R. v. Mazia, 2014 ONCJ 613

Citation: R. v. Mazia , 2014 ONCJ 613 ONTARIO COURT OF JUSTICE (Toronto Region) BETWEEN: HER MAJESTY THE QUEEN Respondent & R. v. IVANMARINO MAZIA Applicant REASONS FOR JUDGMENT AND ORDER CONDITIONALLY STAYING PROCEEDINGS JUSTICE BRENT KNAZAN November 17, 2014

Appearances: Ms. B. Forson Counsel for the Respondent Mr. E. Stimec For the Crown Mr. Ivan Mazia In person This is an application by Mr. Mazia for a stay of proceedings until the Attorney General provides funding for him to be represented bycounsel. The Attorney General concedes that Mr. Mazia is ineligible for or has been refused Legal Aid and has exhausted all appeals forreconsideration of his eligibility and that he is indigent and unable to privately retain counsel to represent him at trial. Therefore, it iscommon ground that the application turns on the third criteria set out in R. v.

Rowbotham (ON CA), 185 C.C.C. (3d)352, that is – has Mr. Mazia satisfied this Court that his right to a fair trial will be materially compromised absent public funding forcounsel. Mr. Mazia is charged with break and enter into a place other than a dwelling under

section 348 of the Criminal Code. The Crown haselected to proceed by

summary conviction rendering the maximum penalty six months imprisonment. Crown counsel appearing on thetrial has indicated that the prosecution is seeking a sentence of imprisonment if there is a conviction. Mr. Mazia applied for legal aid and received a certificate to be represented on this charge along with a number of other charges arisingout of different circumstances. He received a Legal Aid certificate. He authorized a lawyer to appear on his behalf for severalappearances and Legal Aid sent his certificate to this lawyer. Mr.

Mazia took the position that he never authorized Legal Aid to issue thecertificate to that lawyer. There is a dispute about this fact. Mr. Mazia ultimately received an apology from Legal Aid respecting theprocessing of his application, but the dispute is not germane to this application. Legal Aid treated his request to send the certificate toanother lawyer as an application for change of solicitor and refused his request as he did not meet the test for changing solicitors. Mr.Mazia appealed but the Appeals officer upheld the decision of the Area Committee. As Mr.

Mazia requested a trial on all of his charges, he set different trial dates for the charges arising out of the different events. In onetrial he applied for a stay as he did in this application and the Attorney General agreed to fund counsel. In another trial he applied for astay and the judge dismissed his application. The prosecutor has provided a synopsis of the case against Mr. Mazia and elaborated on it in oral argument. The allegation is that Mr.Mazia broke into a bar, removed the cash register, left something in the bar and returned to retrieve it. There is a video recording the crime.

Apparently the video recording does not show the culprit completely clearly. The prosecution willcall a witness who knows Mr. Mazia to identify the person in the video. The prosecution may or may not, as part of its case, ask theCourt to conclude that the guilty person is Mr. Mazia based on my watching the video. The estimated trial time is one day. This then is not a complicated case, all other things being equal. But all other things are not equal; Mr. Mazia is legally blind. He suffers from deterioration of the cornea in one eye and has 7% vision in the other. He can’t see and he can’t drive.

He can read butwith difficulty. He argued his motion intelligently orally and in writing. He was articulate, concise in his oral submissions andunderstood the issues and Crown counsel’s factum and position. But when he read he had to hold the papers about two inches from hiseyes, find the best distance and then read with difficulty. When I asked him if he could see me on the judge’s bench about three to fourmetres from where he was standing he answered that he could see my shape and the glasses. When I asked him if he could see a beard,which is there, he indicated that he could see some different colour.

The Attorney General accepted Mr. Mazia’s self-reporting of hisvision without requiring sworn evidence or cross-examination. It is part of the evidentiary foundation of his application. Determination of whether Mr. Mazia can obtain a fair trial without state funded counsel If a trial judge is satisfied that representation of an indigent accused who has been denied legal aid is essential to a fair trial, he may staythe proceedings against the accused until the necessary funding of counsel is provided: R. v. Rowbotham, supra, Rowbotham dealt onlywith serious and complex cases as that was the case there.

Justice Rosenberg found it unnecessary to deal in that case with less seriousoffences. Subsequent cases could leave the impression that the seriousness of the offence is a separate requirement for the accused to establish inaddition to satisfying the judge that counsel is essential to a fair trial. In R. v. Williams, 2011 ONSC 7406 for example, Justice Molloywrote that “the court must consider the seriousness of the charges, the length and the complexity of the proceedings, and the accused’sability to participate effectively and defend the case”.

In support of this statement she refers to the decision of the Ontario Court ofAppeal in R. v. Rushlow 2009 ONCA 416, 245 C.C.C. (3d) 505 at para.19. I will return to these three criteria, but dealing firstly with the seriousness of the offence, Rowbotham does not establish that the offencemust be serious because it did not deal with it. But in any event Rushlow is a case where the Court of Appeal found that the trial judgeerred in her exercise of discretion and put too high a burden on the applicant to show that counsel was essential to a fair trial.

Justice Rosenberg wrote: In my view, the trial judge applied too stringent a test. This court has never said that a Rowbothom [sic] order is limited to an extremecase where Legal Aid's decision is completely perverse and there is a substantial possibility of lengthy imprisonment. The passage fromRowbothom [sic] quoted by the trial judge is from the reasons of the trial judge in that case. This court did not endorse that test. Nor

need the case be one posing "unique challenges". The authorities hold that the case must be of some complexity, but a requirement ofunique challenges puts the threshold too high. It is enough that there is a probability of imprisonment and that the case is sufficientlycomplex that counsel is essential to ensure that the accused receives a fair trial. Paragraph 24. Since the prosecution is asking for imprisonment for Mr. Mazia, he meets any requirement for seriousness that Rowbotham establishes.

Regarding the complexity of the case, this case is a straightforward case for any defendant without a vision related disability. But Mr.Mazia’s disability presents a serious obstacle to his defending himself. Crown counsel, in his elaboration of the synopsis to summarizethe case advised the Court that he would rely on the identification method set out in R. v. Leaney (SCC), [1989] 2 SCR393 and would be calling a witness who knows Mr. Mazia to identify him as the person in the video. He also advised that he might relyon R. v. Nikolovski (SCC), [1996] 3 S.C.R. 1197 and ask the Court to determine that Mr.

Mazia was the person whocommitted the break and enter by watching the surveillance video. In Leaney, the Supreme Court determined that police officers who did not know the accused, could not testify that the accused was in thevideo but that an officer who had known him for fifteen years could have. In R. v. Nikolovski the Court determined that the trial judgecould look at the video herself and determine whether the accused was the person in the video. In Leaney the Court held that the court must hold a voir dire on the witnesses’s qualification to identify the person in the video.

InNikolovski, Justice Cory, after determining that the trial judge was permitted to make her own comparison between the perpetrator in thevideo and the accused, added: A trial judge sitting alone must be subject to the same cautions and directions as a jury in considering videotape evidence ofidentification. It would be helpful if, after reviewing the tape, the trial judge indicated that he or she was impressed with its clarity andquality to the extent that a finding of identity could be based upon it.

This courtesy would permit Crown or particularly defence counselto call, for example, expert evidence as to the quality of the tape or evidence as to any changes in appearance of the accused between thetaking of the videotape and the trial and to prepare submissions pertaining to identification based on the tape. Paragraph 32 So there is some legal complexity in the nature of the case apart from Mr. Mazia’s disability, though not enough to raise it to the level ofa complex case. However, given the nature of the Crown’s evidence and the applicable law, Mr.

Mazia’s legal blindness satisfies methat counsel is essential to his having a fair trial. The case is based on sight - the witnesses will be describing what they see. Mr. Maziacannot be in the same position as the witnesses, the prosecutor or the judge as they look at the video and discuss it. I am told that in another case the video screen was brought right up to Mr. Mazia so that he could look at it. But in that theft case theissue was not identity, it was established that Mr. Mazia was in the video, but rather what he did.

Here the quality and clarity of thevideo and what it shows will be the main proof of identity against Mr. Mazia. Section 15 (1) of the Charter guarantees Mr. Mazia equality with a person who does not have a vision-related disability. I do not requirean application under the Charter from either Mr. Mazia or on my own motion. In Hills vs. Attorney General of Canada (SCC), [1988] 1 SCR 513, at paragraph 93, in reference to statutory

interpretation, Justice L’Heureux-Dube said: I agree that the values embodied in the Charter must be given preference over an

interpretation which would run contrary to them(RWDSU v. Dolphin Delivery Ltd., (SCC), [1986] 2 S.C.R. 573; Manitoba (Attorney General) v. Metropolitan StoresLtd., (SCC), [1987] 1 S.C.R. 110). Here I am not interpreting a statute, except that indirectly I am applying s.11(

d) of the Charter because every Rowbotham applicationnecessarily relies on s. 11(d). However, the principle that Charter values informs the whole of the law is as applicable to a judge’sexercise of discretion as to the

interpretation of a statute. Any exercise of discretion must be exercised consistently with the CanadianCharter of Rights and Freedoms. In the Report of the Courts Disabilities Committee prepared for the Honourable R.

Roy McMurtry, December 2006, Making Ontario’sCourts Fully Accessible to Persons with Disabilities the Committee stated: The right to equality for persons with disabilities includes a right to have disability-related needs reasonably accommodated, up to thepoint of undue hardship, to ensure that persons with disabilities can fully participate in and benefit from services and facilities available tothe public. www.ontariocourses.ca/coa/en/ps Since Mr.

Mazia has established that he could not defend himself without being able to see the evidence at least as well as everyone elsein the court, he cannot have a fair trial if required to defend himself. Examples of complex cases where judges have determined thatcounsel was not essential to a fair trial do not assist in a case where a visually impaired defendant is faced with a crown case turning onvideo identification. I was advised that in Mr. Mazia’s other case the judge dismissed a similar application, but when her reasons wereread to me she did not appear to deal with his vision-related disability.

That leaves a final argument of Crown counsel. That is, that if assistance with seeing is essential for Mr. Mazia to have a fair trial thenthat is not a role for counsel but for someone to assist him in court. I disagree, as in my opinion that narrows the role of counsel and isnot justified. I have already dealt with the legal issues that the method of proceeding by video identification gives rise to. But in addition,counsel’s role is not limited to legal argument; every counsel serves their client by their own listening to and absorbing and processing

the evidence and explaining its significance to the client from a factual as well as a legal perspective. It is precisely a lawyer who can address the unfairness that would occur if Mr. Mazia were required to defend himself. The application is allowed and the charge is stayed until the Attorney General provides a lawyer for Mr. Mazia at legal aid rates. As Mr. Mazia is in custody and at one point had a lawyer prepared to represent him, the trial should proceed on the date of December 4 if possible. Mr. Mazia should make best efforts to obtain and instruct a lawyer who is prepared to proceed on the trial date. __________________________ Brent Knazan Ontario Court of Justice November 17, 2014