R. v. Clarke, 2013 NSSC 177

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Clarke, 2013 NSSC 177 Date: 20130524 Docket : CRH 346068 Registry: Halifax BETWEEN: Her Majesty the Queen Applicant - and - Bruce Elliott Clarke, Robert Blois Colpitts and Daniel Frederick Potter Respondents LIBRARY HEADING Judge : The Honourable Justice Suzanne M. Hood Heard: February 19, 2013 Written Decision: May 24, 2013 (written release of oral decision of May 2, 2013 Subject: State-funded counsel application ( Rowbotham ); stay pursuant to s. 24(1) Charter .

Summary: Bruce Clarke seeks a stay of proceedings until state funded counsel is appointed for him. Issues: 1) Can he receive a fair trial without counsel? 2) Has he exhausted all possible avenues to retain counsel? Result: Stay granted pending appointment of state-funded counsel. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Clarke, 2013 NSSC 177 Date: 20130524 Docket : CRH 346068 Registry: Halifax BETWEEN: Her Majesty the Queen Applicant - and - Bruce Elliott Clarke, Robert Blois Colpitts and Daniel Frederick Potter Respondents D E C I S I O N Judge: The Honourable Justice Suzanne M. Hood Heard: February 19, 2013 Written Release of Oral Decision of May 2, 2013 May 24, 2013 Counsel: Paul Adams the Federal Crown Mark Knox for Bruce Elliott Clarke

By the Court : [ 1 ] Bruce Clarke seeks a stay of proceedings until state funded counsel is appointed for him. ISSUES 1) Can he receive a fair trial without counsel? 2) Has he exhausted all possible avenues to retain counsel? FACTS [ 2 ] Bruce Clarke and two others are charged with a number of fraud related counts arising from the purchase and sale of shares of Knowledge House Inc. ( “ KHI ” ). KHI was a publicly traded software development company developing software for use in the education system. Its shares were publicly traded on the Toronto Stock Exchange.

Dan Potter was its president and CEO; Blois Colpitts was its lawyer and Bruce Clarke was an investment adviser, during the time referred to in the indictment. The indictment was preferred on March 17, 2011. Bruce Clarke is charged jointly with Bruce Clarke and Dan Potter on four counts and charged alone on one count.

The Indictment states: Bruce Elliott Clarke, Robert Blois Colpitts and Daniel Frederick Potter of Halifax, Province of Nova Scotia, stand charged: THAT between the 1 st day of January 2000, and the 13 th day of September, 200l, at or near Halifax in the Regional Municipality of Halifax, Province of Nova Scotia, and elsewhere in the Province of Nova Scotia, and at or near Montreal in the Province of Quebec, and at or near Toronto in the Province of Ontario, and elsewhere in Canada and places outside of Canada: 1.

They did unlawfully conspire together with Bruce Elliott Clarke, Robert Blois Colpitts and Daniel Frederick Potter, the one with the other or others of them, and with person or persons unknown, or unnamed, by deceit, falsehood or other fraudulent means, with intent to defraud, to unlawfully affect the public market price of shares of Knowledge House Incorporated, contrary to Section 380(2) of the

Criminal Code, and to commit the offence of fraud contrary to Section 380(1)(

a) of the Criminal Code, and did thereby commit anoffence contrary to Section 465(1)(

c) of the Criminal Code. 2. AND FURTHERMORE BETWEEN THE SAME DATES AND AT PLACES AFORESAID they did, by deceit, falsehood or othermeans, with intent to defraud, affect the public market price of shares of Knowledge House Incorporated, contrary to Section 380(2) ofthe Criminal Code; 3. AND FURTHERMORE BETWEEN THE SAME DATES AND AT PLACES AFORESAID they did, by deceit, falsehood or otherfraudulent means, defraud the public in respect of the market for shares of Knowledge House Incorporated, of a sum exceeding fivethousand dollars, contrary to Section 380(1)(

a) of the Criminal Code; 4. AND FURTHERMORE BETWEEN THE SAME DATES AND AT PLACES AFORESAID they did by deceit, falsehood or otherfraudulent means defraud persons, both known and unknown, in respect of the market for shares of Knowledge House Incorporated, of asum exceeding five thousand dollars, contrary to Section 380(1)(

a) of the Criminal Code; 5. AND FURTHERMORE BETWEEN the 1st day of July, 2000, and the 13th day of September 2001, AND AT PLACESAFORESAID Bruce Elliott Clarke did commit an indictable offence, to wit: by deceit, falsehood or other fraudulent means, he diddefraud the Local Union 83 and 1392, United Brotherhood of Carpenters and Joiners of America Benefits Trust Fund of monies of avalue which exceeds five thousand dollars, contrary to Section 380(1)(

a) of the Criminal Code. [3] The Crown alleges that the defendants maintained the prices of Knowledge House shares at an artificially high level using avariety of techniques. The Crown alleges that Bruce Clarke was the one responsible for executing most, if not all, of the trading in KHIshares undertaken by the individuals involved a stock manipulation scheme. [4] Bruce Clarke filed two affidavits setting out his efforts to obtain legal counsel and setting out his financial circumstances.

In addition, an affidavit was filed by Joseph Groia, an Ontario lawyer who has been counsel on a number of securities related trials. [5] The Canadian Charter of Rights and Freedoms provides in s. 7 as follows: 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [6]

Section 11(

d) provides: 11. Any person charged with an offence has the right ... (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. [7] Section 24(1) provides: 24(1) Anyone whose rights and freedoms as guaranteed by this Charter have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [8] The first decision dealing with applications such as this is R. v. Rowbotham, (ON CA), 1988 O.J. No. 271(C.A.). In that case, the Ontario Court of Appeal said at page 42:

The right to retain counsel, constitutionally secured by s. 10(

b) of Charter, and the right to have counsel provided at the expense of thestate are not the same thing. The Charter does not in terms constitutionalize the right of an indigent accused to be provided with fundedcounsel. [9] The court continued at that page: However, in cases not falling within provincial legal aid plans, ss. 7 and 11(

d) of the Charter, which guarantee an accused a fair trial inaccordance with the principles of fundamental justice, require funded counsel to be provided if the accused wishes counsel, but cannotpay a lawyer, and representation of the accused by counsel is essential to a fair trial. [10] The court continued at page 44 of that decision: In our view, a trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion thatrepresentation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employcounsel, stay the proceedings against the accused until the necessary funding of counsel was provided.

As stated above, the finding ofLegal Aid officials that an accused has the means to employ counsel is entitled to the greatest respect. Nevertheless, there may be rarecircumstances in which legal aid is denied but the trial judge, after an examination of the means of the accused, is satisfied that theaccused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extentnecessary to ensure a fair trial.

In those circumstances, even before the advent of the Charter, the trial judge had the power to stayproceedings until counsel for the accused was provided. Such a stay is clearly an appropriate remedy under s. 24(1) of the Charter.

Where the trial judge exercises this power, either Legal Aid or the Crown will be required to fund counsel if the trial is to proceed. [11] The court then summarized on page 45: To sum up: where the trial judge finds that representation of an accused by counsel is essential to a fair trial, the accused, as previouslyindicated, has a constitutional right to be provided with counsel at the expense of the state if he or she lacks the means to employ one.

Where the trial judge is satisfied that an accused lacks the means to employ counsel, and that counsel is necessary to ensure a fair trialfor the accused, a stay of the proceedings until funded counsel is provided is an appropriate remedy under s. 24(1) of the Charter wherethe prosecution insists on proceeding with the trial in breach of the accused’s Charter right to a fair trial. [12] Since that decision, there have been a number of applications where a stay has been sought until state funding has beenprovided. Bateman, J.A. in R. v. Keating, 1997 NSCA 135 , [1997] N.S.J.

No. 250 (C.A.) said in para. 11: 11 It is well established that a stay of proceedings is a remedy of last resort, only to be entered in the clearest of cases (R v. O’Connor, (SCC), [1995] 4 S.C.R. 411; R. v. Curragh Inc., (SCC), [1997] S.C.J. 33). It is tantamount to anacquittal. ... She then, in para. 12, quoted the passage from Rowbotham, supra, which I have just quoted. [13] In R. v. Howell, (NS CA), [1995] N.S.J. No. 483 (C.A.), Chipman, J.A. said in para. 59: 59 ... The appellant is not entitled to publicly funded counsel of his choice but at the highest, competent publicly funded counsel.

Theburden lies on him to prove that there was a breach of such Charter right. [14] In Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), (SCC), [1995] 2 S.C.R.97, Justice Cory said at para. 108:

108 The onus of proving a Charter breach lies upon the individual who claims it. It is true that relief may be granted for s prospectiveCharter violation. ... However, relief will only be granted in circumstances where the claimant is able to prove that there is a sufficientlyserious risk that the alleged violation will in fact occur.

In Operation Dismantle Inc., supra, where the anticipated violation was of s. 7,Dickson C.J. adopted (at p. 458) the requirement that the individual seeking to restrain government action must demonstrate a ‘highdegree of probability’ that the Charter infringement will occur before the court will grant relief. [15] In R. v. Taylor, (NS SC), Scanlan, J. said at p. 2 that each case must be decided on its merits. At page 5 of that decision, he continued; ... The courts must assess each individual accused in terms of that persons ability to properly answer the charge which they face.

Thisassessment is not to be based on any means test but rather upon the ability to answer the charge. This must take into account such thingsas literacy and communications skills and the complexity of the trial. In longer or more complex trials an accused may be entitled tofunded representation even though that person does not fall within Legal Aid guidelines. He continued at p. 5: Trial courts must not be put in the position of setting political priorities. [16] In R. v.

Cai, 2002 ABCA 299, the Alberta Court of Appeal, in para. 94, said: [94] Stay of a prosecution is the bluntest remedy, to be sparingly used in the clearest of cases: ... [17] In R. v. Ho, 2003 BCCA 663, the British Columbia Court of Appeal quoted extensively from Cai, supra, in paras. 51to 54including, in para. 54 the quote about the “bluntest remedy”. [18] Two criteria must be met before state funded counsel is appointed. If the first criterion is not met, there is no need to considerthe second. The onus is on the applicant to establish that these criteria have been met.

Granting a stay is not to be done except as a lastresort and in the clearest of cases. As the Alberta Court of Appeal said in R. v. Cai, supra. it is the bluntest remedy and to be used onlyrarely. I must be satisfied there is a high degree of probability that there will be an unfair trial if a stay is not granted until counsel isappointed. Can Bruce Clarke Receive a Fair Trial Without Legal Representation? [19] The first issue is whether Bruce Clarke can receive a fair trial without legal representation.

The courts have stated in variousways the factors to consider with respect to that issue. [20] Glube, C.J.N.S. in R. v. McDonald, 2001 NSCA 137 in para. 3 stated succinctly as follows: [3] There must be an examination of the complexity of the proceedings, the seriousness of the offences, the length of the trial and theaccused’s ability to understand and conduct his own defence. [21] Deschênes, J.A in Hayes v.

R., 2002 NBCA 80 expanded on these somewhat in para. 13: [13] The considerations which impact on the issue of whether legal representation is essential to a fair trial include: (1) the seriousnessof the charge ..., (2) the complexity of the case ..., (3) the length of the trial ..., (4) matters which relate to the accused as a person ... and

(5) the jeopardy of imprisonment.... [22] In R. v. Osborne, 2003 NBCA 86 at page 3 these factors were repeated and, again, in LeBlanc v. R. , 2005 NBCA 6 in para. 8. [23] The principles set out in R. v.

Paul, 2002 NSPC 25 , 2002 NSPC 025 in para. 5 were stated to be (omitting the casecitations): (1) ‘Fairness’ applies to the interests of both the State and Defence. (2) the most favourable proceeding is not guaranteed. (3) assistance of defence counsel is not always required. (4) fairness requires consideration of the Applicants’ abilities. (5) the judge has a duty to assist. (6) length of a case is a consideration. (7) the ‘serious and complex’ nature of a case is a consideration. [24] Rosenberg, J.A. in R. v.

Rushlow, 2009 ONCA 461 stated the factors as follows in para. 20: Courts have considered a number of factors in determining whether appointing counsel is essential in view of the complexity andseriousness of the case. Generally, the courts look at the personal abilities of the accused such as their education and employmentbackground, their ability to read and their facility with the language of the proceedings.

The courts will also consider the complexity ofthe evidence; the procedural, evidentiary and substantive law that applies to the case; the likelihood of especially complex proceduressuch as a voir dire; the seriousness of the charges; the expected length of the trial; and the likelihood of imprisonment. ... [25] In R. v. Giroux, [2006] O.J. No. 5836 (S.C.J.), Pelletier, J. listed ten legal issues the applicants said were likely to arise in thetrial.

Not are all relevant in this case but they included forensic accounting reports; search warrants; delay of trial; voluntariness ofstatements; Charter issues with respect to statements; transcripts of prior proceedings; statements of deceased witnesses; particulars ofthe indictment; Criminal Code, Narcotics Control Act, Customs and Excise Act provisions; and a Stinchcombe application with respect toalmost 50,000 documents. [26] He then said in paras. 24 and 25: 24 Suffice to say that when the ten legal issues, that are raised by the Applicant in his motion, are considered as a whole, it becomes veryfairly clear that this is a very involved, very lengthy, likely quite detailed prosecution covering business and other activities over lengthyperiod of time involving the use of forensic accounting and the reconciliation of, no doubt, hundreds, if not thousands, of documents.

Sothat on its face, the trial can be considered to be one of considerable complexity and one that can carry significant consequences. 25 In addition to the legal issues that have been identified, the Applicant points to the sheer volume of material and the existence of 59potential Crown witnesses.

[ 27 ] In R. v. Guilbride , [2003] B.C.J. No. 671 (Prov. Ct.) , Arnold, Prov. Ct. J., said in para. 5: 5 ... Multiple accused multi-count indictments charging one or more conspiracy charges, as well as various substantive offences, result in long, complex trials where accused persons usually must be represented in order to have a fair trial. ... [ 28 ] The Crown does not concede that Bruce Clarke cannot have a fair trial without legal representation.

The Crown says this is because of Bruce Clarke ’ s extensive background in the investment business as a “ highly experienced securities manager and investment adviser ” , having dealt in his career with transactions in the hundreds of thousands and millions of dollars. They also say this is so because he was directly involved in most of the transactions at issue. The Crown says he has been in possession of the Crown disclosure for almost two years.

The Crown also says he has the literacy skills and communication skills, along with his training and experience, to properly answer the charges against him. [ 29 ] I am to consider a number of factors in determining if Bruce Clarke can receive a fair trial without legal representation.

From the authorities, I conclude these are: 1) the complexity of the evidence and the volume of the evidence; 2) procedural, evidentiary and substantive law which applies, as well as the number of accused and number of counts, especially if conspiracy is charged; 3) the likelihood of especially complex procedures such as voir dires; 4) the seriousness of the charges; 5) the likelihood of imprisonment; 6) the length of the trial; 7) the personal abilities of the accused to conduct his own defence, including education, employment and background, ability to read and ability to communicate. 1) Complexity and Volume of Evidence [ 30 ] The Crown admits the evidence is voluminous but, as noted above, says Bruce Clarke is well able to understand it.

Mr. Clarke has provided the Affidavit of Joseph Groia in an effort to support his claim that this matter is complex. Mr. Groia in his affidavit says in para. 21: 21 The matters giving rise to the allegations involving Mr. Clarke took place in 2000-2001. The charges were laid on March 28, 2011. It would appear that the RCMP has had in excess of 10 years to investigate this prosecution before deciding to proceed.

In my experience, this lengthy passage of time increases the difficulties in responding to a securities case and in particular the ability of the accused to advance a full and proper defence. [ 31 ] The disclosure is estimated to be as much as 100,000 pages. Bruce Clarke has had it for almost two years but said he has only scanned it because it is not in a user friendly format and he has not read it all.

[ 32 ] In his affidavit sworn on October 3, 2012, Mr. Clarke says he believes the case to be complex. 2) Procedural, evidentiary and substantive law issues including the number of counts, number of accused, especially if there is a conspiracy charge [ 33 ] Mr. Groia says in his affidavit with respect to s. 380(2) in para. 37: 37. The fact that there are also charges against Mr. Clarke under s. 380(2) of the Criminal Code , in my respectful opinion, adds further complexity to the case.

Section 380(2) deals specifically with market manipulation and as such requires not only an in depth knowledge of criminal law as it relates to fraud but also, at least a foundational understanding of securities law and the interplay and interconnections between these two distinct areas of law. Proving charges of market manipulation will likely require the Crown to put forth technical analyses of the trading activity for the impugned time periods. [ 34 ] He also refers to the conspiracy charge in paras. 38 and 39: 38. The fact that the case against Mr. Clarke includes conspiracy charges under

section 465 of the Criminal Code makes the case more complicated than a case with just fraud or theft charges, or even both. Given the different rules and principles that apply to conspiracy charges on the one hand and the rules and principles that apply to conventional fraud and theft charges on the other hand, the preparation of a full defence to such charges will likely require, at the very least, some understanding of the law as it relates to fraud or theft, but also how the law of conspiracy intersects these two area (sic )of law. 39. For example, in

summary provided regarding Case #1, the Crown indicates that its case is based on the ‘trading of KHI, witness testimony, [and] documents and emails from the KHI servers ...’. The Crown further notes that it will rely on evidence in the ‘form of meetings, conversations and emails’ which ‘implicate the three [accused] working together’. Much of this evidence is hearsay evidence and as such, invokes the many dangers of hearsay evidence.

The question of whether a particular piece of hearsay evidence will be admissible is often a technical one that invokes the principled approach to hearsay evidence as articulated by Canadian courts. A self- represented lay person will likely encounter real difficulty in attempting to formulate an argument either for or against the admission of such evidence and will likely face a trial of reduced fairness as a result. [ 35 ] Bruce Clarke says in his affidavit he is not familiar with the rules of court, cross-examination of witnesses and the law with respect to conspiracy and fraud. In para. 22, Mr.

Groia says: 22. A trial of 5 months will likely involve nearly a hundred court days. I believe that many of these days will be taken up by issues that a self-represented accused will find difficult to deal with.

Arguments over the admissibility of evidence and expert testimony may be challenging for a layperson in a straightforward criminal trial, however, when such arguments are presented by multiple parties, involve evidence from multiple proceedings, spanning over eight years and which involve the complex analysis of extensive market data, I believe that such arguments will be beyond the ability of any self-represented layperson, even one with some, albeit limited, industry background such as Mr.

Clarke. [ 36 ] This is a five count indictment, as I have said, with three co-accused and it includes a conspiracy charge. 3) Likelihood of especially complex procedures [ 37 ] There is no evidence now that there will be voir dires and there is no reference to statements. However, Mr. Groia says that Mr. Clarke may need an expert and, therefore, there would have to be a voir dire with respect to the expert ’ s qualifications. He says in para. 30 of his affidavit:

30. ... Mr. Clarke will likely, in my view, need to obtain expert evidence in order to help his defence challenge some of the facts and issues in the market manipulation charges and also to possibly prepare an experts’ (sic) report and to testify at trial as a witness on Mr. Clarke’s behalf. [ 38 ] Charter issues may also be raised. Hearsay will certainly be an issue. 4) Seriousness of Charges [ 39 ] The charges are serious: stock market fraud affecting the public, including investors who lost money with the collapse of Knowledge House. 5) Likelihood of Imprisonment [ 40 ] Mr.

Groia ’ s affidavit refers to this in para. 20: 20. The charges against Mr. Clarke are very serious and if convicted he may face an extensive period of incarceration: charges of fraud over $5000 and conspiracy to commit fraud over $5000 each carry a maximum sentence of 14 years ...He continues: ... If Mr. Clarke is convicted, I believe the Crown will likely seek a lengthy jail sentences. (sic) As Mr. Clarke is 67 years old, a lengthy term of imprisonment could mean a life sentence for him. [ 41 ] Several of the counts have a maximum period of imprisonment of fourteen years as Mr. Groia has said.

The Crown concedes the potential consequences are serious. 6) Length of the Trial [ 42 ] The trial may take four to six months. It is now a jury trial since the indictment was preferred. 7) The Personal Abilities of Bruce Clarke [ 43 ] Mr. Clarke says he has a high school education and the courses needed to be an investment advisor. He says he has no knowledge of the criminal justice system or criminal law and procedure. He has no legal training. The Crown focuses on his years in the investment industry as being important to his ability to conduct his own defence. [ 44 ] The Crown says Mr.

Groia ’ s affidavit is not helpful. It says he does not appear to have discussed the case with Bruce Clarke or his possible defences. [ 45 ] The Crown cites R. v. Malik , 2003 BCSC 1439 , a decision concerning the Air India bombing. Although the issue there was Mr. Malik ’ s ability to pay, Justice Stromberg-Stein set out the basic framework from Rowbotham and the cases which followed it. She cited principally British Columbia cases but also cited Keating , Cai , R. v. Pearen , [1998] O.J. No. 4119 (Ont. C.J., Prov. Div.) and Spellacy v. Newfoundland , [1991] N.J.

No. 228 (S.C.- Trial Div.) to which I have been referred. [ 46 ] In some of the cases cited, conditional stays were granted and in others not. In Keating , supra , the Nova Scotia Court of Appeal was not satisfied that the trial judge had made sufficient inquiry to determine if the Rowbotham test was met. Bakeman, J.A.

concluded in para. 24: [24] In

summary, there was not clear evidence before the judge that this was one of those rare circumstances where, due to the complexity of the proceeding, the accused required funded counsel to ensure a fair trial Similar concerns were expressed in the McDonald decision to which I have referred. [ 47 ] In Hayes , supra , Deschênes, J.A. said in paras. 15 and 16: [15] The case was not a complex one in the sense that it essentially revolved around the credibility of Jessica Gordon, an accomplice, who was to be the Crown’s main witness. ... [16] The trial was scheduled to take two weeks, mainly because the Crown was proceeding on the basis that it would have to prove everything without the benefit of any admissions whatsoever by the appellant who appeared to be intelligent, very articulate and highly knowledgeable about the criminal justice system.

It was also rather obvious that the appellant had received considerable legal assistance from different sources. [ 48 ] In LeBlanc v. R . , supra , Deschênes, J.A. referred to Hayes , supra , and concluded in para. 9: [9] Although the indictable offences involved in this case can result in a long term of imprisonment, the case was not a complex one. The trial was expected to be relatively short, straightforward and simple. Bearing in mind Mr.

LeBlanc’s obvious ability to conduct his defence, along with the legal assistance provided during the trial, I would adopt the conclusion reached in Hayes at para. 19 : In my view, it was not unreasonable for the trial judge to conclude that the appellant had failed to discharge the burden of demonstrating that legal representation was essential to effectively making full answer and defence. [ 49 ] In R. v. Martin , 2010 BCCA 526 , the British Columbia Court of Appeal concluded the accused was capable of representing himself, Bennett, J.A. saying in para. 19: [19} As noted above, Mr.

Martin had counsel throughout the proceedings save and except the important aspect of the trial itself. The record shows he was receiving advice from counsel during the trial. [ 50 ] She did note in para. 20: [20] There is no doubt that the case was complicated. The Crown called approximately 60 witnesses. There were 200 intercepted telephone calls before the jury. There was expert evidence and evidence from a paid police informer.... However, the issue on that appeal was whether the trial judge had given Martin enough assistance.

After reviewing the four areas in which the accused said this was not done and referring to the record of the trial, the court concluded the accused had had a fair trial. [ 51 ] In R. v. Osborne , 2003 NBCA 86 , the trial judge had ordered state funded counsel of the accused ’ s choice. Although the Court of Appeal concluded he needed state funded counsel, the decision of the trial judge was set aside because there was no right to counsel of choice paid for by the state.

[52] In R. v. Whaling, 2010 BCSC 41, the court concluded that the accused had not provided sufficient evidence of complexity. Four firearms offences were charged and the accused had had counsel for a substantial part of the trial. [53] In R. v. Pearen, supra, the accused had had two previous counsel, one during the first fifteen days of the trial. There wereonly three to four days of trial remaining. The trial judge also concluded the matter was not complex, saying in para. 9: 9 ... the issue is not that the transactions took place, but rather why they took place.

I think that, notwithstanding the quantity ofmaterial that has been put in evidence, there is an essential issue involved which can be isolated, and the case is complex perhaps byweight but not perhaps by idea. [54] There was to be a Charter argument but the application had been filed and notice given. Brophy, Prov. Ct. J. said in para. 13: 13 ... The issue is well advanced already ... [55] He concluded in paras. 14 and 15: 14 The other issue I should address in terms of whether or not representation by counsel is essential to a trial is the following. Thematters herein have been outstanding for some six years.

Mrs. Pearen has been exposed to the facts and the issues and the strategy withrespect to same for all of those six years. Mrs. Pearen is clearly an intelligent person and expresses herself well and seems to have a verystraight forward understanding of the facts of her case. In that sense, think it is fair to say, she has a grasp of what the issues are andwhat are the facts. In addition, I would indicate that Mrs. Pearen has had the advantage over 15 days of trial time, of representation byvery competent counsel, Mr. Fletcher Dawson, and earlier in these proceedings, prior to trial, the assistance of Mr.

Michael Lerner. Also, Mrs. Pearen has had the assistance of Mr. Dawson through, I understand, a preliminary hearing in this matter. Essentially then, in the trial aspect of this, Mrs. Pearen has had counsel for 15 days and at worst there is three to five days left in thetrial.

Now hopefully not five days, but certainly not an extended period of time. 15 The last comment I make on the issue about whether or not counsel is essential to a fair trial is that the situation that we are dealingwith here is in no way, shape or form comparable to the Rowbotham matter, which contemplated a 12 month trial from start to finishwithout counsel. [56] In the cases in which a stay was granted, the courts referred to the complexities of the case. In R. v. Giroux, supra, a stay wasnot ordered because the second part of the test had not been met.

In that case, the trial would be four to six months and the trial would be“one of considerable complexity and one that can carry significant consequences.” (para. 24, quoted above). In para. 37, the court quotedfrom the Supreme Court of Canada decision in New Brunswick (Minister of Health & Community Services) v.

G.(J), (SCC), [1999] 3 S.C.R. 46 (S.C.C.) at p. 87 as follows: The necessity of counsel is directly proportional to the capacities of the accused, the more serious and complex the proceedings, themore likely it will be that the accused will need to possess exceptional capacities for there to be a fair hearing, if unrepresented. [57] The court then concluded in paras. 39 and 40. 39 In the present case, I find that the Applicant has met this particular burden on this issue. Mr. Giroux is not an unsophisticatedindividual.

He’s a businessman, by the language used during the course of the Application, it is obvious that he has some familiaritywith the proceedings, even the jargon, referring at times to either Stinchcombe or Askov Applications, (SCC), [1990] 2S.C.R. 1199, s. 11(b), et cetera, is within his vocabulary.

40 But having said that, the charges before the Court are of a rather peculiar nature, by that I mean they are not of a type of charge that the courts deal with on a very regular basis. They are of a fairly technical forensic accounting nature and the consequences can be significant. So that on the basis of complexity of the case and the need to ensure a fair trial, having regard to the nature of the evidence and the issues, I think that test has been met. [ 58 ] In R. v. Guilbride , supra , the accused, Mr. Farrington, faced nine charges including conspiracy.

He was one of a number of co-accused in a lengthy trial with 175 witnesses. The principal issue was whether he had exhausted all efforts to retain counsel. The court referred to the numerous rulings already made on such issues as wiretaps and other disclosure, voir dires and Charter applications. The court then said in paras. 7 & 8: 7 In my view, it is abundantly clear that in order for an accused involved in these proceedings to have a fair trial, he or she must be represented by legal counsel, absent other over-riding factors.

The complexity aspect of this and the other Rowbotham applications adjudicated upon in this trial to date ha not been disputed by counsel for the Crown, and is self-evident. 8 Given that we are now at the stage of this trial where the Crown has further evidence to lead pertaining to the involvement of the various accused, including Richard Farrington, in the conspiracies and substantive offences as charged, the need for Farrington to have legal representation is real and immediate. [ 59 ] In Paul , supra , the trial judge concluded that, although a trial judge has a duty to assist, a treaty-based defence: ... would require the Applicants to establish issues involving the substantial calling of evidence.

This evidence could only be developed outside the courtroom through experts and community members. I conclude that this goes well beyond the duty of a judge to assist the accused to bring out their evidence ‘with full force and effect’.(para. 41) [ 60 ] He then considered the seriousness of the charges and the complexity of the four stage approach to treaty based offences before concluding the accused could not receive a fair trial without counsel. [ 61 ] In R. v. Rushlow , supra , the Crown virtually conceded the case was complex and that the accused needed counsel.

The Court of Appeal concluded the accused could not have a fair trial without counsel and ordered a new trial. As referred to above, Rosenberg, J.A. listed the factors to be considered and then said in paras. 26 and 27: [26] ... The central issue in the case was whether the fire had been deliberately set. The Crown intended to call 30 witnesses to prove motive and opportunity, including at least three expert witnesses to prove that the fire was not accidental.

As I will explain later, while the appellant could handle cross-examination of many of the witnesses, he was out of his depth when it came to the expert evidence. Further, the Crown intended to tender similar fact evidence and lead evidence of several statements the appellant made to persons in authority. As to the appellant’s personal circumstances, he had no legal training. It was unclear what his level of formal education was and all that was before the trial judge was that he worked in a stamping plant.

It was also unclear whether the appellant had any prior experience with the justice system, other than the preliminary inquiry in this case. As it turned out, the pre-sentence report prepared at the conclusion of the trial indicates that the appellant has a Grade 11 education and that he had no prior criminal record. [27] Finally, the case was a serious one.

A conviction for arson in these circumstances usually results in a prison term ... [ 62 ] There is a huge volume of evidence in this matter; however, it is material with which Bruce Clarke would, in many cases, be very familiar because of his career as an investment advisor and because it is expected that a number of the documents would have been created by him. It is on this basis, largely, that the Crown says he can represent himself. [ 63 ] In my view, it is one thing to understand the evidence and another to organize it in a fashion to use it for cross-examination of many witnesses and to make legal argument.

Although sophisticated with respect to the investment business, Bruce Clarke is unfamiliar with criminal proceedings.

[ 64 ] I must also consider other factors: the trial will be lengthy (4 to 6 months) and there are five charges; there are two co- accused, one of whom is representing himself. The charges are serious in that they deal with stock market fraud involving the public and investors who lost money. The maximum sentences are fourteen years for some of the charges. The consequences are significant. There is evidence that one of the co-accused, Blois Colpitts, who has Toronto counsel, has already spent in excess of $300,000.00 in legal fees.

In addition to the trial itself, there are likely to be pre-trial applications such as disclosure applications. This adds complexity to the trial and the preparation for it. There will be many witnesses including experts which will require voir dires on their expertise. Bruce Clarke himself may need to retain and instruct an expert and, if so, will have to conduct a voir dire and the direct examination of the expert. [ 65 ] While conspiracy is a complex area of the law, the law with respect to fraud is not simple. Charges under s. 380(2) of the Criminal Code have rarely been charged.

Bruce Clarke has no prior involvement with the criminal justice system. His knowledge of the justice system comes from his involvement in the civil proceedings. However by the time of that trial, the actions against him had been settled and his role was only as a witness. The procedures in civil trials obviously differ from those in criminal trials, especially if there is a jury. He was also involved in quasi-judicial matters before the Nova Scotia Securities Commission. [ 66 ] In this case, there was no preliminary inquiry because the indictment was preferred.

Bruce Clarke ’ s only involvement in court so far has been testifying on this application when he was represented by senior counsel. [ 67 ] Bruce Clarke is sixty-eight years old and has a grade 12 education and the training necessary to be an investment advisor. His entire career was in that field. To have engaged in that business, he is obviously intelligent and articulate. [ 68 ] I must balance these factors to determine if he can have a fair trial without legal counsel.

In my view, in spite of his intelligence and familiarity with the stock market, the length and complexity of this trial and the issues, legal, procedure and evidentiary, which will arise and the seriousness of the charges, render it essential for Bruce Clarke to have legal counsel to ensure a fair trial. 2) Has Bruce Clarke exhausted all possible routes to obtain counsel? [ 69 ] Since I have concluded that the first part of the test has been met, I can move on to the second part. That issue is whether Bruce Clarke has exhausted all possible routes to obtain counsel.

He filed two affidavits setting out his financial circumstances. He has been denied Legal Aid and his appeal of that decision was dismissed. His income and that of his wife are likely the reason why he was denied Legal Aid. It is not for me to second guess Legal Aid ’ s decision. Their role and mine are quite different.

As the court said in Giroux , supra , in para. 46: 46 ... the ineligibility to a Legal Aid certificate is not determinative of the issue in either way, given that the legal aid standards for eligibility may and probably do take into consideration elements that are different than the considerations that the Court has to take in deciding whether the accused can have a fair trial and everything that the trial involves without a lawyer. [ 70 ] In Rowbotham , supra, the trial judge had concluded that the accused had the means to pay counsel.

The Court of Appeal, however, concluded the contrary saying at page 43: ... on the material before the trial judge, it is apparent to us that Laura Kononow lacked the means to employ counsel to conduct a twelve-month trial. [ 71 ] On page 44, the Court referred to the extent of legal assistance in the context of a twelve month trial saying: Since in any event there must be a new trial, at the new trial a pre-trial hearing should be conducted in which all the circumstances

Since in any event there must be a new trial, at the new trial a pre-trial hearing should be conducted in which all the circumstancesshould be examined fully, and in which both the accused and Legal Aid officials will be entitled to give evidence on the question of thesufficiency of the accused’s means in relation to the cost of legal assistance to the extent required, so that a fair arrangement can beworked out for providing necessary legal assistance to Mrs. Kononow. (my emphasis) [72] In Giroux, supra, as noted above, the court concluded that the Legal Aid refusal was not determinative.

The court continuedin that case at para. 44: 44 ... the Court is further directed to consider whether a refusal to grant a Legal Aid certificate would, in fact, itself violate the accused’sright to a fair trial. If, for instance, the trial was to be of such a duration, such a length, as to render it impossible for the accused underany circumstances to avail himself of the services of counsel.

So that it is in the constitutional issue of a fair trial that the Court has todeal with at this juncture, while Legal Aid officials may be governed by other benchmark indicators. [73] In para. 45, Pelletier, J. quoted a Quebec Court of Appeal decision which said: 45 ... In some lengthy and complex cases the cost of retaining and paying counsel may exceed the resources, not only of the poor, but of mostordinary people who might not ordinarily be eligible for legal aid.

In these exceptional cases, it may be necessary to provide counsel toassure a fair trial, even where the accused might not otherwise qualify for legal aid. (R. v. Sechon, [1995] A.Q. 918) [74] Pelletier, J. continued in para. 47: 47 In addition to this, the Applicant is required to satisfy the Court that every possible means to retain counsel has been exhausted.

While the Applicant is not required to become destitute or without any means after the trial, there is a requirement that an Applicantdemonstrate a willingness to make sacrifices and take certain reasonable steps to retain counsel. [75] Pelletier, J. referred to Pearen, supra, and Malik, supra, as authority for consideration of household income saying in para.48: 48 ... I have concluded that the Court is entitled, depending on the circumstances of course, to take into consideration an Applicant’scombined household income and I derive the authority for that proposition from R. v Pearen ... and R. v.

Malik ... [76] He said in para. 49: 49 Now finally with regards to the means of an Applicant to avail himself or herself of counsel the courts are directed to consider theincome of the Applicant, the Applicant’s assets, the efforts to find counsel considering the Applicant’s financial situation, a willingnessto compromise with Legal Aid, for example with regards to a contribution plan. [77] He referred to debts and other factors with respect to the accused, quoting from a Manitoba Court of Appeal decision in para.50: 50...

The Courts are further directed to consider the Applicant’s outstanding debts, if any, the lack of income and earning capacity, thatmay have resulted from incarceration or otherwise and the efforts to obtain other employment or other sources of funds to retain privatecounsel.(R. v. Drury, 2000 MBCA 100 , [2000] M.J. No. 457 (C.A.))

[ 78 ] In Guilbride , supra , Arnold, Prov. Ct. J., said in para. 36: 36 How an applicant has chosen to conduct his financial affairs, is very relevant to the issue of indigence ... [ 79 ] The Crown relies on Malik , supra . In that case, Justice Stromberg-Stein said in para. 21: [21] I agree with the Attorney General that Mr. Malik’s application should be dismissed. As the discussion will show, Mr. Malik has failed to meet the factual and evidentiary onus to establish indigency as defined in the Rowbotham jurisprudence.

Even if his financial circumstances could be classified as difficult, they are not extraordinary. Furthermore, he has not been prudent, has failed to prioritize legal fees, and has submitted erroneous, contradictory and unreliable evidence. The evidence establishes a collective effort by Mr. Malik and the Malik family members to diminish the value of his estate, If Mr. Malik is indeed indigent, it is because he has made himself so and he is not able to succeed on this application. [ 80 ] She continued in para. 22 (at page 13) to list what the applicant must do. She said: The applicant must make efforts to: a.

Save money; ... b. Borrow money. ... This include (sic) efforts to borrow from children or family members; ... c. Obtain employment or additional employment; ... d. Look for counsel willing to work at legal aid rates; ... e. Exhaust all efforts to utilize assets that the applicant owns to raise funds. ... [ 81 ] She then considered the assets of Mr. Malik ’ s spouse and other relatives in para. 22 (at page 14). In para. 23, she referred to the type of detailed financial information the Applicant must provide: {23} The Rowbotham jurisprudence establishes that, to be eligible for state funding, Mr.

Malik must present detailed financial evidence 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. [ 82 ] She referred again in para. 24 to the spouse ’ s income and assets where she said: [24] This court cannot order Mrs. Malik or any family member to contribute to Mr. Malik’s defence. However, their circumstances are relevant based on the principles cited above. I conclude that the income and assets of Mrs. Malik and the Malik family are relevant not only to assess Mr.

Malik’s financial responsibilities to his family but also to whether he might be able to obtain assistance from his family. [ 83 ] She said in para. 33 and 34: [33] As the principles above suggest, indigency is an inability to pay or contribute to legal fees despite best efforts to prioritize payment of those legal fees by saving, borrowing or otherwise raising funds for such payment, and consequently being incapable of retaining counsel in ample time to ensure a fair trial.

However, even where an applicant is found to be indigent, if he is able to contribute to his legal fees, either in whole or in part, presently or in the future, then he has a legal obligation to do so. The provision of legal services at no cost to the applicant is not a Charter right.

As a result, where the Province offers funding to an applicant for this purpose, it can establish repayment requirements consistent with an applicant’s ability to pay. [34] In assessing a claim of indigency, evidence of how an applicant has dealt with his income and assets, in the face of criminal charges, or the prospect of such charges must be considered.

Evidence of household income and assets, efforts to raise funds for legal fees through planning and prioritizing expenses and debts, and organizing financial affairs to raise such funds, are also significant considerations. [ 84 ] Glube, C.J.N.S. in the McDonald , supra, said in para. 5 : [5] . . . There was no evidence from Mr. McDonald before the court providing full and accurate details of his financial circumstances. There was, for example, no sworn statement of financial information or tax returns with which to measure his past earnings, assets or ability to access funds. [ 85 ] In R. v.

Whaling , supra, Brown, J. quoted extensively from Malik , supra . She then said in paras. 10 and 11: [10] In this case, I am not satisfied that Mr. Whaling’s application should be granted. First, turning to his ability to pay, Mr. Whaling has not submitted the detailed corroborative evidence which is required to establish an inability to pay. Nor has he provided detailed evidence of his attempts to secure funds or otherwise arrange his affairs in a prudent and responsible manner. Mr. Whaling has provided very

summary evidence of his financial circumstances. [11] Second, the financial information provided does not demonstrate the focus on funding legal counsel required by the cases. . [ 86 ] In Spellacy , supra , the applicant had been granted Legal Aid funding for his trial on a number of serious charges. However, Legal Aid was approved including a requirement that he make a contribution towards the costs. A certain amount each month from his and his wife ’ s income was to be paid. Mr.

Spellacy ’ s wife refused to pay and the applicant said his Charte r rights were violated because of the conditions on the Legal Aid funding. Adams, J. concluded that he was in a position to pay some of the costs of his defence and the conditions did not offend his Charter rights. He quoted from Rowbotham , supra , at page 11 as follows:

As a matter of common sense, an accused who is able to pay the cost of his or her defence is not entitled to take the position that he orshe will not use personal funds but still to require legal aid to bear the cost of his or her defence. A person who has the means to pay thecosts of his or her defence but refuses to retain counsel may properly be considered to have chosen to defend himself or herself.

He then said : In my view this statement applies with equal strength to a person who is unable to pay the full cost of legal services provided but who isable to pay part of the cost. ... [87] On page 12, Adams, J. acknowledged that Legal Aid cannot force the applicant’s wife to contribute but said that her incomeand assets are a factor.

He said “She is not required to make any direct contribution towards the cost of the Applicant’s legal counsel andthere is no legal authority under the Act to compel her to do so.” [88] Justice Adams referred to previous decisions on the subject of considering spousal income in Legal Aid applications. Hereferred to Deutsch v. Law Society of Upper Canada et al (1985), (ON SCDC), 48 C.R. (3d) 166 (Ont. S.C. Div. Ct.). At p. 13 he quoted Craig, J. at p. 170: ...

An applicant for legal aid under the Legal Aid Act in Ontario is not entitled to legal aid as of right but rather he may be entitled toassistance after a consideration of his financial affairs and any other relevant factors. The financial position of the applicant’s spouse is arelevant consideration in the determination of whether or not o a certificate is justified. ... [89] Justice Adams then concluded on page 13: In my view it is a reasonable and proper requirement to consider spousal income in determining eligibility for legal aid and the terms onwhich it is granted in a given case.

I dismiss the Applicant’s claims of violation of constitutional rights on that matter. [90] In Pearen, supra, the court herein referred to Spellacy, supra, with respect to combined household income in para. 19. [91] I must consider the following things to determine if Bruce Clarke has met the onus on him to satisfy me that he has exhaustedal possible routes to retain private or publicly funded counsel: 1. that he has been denied Legal Aid and exhausted his appeal rights; 2. that he has given me detailed financial information including income, assets and debts; 3. that he has given me information with respect to his employment, including efforts to obtain employment; 4. his age and education; 5. his efforts to prioritize his expenses; 6. an estimate of legal costs; 7. the income and assets of his spouse; 8. his efforts to obtain funding; and 9. his efforts to obtain counsel.

[ 92 ] In the cases where a stay was denied for financial reasons, or the trial judge ’ s decision to grant a stay overturned, the courts were not satisfied with the evidence with respect to the applicant ’ s financial circumstances. In McDonald , supra , the court concluded there had been an insufficient inquiry into the applicant ’ s ability to retain counsel. In Keating , supra , the court concluded the applicant had not met the onus. [ 93 ] In Giroux , supra , at para. 54, Pelletier, J. said he had four reasons to grant a stay.

To paraphrase, they were: 1) that no Legal Aid application had been made in eight years and his financial position was different than it was eight years previously; 2) he did not provide “ an accurate and complete financial picture of his affairs presently ” ; 3) there was a lack of information with respect to the properties he owned; and 4) the means of his spouse (paras 52-61).

On the latter, he referred to Pearen , supra , and Malik , supra, having said in para. 10 that the applicant believed his wife, an obstetrician, earned approximately $180,000.00 a year. [ 94 ] In Malik , supra , the stay was not granted and the court commented at some length on Mr. Malik ’ s financial circumstances. Justice Stromberg-Stein noted at para. 5 that, at the bail hearing, he said his net worth was $11 million but later claimed it was nothing for the purposes of the present application (para. 10). Justice Stromberg-Stein did a

summary at paras. 67 to 83, from which I quote only in part: [67} This trial is unprecedented in terms of complexity and length. ... [70] Mr. Malik failed to liquidate his assets. ... [71] Mr. Malik remains a multimillionaire despite leading evidence to suggest his net worth is zero. ... [72] The legitimacy of Mr. Malik’s claims that he owes more than $1 million to family members is questionable.... [75] Mr. And Mrs. Malik have manipulated facts to suit their particular needs as evidenced by the representations at the bail hearing about the value of the Maliks’ assets. [77] Mr.

Malik knew from 1985 that he was a suspect in the 1985 Air India bombing. At least from 1997 when he consulted a lawyer about potential charges he reasonably would have known he would likely require funds for his defence. Mr. Malik was arrested October 2000 and has been in custody since. He did not save or set aside money because he presumed his multi-million dollar holdings would cover his legal fees, which he estimated to be $1 million. [78] Mr. Malik has made no effort to seek funding elsewhere. ... [79] Mr.

Malik has not presented evidence showing he has been prudent with his expenses. ... [ 95 ] In Whaling , supra , the court referred to the “ very

summary evidence ” of the applicant ’ s financial circumstances (para. 10) and that the applicant did not have sufficient focus on finding legal counsel (para. 11). [ 96 ] In Pearen , supra , which was decided in 1998, the court considered the household income of $79,000.00 which it said in para. 20 was a “ substantial income ” . [ 97 ] Brophy, Prov. Ct. J. also referred to the fact that the husband of the applicant had bought a house while the matter was pending and the applicant had contributed $8,000.00 towards it (para. 21).

He also referred to other expenditures which the family had made saying “ those kinds of costs are not the costs one would normally associate with somebody who is impecunious. ”

[ 98 ] He concluded in para. 33: 33 In conclusion then, I will say that the matter is complex, but not insurmountably so. The bulk of the trial has already been completed. For the completion of the trial, in my view, there are financial resources that do exist or could have existed to retain counsel. It is not, in my view, correct to say that Mrs. Pearen does not have the means to employ counsel.

It is correct, however, to say that she may well have arranged her affairs so that it may be difficult for her to employ counsel but that is the path she has chosen to walk down and it is not, in my view, for the state in this instance to relieve her from the responsibility for he decisions that she has made. [ 99 ] I now turn to cases where a stay was granted or a new trial ordered because a stay had not previously been granted. First, of course, is Rowbotham , supra . As I quoted above, the Ontario Court of Appeal concluded at p. 43: 43.

Nevertheless, on the material before the trial judge, it is apparent that Laura Kononow lacked the means to employ counsel to conduct a twelve-month trial. [ 100 ] The Court of Appeal ordered a new trial saying at page 44 that at the new trial there would be: ... evidence on the question of the sufficiency of the accused’s means in relation to the cost of legal assistance to the extent required. .... [ 101 ] In R. v. Guilbride , supra , a stay was granted. In that case, the accused was one of nine co-accused. He had previously had counsel whom he had paid $30.000.00 but he owed an additional $27,000.00.

In that case, the court considered his financial circumstances in detail in paras. 15 to 26 and then concluded in para. 39: 39 In this case there are no ‘glaring gaps’ in the material filed by the applicant. Nor, on balance, can one say that Farrington has not taken ‘all reasonable steps to try to put his financial affairs in order’ to finance his defence. Based on the information available, Farrington has financed a large portion of his defence without turning to the state for assistance. [ 102 ] In para. 42, Arnold, Prov. Ct.

J., referred to the factors in support of the applicant ’ s indigence and then said in para. 43: 43 ... Not to put too fine a point on it, this particular applicant has obviously come to ‘the end of the line’ in terms of his own resources and his ability to generate the same. [ 103 ] In Paul , supra , Gibson, Assoc. C.J., Prov. Ct., referred to the financial circumstances of both applicants in paras. 22 to 24.

Both were living on social assistance, owned no real estate, vehicle or other assets nor did they have any savings. [ 104 ] In Rushlow , supra , the Court of Appeal sent the matter back for a new trial and a new application with respect to financial circumstances. The trial judge had not considered the second part of the test because she considered the applicant had not met the onus on the first part. Rosenberg, J.A. referred to fresh evidence of financial information from the applicant, which had been put forward at the Court of Appeal and the applicant ’ s efforts to retain counsel.

He then said in para. 30: [30] Perhaps the appellant could have made further efforts to privately retain counsel and he may have made some poor financial decisions. However, I accept the very fair concession from counsel for the respondent, which is stated in these terms in her factum: This is not a case in which the appellant ’ s finances reveal that he could have retained counsel and made a calcu lated decision not to.

[ 105 ] Rosenberg, J.A. concluded in para. 31: [31] In my view, the appellant has shown that the trial judge erred in law in her application of the first branch of the Rowbotham test. He has also shown that on proper application of the test, the assistance of counsel was essential to a fair trial. I am also satisfied that the trial judge reached the second branch of the test, consideration of the financial circumstances of the appellant, it is probable that she would have found that the appellant lacked th financial resources to retain counsel for the trial. The Application Of These Principles To Bruce Clarke 1.

Legal Aid [ 106 ] Mr. Clarke applied for and was denied Legal Aid and his appeal was also denied. 2. Detailed Financial Information [ 107 ] Mr. Clarke provided details of his financial circumstances in his affidavit. He is sixty-eight years old and receives CPP and Old Age Security. These total approximately $13,000.00 per year. As well, he has a seasonal job on the Halifax waterfront in the tourism industry, from which he earns about $7,500.00. His wife ’ s income is approximately $15,000.00 per year, largely from Old Age Security and CPP and some investment income.

The family home was sold in 2010 and it was in Mrs. Clarke ’ s name. It sold for $480,000.00 but after Mr. Clarke lost his job he took a collateral mortgage on it which he repaid from the sale proceeds. The collateral mortgage was $125.000.00 and he also repaid some money he had borrowed. In addition, $60,000.00 to $70,000.00 from that amount was used for legal fees in the civil action and the Securities Commission Hearing. He manages the balance of $210,000.00 which remains. The Crown disagrees with Mr.

Clarke ’ s investment strategy but, on the other hand, says his knowledge of and expertise in the investment industry is a reason why he could effectively represent himself. I find no fault with Mr. Clarke ’ s decisions with respect to the investment, that is, to be careful to secure the principal. [ 108 ] I do have some concern that he did not tell Legal Aid of the money that was in his wife ’ s name from the sale of the matrimonial home. In any event, he was denied legal aid, presumably because of his income. I also have some concern about him saying now that it is all his wife ’ s.

On the other hand, he does say he is willing to contribute to the cost of state funded counsel. The money from the sale of the home is a factor to be considered in determining if Bruce Clarke has met the second step of the test. [ 109 ] He lives in an apartment and has no other liquid tangible assets. He has a one-half interest in his father ’ s estate along with a brother with whom he does not have a close relationship. His father owned a 170 year old house in Advocate Harbour. Mr. Clarke says it is assessed for $44,000.00 but needs major repairs which he estimates will total $25,000.00 including a roof.

Prior to his death, Bruce Clarke ’ s father lived with him and his wife. [ 110 ] In addition, Mr. Clarke ’ s father had a bank account which has approximately $103,000.00 in it. The estate has not been probated and there will be expenses associated with the probate of the estate and sale of the house. [ 111 ] The Crown says he has $72,000.00 from his father ’ s estate: one-half of the house value and one-half of the bank account.

I acknowledge that Bruce Clarke will receive an inheritance, however, I note that there is a judgment against him for $154,000.00 with respect to the Nova Scotia Security Commission hearings, arising from its investigation and the hearings. Mr. Clarke has provided a copy of a letter from Collection Services of the Nova Scotia Government, which he received in October 2012, saying that that judgment is in its hands for collection. I am to consider not only Mr. Clarke ’ s assets but his debts and this is a substantial judgment which could be collected from the inheritance, leaving Mr.

Clarke with nothing from the inheritance. Mr. Clarke has also consistently said he can contribute toward his legal expenses. At one point, he said he could pay $500.00 a month. At the hearing of this application, he confirmed he could contribute, without specifying an amount, from the proceeds of the house and, possibly, from the inheritance, if it is not subject to collection.

3. & 4. Employment, Age and Education [ 112 ] As noted, Mr. Clarke is sixty-eight years old and has a Grade 12 education plus the Canadian Securities course he took in 1971. There is no mandatory CLE and Mr. Clarke said he has taken no continuing legal education. He did at one point take a Partners, Directors and Senior Officers course but Mr. Clarke says it was only a one to two week course. Until he was dismissed by National Bank in October 2011, Mr. Clarke worked solely in the investment industry since 1971.

After that time, he worked briefly as a bookkeeper for a company but ended up being owed $8,000.00 in salary. [ 113 ] Since 2008, he has worked seasonally in the tourism industry between May and November which results in income of approximately $7,500.00 per year. The Crown submits he should have looked for other work, however, it has been twelve years since he stopped working for NBFL but only two since the charges were laid.

He was almost sixty-six years old at the time the charges were laid. [ 114 ] I conclude it is unrealistic to expect a sixty-six to sixty-eight year old investment adviser who was terminated by his employer in rather public circumstances to easily obtain other employment. It would, in my view, only have become more difficult once the criminal charges were laid in March 2011. The combination of his age and education do not, in my view, suit him for many employment opportunities. Even his current seasonal employment, according to him, could end if his notoriety affects the company.

In that event, he has agreed that he would have to leave. 5. Efforts to Prioritize Expenses [ 115 ] Mr. Clarke says they have no money to spare for savings. The household income is approximately $35,000.00 including his wife ’ s CPP and Old Age Security. He has no RRSPs having cashed them and his life insurance to pay legal expenses and living expenses since 2001. His wife has cashed her RRSPs as well. [ 116 ] According to Malik , supra , the time to consider is from the time the charges were laid in March 2011. Since that time, Mr. Clarke has had to testify at the civil trial involving Knowledge House.

Although a witness, he incurred legal expenses with respect to a motion made in that matter. He also has retained Mr. Knox to represent him on this application. [ 117 ] In my view, there has been no change in Mr. Clarke ’ s financial position since March 2011 which could be said to be contrary to his requirement to try to fund his own defence. He has a judgment which is now in collection which is greater than any inheritance to which he may be entitled. Furthermore, his father who was living with him and paying $800.00 a month, died last fall and the net from that income stream is gone. 6.

Estimate of Legal Expenses [ 118 ] Attached to Bruce Clarke ’ s affidavit is his estimate of the cost of legal representation in this matter. He has used a “ rule of thumb ” of two days preparation time for every day of trial. He assumed a five month trial. It appears to allow little or nothing for pre- trial applications which, in my view, are likely. I also note the estimates of trial time vary from four to six months. In 2011, when he prepared the estimate, he estimated the costs would be $276,000.00 for a lawyer with an hourly rate of $150.00 and $552,000.00 for one with an hourly rate of $300.00.

He said, if the hearing of the trial takes six months, he estimates the cost will be $50,000.00 to $100,000.00 greater. [ 119 ] The Crown says that an estimate of 1,600 hours is an excessive estimate. I do not agree. The trial itself may be as long as six months; preparation time and pre-trial matters between now and trial will take a lot of hours. Just reviewing and becoming familiar with approximately 100.000 pages of disclosure will be time consuming . Ten to twelve hours or more per day during trial would not be unexpected. In my view, Mr. Clarke ’ s estimate is a rough estimate.

As I have noted, Toronto counsel for Mr. Colpitts had spent $300,000.00 by last August on his defence. I acknowledge that rates for Toronto counsel are likely to be higher than for some Nova

Scotia counsel. 7. The Income and Assets of Mr. Clarke ’ s Spouse [ 120 ] This is a most contentious issue. The authorities make it clear that a spouse ’ s financial situation is a factor to be considered. In this case, all the funds from the matrimonial home are in Mr. Clarke ’ s wife ’ s name. Because it was a matrimonial asset, in my view, that makes it a more important factor to consider. I cannot order the funds to be used for Mr. Clarke ’ s defence or towards the cost of his defence but it is an important consideration. Some of the funds from the sale of the home have already been used for legal fees. Mr.

Clarke says $60,000.00 to $70,000.00 was used. He also says his wife used a $20,000.00 inheritance from her family towards legal fees. He also says she will pay $30,000.00 to $35,000.00 which is owed to Mr. Knox. [ 121 ] Mr. Clarke had counsel for both the civil proceeding and the Securities Commission matters. In the latter he was sued and counter-claimed. He was a party to a number of actions. He settled the civil action in December 2010. 8. Efforts to Obtain Funding [ 122 ] Mr. Clarke says he is unable to raise the funds necessary for his defence.

He has no real property to borrow against and cannot borrow any money. He said his children are unable to assist. They are in their 30's and 40's and have young families. 9. Efforts to Obtain Counsel [ 123 ] I have already referred to Mr. Clarke ’ s Legal Aid Application which was denied. In his affidavits, he sets out his efforts to retain private counsel. He had posted a notice on the Nova Scotia Criminal Lawyers ’ Association website. He had a second notice posted on the “ ListServ ” of the Association ’ s website. He also sent an email in January 2013 to the lawyers listed on the site seeking defence counsel.

In each, he referred to the fact that he and his wife could contribute something towards legal costs. He referred in his affidavit to the contacts made through these postings and his lack of success in retaining counsel. I refer to paras. 9 to 12 of his Affidavit sworn on February 4, 2013. [ 124 ] I am satisfied that Bruce Clarke has applied for but has been denied Legal Aid funding. His financial information is complete. As Arnold, Prov. Ct. J. said in Guilbride, supra , there are no “ glaring gaps ” in the financial information.

It lists all the information I conclude I need to assess his financial circumstances. [ 125 ] I am satisfied that since the date the charges were laid in March 2011, Mr. Clarke has done all that could reasonably have been expected of a man of his age, education and work experience to supplement his income through employment. His prospects for additional employment, in my view, are not good and his current employment could potentially end. [ 126 ] In light of his household income, I am also satisfied that he has done all he can to prioritize his expenses.

I see nothing in his lifestyle which would cause me to say he has spent money on something instead of putting it towards his legal expenses. Even if he could have saved as much as $500.00 a month for two years, it would not touch the cost of this trial. Financial sacrifices had already

been made in the past ten years since his job with NBFL ended. The house was sold, RRSPs cashed, life insurance cashed, etc. [ 127 ] Mr. Clarke ’ s estimate of legal costs is just that, an estimate. As I have said, it does not appear to allow for costs of pre-trial applications.

Although he uses a figure of two days for every day in court, in my view that is preparation time for the trial and not time for preparation and appearance on pre-trial applications of which there are likely at this stage to be at least two. [ 128 ] In some of the cases cited, it was thought that an applicant might not need counsel for the entire trial. In this case, the transactions in issue were largely if not entirely undertaken by Mr. Clarke. Furthermore, the conspiracy charge involves all three co- accused.

Counsel will be essential for all of the trial and likely for all of the pre-trial applications. [ 129 ] I am also satisfied that there are no obvious sources of funding which Bruce Clarke could access. I will deal hereinafter with the inheritance and the house proceeds. I am satisfied with Bruce Clarke ’ s efforts to obtain private counsel. He has contacted through “ ListServ ” the members of the Bar who would be likely to take on his defence, with no success. [ 130 ] The principal issues are the house sale proceeds and the inheritance from Bruce Clarke ’ s father. In my view, some of these funds are available.

The Crown would have me accept that the remaining $210,000.00 from the sale of the matrimonial home and one- half of the total value of his father ’ s estate are available. The Crown says that the latter would be an additional $72,000.00 providing almost $300,000.00 to pay his legal expenses and, therefore, Bruce Clarke does not need state funded counsel. [ 131 ] However, I do not accept the Crown ’ s submissions in this regard. For whatever reason, the balance of the sale proceeds are not in Bruce Clarke ’ s name. I do not accept that he has no right to a portion of them.

The home was a matrimonial asset and the presumption is, therefore, that it belongs 50/50 to each spouse. I acknowledge that some of the sale proceeds have already been used to fund Mr. Clarke ’ s legal costs in the civil proceeding. If one were to consider that that amount ($60,000.00 to $70,000.00) had come from Bruce Clarke ’ s entitlement, there is still money which should be considered to be his. [ 132 ] With respect to the inheritance, I conclude it is not reasonable to simply say that $72,000.00 would be Bruce Clarke ’ s. From the bank account, estate expenses must be paid.

The house is not sold and it is an old house and apparently in need of some substantial repairs, which Mr. Clarke estimates to be costly. It may be that it will take some time for the estate to be probated and there is no guarantee that the house will be sold quickly. There may be some funds available but not, I conclude, sufficient to pay all the legal costs. This, of course, is subject to any action which may be taken on collection of the judgment. [ 133 ] In some of the authorities to which I have been referred, it is clear that the applicant for state funded counsel was indigent by anyone ’ s standards.

However, indigence, in my view, varies with the circumstances of each case. In Rowbotham , supra , the Court referred to the applicant ’ s inability to fund a twelve month trial. The court also referred to making an inquiry into means in relation to the cost of the legal assistance required. A similar sentiment was expressed in Giroux, supra , where the court considered the duration of the trial in the context of whether it was possible for the accused in those circumstances to obtain counsel.

Justice Pelletier in that case said that indigence must be considered in the context of the length and complexity of the trial. I quoted above the passage he quoted from the Quebec Court of Appeal where the court referred to lengthy and complex trials exceeding the ability to pay of most ordinary people. It referred to these as “ extraordinary cases ” . In that case as well, Justice Pelletier said the applicant need not become destitute or without any means after trial. [ 134 ] In Guilbride , supra , Arnold, Prov. Ct.

J. approved state funded counsel where the applicant had no money at the date of the hearing but was trying to sell an asset and had a potential claim which was being litigated, but at an early stage. [ 135 ] The facts in this case bear no resemblance to the facts in Malik , supra . In that case, Mr. Malik had arranged his financial affairs so that between the date of his bail hearing and the date of his stay application his net worth had allegedly gone from $11 million to nothing. [ 136 ] I therefore consider indigence in the circumstances of this case to have been established. Bruce Clarke does not have the

means to fund a four to six month trial. He has some funds available to pay towards his legal costs. The court cannot set the fees nor order specific contributions to be made by Mr. Clarke and cannot order his wife to contribute. Mr. Knox has pointed out that Legal Aid can manage the retainer of counsel and act as an intermediary. It is not for me to interfere in negotiations with respect to the contribution Mr. Clarke should make to his defence. [ 137 ] The conditional stay is granted pursuant to s. 24(1) of the Charter until counsel is appointed. Hood, J.