases: Italy v. Seifert, 2003 BCSC 351, [2003] B.C.J. No. 471 at para. 16.

Here, the Attorney General submits that if the applicant is unable to retain counsel for hisdefence, the evidence establishes it is a result of his own choices and financial priorities. [29] The Attorney General also submits that the applicant has failed to provide sufficiently detailed financial records to meet theburden upon him and that there are some bank and other financial records that have not been disclosed. [30] The applicant has co-operated with the Attorney General by signing necessary authorizations to allow the Attorney General toobtain his financial records.

In fact, the Attorney General has obtained a large volume of bank and credit card related financial records. However, not all of his records have been obtained as some authorizations were late in reaching the office of the Attorney General. [31] The affidavit of Ms. Heather Lewis has attached to it most of the records that are available. An analysis of those recordsindicates that between the fall of 2010 and November 1, 2012, the applicant had access to more than $286,000.

Some of that money wasno doubt spent on living expenses; however, he has also paid unsecured debts to credit card companies and repaid bank lines of credit. [32] A second mortgage in the amount of $89,000 was placed on his residence January 5, 2011. That loan was repaid upon thesale of his property and forms part of the $286,000 he had access to prior to the charges being laid against him. It is not fully clear to mewhat was done with the proceeds of the second mortgage; he said it was spent on retirement of outstanding debts and some homerepairs.

He said he has spent approximately $15,000 to $20,000 on legal counsel to assist him with his professional discipline matters. [33] Clearly, in a case of this complexity it will be almost impossible for the applicant to have a fair trial without the assistance ofcounsel even if an order is made under s. 486.3 of the Criminal Code to have counsel appointed to conduct the cross-examinations ofsome of the witnesses.

Given his current circumstances, unless he is able to borrow sufficient money to pay for counsel, he will beforced to try and represent himself at trial. [34] The Attorney General relies on a number of cases where a lack of financial prudence has resulted in a finding that theapplicant was not in extraordinary financial circumstances. In those cases the court denied a remedy. In many of those cases it is clearthat the court concluded the applicant either had, or could obtain, sufficient funds to retain his own counsel. [35] In R. v.

Malik the court concluded that the applicant had significant assets and that he was attempting to manipulate hisfinances so that he could obtain government-funded counsel. In other cases the court was simply not satisfied that the financialcircumstances of the applicant were extraordinary or that private funds were unavailable: R. v. Nightingale, 2001 BCSC 293, at para. 8. [36] Funding has been denied where the applicant was still employed at the time of the application or had other assets that could besold: HMTQ v. Darby, 2001 BCSC 1868; R v. Goldberg, supra, at para. 5.

In addition, a remedy has been denied where the court hasconcluded the applicant could obtain a fair trial even if he was unrepresented by counsel: HMTQ v. Regier, B.C. unreported, September19, 2002, Vernon Registry No. 34535-2, para. 20; R. v. Whaling, 2010 BCSC 41, at para. 18. [37] On the facts of this case, I am satisfied that the applicant is indigent and that in his current financial circumstances he isunable to pay for counsel to represent him at his trial.

I conclude that it is not possible for him to have a fair trial if he is unrepresentedby counsel. [38] However, I am also satisfied that the applicant has made several financial choices that have clearly contributed to his current

circumstances. Had he, for example, retained the proceeds of sale from his home and not repaid a loan to his mother, he may well havebeen able to at least partially provide funds to retain counsel to conduct his trial. [39] The difficulty is that it cannot be in the public interest to have the applicant embark upon a 6 to 10 week complex trial withoutcounsel to assist him.

While I agree with the submissions of counsel for the Attorney General that the applicant has not proven that hehas met the obligation of financial prudence required in Malik, it seems to me that in this case he has satisfied the obligation to show thathe is currently indigent and that he will not be able to have a fair trial without counsel.

The issue is whether he has disentitled himself tofunding by his conduct. [40] The basic framework of Rowbotham is that in an exceptional case, where the applicant lacks the means to employ counsel,where legal aid funding has been refused and where representation by counsel is essential to a fair trial, the court may stay proceedingsagainst the applicant until the necessary funding is provided. The court stated the principle in this way: In my view, the foregoing statement of the purposes and interests which ss. 7, 10(b), and 11(

d) are meant to protect when the issue is thescope and extent of the right to counsel, lead me irresistibly to the conclusion that a person charged with an offence that is serious andcomplex, when he cannot afford to retain counsel, is constitutionally entitled to have counsel provided to assist him at the expense of thestate: see R. v. Stiopu; Re MacKay and Legal Aid Soc. of Alta. (1983), 8 C.R.R. 216 (Alta. Q.B., Sindart C.J.Q.B.), and Deutsch v.L.S.U.C. Legal Aid Fund (1985), (ON SCDC), 48 C.R. (3d) 166, 16 C.R.R. 349, 11 O.A.C. 30 (Div.

Ct., Craig J.). [41] An absence of financial prudence can disentitle an applicant to government-funded counsel in certain circumstances,particularly where the court concludes the applicant likely has the ability to access funds to provide his own counsel.

However, where,as here, there is a finding that an applicant is indigent and not capable of paying for his own counsel, and where a fair trial is not possiblewithout counsel, a lack of financial prudence should not, by itself, result in a refusal of a remedy. [42] In these circumstances, I am satisfied that a conditional stay of proceedings pending the availability of government-fundedcounsel is appropriate. To expect the applicant to conduct his own defence before a judge or judge and jury is unreasonable on the factsof this case.

Leaving aside how the applicant ended up in his current financial circumstances, it is clear that he is without assetssufficient to fund counsel on a trial of this magnitude and without the current ability to earn enough money to do so. [43] I am mindful of the admonition in R. v. Ho, supra, that the court should not make orders or give directions as to the fixing offees for criminal defence counsel. See also: R. v. Crossman, [1998] B.C.J. No. 2632. However, I note the comments of the court inBlake, Cassels & Graydon v. British Columbia (Attorney General), [1995] B.C.J.

No. 1117 (C.A.) at para. 25, where the court wasconsidering an appeal from a taxation of a bill for counsel appointed under s. 684 of the Criminal Code to represent an appellant: Counsel appointed under s. 684 should not expect to obtain remuneration equivalent to that charged a solvent private client in need oflegal services. He or she is undertaking a task which years ago some practitioners did without a fee and which today should,notwithstanding provision for remuneration, acknowledge there is an element of public service involved.

Nor should the Crown expectto obtain the services of leading counsel without some recognition of what that entails. [44] In this case, given the manner in which the applicant has managed his available funds, it is my view that government fundingat the equivalent Legal Aid level of payment is sufficient, although I leave that decision to the Attorney General. [45] In the result, I conclude that the applicant has co-operated to provide evidentiary disclosure to the Attorney General and hassufficiently corroborated his financial situation to prove that he is indigent and that his current financial circumstances are extraordinary.

I am also satisfied that the applicant has proven, on a high degree of probability, that there is a real and substantial risk that unless he isrepresented by counsel at his trial he will not receive a fair trial on the charges that he faces and that legal counsel to assist him isessential to a fair trial. [46] The applicant’s application for a conditional stay of proceedings pending government funding of counsel pursuant to ss. 7 and11(

d) of the Charter is granted and all further proceedings in this matter are stayed until appropriate government funding is in place. “J. K. Bracken, J.” The Honourable Mr. Justice Bracken