R. v. Lutczyk, 2014 ONSC 5673

File No. 14-13587 R. v. Lutczyk, 2014 ONSC 5673 SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent - and - ROBERT LUTCZYK Applicant ROWBOTHAM APPLICATION REASONS FOR RULING BEFORE THE HONOURABLE JUSTICE GILMORE on Friday, August 22, 2014 , at OSHAWA , Ontario APPEARANCES N. YOUNG Counsel for the Crown C. MURPHY Counsel for Mr. Lutczyk Friday, August 22, 2014 U P O N R E S U M I N G : REASONS FOR RULING

GILMORE,J. (Orally): These are my reasons and ruling in relation to Mr. Lutczyk’s application for state funded counsel. Overview: This is the accused, Robert Lutczyk’s application for state funded counsel, often referred to as a Rowbotham application. He requests this order pursuant to

section 7 of the Charter of Rights and Freedoms , granting him funding for his trial and directing that the Attorney General of Ontario or Legal Aid Ontario pay for such funding as may be necessary for the applicant to make a full answer and defence. The respondent, Her Majesty the Queen, whom I shall refer to as “Ontario”, submits that the applicant has not satisfied the onus of showing that he cannot afford counsel and that counsel is essential to endure a fair trial.

Ontario submits that the applicant has not satisfied the preconditions of the Rowbotham test, and accordingly, Ontario submits that the application be dismissed in its entirety. Background: The accused is charged with the following: (

a) kidnapping; (

b) using a restricted firearm; (

c) bodily harm; (

d) forcible confinement; (

e) failure to stop for police; (

f) dangerous operation of a motor vehicle (

g) use of a firearm for commission of offence; (

h) pointing a firearm; (

i) possession of a restricted firearm with ammunitions (X3); (

j) possession of firearm knowing its possession is unauthorized (X5); (

k) unauthorized possession a firearm (X3); (

l) explosives with intent to cause death or harm; (

m) explosives – placing or walking; (

n) explosives – possession without lawful excuse; (

o) possession of property obtained by crime under $5,000. (X4) The allegations relating to Mr. Lutczyk are serious and extensive. It is alleged that he kidnapped the solicitor for the city of Oshawa, Mr. Potts, on October 15, 2012. Mr. Potts was known to Mr. Lutczyk, who drove into Mr. Potts’ driveway, it is alleged, at 11:00 p.m. on the evening in question, grabbed him by the arm and showed him a gun. He put Mr. Potts into the rear seat of his vehicle and threatened to shoot him in the leg if he did not comply. The allegations continue that while driving, Mr.

Lutczyk had a gun in his hand and drove to an industrial area of Whitby, where Mr. Lutczyk chained Mr. Potts wrists together, and after unlocking a gate, they drove into a compound. At one point, Mr. Potts convinced Mr. Lutczyk to remove the chains on his hand and suggested they go to a Tim Hortons’s drive through. While there, a marked police cruiser stopped Mr. Lutczyk, at which point he drove his car over the curb and fled with police following. Police pursued him back to the compound where he crashed through the locked gate. Mr. Potts exited the vehicle after being pushed out by Mr.

Lutczyk, who then pointed the gun at Mr. Potts’ head and used him as a shield against the officers. Shortly thereafter, Mr. Potts was able to break free and was not harmed in the alleged kidnapping. It is further alleged Mr. Lutczyk then entered the industrial unit and barricaded himself for approximately twenty-four hours before surrendering to police. While in the unit, he stated he had a bomb. After being placed in custody, his vehicle was found to have two different licence plates, not registered to it. Inside the industrial unit, another two licence plates were found, both of which had been reported stolen.

It is further alleged that Mr. Lutczyk was in possession of several restricted firearms and homemade explosive devices. The applicant was then arrested on October 17, 2012 and has been in custody ever since. He is currently incarcerated a Central East Correctional Centre in Lindsay.

The applicant’s trial is scheduled to proceed during the weeks of January 26, February 2, 9 and 16, 2015. The applicant originally applied for Legal Aid on February 2, 2013. He was refused funding by Legal Aid on the basis that he had failed to provide complete and credible information regarding his financial circumstances. The rejection of his application by Legal Aid occurred on April 29, 2013. The applicant appealed this decision to the area committee of Legal Aid on May 13, 2013, and on May 24, 2013, the Area Committee upheld the decision to refuse the certificate based on financial ineligibility.

The applicant appealed the Area Committee’s decision to the Provincial Office on June 1, 2013. The Provincial Office upheld the Area Committee’s decision on June 20, 2013. After Legal Aid’s denial of his request for funding, the applicant became self-represented with the court appointing an amicus curie, Mr. Murphy, on or about May 29, 2013. Mr. Murphy attended on behalf of the Applicant to argue this application. The argument of this application including evidence took the entire day on August 19 th , 2014. Evidence of the Applicant The applicant filed two affidavits to support his application.

His first affidavit outlines that he is forty-seven years old and has an Honours B.A. in urban planning from Carleton University and a Bachelor of Education from Trent University. He was a city counsellor in Oshawa from 1994 to 1997 and again from 2003 to 2010. He worked as a teacher from 2010 to 2012 at Brookside Secondary School in Cobourg, where he taught construction technology, technical drawing and math. His affidavit evidence was that he was married from 1998 to 2012, but separated in March 2012. He advised that he has a separation agreement in place. Mr.

Lutczyk initially retained counsel Sevag Yeghoyan with a retainer of approximately $3000. That retainer ran out after his bail hearing on March 25, 2013. Mr. Lutczyk was denied bail. At that point, he applied for a certificate to fund his defence from Legal Aid on February 21, 2013. The application was rejected on April 29, 2013 on the basis that he was financially ineligible. As indicated above, all avenues of appeal to Legal Aid were exhausted and in each case the applicant was found to be financially ineligible. Since his bail hearing Mr.

Lutczyk has been self-represented, other than the court appointing Christopher Murphy as amicus curiae to assist him in his defence on May 29, 2013. Mr. Lutczyk outlined that he had debts outstanding at the time of his arrest, including $130,000 in credit card debt, which cost $3500 per month to service. Royal Bank had obtained a judgment against him on August 16, 2013, for one of the two cards. Mr. Lutczyk was unable to defend this action because he was in Central East Correction Centre at the time, and he has been unable to make any form of payment against the debts as he was not earning any income.

In addition to the Royal Bank judgment, there was a judgment registered against Mr. Lutczyk for a construction debt dating back to 2006 or 2007, in the amount of $30,000. Mr. Lutczyk advised, in his affidavit, that he owed $20,000 in back property taxes to the City of Oshawa on two properties that he owned. Mr. Lutczyk owned two properties at the time he was arrested. The first house was located at 324 Chadburn Street, Oshawa, which I will refer to as “Chadburn”, and according to Mr. Lutczyk was valued at $180,000 at the time of sale. Mr.

Lutczyk’s evidence was there was no equity in this house as he had two lines of credit on it as security, which combined total equaled the value of the property. The first line of credit was at $135,000 and a second was obtained for $45,000. He transferred the home to his daughter, Tiffany Lutczyk, on February 4, 2013. Mr. Lutczyk was cross-examined about the sale of Chadburn. The Crown produced the parcel register which clearly shows that the property was purchased by him on March 24, 1995 for $162,614.94, as shown by a copy of the actual transfer.

A mortgage in favour of Canada Trustco Mortgage Company in the amount of $108,400 was registered against Chadburn on March 24, 1995. Another mortgage was registered on it September 9, 1997 for $135,000 in favour of the National Trust Company. The Canada Trustco Mortgage Company mortgage was discharged on April 8, 1998. A subsequent charge in the amount of $180,000 was registered in favour of the Bank of Nova Scotia on January 9, 2006, on which date, the National Trust Company mortgage was discharged. On February 4 th , 2013, Mr.

Lutczyk transferred the Chadburn property to his daughter, Tiffany, who resides in Quebec. The consideration for the transfer was $180,000. Declarations made by Mr. Lutczyk with respect to this transfer were that he was at least eighteen years of age and that his spouse was not separated from him and that Chadburn was not a matrimonial home. Mr. Lutczyk’s evidence was that there was no equity in the property and that the property in 2014 was in the same condition as it was when he bought it in 1995.

He conceded that he made the transfer to his daughter, Tiffany, two and a half weeks before applying for Legal Aid and he does not recall whether or not he told Legal Aid he had done this at the time of his original application for Legal Aid. Mr. Lutczyk’s evidence was he did not mention the transfer of Chadburn to Legal Aid because they never asked him about it. His position was that he could no longer afford to pay the mortgage and had to dispose of it or the bank would have sold it under Power of Sale.

Since he was completely impecunious as a result of not being able to earn income while incarcerated, he proceeded to divest himself of his properties to avoid incurring further debt. The second house owned by Mr. Lutczyk at the time of his arrest was located at 363 Eulalie Avenue, Oshawa, which I shall refer to as “Eulalie”. His evidence was that it was valued at approximately $165,000 at the time of sale. A line of credit registered against that property had a balance of $90,000. The property was sold on January 18, 2013 for $165,000 to his friends, Elizabeth and Slavomere Fratczak, in order to pay debts.

Upon the sale of the Eulalie property, Mr. Lutczyk paid off the $90,000 line of credit. Of the remaining $75,000 in equity, $30,000 went towards the judgment lien referred above, $20,000 went to the arrears of property taxes, $5,000 went to legal fees to cover the closing costs and $20,000 was paid to the Fratczak family for a private loan. Mr. Lutczyk’s evidence was that the arrears of taxes and the judgment lien were required to be paid out before the home could be sold in order to transfer it with clear title. The applicant confirmed that he purchased the Eulalie property December 1, 1995, for $114,302.67.

A mortgage was placed on the property on that same date in favour of Fridel Limited in the amount of $109.400. The Fridel mortgage was assigned on February 22, 1996, to National Trust Company. A mortgage in favour of CIBC in the amount of $90,000 was registered on May 7, 1997. The National Trust Company mortgage was subsequently discharged on November 16, 2000. A mortgage in favour of Manulife Bank of Canada, which had been on title when Mr. Lutczyk purchased the property, was discharged on August 28, 2006. On January 18, 2013, Mr.

Lutczyk transferred the Eulalie property to Slavomere and Elizabeth Fratczak as joint tenants and the CIBC mortgage was discharged on February 28, 2013. As with the Chadburn property, the applicant made a declaration on transfer that he was not separated from his spouse at the time of transfer. Mr. Lutczytk was cross-examined about the proceeds of sale from the Eulalie property. He advised that the judgment and arrears of taxes formed a lien against the property and had to be paid out, as well as the line of credit.

The only unsecured debts that were paid were the $5,000 for legal fees and disbursements on the sale, as well as $20,000 which he repaid to Mr. and Mrs. Fratczak for a loan. Mr. Lutczyk was asked about his loan and his evidence was somewhat vague, although he confirmed that there may have been a written document evidencing the loan, but does not recall specifically making monthly payments or what the amount of the monthly payments were. He advised the court that is lawyer came to Ontario Shores where he was being assessed and Mr.

Lutczyk signed an Acknowledgment and Direction, and directed his lawyer to make the payouts listed above from the proceeds of sale. His evidence was that it would have been impossible for him not to pay out the private loan to the Fratczaks as that was a condition of them purchasing the property. Mr. Lutczyk’s evidence was that it would not have been possible to sell either Eulalie or Chadburn properties on the open market as he would not have been able to sell them for the same amounts he was able to privately.

He denied that he was attempting to defraud either the Ontario Government or Legal Aid by transferring the Chadburn propertye to his daughter or the Eulalie house to the Fratczaks. It should be noted that production of Legal Aid`s internal financial case notes was obtained and a note, dated February 22, 2013, the date of the application, sets out the telephone interview that a Legal Aid representative had with Mr. Lutczyk while he was incarcerated and applying for Legal Aid. Mr. Lutczyk indicated the interview call took about five minutes. He was never asked to provide documentation.

He confirmed the information in the Legal Aid notes, dated March 5, 2013, that his TD bank balance as at February 20, 2013, was negative $213 and that the bank balance in his other TD account was a dollar, his line of credit balance was $9,419 outstanding, and his visa balance was $3,506, which is over his credit limit of $3,500. As of the date of hearing of the application, Mr. Lutczyk`s evidence was that he had $0.18 in his jail trust account. During the telephone interview, Mr.

Lutczyk told Legal Aid that he had been separated from his spouse since March 28, 2012, and prior to his arrest was living in the basement of his wife`s house. His information to Legal Aid was that he had last worked in June 2012 as a supply teacher for the Kawartha Pine Ridge District School Board, where he had been teaching for about a year and a half. In terms of assets, he had a joint bank account with his father at the Toronto Dominion Bank, which was overdrawn. He had used the balance of his savings to pay the retainer to his first lawyer.

His teaching pension existed but was very small, given that he had only worked as a teacher for a year and a half. He had no investments, no other savings and the matrimonial home had been transferred to his wife`s name, pursuant to the separation agreement. Mr. Lutczyk`s affidavit evidence was that he entered into that separation agreement with his former wife on March 28, 2012, and pursuant to that agreement he owed his separated wife $30,000 and his mother-in-law $20,951. He has not made any payments against those debts since his arrest. Pursuant to the same agreement, Mr.

Lutczyk assigned his claim to half the value of the matrimonial home to his separated wife in lieu of claims of child support. Mr. Lutczyk was cross-examined about the status of his marriage and the separation agreement. Although referring to it several times, Mr. Lutczyk did not provide it as an exhibit to his affidavit. Further, he confirmed that both the Chadburn and the Eulalie deeds indicate that he was not separated from his spouse. Finally, he conceded that at page 8 of Dr. McMaster`s report, dated February 16, 2013, that Dr. McMaster indicated that he had been told by Mr.

Lutczyk that he was not separated from his wife but considering it. Mr. Lutczyk denied telling Dr. McMaster that, and told the court that Dr. McMaster`s report was full of errors. Mr. Lutczyk confirmed he had operated a Bed and Breakfast with his wife from 1998 until October 2012. He admitted that he had not provided any documentation to the court with respect to income, that may have been earned by he and his wife from that business. His information to the court was that it would have been impossible to do so, because it was and continues to be extremely difficult to obtain documentation while incarcerated.

The only remaining assets owned by Mr. Lutczyk are a 1995 Chevrolet Yukon of negligible value and his contribution to the Canada Pension Plan and the Ontario Teachers` Pension Plan. As indicated above Mr. Lutczyk’s view is that the pension is of negligible value because of the short time in which he contributed to it. Once the appeals available through Legal Aid were exhausted, Mr. Lutczyk had no funds to pay debts or retain counsel and is now in the position of having no resources to retain his own counsel. Mr. Murphy made submissions on behalf of Mr. Lutczyk at the hearing of this application and Mr.

Lutczyk confirmed during the course

of the hearing that he would be content with having Mr. Murphy represent him for the pretrial applications and at trial. Mr. Murphy is willing and able to do so at Legal Aid rates and clearly has an excellent understanding of the history of this file and the information in relation to the proposed future trial. In his supplemental affidavit in support of this application, Mr. Lutczyk advised the court that in April and May 2014, he was self- represented at his two week preliminary inquiry. Mr. Murphy was appointed as amicus curiae and as

section 486.3 counsel to cross- examine the alleged victim at the preliminary inquiry. On May 30, 2014, Mr. Lutczyk conducted a self-represented judicial pretrial before the Honourable Mr. Justice Salmers. During the course of the pretrial, the Crown’s office advised Mr. Lutczyk that it would be seeking a sentence of fourteen years on a guilty plea. It is unknown at this point what the Crown’s position is on sentencing, in the event that Mr. Lutczyk is convicted after a jury trial. The Crown also advised he would be calling nineteen witnesses at trial, as well as expert witnesses.

Two expert witnesses testified at the preliminary inquiry, including a firearms expert and an explosives expert. It is Mr. Lutczyk’s position and that of Mr. Murphy, that the trial involves complex and serious issues and allegations. Mr. Lutczyk confirmed he will be bringing three applications at his trial, including a pretrial application for a change of venue. Mr. Lutczyk, it is well known, served as a counselor for the City of Oshawa and Durham Region for three terms.

He is concerned that if his jury trial is held in Oshawa, that many members of the jury pool will either have voted for or against him, and further that these charges have received extensive media coverage in the Region of Durham prior to the court banning the publication of the allegations. As such, Mr. Lutczyk believes he cannot receive a fair trial in Durham Region. In addition, Mr. Lutczyk seeks to bring a Garafoli application, as the Durham Regional Police Service wiretapped fifteen hours of telephone conversation, which Mr. Lutczyk alleges was not authorized by law and infringed his rights under

section 8 of the Charter . Finally, Mr. Lutczyk intends to bring an NCR application. In 2012, the court ordered that Mr. Lutczyk be assessed by a psychiatrist to determine whether he was fit to stand trial. Dr. Jeff McMaster prepared that report, which was dated February 6, 2014. That report found that Mr. Lutczyk was fit to stand trial. Mr. Lutczyk takes issue with many of the conclusions in that report and seeks to hire his own expert. Mr. Murphy submitted that it would be completely inappropriate for Mr. Lutczyk to cross-examine the very doctor who assessed his own mental health. Finally, Mr.

Lutczyk repeated on several occasions that while incarcerated at Central East Correctional Centre he has had great difficulty accessing disclosure and researching legal issues. He does not believe he will be able to adequately prepare his application material and retain expert witnesses while there. He complained as well that the does not have access to the internet and is unable to properly make telephone calls out of the jail.

As such requires the assistance of counsel, not only at trial but in order to assist him with the preparation of what he submits are complex applications requiring extensive legal research and preparation. Mr. Lutczyk was asked about how he intended to prepare for the application and he confirmed he has no legal training or training in psychiatry, psychology, or pharmaceuticals. He does not know the names of any forensic psychiatrists, nor does he have access at Central East Correctional Centre to a law library or the internet in order find experts which he may be able to retain.

The Rowbotham Test The onus is on the accused to establish his entitlement to state funded counsel, based on the circumstances of his case. However, in order to obtain a Rowbotham order, an accused must establish three things, and if any of the these conditions is not satisfied, the accused’s application must be dismissed. The three conditions to be satisfied are: (

a) That he is ineligible for, or has been refused Legal Aid and has exhausted all available appeals; (

b) That he is indigent and has no means to retain counsel otherwise; and, (

c) That his right to a fair trial will be materially compromised if he is forced to proceed to trial unrepresented by counsel. With respect to the onus on the accused to show that having state funded counsel is essential for a fair trial, consideration but be given to the following:

(

a) The seriousness of the charges; (

b) The length of the proceedings; and (

c) The ability of the accused to participate in his own defence. Issue One: Applicant’s Ineligibility for Legal Aid The applicant was arrested in October 2012 and applied for Legal Aid on February 22, 2013. It is uncontested that the applicant in thiscase has been denied all avenues of appeal through Legal Aid. According to Legal Aid, he was refused on the grounds that he failed to provide credible and complete financial information. Specifically in the appeal reasons of Legal Aid, dated June 20, 2013.

Legal Aid said “In this case, the applicant failed to disclose the saleof two properties while aware of the need for legal services, but before applying for Legal Aid.” The Crown’s position is that if the denial of Legal Aid relates to the conduct of the applicant, then that aspect of the test is not satisfied. The Crown relies on R. v. Tang an endorsement of Nordheimer J., dated September 29, 2011 from Toronto. In that case, the court foundthat Mr. Tang had failed to be open and transparent regarding his resources and sources of funds which underlay Legal Aid’s refusal toprovide him with a certificate.

The court found that the situation was entirely of Mr. Tang’s own making and that he could not rely onhis failure to be upfront to justify the fact that he had been refused Legal Aid. The court was not satisfied that Mr. Tang lacked themeans to employ counsel. The Crown submitted that this court must look at the resources of the applicant from the time of arrest and not simply his currentresources, otherwise, the Crown submits, almost any conduct would be excusable because many detained persons do not have fundsavailable to them while in jail.

Defence counsel distinguishes cases on which the Crown relies on the basis that in Tang the accused was out of custody and able to earnincome. The applicant in this case has no income, nor expenses. He has no expenses because he disposed of his assets, as he knew hewas no longer in a position to make mortgage payments on them. In fact, the documents in the Crown’s materials support the applicant’scontentions with respect to his lack of resources. With respect to Legal Aid, his application for Legal Aid was made over the telephonewhile he as in jail.

He gave Legal Aid an honest account of his financial status when he was applying. Legal Aid’s informationregarding the accused’s banking information was accurate. The applicant initially retained Mr. Yeghoyan for $3,000, but that retainerdid not even cover the full cost of the applicant’s bail hearing. Legal Aid’s focus was on what the applicant did not tell them, but it mustbe remembered that the applicant had never applied for Legal Aid before and answered what was asked of him.

Ruling on Issue One: The court keeps in mind that the conclusions reached by Legal Aid, while not determinative, are still relevant to the considerationsrequired in this application. As well, the courts role with respect to any Rowbotham application is not to review the decision of LegalAid authorities. As per R. v. Peterman (2004), (ON CA), 70 O.R. (3d) 481, Ont. C.A. at para. 22, “When a court makes a Rowbotham order, it is not conducting some kind of judicial review of decisions made by Legal Aid authorities.

Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial.” In Rushlow,2009 ONCA 461 , [2009] O.J. No. 2335, the Ontario Court of Appeal accepted that, in that case, the appellant’sfinances did not reveal that he had resources to retain counsel, but then made a calculated decision not to. In my view, that is the essenceof the question to be determined at this stage of the test. That is, was the conduct of the accused in failing to provide properdocumentation or not revealing to Legal Aid he had disposed of property fatal to meeting this part of the test?

While some of these issueswill be dealt with further in determining whether the accused is indigent, as per the second prong, I find that the accused has met the firstpart of the test for the following reasons:

(

a) His interview with Legal Aid was conducted by phone, and therefore the usual forms and sworn declarations were not completed. There is nothing to indicate, based on the information obtained by Legal Aid that the information given to them at the time of the interview was incorrect. (

b) It was not for this court to review Legal Aid policies or the basis on which their decisions were made at any stage or the type of interview process that they used with this particular applicant. (

c) The applicant has exhausted all avenues of appeal in accordance with the requirements this prong of the test. Issue Two: Is the Applicant Indigent and Unable to Privately Retain Counsel to Represent Him at Trial? The Crown submits that the applicant must establish that his financial position is such that after the date of arrest, and even after making reasonable sacrifices and efforts, he would be unable to retain competent counsel to represent him on the matter before the court.

In assessing indigence, the court may consider income and expenses, lack of income and earning capacity as a result of time in custody, efforts to obtain other employment to retain private counsel, efforts to find counsel considering the financial situation including enquires into the cost of other counsel, the requirement of a lump sum retainer in advance, outstanding debt and the financial circumstances of the accused’s spouse, children or other relatives.

The Crown submit that the accused must demonstrate a willingness to sacrifice and take reasonable steps to retain counsel and, in doing so, must show planning and foresight from the time of arrest. The Crown relies on R. v. Nightingale , [2001] B.C.J. No. 2610 , para.9, where the court concluded: “If the applicant is not in a position financially to retain counsel, it is because of his own voluntary choices and priorities and a lack of foresight and planning.

Consequently, this is not an appropriate case to order a conditional stay of proceedings to encourage the holder of the public purse to come forward with funding for counsel.” The Crown submits that this applicant has arranged his financial affairs to make it impossible for him to retain counsel and has failed to provide a complete and detailed financial picture for the court. In R. v.

Black Pine Enterprises Limited, 2001 BCSC 1849 : “...the case law has settled that the applicant must provide detailed evidence of his or her financial circumstances and their attempts to obtain legal representation, including such matters as property and financial statements, statement of expenses and income, affidavit evidence with respect to possibility of additional sources of funding having been investigated and found wanting, possible sources of economy not being available, for example, in relation to matters of discretionary spending.” The Crown also points out certain evidence that is concerning with respect to the applicant’s arrangement of his financial affairs.

For example, there is the transfer of the Chadburn property, which the applicant says was valued at $180,000 at the time of its transfer to his twenty year old daughter on February 4, 2013. His affidavit indicates that the transfer was made with the line of credit remaining in his name. However, in his appeal to Legal Aid and the cover letter dated May 6, 2013, to Legal Aid he stated that the transfer was made in exchange for 100% of the value of the secured debt on the house and there was no money left on sale.

The Crown is concerned about the fact that there are no valuations or credible information before the court regarding the value of the Chadburn property at the time of transfer. The Crown also has concerns with respect to the Eulalie property, which was sold to friends of the applicant to pay debts, including a $90,000 line of credit, a registered judgment of $30,000, arrears of taxes of $20,000 and $5,000 for legal fees and closing costs to sell both houses. Most disconcerting to the Crown is the fact that the applicant directed that $20,000 be paid to the Fratczaks in order to repay an alleged personal loan.

No supporting documentation was provided, indicating that there has ever been any security for the loan or payments on it. The Crown also pointed out that the Fratczaks were prepared to put up significant funds for the applicant’s bail, and as such, the applicant’s evidence was that he was required to pay off the loan to the Fratczaks because of their urgency in needing the money, is less credible. The applicant also failed to provide information regarding the income he said was earned from the Bed and Breakfast operated by he and his wife from 1998 until the time of his arrest in 2012.

The Crown submits that the applicant did not organize his affairs such that he could retain counsel, but in fact organized his affairs since the time of his arrest in order to divest himself of assets and potentially entitle him to publically funded counsel. Finally, there is no evidence that the applicant has attempted to explore other sources of funding, such as family members or even his daughter to whom he transferred the Chadburn home. The position of the applicant is that he disposed of his assets so he could not have mortgage payments.

Once detained, he had no ability to earn income and, as a result, was concerned that the banks would commence Power of Sale proceeding. Further, the distribution of funds with respect to the Eulalie property, in large part related to secured debts which had to be paid out; in particular, the line of credit, the arrears of taxes and the judgment all formed liens against the property. What this really comes down to, according to the applicant, is the fact that he preferred the Fratczaks debt of $20,000 over what he might otherwise have been used for a legal retainer.

This is not a case in which a large amount was preferred to other creditors. Moreover, the applicant has a long history of financial difficulties based on poor financial dealings. In fact, part of the assessment prepared by Dr. McMaster reveals that during the course of the alleged kidnapping the applicant requested the alleged victim, Mr. Potts, to contact the city manager and issue several $50,000 cheques to him and then have a helicopter pick him up and take him to a bank to cash them. Ruling on Issue Two I find that the applicant does not meet this part of the test for the following reasons: (

a) While the court is engaged in an independent review in relation to a Rowbotham application, the court, at the same time, must keep in mind the concerns about the expenditure of public funds. The cost estimate for this trial by Mr. Murphy was in the range of $150,000. Such amounts cannot be expended from the public purse without careful consideration by the court with respect to the applicant properly meeting all aspects of the Rowbotham test. (

b) I do not accept the applicant’s arguments that he divested himself of assets so that he would no longer have to pay his mortgages. The court is left with a concern that if the properties had been sold under power of sale, and therefore required to be sold for market value, that some gain would have been netted that was not otherwise obtained because the properties were transferred in what can only be considered non arms-length transactions. The applicant’s evidence was that at some point in his working life he was engaged in the business of buying, renovating and flipping houses.

He admitted to having knowledge of real estate transactions. The protestations of the applicant that he transferred the properties only to pay only debt is less credible given his background. (

c) The Chadburn property presents a difficulty, in that there is, for example, no reason why, following trial, the property will not be transferred back from his twenty year old daughter to the applicant. This property was purchased in 1995 for $162,000.00. The applicant would have the Court believe that in the 19 intervening years the property went up in value only $18,000. Since the applicant presented no information as to the value of the property on transfer the court is faced with having to accept that the property is worth only the value of the mortgage registered against it.

Further, it seems unlikely that Scotiabank would have given him a $180,000 mortgage in 2006 if that was the full value of the property some eight years ago. (

d) With respect to the Eulalie property there are difficulties as well. There was clearly equity in that property. The applicant insists that certain debts had to be repaid in order to transfer clear title to the Fratczaks. Arrears of taxes and judgments often do form liens against title but there is not a single document to verify that there were liens or that they were in the amounts set out by the applicant in his affidavit. For example, the municipality had not registered a lien for tax arrears that showed up in the parcel register. There is the also the payout of the unsecured loan to the Fraczaks. While Mr.

Murphy asked me not to deny state funding on the basis of preferring a creditor over the Legal Aid for $20,000 I am not certain that the taxpayers of Ontario would agree. That amount could have gone some way towards a retainer. Finally, as with the Chadburn property there is no evidence of what the value of the Eulalie property was on the date of the transfer. It was purchased for $114,000 in 1995 and sold for $167,500 some 19 years later.

The court is being asked to accept that the property increased in value only $53,000 in those 19 years and without documentation to verify that such a nominal increase is reasonable. (

e) The applicant failed to provide any corroborating documents with respect to his financial circumstances. There was no evidence of any income that he may have earned from the Bed and Breakfast that he was operating prior to his arrest. There was no corroborating documentation with respect to the unsecured loan to the Fratczaks for $20,000. There was no documentation relating to his attempts to obtain counsel or to focus his energy on selling his assets for the purpose of obtaining a retainer as opposed to selling his assets for the

purposes of minimizing his debts. In a situation such as that of the applicant, there can be no doubt that he was well aware of the seriousness of the offences with which he was charged and the fact that he was facing a lengthy and complex trial. Not to focus his efforts on gathering a retainer for that purpose is a significant consideration with respect to the second prong of the Rowbotham test. (

f) The credibility of this applicant is in issue. The applicant stated in his affidavit that he had separated from his wife in March 2012 and that they had signed a separation agreement. The separation agreement has never been produced. According to the applicant, the separation agreement provided for his portion of the matrimonial home to be transferred to his wife in lieu of child support. However, without a copy of the separation agreement, it is impossible for this court to tell what exactly happened to the applicant’s share of the matrimonial home and why.

In addition, although the applicant was quite clear that he was separated from his wife, his spousal statement in the transfer of both the Eulalie and Chadburh properties, which postdate the separation agreement, state clearly that he continues to be a spouse. Further, the assessment of Dr. McMaster indicates that the applicant told Dr. McMaster that at the time of the assessment in 2013, he was considering separation from his wife. Although the accused denies telling Dr. McMaster this, I accept the statements in Dr. McMaster’s report, as they tend to corroborate the other statement of the applicant.

This leaves a situation in which it is entirely unclear as to the status of the legal relationship between the applicant and his wife. There is a concern on the part of the court that the applicant has made it deliberately so. (

g) It is, of course, important to consider the applicant’s current financial circumstances. He has been in jail for two years and cannot earn income. While that is an important consideration for the court in a Rowbotham application, it is not the only one. There are other ways in which this applicant may obtain assistance from the court, such as the appointment of amicus or a

section 486 counsel to cross- examine Mr. Potts. Indeed, the applicant indicated he was content with Mr. Murphy’s services and the trial judge may determine that the appointments as indicated above should be made. However, those considerations are different from the Rowbotham application and not before me. Finally, I have already discussed the lack of corroborating documentation, but there is also the lack of information about the possibility of income from other sources. There is, for example, no affidavit from his daughter, Tiffany, or his estranged spouse.

Interestingly, there is not an affidavit from the Fratczaks to confirm the loan arrangements as described by the applicant. As such, it is impossible to tell whether the applicant made the required requests for support from other family members or others who may have been willing to lend resources.

Therefore, I find that for the purposes of the second prong of the test in Rowbotham , this applicant has failed to give priority to the retention of counsel and instead chose to arrange his financial affairs in a manner that created indigence as opposed to indigence being the state in which he came to the court, or the state that he was at the time of arrest. As such, I do not find that the applicant has met the second prong of the Rowbotham test. Issue Three: Will the applicant’s Right to a Fair Trial be Materially Compromised in the Absence of Counsel?

Although I am not required technically to address this because he has failed the second prong, I felt it important in this case to make a determination with respect to the third prong because of the seriousness of these charges. I note that the Crown does not contest that the charges in this case are serious. Turning to the length and complexity of proceeding, the applicant’s trial will be by jury and is estimated to last for four weeks with two weeks of pretrial hearings. This may be extended, given the new applications which the applicant intends to bring.

During the course of the hearing, it was agreed that the trial could be extended by another two weeks. The length of the disclosure is 2,000 pages and there are seventeen witnesses, including a firearms expert, an explosives expert and a phone analyst. As indicated above, the applicant, in his supplemental affidavit, advised that he intended to bring three applications, namely, a change in venue; an NCR application; and a Garafoli application.

The Crown’s position is that the nature of the case and the proposed pretrial applications are not of such complexity that the applicant, with his experience and educational background would be unable to obtain a fair trial without state funded counsel and with assistance from the trial judge.

The applicant’s position is that while he is university educated and was a counsellor for the City of Oshawa for a combined period of ten years, has experience as a teacher and in construction, that he is not legally trained and it is not possible for him to put together the materials necessary for the applications he intends to bring. Further, with respect to the NCR application, the applicant submits that it would be absurd for him to attempt to cross-examine the psychiatrist in relation to his own mental health. The applicant wants to retain

his own psychiatric expert. He does not know any such experts and does not have access to the internet at the jail, or reasonable access to a computer in order to research such important issues. Further, the applicant has no ability to print out documents from the computer at the jail and therefor requires the assistance of counsel, at a minimum, to put together the materials required on these complex applications. It would be also unreasonable for the accused to cross-examine the alleged victim, Mr. Potts. Mr.

Potts was very emotional at the preliminary inquiry and testified that he believed the applicant intended to execute him during the course of the kidnapping. Being cross- examined by the applicant and having to relive these events would not be reasonable and, as such, counsel is required for that cross- examination. Finally, the applicant points out that even with the assistance of an experienced trial judge, a miscarriage of justice can occur. For example, in Rushlow , the judge conducted a model trial and assisted the accused appropriately and reasonably.

Notwithstanding such assistance, the court of appeal still found that there had been a miscarriage of justice because the accused did not have counsel. Finally, as well, the applicant provided a transcript of judicial pretrial proceedings, which took place on December 5, 2013. Justice S. McLean ordered a transcript of a portion of those proceedings, in which she said as follows: “I am very concerned about the ability of this case to be tried without representation by counsel.

There are a lot of complex issues, the least of which is the disclosure, but I do not know how we can move this case forward without counsel.” The Crown reminds the court that Dr. McMaster’s assessment confirms that the applicant is fit to stand trial and has no physical or major mental health condition which would impact on his ability to participate meaningfully in the trial. It should be kept in mind that this applicant was enrolled in the army and became a full time reservist in 1988. He has military training and knowledge of weapons and explosives.

Further, he demonstrated an ability to navigate various criminal proceedings thus far, including representing himself at his bail review and a preliminary inquiry. During the preliminary inquiry, he cross-examined several witnesses, including police officers and firearms and explosive experts, and represented himself at the judicial pretrial. The Crown points out that the applicant, to his credit, was able to cross-examine a police officer and challenge a significant point in that officer’s testimony that was not in his notes.

Also, he was able to cross-examine an expert on technical matters relating to explosives and the proper way to test evidence from a crime scene. He was able to navigate his way through exhibits, including photographs and video exhibits. He demonstrated an understanding and appreciation of the mature of his charges, including the substantive issues relating to trafficking ammunition and intentional acts. He paid attention to the testimony of witnesses and was able to cross-examine them based on his notes. According to the Crown, this applicant has demonstrated an almost unique ability to represent himself.

The Crown relies on, in part, the reasons of Salmers, J. at the bail review on January 20, 2014, in which Salmers, J. made the following statement: “For the most part, the evidence that was adduced by Mr. Lutczyk, including his questioning of witnesses, was relevant to the issue that I had to decide. Further the vast majority of Mr. Lutczyk’s submissions were presented in an organized manner, again relevant to the issues that I had to decide. This should not be surprising; Mr. Lutczyk is an intelligent educated person.

In criminal matters, I have never had an unrepresented accused who has spoken better for himself than did Mr. Lutczyk.” The Crown’s position is there is no evidence to suggest that this applicant cannot respond to the issues raised and deal with experts given what will also be the usual assistance of the court. Ruling on Issue Three I find that the accused has met the third prong of the test, in that, notwithstanding his ability to navigate the criminal justice system to a better extent than most, he is facing extremely serious charges which could result in significant imprisonment.

It is unlikely that the Crown’s position would be fourteen years of jail after a conviction at trial. Indeed, it is likely to be significantly more.

While this applicant is articulate and well educated, and conducted himself admirably during the course of his bail hearing and preliminary inquiry, the consideration of this court does not end there. This will be a lengthy trial with complex issues. I agree with Mr. Murphy that having to prepare a Garafoli application, an NCR application and the change of venue application within the confines and limited resources of a correctional centre will be difficult, to say the least. Further, conducting a bail review or a bail hearing is quite a different matter from a trial.

The rules with respect to cross-examination are such that more latitude is generally given at bail hearings and bail reviews than is given at trial. While a trial judge on this matter will be put in a position of having to provide some assistance to the applicant, it goes without saying that a trial judge cannot tell the applicant how to conduct an NCR application or a Garafoli application. Conclusion Given all the above, I find the accused has not met the test in R. v. Rowbotham because he has failed to satisfy the second prong of the test and I therefore decline to appoint state funded counsel.

I should add, having researched the issue, I cannot find authority for partial funding under a Rowbotham application, which I might otherwise have granted for the purposes of the applications which this applicant intends to bring. I cannot find authority for doing so where two out of the three prongs of the test have been met. The test is a strict one, according to the case law, and therefore the application must be dismissed. I request that a transcript of this decision be provided to the pre-trial judge in order to assist with his or her consideration on how best to proceed in these circumstances.

FORM 2 Certificate of Transcript Evidence Act, subsection 5 (2) I, Janice Zufelt , certify that this document is a true and accurate transcript of the recording of R. v. Lutczyk in the Superior Court of Justice held at 150 Bond St. E., Oshawa, Ontario taken from Recording No. 2812-203-20140822-091402-10-Gilmore Certified on Form One August 30, 2014 ........................................

Janice Zufelt Certified Court Reporter Transcript ordered..................... August 22, 2014 Transcript completed................... August 30, 2014 Transcript approved for release........ September 29, 2014