R. v. Topham Date:, 2013 BCPC 360

Citation: R. v. Topham Date: 20131118 2013 BCPC 0360 File No: 25166-8 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROY ARTHUR TOPHAM REASONS FOR JUDGMENT ON ROWBOTHAM APPLICATION OF THE HONOURABLE JUDGE R. D. MORGAN Counsel for the Crown: C. Drake

Appearing on their own behalf: R. A. Topham Place of Hearing: Quesnel, B.C. Date of Hearing: November 18, 2013 Date of Judgment: November 18, 2013 [1] THE COURT: Mr. Topham is charged on Court File Number 25166-5 with the two following charges: Count 1 . . . between the 28th day of April, 2011 and the 4th day of May, 2012, inclusive, at or near Quesnel, in the Province of British Columbia,did by communicating statements, other than in private conversation, willfully promote hatred against an identifiable group, people of theJewish religion or ethnic origin, contrary to Section 319(2) of the Criminal Code.

In Count 2, he is charged with (and I paraphrase) unsafe storage of a firearm on May 4, 2012. [2] He has elected to be tried by Supreme Court judge and jury and has requested a preliminary inquiry. He makes what is referredto as a Rowbotham application for state-funded counsel to represent him at the preliminary inquiry. More accurately, Mr. Tophamapplies for a conditional stay of proceedings against him until such time as state-funded counsel is provided to him. [3] This application is named after the case of R. v. Rowbotham (1988), (ON CA), 41 C.C.C. (3d) 1, and the testset out therein.

A Rowbotham order is an extraordinary remedy and should only be granted in rare and exceptional cases: see R. v.J.D.J., 2002 BCSC 196 , [2002] B.C.J.

No. 1436. [4] In order for a Rowbotham application to succeed, an applicant must demonstrate: 1. legal aid funding has been refused; 2. he or she does not have financial means to employ counsel; 3. the case is sufficiently complex such that taking into consideration the capacity of the accused to comprehend issues before the court,the appointment of counsel is warranted; and 4. the case is serious. [5] The complexity and seriousness considerations must be such that to proceed to trial without a lawyer would result in an unfairtrial. [6] Given the prospective nature of the alleged future breach of Mr.

Topham's right to a fair trial, there must be a real andsubstantial risk of such future infringement established to a high degree of probability: see R. v. Ho, 2003 BCCA 663. [7] It is important to emphasize that in this case the request is for state-funded counsel to represent Mr. Topham at the preliminaryinquiry. The primary purpose for a preliminary inquiry is to determine whether or not there is any evidence upon which a reasonablejury, properly instructed, could return a verdict of guilty: see U.S.A. v. Shephard, (SCC), [1977] 2 S.C.R. 1067.

TheSupreme Court of Canada in that case goes on to say that a judge at a preliminary inquiry has not to assess credibility. [8] Although there is an important discovery aspect to a preliminary inquiry (see R. v. Rao, 2012 BCCA 275), cross-examinationon Charter issues is more a matter of judicial indulgence than of right given a judge sitting at a preliminary inquiry has no Charterjurisdiction. [9] In Mr. Topham's case, it has been established he was denied legal aid. The documents supplied indicate the denial was becausehe was over the financial eligibility guidelines. In other words, either Mr.

Topham's income or his assets or both made him financiallyineligible to receive legal aid in B.C. This refusal is not surprising to this court given his household income for the last year wasapproximately $43,000 based on the viva voce information received. This money is used to support Mr. Topham and his wife. [10] Mr. Topham reports the following assets. [11] The family home has a market value estimated by Mr. Topham of between $250,000 to $300,000. He has a mortgage on theproperty of approximately $44,000. This indicates a conservative estimate of over $200,000 equity. Mr.

Topham provided no evidenceof any effort to access any of this equity, saying only that mainstream banks would not likely lend to him given his poor credit rating. However, he does not express any concern about renewing the privately held mortgage that he has at the end of this year. [12] Mr. Topham also has, in his estimate, 66 to 68 mining tenure cells. Each cell is one-half-mile square. He says the total of theland covered by the mining tenures is over 3,000 square acres with a total value, he estimates, of about $250,000.

He thought at onepoint this year he had two cells that were advertised for sale at $100,000 sold but reports that that fell through, as I understand it,

sometime in the late summer of this year. However, he has not put these cells back on the market nor has he advertised any of the other cells for sale other than on his own website. He has in the past advertised on Kijiji but has not done that since 2011 or perhaps as late as 2012. [ 13 ] I find the applicant, Mr. Topham, has not established that all efforts were made to utilize assets that he owns to raise funds to pay for his own lawyer, nor has Mr. Topham provided sufficient evidence of his attempt to obtain counsel and ascertain what their fees would be. [ 14 ] He was originally represented by Mr. Christie.

Mr. Christie passed away sometime, as I understand it, last spring, and I pause here to be corrected. [ 15 ] THE ACCUSED: March, yes. [ 16 ] THE COURT: In March of this year. [ 17 ] THE ACCUSED: Second week of March. [ 18 ] THE COURT: Since then, Mr. Topham has spoken only with one lawyer in Victoria who decided not to take his case and has also left a voice message for a local lawyer who did not return his call. Mr.

Topham has not shown on a balance of probabilities that he could not obtain and pay for his own counsel. [ 19 ] Now, although it is not required I go further in the analysis, I will because as I understand it, Mr. Topham may likely be making another Rowbotham application after the preliminary inquiry if, in fact, the matter is referred to trial, and this information may be of assistance to emphasize a concern I have that is limited to the preliminary inquiry. [ 20 ] In the case of R. v.

Dunkers , 2010 BCCA 605 , Justice Groberman stated, at paragraph 16: [16] At this stage, facing only a preliminary inquiry, the threat to liberty or to the fairness proceedings is quite limited. It may be that if the preliminary inquiry results in the matter proceeding to trial, circumstances will have changed and the rights that Ms. Dunkers has may also be altered. Further, the capacity of a person to act for him or herself may differ depending on the nature of the proceedings. Therefore, it is not the case that if there is a right to counsel at trial that that right will necessarily accrue to Ms.

Dunkers at an early stage prior to preliminary inquiry, or even at the preliminary inquiry. [ 21 ] The opposite, of course, is also true, and it may well be that if he establishes in the future financial eligibility, that considerations regarding complexity and seriousness at the trial stage may end up in a different result for him. However, at this stage, I note that Mr.

Topham is university educated, intelligent, articulate, and presents as comfortable and confident in a courtroom setting, and given that the issues at a preliminary inquiry won't involve complex issues regarding Charter applications that are being anticipated to be made at trial, that at the preliminary inquiry stage I do not find, in light of Mr. Topham's abilities, that the test of complexity and seriousness is made out either. [ 22 ] However, that all said, the decision primarily turns on the fact that Mr.

Topham has not established that the application should be made on the basis of his inability to financially obtain counsel on his own. So his application for state-funded counsel for the purposes of the preliminary inquiry is denied.