Yukon Supreme Court Justice Leigh Gower has turned down an application that would halt court proceedings for a man facing numerous charges ranging from accessing and possessing child pornography to possessing explosives, among others.

The 15-page decision on Brian Nowazek’s application – known as a Rowbotham application – was released late last week.

The application sought a stay on proceedings until funding by either the Attorney General of Canada and/or the Yukon was provided to Nowazek for legal counsel to represent him on eight outstanding charges including the child pornography charges.

The other charges are the possession of explosives and the unlawful possession of several firearms.

Nowazek has elected to stand trial by judge alone on the charges stemming from a warrantless search of his home on July 16, 2014.

In his 15-page decision, Gower noted that in order to have a Rowbotham application approved, it has to be shown the accused has been denied legal; he or she can’t afford legal counsel; the charges are serious; and the charges are so complex the accused would not have the capacity to deal with them effectively without counsel.

“The accused has provided letters from Yukon Legal Aid confirming that he has been provided with staff lawyers on two separate occasions to represent him and on both occasions, he chose to discharge those lawyers,” Gower wrote.

“The accused also appealed Legal Aid’s decision not to provide him with further counsel, and that appeal was denied on Nov. 15, 2015.”

Gower then went on to note that the main issue is whether it was reasonable for Nowazek to fire lawyers provided to him through legal aid, with the secondary issue focused on whether Nowazek has the capacity to defend himself.

Before going into detail on those issues, Gower pointed out there is no dispute that Nowazek cannot afford his own legal counsel and that the charges are serious, particularly because of his prior record.

“Indeed, he claims that one of his former legal aid counsel informed him that, if convicted on the present charges, the Crown would be seeking to have him designated as a long-term offender,” he said.

Looking to the issue of legal aid, Gower then pointed to the question of whether it was reasonable for Nowazek to fire his legal aid lawyers.

“If it was not, then the accused cannot maintain that legal aid has truly been denied,” Gower wrote, going on to cite case law on the matter.

He then went through Nowazek’s history with legal aid on this case.

While Nowazek had spoken with a previous defence lawyer he had, he could not afford to hire him and pursued the legal aid route until Aug. 20. That’s when court records indicate he had retained private counsel – David Tarnow, who is representing him on the Rowbotham application.

“(Legal aid lawyer Malcolm) Campbell was then removed as counsel of record, as the accused had no further need of his services,” Gower wrote.

He later cited issues with Nowazek’s testimony on discharging Campbell from the case.

Gower pointed to court records showing that Campbell was present in the courtroom for certain appearances and countered other inconsistencies in Nowazek’s testimony.

It turned out that Nowazek wasn’t able to hire Tarnow for the overall case. Nowazek requalified for legal aid in March.

“If I am wrong in concluding that the decision of the accused to discharge Mr. Campbell was unreasonable, I would nevertheless find that his decision to discharge the subsequent legal aid defence counsel appointed to represent him in March 2015, Amy Steele and Gordon Coffin, was also unreasonable,” Gower wrote.

He then went on to note that Nowazek fired both lawyers on the first day the matter was scheduled for trial – Sept. 2, 2015.

“I was the presiding judge,” Gower wrote.

“At that time, Ms. Steele was intending to make a Charter application to exclude all of the evidence ultimately obtained as a result of a warrantless search of the accused’s home on July 16, 2014. As I understand it, if successful, the accused would likely have been acquitted.”

Nowazek was initially receptive to Steele’s work that was being done in conjunction with Coffin, the most senior legal aid attorney.

However, Nowazek later said he became concerned that Steele, who had told him she had been called to the bar one year before, was too inexperienced to deal with his case.

“Although she was being assisted by Mr. Coffin, the accused was also concerned he had not met Mr. Coffin until the day of the Charter application,” the decision notes.

“In his testimony, the accused clarified that he came to the conclusion that Ms. Steele was too inexperienced ‘a few days before’ the commencement of the trial and that ‘it was very evident’ that Ms. Steele and Mr. Coffin would not be able to put forward the case in the manner he thought was necessary.

“However, the accused came to this conclusion without having reviewed the materials filed on his behalf by Ms. Steele, and, on his evidence, without having any particular discussion with her about the nature of the Charter application.”

Having reviewed the documents himself, and “without prejudging the merits of the application,” Gower concluded Steele’s work to be competent and professional.

Gower went on to note that Nowazek reached conclusions about Coffin without meeting nor talking with him, “and this was based solely upon comments he heard at the jail.”

Gower then went on to state that Coffin is a senior member of the territory’s criminal defence bar, with nearly 30 years’ experience.

“Even if the accused had some reason to doubt Mr. Coffin’s abilities, he has no right to state-funded counsel of his choice, to the ‘best around’, or ‘Nobel level’ counsel; rather he is entitled to competent counsel with necessary experience to ensure that his answer to the allegations is made available to the court...”

Gower went on to cite case law.

“Further, when the accused discharged Ms. Steele and Mr. Coffin, he also had to have known that he did not have the financial resources to retain private counsel in the alternative,” the judge noted.

“As stated above, he dithered around for several months unsuccessfully attempting to retain Mr. Tarnow between the end of August 2014 and the end of March 2015, and there had been no improvement in his financial circumstances since then.

“The accused also had no reason to think that legal aid would designate yet another lawyer to represent him. Therefore the decision to discharge Ms. Steele and Mr. Coffin was reckless and unreasonable.”

Gower then moved on to the question of whether Nowazek has the capacity to defend himself.

The justice pointed out that Nowazek holds a bachelor’s degree in macro-economics from the University of Winnipeg and a degree in political science from the University of Manitoba.

At one time, he also had plans to pursue a master’s degree in economics.

His employment over the years has seen him serve as an economic researcher and a journeyman gunsmith after finishing a three-year training program in Colorado.

He also has experience in both the criminal justice system in the Yukon and the United States.

“While the Charter application may well be the accused’s main defence, and while it is no doubt complex, the materials paired by Ms. Steele, and responded to by the Crown, are still on the court file and will be accessible to the trial judge. Therefore, the accused has a diminished need for counsel with respect to what appears to be the main issue in this case.”

In dismissing Nowazek’s application, Gower added that if Nowazek ends up facing an application by the Crown to designate him a long-term offender, he would urge legal aid officials to reconsider its position on Nowazek.

“Failing that, I expect that Mr. Nowazek may be in a position to file a further Rowbotham application in that context,” he stated.