R. v. D.C.S., 2023 NSSC 41

SUPREME COURT OF Nova Scotia Citation: R. v. D.C.S. , 2023 NSSC 41 Date: 20220614 Docket: CRH. No. 499649 Registry: Halifax Between: His Majesty the King v. D.C.S. Restriction on Publication: ss. 486.4 and 486.5 DECISION Judge: The Honourable Justice John P. Bodurtha Heard: May 17, 2022, in Halifax, Nova Scotia Oral Decision: June 14, 2022 Written Decision: February 7, 2023 Counsel: Myles H. Thompson, Attorney General of Nova Scotia Nicole Campbell, Crown Counsel D.C.S., Self-Represented Defendant By the Court (Orally): Introduction [ 1 ] DCS is charged with four Criminal Code , R.S.C. 1985, c.

C-46 offences, namely, s. 271 (sexual assault), s. 151 (sexual interference), s. 152 (invitation to sexual touching), and s. 153.1 (a) (touching the body of a young person for a sexual purpose). [ 2 ] DCS applied for counsel through Nova Scotia Legal Aid (“Legal Aid”). He was approved and assigned a staff lawyer. There was a breakdown in this relationship on the eve of his trial. Legal Aid denied DCS’s request to fund another lawyer. In November, 2019, he appealed his rejection for Legal Aid services. The committee confirmed the decision of staff to deny him Legal Aid.

However, Legal Aid did grant DCS a limited certificate to obtain a second lawyer to assess the merits of his case. [ 3 ] DCS brings a Rowbotham application - seeking a conditional stay of the charges pending the Attorney General of Nova Scotia’s agreement to provide defence funding (in accordance with the Legal Aid tariffs). [ 4 ] After the hearing, I had the parties appear before me on May 24, 2022 via video conference. During that appearance, I had further questions for counsel and DCS regarding his “medical duress” defence. Further oral submissions were made by the parties.

During his oral submissions, DCS claimed that, as part of his defence, he was under a form of medical duress (as he is a diabetic) and that he should have been offered medical treatment at the time of speaking to police. He asserts that, because his diabetes was not controlled at the time, his admissions to police are inadmissible. [ 5 ] Based on the responses to my earlier queries and the submissions from DCS, I requested that the Crown provide a copy of the transcript of DCS’s statement to police as well as the video of the statement. I then provided filing deadlines to the parties.

DCS was to provide written submissions on his position of providing a statement while under medical duress by May 31, 2022. The Crown and the Attorney General of Nova Scotia (the “AGNS”) were to provide their written submissions by June 8, 2022. [ 6 ] On May 26, 2022, the Crown provided the Court, the AGNS, and DCS with a copy of the transcript of DCS’s statement. A

copy of the video was later provided on May 27, 2022. To date, the Court has not received any written submissions from DCS. [7] I have reviewed the transcript and the video. Unfortunately, the second part of the video had technical difficulties but, for thepurposes of the Rowbotham application, the first part of the video along with the transcript is sufficient. The second part of the videoappears to contain the moments where DCS made the admissions to police, as well as where he was provided with his insulin to managehis diabetes. Issue – Is DCS entitled to state funded counsel? Analysis [8]

Section 684 of the Criminal Code deals with the appointment of state funded counsel for an accused, commonly referred to asa Rowbotham application.

It reads: 684(1) Legal assistance for appellant A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or toproceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests ofjustice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain thatassistance. [9] The application is founded under the accused’s constitutional right to a fair trial in sections 7 and 11(

d) of the CanadianCharter of Rights and Freedoms, Constitution Act, 1982 R.S.C. 1985, App. II, No. 44, Sched. B, Pt. I (the “Charter”): 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. 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; [10] In a Charter application, the onus is on the applicant to present evidence to show, on a balance of probabilities, that theirCharter rights have been or will be infringed. In Rowbotham applications, the applicant must establish that: (

a) he cannot receive a fair trial without counsel; and (

b) he has exhausted all possible routes to retain private and publicly funded counsel. R. v. Keating (1997), 1997 NSCA 135 , 159 N.S.R. (2d) 357 (CA) at para. 13. [11] In R. v. Publicover, 2020 NSCA 67, Van den Eynden J.A., discussed the factors in a Rowbotham application before the Courtof Appeal at paras. 14-15. I have applied some of the various factors with modifications because Publicover applies to Appeals: 14 As required under s. 684(1) of the Criminal Code, I consider: (1) whether it is desirable in the interests of justice that Mr.

Publicoverhave legal assistance; and, (2) whether he has sufficient means to obtain counsel. The overall burden to establish these prerequisites is onMr. Publicover (R. v. Keats, 2017 NSCA 7 (N.S. C.A.) , para. 9). 15 The first inquiry ("desirable in the interests of justice") involves consideration of various factors, including: • Are the grounds of appeal arguable/have merit? • Is the appeal complex? Complexity can be garnered from the grounds of appeal, the length and content of the record, the legalprinciples involved, and their application to the facts. • Is Mr.

Publicover able to effectively present his appeal without the assistance of counsel? The ability to do so can be gleaned from theability to comprehend, communicate, and apply legal principles to the facts. • The ability of the appeal panel to address the issues raised on appeal without the assistance of counsel. • The Crown's duty to ensure the appellant is treated fairly and to bring important arguments to the attention of the panel,notwithstanding this might benefit Mr.

Publicover. [footnote omitted] [12] A successful applicant will receive a Charter-based order staying the prosecution against them until the Attorney Generalprovides the necessary funding for counsel. The remedy for a conditional stay of proceedings is sought pursuant to subsection 24(1) ofthe Charter: 24(1) Anyone whose rights or 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.

Courts have recognized that representation by counsel will not always be a prerequisite for a fair trial. Only in those “rare”circumstances, where counsel will be essential to ensure a fair trial, should Courts grant a request for state funded counsel: R. v. Keating,(1997), 1997 NSCA 135 , 159 N.S.R. (2d) 357 (CA) [13] An accused does not have a constitutional right to a state funded counsel: R. v. Keating, (1997), 1997 NSCA 135 , 159N.S.R. (2d) 357 (CA), at para. 12. [14] This principle of an accused not having a right to state funded counsel was repeated in R. v. Stewart, 2014 NSCA 56, where Mr.Stewart’s

section 684 application for state funded counsel was dismissed: [39] Mr. Stewart's assertion that he has an unqualified right to a publicly funded lawyer is simply not correct. One only need quoteJustice Hallett in Grenkow, as did counsel for the Attorney General during oral argument: [28] … It must be borne in mind that the law in Canada is clear: an accused does not have a constitutional right to a state funded counselat trial (R. v.

Ewing (1973), (BC CA), 18 C.C.C. (2d) 356; 29 C.N.R.S. 227; [1974] 5 W.W.R. 232 (B.C.C.A.); R. v.Rowbotham et al. (1988), (ON CA), 25 O.A.C. 321, 41 C.C.C. (3d) 1, 63 C.R. (3d) 113, 35 C.R.C. 207 (C.A.), R. v.Rockwood (1989), (NS CA), 91 N.S.R. (2d) 305, 233 A.P.R. 305, 49 C.C.C. (3d) 129, 42 C.R.R. 369 (C.A.)). … [15]

Section 19 of the Legal Aid Act, R.S.N.S. 1989, c. 252 sets out various reasons why assistance may be denied: 19 Legal aid may be refused, suspended or withdrawn, as the case may be, or a certificate cancelled with regard to any person otherwiseeligible when that person, without sufficient reason, … (

d) refuses to co-operate with the solicitor rendering professional services for him, in the manner that is normal and customary between asolicitor and his client; … [Emphasis added] [16] Legal Aid denied DCS’s request to fund another lawyer on the grounds that he refused to cooperate with counsel. However,Legal Aid did provide DCS with a Legal Aid certificate to further obtain independent legal advice on the merits of his case. [17] The Nova Scotia Legal Aid Commission determines the provision of Legal Aid by considering financial eligibility, coverage,and merit.

Merit “includes legal merit as well as consideration of whether a reasonable person of modest means would expend their ownmoney to advance the matter.” (See 8.3.1 Qualifying for Legal Aid at 2). [18] The supply of Legal Aid resources is not inexhaustible. The government is politically accountable for its funding of publicinterest litigation and its provision of Legal Aid: see R. v. Prosper, (SCC), [1994] 3 S.C.R. 236 at para. 31, R. v. Taylor,1996 NSCA 210, at paras. 18 and 21, affirmed (1996) (NS SC), 154 N.S.R. (2d) 97 (SCC), and R. v. Cai, 2002ABCA 299, at paras. 8-10. [19] In R. v.

Canning, 2010 NSPC 59 at para. 3, Judge Ross noted that various Courts have said that Rowbotham orders will begranted sparingly - in light of the spending priorities of government: [3] Roughly speaking a Nova Scotia Legal Aid lawyer is provided to accused who are receiving social assistance or are in an equivalentfinancial position. The Legal Aid commission in this province (and its counterparts elsewhere) assess a large volume of applicationsevery year. They use funds budgeted by government for this purpose.

They apply standards and procedures which have been carefullydeveloped and can be uniformly applied; yet these standards can be changed if necessary. It is one of many areas in which governmentsare politically accountable for how they spend tax dollars. Recognizing this context various courts have said that Rowbotham orders willbe granted sparingly. [20] The Crown Prosecutor in this case advised the Court that, if the trial were to proceed, she intends to call four to five laywitnesses and no expert witnesses.

She anticipates two days of Crown evidence for the trial and a one-day pre-trial motion regarding apossible voir dire on the admissibility of DCS’s statements to police. She advises that, if convicted, the Crown would be seeking a jailterm of federal imprisonment. Based on the relationship between DCS and the complainant and the nature of the charges, if DCS is notsuccessful on his Rowbotham application, the Crown intends to file an application to have the Court appoint counsel for cross-examination of the complainant pursuant to s. 486.3(2) of the Criminal Code.

The Two-Part Test [21] Courts hearing an application for state funded counsel must conduct an inquiry into each part of the two-part test. The courtshave enumerated several factors to be considered when applying the test. Can the applicant receive a fair trial without counsel? [22] Applicants must present reliable evidence establishing “a very real likelihood” or “high degree of probability” that their rightsto a fair trial will be infringed in the absence of representation by counsel: R. v. Guindon, [2015] O.J. No. 7199 (SCJ), at para. 23. [23] In R. v.

Innocente, (NS SC), 2001 NSSC 190, at paras. 6-9, Justice Roberston discussed the various factorsfor determining whether counsel is essential to a fair trial. The following headings address the various factors:

(

a) Seriousness of the Case (

b) Complexity of the Case (

c) Ability of DCS to Answer to the Charge (

d) Length of the Trial (

e) The Role of the Crown (

f) The Role of the Court (

g) Section 486.3(2) of the Criminal Code Seriousness of the Case [24] Whether a case is “serious” depends largely upon the nature of the charges and the interests at stake. Cases that fall into the“serious” category more often will include, as a potential consequence, restrictions on individual liberty or incarceration. [25] The possibility of incarceration is not enough to fully satisfy the requirement of “seriousness” in the assessment of the need forstate funded counsel: R. v. Rain, 1998 ABCA 315, at para. 76; leave to appeal to S.C.C. dismissed [1998] S.C.C.A. No. 609.

Thepossibility, or even probability, of incarceration following conviction does not, by itself, justify the making of an order for state funding. It is necessary to examine the nature of the charges in carrying out an analysis of the seriousness and complexity of the trial: R. v.Swiech-Lemon, 2013 ONSC 5583, at para. 16. [26] The Crown prosecutor has indicated that, should DCS be found guilty of the charges against him, the Crown would be seekinga federal term of incarceration. [27] DCS’s case is serious in nature.

Should he be found guilty of the various sexual offences with which he has been charged, he ispotentially looking at a period of federal incarceration. This factor weighs heavily in favour of granting the Rowbotham application. Complexity of the Case [28] Considerations include complexity and volume of the evidence, procedural, evidentiary and substantive law, number ofaccused, number of counts and the likelihood of complex procedures such as voir dires: R. v.

Clarke, 2013 NSSC 177, at para. 29. [29] A proposed complex defence must be relevant and have an air of reality. [30] The information provided by the Crown Prosecutor (via email dated April 5, 2022) notes that DCS’s trial would requireapproximately two days for Crown evidence, with four to five Crown lay witnesses to be called. There would be no expert witnessescalled.

A voir dire was expected to be requested by the Crown on the admissibility of DCS’s statements to police. [31] DCS’s Rowbotham application and undated letter mentioned calling an expert witness to challenge the admissibility ofevidence obtained on the date of his arrest. DCS intended to have certain admissions made to police excluded from evidence on thebasis that he was suffering from “uncontrolled diabetes” on the date of arrest when he gave inculpatory statements to police.

It is notclear if he intends to call any other witnesses. [32] Included in the “complexity” analysis is whether the accused will be putting forward a complex defence. However, for theaccused to put forward a complex defence under which state funded counsel is sought to be awarded, there must be an “air of reality” tothe defence. [33] Where an applicant for state funded counsel relies on the complex nature of a proposed defence to demonstrate that their caseis complex, a reasonable inquiry by the judge into the nature of the defence is required.

Otherwise, it would be possible for anyone toqualify for state funded counsel merely by raising the possibility of a complex and expensive defence without having to demonstrate thatthe defence in question is both legally relevant to the charge and factually available in the circumstances. [34] It would be an error of law to find that the test for complexity on an application for state funded counsel has been met, wherethe Court fails to make an insufficient inquiry into the nature of a proposed defence to determine whether the defence is both legallyrelevant to the charge and factually available in the circumstances. [35] DCS argues that his statements to police should be inadmissible because he was suffering from a form of “medical duress” dueto uncontrolled diabetes.

It must be noted that DCS’s statement to police only forms part of the case the Crown has against him. Therefore, even if the statement is found to be made involuntarily due to medical duress, it may not be a complete defence. While aRowbotham application is not the appropriate venue to assess the voluntariness of DCS’s statements, he must put forward evidence thatshows there is an “air of reality” that these statements were involuntary due to “medical duress” caused by uncontrolled diabetes for meto consider how the alleged defence relates to the complexity of his case.

The Confession Rule & Operating Mind Test [36] In R. v. Whittle (SCC), [1994] 2 S.C.R. 914 (SCC), the Court reviewed the law on the confession rule and theoperating mind test. With respect to the “traditional” voluntariness rule the Court noted at p. 934: The traditional voluntariness rule articulated in Ibrahim v. The King, [1914] A.C. 599, focused on coercive action by persons inauthority. The inquiry into admissibility sought to determine whether the statement was obtained by either fear of prejudice induced orhope of advantage held out by a person in authority.

Although all the circumstances surrounding the taking of the statement were to be

taken into account, including the mental state of the accused, the sole operation of these factors was to evaluate the influence of the hopeor fear aroused by the actions of a person or persons in authority. See R. v. Fitton, (SCC), [1956] S.C.R. 958. [37] The Court examined the evolution of the traditional voluntariness rule to include an “operating mind” test. Citing Spence J. inWard v.

The Queen, (SCC), [1979] 2 S.C.R. 30 the Court noted at p. 935: In my view, Manning J. engaged in a consideration of both the mental and physical condition of the accused, firstly, to determinewhether a person in his condition would be subject to hope of advancement or fear of prejudice in making the statements, when perhaps anormal person would not, and, secondly, to determine whether, due to the mental and physical condition, the words could really be foundto be the utterances of an operating mind. [38] After reviewing the law on the voluntariness of confessions, the right to silence, and the right to counsel, the Court stated at p.941: The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accusedhave sufficient cognitive capacity to understand what he or she is saying and what is said.

This includes the ability to understand acaution that the evidence can be used against the accused. The same standard applies with respect to the right to silence in determining whether the accused has the mental capacity to make anactive choice. In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitnessto stand trial. The accused must be capable of communicating with counsel to understand their function and also to understand that he orshe can dispense with counsel even if this is not in their best interests.

It is not necessary that the accused possess analytical ability. Thelevel of cognitive ability is the same as that required with respect to the confession rule and the right to silence. The accused must havethe mental capacity of an operating mind as outlined above. [39] The police interview with DCS commenced at 11:35 a.m. on January 31, 2020. He acknowledged that he had already beenread his Charter rights and the police caution (see transcript, pp. 5-6).

The officer advised DCS that, because she was a new officer thathe was meeting for the first time, her practice is to read him his rights again to make sure they are understood (see transcript, pp. 6-7). DCS acknowledged that he understood his Charter caution and secondary police caution.

He declined to call a lawyer and advised thathe already spoke to one and received legal advice (see transcript, pp. 6-7). [40] At the outset of the police interview, officers asked DCS if he needed anything and he advised that he needed his insulin for hisdiabetes but that he was “probably okay with that too” (see transcript, p. 3, line 16). [41] The interviewing officer then offered to send other officers to get his medication which included Metformin and Insulin. [42] After speaking to the interviewing officer for approximately 1.5 hours, the police arrived with DCS’s diabetes medicine (seetranscript, pp. 100-101, line 8).

Up to this time, DCS had denied all allegations made by police regarding the offences for which he ischarged. DCS took the pills (Metformin) recovered for him by police but he indicated that the police grabbed the wrong needles for hisinsulin (see transcript pg. 101-102, line 12). Following this, officers made several more attempts to find DCS’s needles. [43] By approximately 1:54 p.m., officers arrived with the correct needles (see transcript, p. 144 at line 24, “I think we got the rightstuff”).

DCS then carried out a test to check his blood sugar levels and noted they were “really high” (see transcript, p. 146, at line 6). He then took his insulin by way of subcutaneous injection. [44] At approximately 2:17 p.m., the interviewing officer checked in with DCS after he had the opportunity to go out and have acigarette. She asked if he was feeling okay.

DCS responded, “Yeah … I’m good.” (see transcript, p. 162 at lines 11-16). [45] It was after this time that DCS began making inculpatory statements to police. [46] A review of DCS’s statements to police, over the course of his interview, indicates he received the medication he needed tocontrol his diabetes. Any inculpatory statements he made to police were after he received his medication. [47] The interviewing officer made efforts to check in with DCS to ensure he was doing okay. DCS was provided water and givencigarette breaks.

The police also made several efforts to obtain DCS’s medication and there was no indication that the police used accessto his medication as “fear of prejudice induced or hope of advantage”. [48] At no point in the interview with police did DCS indicate that he was feeling mentally strained, that he was feeling physicallyunwell, or that he did not understand what was being asked of him. It appeared that he had sufficient cognitive capacity to understandwhat he was saying and what was being said by police.

Also, none of the officers noted any change in his physical state. [49] In reviewing the video of DCS’s statements, DCS appears to understand the questions asked of him. He appears to be alert andattentive. At the outset of the interview, DCS acknowledged that he understood his Charter rights, that he spoke to a lawyer and wasadvised not to say anything to police (see transcript, p. 17, line 2 and p. 19, line 23).

He clearly had the mental capacity to understand hisright to silence and was advised by counsel accordingly. [50] DCS has failed to direct the Court to the existence of some evidence supporting an air of reality to his proposed defence. Hehas failed to demonstrate how the defence is relevant to the issues at trial. [51] For the purpose of this Rowbotham application I find there is no air of reality to DCS’s defence that his inculpatory statementswere involuntarily made due to “medical duress”.

Therefore, DCS cannot rely on a defence that has no air of reality to bolster his claimthat his matter is so complex that it will materially compromise his right to a fair trial without state funded counsel.

[52] I also note that, under the advice of legal counsel, DCS initially waived the admissibility of his statement in July, 2021. Myfinding today does not preclude DCS from attempting to raise concerns regarding the admissibility of the statement at trial. [53] I find, based on the information before me, that DCS’s trial is not complex. Ability of DCS to Answer to the Charge [54] In R. v.

Taylor, 1996 NSCA 210, Pugsley J.A. held that the inquiry to determine if the accused could represent themselves“should be more far reaching than simply asking an accused his opinion as to whether he felt he would receive a fair trial without alawyer”. This failure in the Court’s opinion “constituted an error of law” (see para. 17).

The Court adopted the reasons of JusticeScanlan where he determined that the test as to whether a stay should be granted must be based on whether the accused is capable ofrepresenting himself: 15 I am in complete agreement with the result Justice Scanlan reached, and the reasons he provided, which are reported at (1996), (NS SC), 150 N.S.R. (2d) 97. 16 Justice Scanlan stated at p. 99: I am satisfied that a proper consideration in determining whether a stay should be entered is whether the accused person is capable ofrepresenting himself or herself.

An accused may be unable to represent himself or herself because of the complexity of the case or as aresult of a personal attribute such as illiteracy. In the present case, I am not convinced that the trial judge addressed his mind to the issues as to whether the accused was "capable" ofrepresenting himself. The trial judge appears to have simply determined that the accused may find himself imprisoned if convicted andthat he was indigent ...

Courts must not routinely require the state to fund legal defences based solely on the fact that an accused is indigent or that there is apossibility of incarceration if convicted. The test must be whether the accused is capable of answering the charge with sufficient skills sothat the accused will not be deprived of their liberty without being afforded fundamental justice. In the present case, the trial judge appears to have been preoccupied with having “Legal Aid pull up its socks and get more money fromthe Government”.

There appears to have been little or no inquiry as to whether the accused could have a fair trial if he were to representhimself. The test is whether the accused is capable of representing himself. If he is not capable of representing himself and is indigent,then the aforementioned powers of the Court may be used ... The matter should not have been stayed by the Trial judge unless it wasclear the accused was not capable of representing himself. 17 Justice Scanlan obviously concluded that the trial judge did not enter into any inquiry to determine whether or not Mr.

Taylor wascapable of representing himself. … [Emphasis in original] [55] DCS testified that he has a GED and briefly attended CompuCollege. He argues that he is unable to represent himself due to alack of knowledge of court procedures. He also testified that he has a prior conviction and has been involved with the criminal justicesystem in the past. On cross-examination, he admitted he is familiar with court procedures and that he has represented himself once. Hestated he had a troubled youth and, as a result, was in court many times.

He advised that he had many matters go to trial including theone where he represented himself. He admitted to understanding the criminal charges against him and how the matter would proceed. [56] He further testified that he is able to read and write. He completed and filed his Rowbotham application on his own. Headmitted to understanding the presumption of innocence and that it was not his job to prove his innocence. He understood the right tosilence as well. [57] Certainly, there are cases where an accused with limited education and poor literacy has received state funded counsel.

In R. v.Robert Nande No. 2, 2016 NWTTC 5 , 2016 NWTTC 05, the accused was a member of the Slavery First Nation; he had a gradethree education, his first language was South Slavery and he had limited English reading and writing skills.

The Court found that theaccused had “a low level of literacy”, that he “did not understand long or abstract questions” and had “no grasp of legal concepts, such asproof beyond a reasonable doubt, right to remain silent and presumption of innocence.” The accused was charged with impaired drivingand the Court granted him state funded counsel after considering his communication skills and capacity to understand what washappening before the Court. [58] In the case at bar, despite lacking a formal legal education, DCS was recently able to complete the necessary paperwork to filean appeal to the Legal Aid Appeal Committee and was able to complete and file his Rowbotham application and supplementarysubmissions to the Court.

This indicates that DCS has sufficient ability to read, write, and understand how to make written submissionsto the Court. In examining his Rowbotham application, it is clear that DCS comprehends the serious nature of the charges of which hestands accused. [59] I find that trial fairness would not be breached if DCS did not have counsel for his trial. There is little evidence to suggest thatDCS would not be able to understand or respond to the evidence of the Crown. [60] This factor weighs in favour of denying the Rowbotham application. Length of Trial

[61] In a Rowbotham application the length of trial must be considered. The lengthier the proceeding, the more necessary counselmay be. DCS’s trial is estimated to have approximately two days of Crown evidence and possibly a one-day pre-trial motion on theadmissibility of DCS’s statements to police. The evidence intended to be presented by the Crown will likely not be complex, as it willconsist of lay witnesses and police witnesses. The Crown does not intend to call any expert witnesses. [62] This factor weighs in favour of denying the Rowbotham application.

The Crown’s Role [63] Crown counsel have a duty to present and disclose information or evidence which is exculpatory in nature and to presentcredible evidence to the Court in support of the charges. In the case at bar, nothing will impact DCS’s ability to receive a fair trial basedon the conduct and presentation of the Crown's case. In considering the Crown’s role in an application for state funded counsel, para. 26from Boucher v. the Queen, (SCC), [1954] S.C.J.

No. 54, bears repeating: It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what theCrown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proofof the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role ofprosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be nonecharged with greater personal responsibility.

It is to be efficiently performed with an ingrained sense of the dignity, the seriousness andthe justness of judicial proceedings. [64] Given the Crown’s duty to ensure trial fairness this factor weighs in favour of denying the Rowbotham application. The Court’s Role: Judges have a Duty to Assist Unrepresented Parties [65] In a Rowbotham application, consideration must also be given to the role played by the Court in ensuring fair proceedings. Insome cases, judges may be able to act sufficiently within their judicial role such that fairness is maintained in the absence of defencecounsel.

Such actions may involve excluding inadmissible evidence, examining witnesses and aiding in the conduct of the defence sothat the defence is “brought out with its full force and effect”.

In R. v McGibbon (1988), (ON CA), 45 CCC (3d) 334,the Ontario Court of Appeal addressed the judge’s role in ensuring a fair trial for the accused at para. 32: 32 Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance tothe unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that hisdefence is brought out with its full force and effect.

How far the trial judge should go in assisting the accused in such matters as theexamination and cross-examination of witnesses must of necessity be a matter of discretion. [66] The trial judge is required to assess the evidence and apply the law applicable to sections 271, 151, 152, and 153.1(

a) of theCriminal Code. The trial judge will be able to act within their judicial role to ensure that trial fairness is maintained. [67] This factor weighs in favour of denying the Rowbotham application given the judge’s duty to assist unrepresented parties andensure trial fairness.

Section 486.3(2) “Accused not to cross-examine complainant – certain offences” [68] The Crown intends to call the complainant as a witness with respect to DCS’s charges. As such,

section 486.3(2) of theCriminal Code is relevant to the assessment of whether DCS can receive a fair trial.

Section 486.3(2) reads: Accused not to cross-examine complainant — certain offences

(2) In any proceedings against an accused in respect of an offence under any of sections 264, 271, 272 and 273, the judge or justice shall,on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused notpersonally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires theaccused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct thecross-examination. [69] This

section enables the judge, on application of the prosecutor, to order that DCS not personally cross-examine thecomplainant, and appoint counsel for any such cross-examination. I agree with the AGNS that this provision should be considered bythe Court in the context of DCS’s Rowbotham application.

DCS will have legal counsel to conduct the cross-examination of thecomplainant which will assist him in making full answer and defence. [70] This factor weighs in favour of denying the Rowbotham application. [71] Considering all of the above necessary factors in this first part of the Rowbotham test, I find that DCS’s application has notestablished that there is a “high degree of probability” that his right to trial fairness will be infringed in the absence of representation bycounsel.

Accordingly, DCS’s application fails the first part of the Rowbotham test and is dismissed. [72] I shall now review the second part of the Rowbotham test for completeness. Has the applicant exhausted all possible routes to obtain counsel? [73] DCS must establish that he has exhausted all possible routes to obtain private and public counsel. In reviewing this branch ofthe test, I need to consider factors such as: Efforts to obtain private counsel

[74] DCS is required to make full financial disclosure and diligent efforts to obtain private counsel, and have a willingness to makesacrifices: R. v. Keating (1997), 1997 NSCA 135 , 159 N.S.R. (2d) 357 (CA) at paras. 28, and R. v. MacDonald, 2001 NSCA137, at paras. 5-6. [75] In an undated letter to the Court, DCS maintains that he cannot afford to hire a private lawyer. He notes that he was employedfor 30 years as a taxi driver, but that he had his licences suspended when these charges were laid against him. [76] In R. v.

Levy, 2016 ONSC 5263, the Ontario Superior Court cited the Manitoba Court of Appeal in R. v. Drury, 2000 MBCA100, regarding claims of an inability to hire private counsel, at paras. 18-19: [18] To meet the test of indigence, an applicant must satisfy the court on a civil standard that he or she has exhausted every possiblesource of funds available to retain counsel. A person is not required to be destitute, but must demonstrate a willingness to sacrifice andtake reasonable financial steps to retain counsel: R. v.

Drury, 2000 MBCA 100 , 47 W.C.B. (2d.) 512, at paras. 33, 45, 47, 48,58, 59, 65. [19] To prove indigence, an applicant must make full and complete financial disclosure. [77] DCS was charged on January 31, 2020. DCS has provided his Notice of Assessment for the taxation years 2019 and 2020. Forthe 2020 taxation year, DCS had a total income of $24,680, thus making him eligible for Legal Aid. [78] After being dismissed from Legal Aid, DCS testified to contacting ten private lawyers but, because his credit is bad, he wasunable to retain private counsel.

The Equifax document he provided the Court does not have a credit score. He failed to bring hisbanking information regarding his accounts to the hearing. He did not provide his Notice of Assessment for the 2021 taxation year. DCS has not demonstrated that he has made any attempts to obtain other sources of credit or find other sources of financial assistance.

There is also no evidence that DCS has approached any banks or other financial institutions to obtain a loan or line of credit to fund hisdefence. [79] It is difficult to discern if DCS is fully unable to obtain legal counsel because he has not provided any documentary evidence ofattempts to obtain a lawyer or what attempts he made to contact private counsel to see who would take his case at Legal Aid rates or onan alternative payment arrangement. The only evidence before the Court is his testimony that he contacted ten lawyers. [80] DCS’s financial situation came from his oral testimony.

He testified that he is not working and did not work in 2021 becauseof a heart condition which resulted in him being put off of work because his heart was working at 17%. He has advised the Court that heis currently trying to obtain CPP disability which will provide him with an additional $612 per month but that would be deducted fromhis income assistance of $1,085 per month. He advised the Court that he applied for the Canadian Economic Recovery Benefit(“CERB”) and received it in 2021. He did not put any of the CERB aside for legal resources. He stated that his total income for 2021was approximately $13,000.

DCS indicated that he is not on good terms with many of his family members and they would not be in aposition to fund his legal defence. [81] It is the Applicant’s obligation to put forward full and complete financial disclosure to show, on a balance of probabilities, thathe is indigent. Based on the information before me, I find that DCS is indigent. He is not required to be destitute and I find that he hasexhausted every possible source of funds available to retain private counsel. Efforts to obtain public counsel/Exhaust Legal Aid Process [82] DCS must exhaust the Legal Aid process.

Courts will consider the reason for the refusal of Legal Aid: R. v. Keating (1997),1997 NSCA 135 , 159 N.S.R. (2d) 357 (CA) at paras. 28 and 30. [83] An applicant for a Rowbotham order must “show that he has made every attempt to apply for Legal Aid and, if initially denied,has exhausted all appeals available to him.”: U.S.A. v. Akrami, 2001 BCSC 165, at para. 32 and R. v.

Ramji, 2015 ONSC 445, at para. 4. [84] In a letter dated November 19, 2021, Nova Scotia Legal Aid Service Delivery Administrative Assistant, Karen Susara,confirmed that DCS’s appeal was denied and that the Appeal Committee confirmed the decision of staff to deny assistance as outlined inthe September 16, 2021 letter from DCS’s previous counsel, Drew Rogers. [85] The AGNS concedes that DCS was found ineligible for Legal Aid and has exhausted all appeals available to him to obtainLegal Aid. [86] I find that DCS has exhausted all possible routes to obtain private and public counsel and, therefore, has satisfied therequirements for the second part of his Rowbotham application.

Conclusion [87] In reviewing the two-part test, I find that DCS has not established that there is a “high degree of probability”, that his right totrial fairness will be infringed in the absence of representation by counsel.

Therefore, he has failed to satisfy the requirements for thefirst part of the Rowbotham test. [88] As for the second part of the test, DCS has exhausted all possible routes to obtain private and public counsel and, therefore, hassatisfied the requirements for the second part of the Rowbotham test. [89] Based on these findings, DCS’s Rowbotham application for state funded counsel fails the first part of the Rowbotham test andis dismissed.

Bodurtha, J.