R. v Andrew Douglas Hillman, 2016 NSSC 295

SUPREME COURT OF Nova Scotia Citation: R. v Andrew Douglas Hillman,2016 NSSC 295 Date: 2016-10-21 Docket: Truro , CRT No. 435273 Registry: Truro HER MAJESTY THE QUEEN Vs ANDREW DOUGLAS HILLMAN Judge: The Honourable Justice N. M. Scaravelli Hearing Date: Oral Decision: October 21st, 2016 October 21st, 2016 Counsel: Leonard J. MacKay for the Crown Andrew Douglas Hillman on his own behalf Orally By the Court: [ 1 ] Going to give an oral decision this morning on this application.

I reserve the right to edit and expand upon my decision should it be required. [ 2 ] This is an application for state funded counsel, often referred to as a Rowbotham application. Andrew Hillman applies for a stay of proceedings pursuant to section 24(1) of the Charter based upon his constitutional right to a fair trial imbedded in

section 7 and

section 11(

d) of the Charter. [ 3 ] Mr. Hillman has been charged that on or about the 7 th day of July, 2014, at or near Truro, Nova Scotia, did unlawfully produce a substance included in

Schedule II to wit: cannabis marihuana, contrary to section 7(1) of the Controlled Drugs and Substances Act . [ 4 ] Mr. Hillman has elected to be tried by a judge and jury. Mr. Hillman has the onus to persuade the court on a balance of probabilities that his right to a fair trial under the Charter would be violated if her were to proceed to trial without the benefit of counsel. This has been described by authorities as a very heavy burden. [ 5 ] The well-established jurisprudence in this area establishes a two stage inquiry: 1. Can the applicant receive a fair trial without legal counsel? 2.

If not, has the applicant exhausted all possible avenues to obtain counsel? [ 6 ] The crown’s position is that the applicant can receive a fair trial without the benefit of legal counsel in this case.

Alternatively, if it is determined by the court that fairness requires state funded counsel, the crown submits there is insufficient evidenceof the applicant’s financial information proving he is financially unable to engage counsel after having been denied Legal Aid. [7] As indicated there is a great deal of jurisprudence in this area. In the case of R v Rushlow, 2009 ONCA 461 , 96O.R. (3d) 302, Justice Rosenberg, having reviewed the jurisprudence identified factors as being relevant to the issue of necessity ofcounsel to ensure a fair trial.

These include the seriousness of the charges; likelihood of imprisonment; the length and complexity of theproceedings; expected length of the trial; and the accused’s ability to participate effectively and defend the case. [8] In R v. Malik, 2003 BCSC 1439, Justice Stromberg-Stein reviewed the extensive jurisprudence and set out a number of factorswith respect to financial eligibility.

Justice Rosenberg-Stein stated that the applicant’s financial circumstances must be extra-ordinary; the applicant must provide detailed financial evidence of his financial circumstances; the applicant must provide details of evidence toobtain legal counsel; the applicant must make efforts to save money; to borrow money, this includes efforts to borrow from children orfamily members; to obtain employment or additional employment; to look for counsel willing to work at Legal Aid rates; and exhaust allefforts to utilize assets including the applicant’s own, to raise funds. [9] Mr.

Hillman filed his application for Rowbotham counsel on July 19, 2016 following denial of his application for Legal Aidand rejection of his appeal.

His affidavit filed at the time was sparse and only included a statement of income, essentially, socialassistance as well as his expenses together with a copy of a letter from Legal Aid rejecting his appeal on the basis of lack of legal meritregarding his wish to make a constitutional challenge. [10] Prior to appearing before a scheduled date in court on August 2nd, 2016, crown counsel directed a letter to the court and to Mr.Hillman expressing concerns for the lack of disclosure on the part of Mr. Hillman.

Crown counsel attached a detailed disclosure requestsetting out the information required to deal with a Rowbotham application. This detailed disclosure request essentially encapsulated thefactors set out in the two cases that I have cited. [11] On August 2nd the parties appeared before Justice Hunt. Dates were set for Mr. Hillman to provide fulsome disclosure. The hearing date was scheduled for today’s date. Dates were also set for filing briefs. On September 29th, 2016, Mr. Hillman filed a furtheraffidavit. This affidavit merely attached proof of his social assistance income.

There was nothing contained in the affidavit relating tothe disclosure information requested by the crown and provided to Mr. Hillman. Mr. Hillman did not file a brief and elected not to callfurther evidence at this hearing. [12] The crown’s synopsis of the charges before this court is that on July 7th, 2014, acting on a search warrant arising from anapparent grown operation discovered by fire fighters extinguishing a fire at the applicant’s residence, the police found marihuana plantsgrowing in three separate locations in the home.

Ninety-nine plants were seized as well as a small amount of marihuana found on theapplicant during his arrest. [13] The crown has indicated it intends to call a maximum of four witnesses and will introduce as exhibits the items seized at theapplicant’s residence. The crown does not plan to call any expert evidence. The crown anticipates the possibility of a voir dire on aCharter application by Mr. Hillman. In this regard, Mr.

Hillman asserts that section 7(1) of the CDSA is unconstitutional due to hisposition that he should have the right to grow and consume marihuana even though he does not assert that he has medical or legalauthorization to possess or grow cannabis. On this basis Legal Aid denied legal representation. [14] The crown submits there is no air of reality to this constitutional challenge. The crown submits the likely sentence, if the applicantis convicted, is a period of probation and a modest fine. In other words, no incarceration. [15] In this hearing Mr.

Hillman has failed to provide sufficient evidence to establish that he could not effectively defend his case. Hehas made prior motions during the course of these proceedings. Moreover, based on the crown’s submissions, I am satisfied the trialwould not be lengthy and the issues are not complex. There is little likelihood of imprisonment in the event of conviction. On this basisalone, I would dismiss the application. I also find that Mr. Hillman did not provide the required detailed evidence of financialcircumstances having been given ample opportunity.

As a result, the application for state funded counsel is dismissed. Scaravelli, J.