R. v. Thiessen, 2022 BCPC 71

Citation: R. v. Thiessen 2022 BCPC 71 Date: 20220421 File No: 62444-3 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MATHEW JORDAN THIESSEN RULING ON APPLICATION OF THE HONOURABLE JUDGE P.D. WHYTE Counsel for the Crown: J. Langlois-Sabudin Counsel for the Defendant: M. Swartz Appearing on his own behalf: M. Thiessen Place of Hearing: Chilliwack, B.C. Date of Hearing: February 4, March 25, April 4, 2022 Date of Judgment: April 21, 2022

INTRODUCTION [1] Mathew Jordan Thiessen (the “Applicant”) applies for an order pursuant to ss. 7, 11(

d) and 24(1) of the Canadian Charter ofRights and Freedoms for a stay of proceedings until the Attorney General for British Columbia provides funding for his defence. Theapplication is commonly known as a Rowbotham application, named after the test enunciated in R. v. Rowbotham, (ONCA), 41 CCC (3d) 1 (ON CA). [2] The Applicant’s position is that 1) he requires legal assistance in order to make full answer and defence to the charge he faces,and 2) that he lacks the financial means to retain counsel.

The Applicant argues that a fair trial cannot be conducted without theassistance of counsel, and it is incumbent upon the Attorney General for British Columbia to enter into an agreement with him to fundhis counsel. [3] The Applicant does not seek full funding for his defence. He is prepared to contribute to the cost. However, he takes the positionthat the majority of the cost of his defence ought to be borne by the Attorney General for British Columbia. [4] The Applicant was ably assisted by Mr.

Swartz, who appeared as a friend of the court. [5] The Respondent, Public Prosecution Service of Canada (“PPSC”), represented by Mr. Langlois-Sadubin, opposes theapplication. The Respondent submits that the preconditions for the order do not exist in this case. A conditional stay of proceedingspending funding of counsel is an exceptional remedy that is available only in the clearest of cases. The Respondent submits that theApplicant has established neither that the case is sufficiently complex, nor that the Applicant is indigent.

The Respondent seeks to havethe Application dismissed. [6] For the reasons that follow, I decline to make the order sought, and dismiss the application. HISTORY [7] The Applicant and his co-accused, Clayton Eheler and Raymond Morrissey, were charged on December 1, 2015 with Possessionfor the Purposes of Trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act. The offences are alleged to havebeen committed between November 18 and 26, 2014. [8] The Applicant and the co-accused were subject to a lengthy police investigation commencing in October 2014.

The investigationinvolved extensive surveillance, which eventually focussed on suite 401 of an apartment building located in Chilliwack, B.C. Police weregiven access to CCTV footage and key fob records. The investigation culminated in the execution of a search warrant on suite 401 onNovember 26, 2014. The Applicant and Mr. Eheler were found to be in the suite at the time the warrant was executed. A significantquantity of cash and cocaine was seized, along with cutting agents, packaging supplies and other incidents of a drug trafficking operation. [9] The Applicant initially retained private counsel to defend him.

However, as the matter proceeded through the court process, hewas unable to afford continued legal representation. His trial matter was thereafter funded by Legal Aid B.C. [10] The Applicant was convicted on June 18, 2018 after 24 days of trial. Ten days of the trial were dedicated to a voir dire to assessthe Applicant and his co-accused’s standing to challenge the search warrant, the admissibility of evidence obtained from CCTV securityfootage and key fob activity and observations made by investigators in the common areas of the building.

Following the conviction, theApplicant brought an application for a Stay of Proceedings due to unreasonable delay, pursuant to R. v. Jordan, 2016 SCC 27. OnJanuary 30, 2019, the Jordan application was dismissed. The Applicant was sentenced on November 19, 2019 to six years in jail. [11] On November 27, 2020, the Applicant was released on bail pending an appeal of the trial judge’s decision. The Applicantreceived funding through Legal Aid B.C. for his appeal. The matter was before the Court of Appeal on June 24 and 25, 2021.

On August27, 2021, the Court of Appeal quashed the conviction and ordered a new trial. [12] The Applicant applied for funding through Legal Aid B.C. for his retrial. He was refused because his salary placed him over thethreshold for standard coverage. He applied for a Criminal Early Resolution Contract (“CERC”), but this was also refused. [13] The Applicant applied for a review of Legal Aid B.C.’s decision. On October 20, 2021, Legal Aid B.C. confirmed the decision torefuse the Applicant’s legal aid application.

EVIDENCE [14] The Applicant supplied two affidavits of his own, as well as the affidavit of Glen Orris, Q.C. The Respondent objected to thetendering of the latter affidavit on the basis that it provided an opinion without a proper foundation, and that it contained irrelevantinformation. I allowed the affidavit to be marked as an Exhibit with the understanding that the court would determine the weight, if any,to attach to it. Having considered the content of Mr. Orris’ affidavit, I find it unnecessary to rely upon it.

I ascribe it no weight in thisapplication. [15] The Applicant’s first Affidavit, sworn November 16, 2021 (the “First Affidavit”) contained a variety of financial and otherdocumentation as exhibits, including:

a) employment paystubs;

b) a credit score; and

c) copies of Royal Bank of Canada (“RBC”) bank statements from December 2020 to October 2021. [ 16 ] Following the first day of the hearing, and after the commencement of a spirited cross-examination, it became clear that the Applicant had not supplied a complete record of his finances. Over the Respondent’s objection, I allowed the Applicant to submit further financial documentation in a second affidavit.

I determined that the Applicant should be permitted this opportunity so that the application could be determined on its merits, with a fulsome and complete accounting of the Applicant’s financial circumstances. [ 17 ] The Applicant filed his second affidavit on March 14, 2022 (the “Second Affidavit”). The Second Affidavit had among its exhibits the following:

a) correspondence from Legal Aid B.C.;

b) correspondence from RBC;

c) further paystubs;

d) the Applicant’s 2019 Income Tax return;

e) further RBC bank statements from October 2021 to January 2022;

f) bank statements from a second RBC bank account from December 2020 to February 2022;

g) Capital One credit card statements from August 2021 to January 2022; and

h) correspondence from Hertz Canada pertaining to damages to a rental vehicle. [ 18 ] The Applicant is 35 years of age. He attended public school to grade 11. He later obtained his General Education Development degree, or GED. He lives with his older brother Cody in Chilliwack. He has three younger sisters and two younger brothers. His father and stepmother live in Nanaimo. He has no children and no dependants. [ 19 ] In May 2015, the Applicant began work with Remcan Ltd., where he made $23/hour.

He continued to work with Remcan Ltd. until his incarceration. [ 20 ] Following his release from custody pending the appeal, the Applicant began full time work as a trackman with A & B Rail Services in February 2021. His hourly wage is $30.75, and includes some overtime hours. [ 21 ] The Applicant had a variety of outstanding debts, including money owed to Bell Mobility; a car loan with Carfinco Inc. for a 2017 Honda Civic; and various other debts that have gone unpaid for an extended period of time. [ 22 ] The Applicant deposed that he pays $800 rent monthly to his brother Cody.

He has other monthly expenses, including car insurance, a cellular phone, gasoline for his car and groceries. The Applicant has no savings and owns no property. He has a single prepaid credit card through Capital One. [ 23 ] The Applicant deposed in the Second Affidavit that, after the first day of cross-examination, he “...came to realize that there were two accounts attached to my bank card.”: Second Affidavit, para. 9.

This was new information; the Applicant had deposed in the First Affidavit that he had a single RBC bank account. [ 24 ] The Applicant further deposed in the Second Affidavit to owing a $23,984.66 debt to Hertz Canada following a determination that he was at fault for an accident with a rental car on November 2, 2021. [ 25 ] The Second Affidavit also indicated that PPSC counsel Maggie Loda had informed Mr.

Swartz that the retrial was expected to take six days for a standing voir dire , a break for decision, six days for a search warrant challenge and three weeks for trial: Second Affidavit at para. 14. [ 26 ] The Applicant asked his brother Cody to help him fund his retrial, but was told that he could not assist.

Cody’s home was subject to a search warrant in December 2020, resulting in the seizure of a large amount of cash and various items that were marked for civil forfeiture. [ 27 ] The Applicant was taken through a detailed review of his financial circumstances, with particular reference to his bank statements. A number of points relevant to the application were discussed. I summarize those points below: 1.

Despite the fact that the Applicant’s rent contribution allowed him to eat food supplied by his brother, the Applicant routinely spent hundreds of dollars per month eating out at restaurants or purchasing food at gas stations. 2. The Applicant and his brother Cody attended his cousin’s wedding in Mexico in January 2022. The Applicant paid for his flight, but did so on the understanding that he would not have to pay rent for the month. The Applicant said that his brother funded all other parts of the trip, including the provision of spending money. 3. The Applicant applied for a loan from RBC but was declined.

He did not make inquiries of any other lenders. He asked his brother and father for financial help, but both declined to assist him. 4. The Applicant initially denied being aware that he had two RBC bank accounts. However, the evidence showed that he made multiple transfers between these accounts. The Applicant did not supply bank statements for his second RBC account until after the Application commenced.

5. The Applicant invested in cryptocurrencies, including Bitcoin, and acknowledged that he owned a Coinbase cryptocurrency account. While he testified that he lost money on his cryptocurrency investments, he failed to provide any statements detailing his cryptocurrency purchases or sales, or the balances of any cryptocurrency accounts. 6. The Applicant’s bank statements show that he made a number of e-transfers for the purchase of cryptocurrencies using the online payment systems Gigadat and Shakepay. Between July 23 and August 24, 2021, the Applicant’s statements reflect $1,200 in transfers to Gigadat.

Between November 24, 2021 and January 24, 2022, the Applicant’s statements reflect over $1,000 in transfers to Shakepay. 7. The Applicant’s transfers to his brother Cody for rent were frequently less than $800 per month. The Applicant testified that he often paid his rent partially via e-transfer and partially via cash. He provided no cogent explanation for why he did so, other than he liked to have cash on his person. 8. The Applicant was unable to explain many of the withdrawals and debits from his bank accounts.

In particular, the supplied records showed payments to Apple.com that ranged between tens of dollars, and up to several hundred dollars each month, for what he could only describe as various subscription services. For example, between July 23 and August 24, 2021, the Applicant’s statements reflect $577.27 in debits to Apple.com. Between October 22 and November 24, 2021 the total was over $400. 9. The Applicant acknowledged that he spent significant money on gambling websites or at casinos. He could not provide a precise accounting for the funds he spent on gambling. 10.

In months where the Applicant had a surplus of funds, he made no effort to save any money for his impending legal expenses. In some months, the surplus was more than $2,000. 11. The Applicant spent hundreds of dollars purchasing vape supplies from a supplier in China, which he then said he sold to friends and co-workers for what he claimed was a modest profit. He provided no receipts for these purchases or resales. 12. The Applicant was unable to explain a large number of e-transfers in and out of his accounts. 13.

The Applicant frequently withdrew hundreds of dollars from his accounts using ATMs, but could not explain with any precision the reason for doing so, or what he purchased with the money, other than to say: “[i]t’s to look good when I have cash on me. It doesn’t look good when I go out and have no money on me and other people have money...on them”: transcript February 4, 2022, page 93, line 19-22. 14. On some occasions, these withdrawals were for well over $1,000.

Between August 24, 2021 and September 24, 2021, the Applicant’s ATM withdrawals were over $1,400; between November 24, 2021 and December 24, 2021, the ATM withdrawals were over $1,800.

THE LAW [ 28 ] The framework for this application is found at paragraph 167 of Rowbotham : ...[a] trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided. [ 29 ] Brecknell, J. distilled a number of principles relevant to Rowbotham applications in R. v. Williams, 2010 BCPC 16 at para. 76 : (

a) The accused has a right to be represented by counsel if he chooses; (

b) The accused has a right to make full answer and defence and to receive a fair trial; (

c) An accused has no right to counsel of his choice at trial at public expense; (

d) The Charter does not expressly confirm a right to counsel at public expense nor do the words in s. 7 of Fundamental Justice confer such a right; (

e) It is not a presumption (rebuttable or otherwise) that without counsel the accused’s trial cannot be fair as described in s. 11(

d) of the Charter ; (

f) That the fairness of a trial can only be determined with certainty after it is concluded; (

g) If an accused is unrepresented and convicted after trial, he may be able to establish on appeal that the trial was not fair; (

h) An unfair trial is a fatal wounding of the process and it may justify the trial judge declaring a mistrial if it is determined that it would be unfair to the accused to continue; (

i) In the matter of fairness the court shall give no weight to the economic wellbeing of the legal profession or any member of it; (

j) A trial judge’s advice to an unrepresented accused must be interactive, tailored to the circumstances of the offence of the accused and with appropriate instruction at each stage of the trial process. [ 30 ] A court considering a Rowbotham application does not engage in a review of the decision of legal aid authorities to refuse to fund the defence. Rather, the task of the court is to determine whether funding is required to ensure the accused receives a fair trial: R. v. Rushlow 2009 ONCA 461 at para. 18 .

[31] In R. v. R. Drury and Hazard, 2000 MBCA 100, the Manitoba Court of Appeal provided a useful distillation of the essential areasfor consideration in a Rowbotham application: 23 The central concern is whether the accused can receive a fair trial.

Although each case must be decided on its own facts, the criteriaapplied by the courts tend to fall into two categories, the nature of the case, and the financial means of the accused. 24 A number of factors have been considered in the jurisprudence when considering the nature of the case including such factors as thecomplexity of the proceedings, the seriousness of the offences, the length of the trial and the accused’s ability to understand and conducthis or her own defence. See Re White and The Queen (1976), (AB QB), 32 C.C.C. (2d) 478 (Alta. S.C. (T.D.)), R. v.Hopfner, (M.A.M.)(1996), (SK QB), 146 Sask.

R. 28 (Q.B.), R. v. Rowbotham, and R. v. Rain (1998), 1998 ABCA315 , 130 C.C.C. (3d) 167 (Alta. C.A.). 25 The financial means of the accused relates to the question of whether the individual has the money to retain counsel. If he does, thenthe state expects him to do so. If accused do not retain counsel even though they have the ability to do so, then they must be taken tohave decided to represent themselves (R. v. Rowbotham, p. 64). [32] In R. v. Crichton, 2015 BCCA 138 (“Crichton”), the Court of Appeal provided guiding commentary on the determination ofRowbotham applications.

Crichton considered a number of important principles that are relevant to the instant application. [33] The applicant bears the burden on a Rowbotham application to establish the basis for the order. As the Charter breaches allegedare prospective, the burden is a “very real likelihood” or high degree of probability that the accused will be deprived of a fair trial:Crichton at para. 40. [34] A contravention of ss. 7 and 11(

d) requires that the accused desire counsel, that the case involves a serious offence withproceedings too complicated for the accused to address, and that the accused be unable to afford counsel: Crichton at para. 34. [35] The trial judge is required to consider the seriousness of the charges, the length or complexity of the proceedings and theaccused’s ability to participate effectively and defend the case.

Rowbotham orders are exceptional because legal aid is available for themajority of accused who cannot afford counsel: Crichton at para. 35. [36] To obtain a conditional stay of proceedings based on a violation of ss. 7 and 11(d), certain financial criteria must be established.First, the applicant’s financial circumstances must be “extraordinary”. The applicant must provide detailed financial evidence of his orher financial circumstances, which includes supporting evidence. The applicant must save money to hire counsel or contribute to his orher legal fees, and make efforts to borrow money from friends or family.

The applicant should try to obtain employment or additionalemployment if already employed. The applicant should try to find counsel who would be willing to work at LSS rates. The applicantmust reasonably exhaust his or her own assets to pay for counsel before looking to the taxpayer to pay for a lawyer.

The applicant mustdemonstrate that he or she was prudent with his or her personal living expenses and show foresight and planning of his or her financialaffairs to pay for a lawyer: Crichton at para. 49. [37] A lack of financial prudence itself may be sufficient to refuse the remedy sought in a Rowbotham application. The lawestablishes the remedy as one which is “rare and exceptional” and that it must be the “clearest of cases” before a stay of proceedings isentered.

As noted in Crichton at para. 52: This is based on the law that establishes that the judiciary should not be spending taxpayer money in cases where an accused chooses notto spend the money he has on his lawyer, and instead comes to the court cap in hand, expecting counsel to be appointed for him. In thosecircumstances, the cap will remain empty. [38] The inquiry into the applicant’s financial circumstances commences when he or she reasonably knew a lawyer would need to beretained to defend criminal charges: Crichton at para. 51.

ANALYSIS [39] The Applicant has been refused funding via Legal Aid B.C. due to his level of income. He sought a review, and the decision torefuse him funding was upheld. This precondition to the application is conceded. The Nature of the Case i. Seriousness of the Charge [40] The Applicant is charged with Possession for the Purpose of Trafficking in cocaine, a

Schedule I substance, contrary to section5(2) of the Controlled Drugs and Substances Act. He is alleged to have possessed several kilograms of powder and crack cocaine. [41] The maximum sentence for this offence is life imprisonment. After trial, the Applicant received a six year jail term. He servedapproximately one year of his sentence prior to his release on bail pending the appeal. [42] The charge is clearly serious. Counsel for the Respondent all but conceded this point. ii. Length and Complexity of the Proceedings [43] The Applicant submitted that the proceedings are objectively complex.

He pointed to the substantial disclosure provided prior tothe first trial, which exceeded 18,000 pages He further noted that the first trial involved a voir dire to determine the Applicant’sstanding to challenge the search warrant, which consumed 10 days of trial. A further 14 days of trial were utilized to complete the case.The Second Affidavit repeated retrial estimates reportedly provided by PPSC Crown Maggie Loda, which included six days for thestanding voir dire; six days for a challenge to the search warrant; and three weeks for the substantive trial: Second Affidavit at para. 14.

[ 44 ] The Applicant submitted that the law regarding standing to challenge a search warrant has evolved since the conclusion of the first trial. As such, different considerations will come into play when considering the issue of standing at the retrial. If the Applicant succeeded on an application for standing, it is highly likely that the retrial would require consideration of the Applicant’s

section 8 Charter rights in the face of a warrantless entry into, and observations made in, common areas of the apartment complex, and the search and seizure of CCTV security camera footage and key fob records. [ 45 ] The Applicant noted that one of the reasons for the trial judge’s dismissal of the Jordan application was due to the trial’s inherent complexity (albeit because of the presence of multiple accused): R. v.

Eheler , 2019 BCPC 59 at para. 121 . [ 46 ] The Respondent argued that the court ought not assume that the matter is complex.No applications for Charter relief had been filed since the appeal was successful. There had been no discussions about admissions, which might reduce the length of time required for the retrial. Nor does the likelihood of voir dires being called to determine the admissibility of evidence, or the presence of a “cut- throat” defence, lead automatically to a finding of complexity: R. v.

Khan , 2015 BCSC 451 at paras. 8 and 13 . [ 47 ] The Respondent punctuated two further points that, in his submission, mitigate concerns regarding the complexity of the proceedings. Firstly, the co-accused will have counsel. Given the factual matrix, many of the defences available to the co-accused would apply equally to the Applicant. The Applicant would thus benefit from the arguments raised by the co-accused, and would not be completely without assistance at the trial. Secondly, it would be incumbent upon the trial judge to render assistance to the Applicant.

He would benefit from instruction on procedural and other issues at each stage of the trial process. [ 48 ] Regardless, the Respondent argued that, at its core, the case is one of possession, and the elements of possession are relatively straightforward and fact-driven. [ 49 ] I find that the case against the Applicant is sufficiently complex to conclude that counsel is required to assist in order for the trial process to be fair. The case need not be overly complex in order to ground this finding.

It is enough that there is a probability of imprisonment and the case is sufficiently complex that counsel is essential to ensure a fair trial: Rushlow at para. 24 . In reaching this conclusion, I am persuaded by the following: (

a) the sheer volume of materials produced in disclosure. The Applicant had difficulty enough understanding his own financial records. It is reasonable to conclude that the amount of disclosure would overwhelm him, and render him incapable of consolidating it to mount an effective defence. (

b) The inherent nature of the case. I disagree with the Respondent’s position that the court cannot assume the matter to be complex. The court has the benefit of descriptions of the previous trial, and the expected nature of the retrial. The case will consume upwards of 27 days of court time to determine pre-trial issues such as standing to challenge the search warrant; the disposition of CCTV footage and key fob evidence; and applications to cross-examine affiants.

I also accept that the law has shifted in the intervening four years since this matter was before the court such that these issues will have to be analysed anew, rather than simply reiterated. [ 50 ] Moreover, it is to be remembered that the trial judge cannot assume the role of counsel; must not provide legal advice; and must maintain a position of impartiality as between the parties. While the trial judge is duty bound to ensure the accused has a fair trial, he or she cannot act as an advocate: R. v. Lewis , 2016 ONCJ 859 at para. 21 . The assistance provided by the trial judge is, of necessity, limited. iii.

The Ability of the Accused to Participate Effectively Alone at Trial [ 51 ] The Applicant has limited formal education. He is literate, but has no legal training. He had difficulty understanding the “legalese” in some of his affidavit materials. While it is reasonable to “...assume that his ability to defend himself at trial is at least as good as any other untrained lay person” ( R. v. Lewis , 2016 ONCJ 859 ), I am of the view that this particular trial is beyond his means to manage. The volume and nature of the disclosure is large and complicated.

The legal acumen required to mount a defence makes it a daunting prospect. [ 52 ] For the aforementioned reasons, I find the first part of the test in Rowbotham is made out. Financial Eligibility [ 53 ] A finding of indigency is a precondition to granting a conditional stay of proceedings. 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: HMTQ v.

Malik , 2003 BCSC 1439 (“ Malik ”) at para. 33 . [ 54 ] The Applicant argued that prior to Legal Aid B.C.’s refusal to provide him funding, he was entitled to believe he would receive funding, as he had for his trial and for the appeal. Given that funding was not refused until October 2021, the Applicant’s financial circumstances ought to be considered from this day forward. [ 55 ] I disagree. I am troubled by the suggestion that the Applicant was entitled to believe he would receive funding, and therefore needed not conduct his affairs in a financially responsible manner.

The evidence tendered on the Application demonstrates in sharp relief the Applicant’s imprudence in his financial affairs. He ought to have considered the need to save for his potential legal defence from the time he was released on bail. i. Financial Imprudence [ 56 ] It ultimately matters little whether the Applicant’s financial affairs are analyzed from the time of his release on bail in February 2021, from the date the Court of Appeal decision was released on August 27, 2021, or from the date Legal Aid B.C. refused to fund the retrial on October 20, 2021.

The Applicant displayed surprising irresponsibility with his finances throughout. As noted by the

Respondent, the Applicant’s most imprudent expenditures took place in October 2021, after the new trial was ordered and in the month when his application to Legal Aid B.C. was refused. [ 57 ] The Applicant spent thousands of dollars on Apple.com applications, for which, by his own account, he received nothing material in return. He ate the majority of his meals out, despite paying a flat fee of $800 per month for “room and board” at his brother’s house. He took holidays, stayed in hotels, gambled online and at casinos, and otherwise engaged in a vibrant social life.

He frequently withdrew large sums of money from his bank account, and was unable to account for how he spent substantial amounts of this money. [ 58 ] During the entire period of time from his release on bail in February 2021 to the hearing of the Rowbotham application in February 2022, the Applicant made no effort to save any funds for his defence. [ 59 ] Financial imprudence by itself does not automatically disentitle an accused to state funding for a legal defence. The analysis is by necessity undertaken on a case-by-case basis.

Nonetheless, the burden to establish eligibility for the exceptional remedy of a stay of proceedings is onerous. As Smart, J. (as he then was) noted in R. v. Kim , 2011 BCSC 137 at para. 53 : We do not expect perfection from people in planning their finances to ensure they can retain counsel. We do, however, expect a reasonable and sincere effort to save or otherwise obtain the funds necessary to retain counsel when they do not qualify for legal aid.

Rowbotham orders are not for those accused who deliberately or recklessly fail to do all they reasonably can to be able to fund counsel themselves . [Emphasis added.] ii. Insufficient Disclosure [ 60 ] The Applicant traded in cryptocurrencies via his own Coinbase account, as well as using the accounts of other people. He transferred monies electronically using the online platforms Gigadat and Shakepay.

The Applicant supplied no accounting of any kind for any of his cryptocurrency purchases, transfers or balances, whether through his own accounts of those of his associates. [ 61 ] The Applicant was given an opportunity to provide further disclosure of his financial circumstances after the first day of the hearing. Yet, he declined to supply any information regarding his cryptocurrency purchases and sales. Given the financial eligibility test to be met in a Rowbotham application, this was a glaring omission. [ 62 ] The court is left with the Applicant’s word that he lost money trading in cryptocurrencies.

He provided only the most basic off hand accounting in his viva voce testimony. Absent a proper accounting for the balances and activity in these various accounts, it is not possible to evaluate the veracity of the Applicant’s assertion that he had no holdings in cryptocurrency accounts. iii. Lack of Candor With the Court [ 63 ] The Applicant claimed throughout the first day of the hearing that he had only a single bank account with RBC. He later conceded he had two RBC bank accounts, but was unaware of that fact because he accessed both accounts through a single bank card.

He maintained this position despite the fact that his financial documentation showed that he made various transfers of money between these two accounts, and had charged debit purchases to both. [ 64 ] Simply put, this assertion is unbelievable. The Applicant is not financially naïve. He e-transferred funds to his associates to benefit from their cryptocurrency accounts. He regularly sent and received e-transfers from various people. He paid bills and made numerous online purchases.

It strains the bounds of credulity to accept that the Applicant was unaware of his second bank account until after the Rowbotham application had commenced. [ 65 ] I find the Applicant has not been candid with the court regarding his finances. In such circumstances, the Applicant’s inability to explain substantial cash withdrawals; e-transfers to unknown individuals; and his active cryptocurrency trading take on even greater importance. I am not convinced that the Applicant is truly indigent. I cannot tell what balances he may retain in cryptocurrency accounts he holds himself, or others hold on his behalf.

I cannot accept his word that he has no other assets. [ 66 ] This is a circumstance where the Applicant has disentitled himself to state-funded counsel because of his conduct prior to and during the application. The Applicant’s lack of foresight and planning, coupled with a deficient financial record and evidence of a lack of candour regarding expenditures should not lead to the taxpayer shouldering the burden to defend him. [ 67 ] The Applicant argues that his financial irresponsibility should not disentitle him to state paid funding.

Given his reported income in 2020 of approximately $64,000 and his reasonable expenses calculated at just over $30,000, the most the Applicant could save toward his defence would be perhaps $30,000 (assuming he engaged in no other discretionary spending). This would be insufficient to fund his defence, based on the time estimates for trial.

If the Applicant could not fund his defence in the most favourable of circumstances, his failure to deal with his finances in a responsible manner is of little import. [ 68 ] In my view, this argument fails on two grounds. [ 69 ] Firstly, the caselaw clearly stipulates that a Rowbotham order is an exceptional remedy that is available only in the clearest of cases. The financial eligibility portion of the test is onerous, and requires that a person make efforts to save money, borrow money, and show foresight and planning of financial affairs: Crichton at para. 49 .

In particular, the applicant must show that he or she has no assets which can be utilized, or that every effort has been made to utilize what assets are available to raise funds: Crichton at para. 45 . [ 70 ] The Applicant demonstrated none of these. He saved no money. He engaged in substantial discretionary spending. He was unable to account for many e-transfers. [ 71 ] Secondly, as previously discussed, I am not satisfied that the Applicant has presented a fulsome picture of his financial

circumstances. In the absence of a complete account of his finances, I am not convinced that the calculation of a maximum of $30,000 of available discretionary funds is accurate. [ 72 ] Simply put, the Applicant’s financial circumstances are not “extraordinary” within the meaning of the Rowbotham jurisprudence.

SUMMARY [ 73 ] The Applicant finds himself in a circumstance similar to the applicant in Malik . As noted by Stromberg-Stein, J. (as she then was) at para. 21: I agree with the Attorney General that Mr. Malik’s application should be dismissed. ... Mr. Malik has failed to meet the factual and evidentiary onus to establish indigency as defined in the Rowbotham jurisdprudence. 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. ... If Mr. Malik is indeed indigent , it is because he has made himself so and he is not able to succeed on this application. [ 74 ] For the reasons outlined above, the application is dismissed. _______________________________ The Honourable Judge Peter D. Whyte Provincial Court of British Columbia