R. v. Valenti, 2010 ONSC 2433

CITATION : R. v. Valenti, ONSC 2433 COURT FILE NO.: 08 05886 DATE: 20100426 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Her Majesty the Queen Respondent ) ) ) Mr. C. Bundy, for the Respondent ) - and - ) ) ) ) Adam Valenti Applicant ) ) Mr. A. Lobel, for the Applicant ) ) ) ) ) ) HEARD: March 15 and 18, April 12, 2010 REASONS FOR JUDGMENT ON Rowbotham APPLICATION Fuerst J. Introduction [ 1 ] This application raises the issue of whether Rowbotham relief should be granted to the applicant at the stage of a preliminary hearing.

The Evidence [ 2 ] Adam Valenti is charged, along with nine other individuals, with a variety of offences arising from investigation of marijuana “grow” operations in the Greater Toronto Area.

[3] A 14 day preliminary hearing is set to begin at the end of May, 2010. [4] Mr.

Valenti faces charges of participation in a criminal organization, laundering the proceeds of crime, breach of trust,bookmaking, conspiracy to produce a controlled substance, conspiracy to traffic in a controlled substance, production of marijuana,trafficking in marijuana, possession of marijuana for the purpose of trafficking, and possession of MDA for the purpose of trafficking. [5] The evidence against him includes intercepted communications, observations made during surveillance and surreptitious entries,and the results of the execution of search warrants.

The disclosure, which has been provided in electronic form, amounts to about 25,000pages of officer’s notes, transcripts and other documents, as well as hours of audio and video footage. [6] At the time of his arrest, Mr. Valenti, who is 33 years old, worked as a correctional officer at a Toronto jail. Since his arrest, hehas been on suspension without pay. [7] Mr. Valenti was the owner or co-owner of two residential properties. He also owned two cars. Following his arrest, the policeseized the properties and the cars as the proceeds of crime. The houses were sold at a loss, and Mr.

Valenti has a deficiency judgmentagainst him. [8] After his arrest, Mr. Valenti’s parents loaned him $30,000, which he used to retain a lawyer (not Mr. Lobel, who appears on thisapplication). The entire amount was spent in a fruitless attempt to negotiate a resolution on Mr. Valenti’s behalf. Mr. Valenti thenapplied for legal aid. He was refused, on the basis that his parents had the means to assist him with legal fees, a conclusion with whichthey disagree. Mr. Valenti has exhausted all available appeals of the refusal. [9] In September 2009 Mr. Valenti declared bankruptcy.

He currently works part-time at a cousin’s business, receives socialassistance, and lives in rented premises. [10] Mr. Valenti testified that he did not request a preliminary hearing and has no idea of its purpose, he is just "going with the flow”. Mr. Lobel, who acts as counsel for Mr. Valenti on this application only, states that Mr. Valenti’s committal for trial is in issue on anumber of the counts with which he is charged. Mr. Lobel advised me that Crown counsel assigned to prosecute the case takes theposition that only Mr.

Valenti’s committal for trial on the charge of participation in a criminal organization is a live issue. The Positions of the Parties [11] On behalf of the Crown, Mr. Bundy concedes that Mr. Valenti lacks the means to employ counsel. The issue is whether hisrepresentation by counsel at the preliminary hearing is essential to ensure a fair trial. [12] On behalf of Mr. Valenti, Mr. Lobel submits that in this case, representation by counsel at the preliminary hearing is essential toensure a fair trial. He suggests that what occurs at the preliminary hearing can have a tremendous impact on what happens at trial.

Thecharges are serious, and the preliminary hearing itself will be complex and lengthy. Mr. Valenti’s committal will be in issue on a numberof the counts charged. As well, Mr. Valenti may seek to cross-examine the affiant of the affidavits used to obtain the “wiretap”authorizations. [13] Mr. Bundy concedes that the charges against Mr. Valenti are serious, but submits that the application is premature. Mr. Valentihas not demonstrated that the absence of state-funded counsel at the preliminary hearing will compromise his fair trial rights.

To theextent that there are live issues about committal for trial, the preliminary hearing judge will address this on the basis of the evidence putforward by the Crown. The desire to lay a foundation at the preliminary hearing to contest the admissibility of evidence such asintercepted communications at trial does not implicate Mr. Valenti’s fair trial rights. Analysis [14] In R. v. Rowbotham (1988), (ON CA), 41 C.C.C. (3d) 1 the Ontario Court of Appeal established that sections 7and 11(

d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require thatstate-funded counsel be provided where the accused wishes counsel but lacks the means to pay a lawyer, and his or her representation bycounsel is essential to a fair trial.

Where the judge is satisfied of both criteria, but the prosecution insists on proceeding with the trial inbreach of the accused’s Charter right to a fair trial, the remedy under s. 24(1) is a stay of proceedings until funded counsel is provided. [15] The Court suggested in Rowbotham that such orders will be rare. [16] The availability of a Rowbotham order at the preliminary hearing stage has been considered in a limited number of cases, and withonly limited success. For example, an application that was, in essence, a Rowbotham application was granted in R. v. Pizzuro, 2000CarswellOnt 3919 (S.C.J.).

The order applied to a pending trial in one jurisdiction, and also, on consent of the Crown, to an ongoingpreliminary hearing in another locale. The application judge found that the matters were complex and that the applicant needed counsel. In R. v. Newberry, 2003 BCSC 1620 the application judge accepted that there will be circumstances in which failure to have counsel at apreliminary inquiry will result in a breach of Charter rights, but was not satisfied that it was so in the circumstances of that case. Similarly, in R. v.

Everitt, 2008 YKSC 86 the application judge accepted that there are consequences of a preliminary hearing that couldaffect an accused’s liberty interests under s. 7, but concluded that the applicant had not met the criteria for a Rowbotham order. [17] I conclude that while the availability of a Rowbotham order to an accused facing a preliminary hearing may not be foreclosed, it isa remedy that could be available in only exceptional circumstances.

The limited powers of a preliminary hearing judge make it difficult toconclude that the conduct of the preliminary hearing will adversely affect the fairness of the accused person’s trial in such a way or to

such an extent that representation at the preliminary hearing is essential to a fair trial. Rulings that are within the power of the preliminary hearing judge to make, including those about the admissibility of evidence, do not bind the trial judge. Further, the preliminary hearing judge has no jurisdiction to hear and decide Charter applications. [ 18 ] The cases referred to above suggest that a preliminary hearing judge has some powers that might be relevant to the conduct of a subsequent trial.

For example, the preliminary hearing judge does have a limited power to discharge an accused, in effect where there is no admissible evidence adduced on one or more of the essential elements of the offence charged, and also has a narrow power to order an accused to stand trial on any other indictable offence in respect of the same transaction that is disclosed by the evidence.

But, even assuming that the exercise of these powers can be said to impact on fair trial rights, that in isolation is not sufficient to establish that representation by state-funded counsel at a preliminary hearing is essential to a fair trial. [ 19 ] The onus on this application is on Mr. Valenti to satisfy me on a balance of probabilities that he lacks the means to retain counsel, and that the assistance of state-funded counsel at the preliminary hearing is essential to a fair trial: R. v. Grant , [2003] M.J. No. 403 (Q.B.) . [ 20 ] I am satisfied that Mr.

Valenti lacks the means to hire a lawyer. [ 21 ] I am not satisfied on the materials before me that the assistance of state-funded counsel at the preliminary hearing is essential to a fair trial in this case. [ 22 ] It may well be that Mr. Valenti would benefit from the assistance of counsel because the charges are serious, the disclosure is voluminous, and the preliminary hearing will be lengthy and complex. That does not establish that the assistance of state-funded counsel at the preliminary hearing is essential to a fair trial. [ 23 ] It may well be that Mr.

Valenti wishes to use the preliminary hearing to build a foundation from which to challenge the admissibility of certain evidence at trial. That does not establish that the assistance of state-funded counsel at the preliminary hearing is essential to a fair trial. [ 24 ] There is no suggestion that Mr. Valenti risks being ordered to stand trial on additional charges if he is without state-funded counsel at the preliminary hearing. The contention is that without counsel, Mr. Valenti risks being erroneously ordered to stand trial on one or more of the charges he already faces.

There is nothing before me that demonstrates it is likely that without counsel Mr. Valenti will be the subject of such an erroneous order. I do not even know what evidence it is anticipated will be lacking on any essential element of any offence that could ground a basis for discharge at the preliminary hearing. In essence, I am asked to accept that there might be an evidentiary gap and that it might escape the notice of the presiding judge if Mr. Valenti remains unrepresented. That is speculation at best. Conclusion [ 25 ] Mr.

Valenti’s application for a Rowbotham order in respect of his preliminary hearing is dismissed. [ 26 ] Nothing in these reasons is intended as a comment about the availability of a Rowbotham order at trial should Mr. Valenti be ordered to stand trial on one or more charges. ___________________________ Justice M. Fuerst

Released: April 26, 2010