WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under the Young Offenders Act and is subject to subsection 38(1) of the Act. This subsection and subsection 38(2) of the Young Offenders Act, which deals with the consequences of failure to comply with subsection 38(1), read as follows:
38. Identity not to be published.— (1) Subject to this section, no person shall publish by any means any report
(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or
(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence
in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.
(2) Contravention. — Every one who contravenes subsection (1), . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;
Date: 2013-05-14
Court File No.: Region of Durham 2811-998-13-Y18070-00
Parties
Between:
Her Majesty the Queen
— and —
J.W., a young person
Before: Justice M.T. Devlin
Heard on: May 14, 2013
Ruling released on: May 14, 2013
Counsel:
- D. Slessor for the Crown
- S. Pieters, counsel for the Accused J.W.
Decision
Devlin, J.:
This is the decision on a portion of the Defence Application to strike the guilty plea entered before me on October 15th, 2012, by J.W., a young person within the meaning of the Youth Criminal Justice Act.
Original Issues
The issues originally raised by the Defence are as follows:
Whether the plea should be struck and, if so, on what basis?
Whether J.W.'s rights under section 7 and 12 of the Charter were infringed by:
- a. the Crown's decision to lay new charges arising from the original incident, and/or the timing of the new charges being laid;
- b. the late disclosure and non-disclosure of material regarding the new charges.
If any violations of J.W.'s Charter rights occurred, whether the appropriate remedy is a stay of proceedings or a costs award against the Crown.
Current Issues
Due to how this case unfolded, the only issues to be decided at this juncture are whether the late disclosure of the investigating officer's notes constitute a breach of J.W.'s section 7 Charter rights and, if so, whether the appropriate remedy is a costs award against the Crown.
Facts
i. Background
J.W. is a Black African Canadian youth who was 17 years old at the time of the incident.
According to the transcript from his October 15th, 2012, Court appearance, J.W. was involved in an unusual robbery that occurred on July 16th, 2012. On that date, at approximately 7:30 a.m., J.W. entered the Sheridan Veterinarian Clinic in Pickering. He pointed what appeared to be a handgun to Ms. Jamie McKee's head and demanded the drug Euthasol. Euthasol is the drug used to euthanize animals. J.W. was given two vials, which he believed to be the euthanasia drug, and left the clinic.
Outside the clinic, J.W. was confronted by the police and ended up being shot at 8 times by Constable Shaddick. Two of the bullets hit J.W.: one entered his left chest area and exited out his back; the other struck him in the right rear shoulder blade and exited out the right side of his lower body.
J.W. sustained life-threatening injuries. He was rushed to the hospital, where he miraculously recovered.
At the time of the robbery, J.W. was in a mental health crisis. His plan was to use the euthanasia drug to end his own life. The gun he used was a cap gun purchased at a Dollar Store.
As a result of the shooting, the Special Investigations Unit (S.I.U.) conducted an investigation. At the end of November 2012, the S.I.U. investigation concluded and cleared P.C. Shaddick of any wrong-doing in the shooting. While the S.I.U. investigation was still in progress, P.C. Shaddick's notes were not provided to the Crown and therefore not disclosed to the Defence.
ii. Overview of the Informations
On July 28th, 2012, the original information as sworn setting out 3 counts:
- a. Robbery with a handgun
- b. Wear a disguise
- c. Possession of a handgun
In January 2013, a second information was sworn which listed the 3 original counts and added two new counts:
- a. Assault with a Weapon
- b. Use Firearm During Flight after an Indictable Offence
A third information was also sworn in January 2013, which only included 2 new counts.
iii. Chronology
J.W. first appeared before me on August 10th, 2012, for a judicial pre-trial. That same day a Contested Bail Hearing was conducted before a Justice of the Peace, who released J.W. on a strict bail that allowed him to receive medical treatment for his significant mental health issues.
Once J.W.'s health stabilized, he pled guilty before me on October 15th, 2012, to one count of Robbery with a Handgun, pursuant to section 343(d) of the Criminal Code of Canada.
A Section 34 Assessment was ordered and the Sentence Hearing was adjourned to December 21st, 2012. On December 21st, 2012, the section 34 Assessment was available and distributed to the Crown, the Defence and the Court. The Sentence Hearing was adjourned to January 31st, 2013, to allow all parties time to review the Assessment.
In a letter to the Defence, dated January 9th, 2013, the Crown disclosed the notes of Constable Shaddick and advised that:
a new information would be sworn alleging two new offences regarding J.W.'s post-robbery conduct: Assault with a Weapon and Use Firearm During Flight;
the Crown would be seeking a plea to the new Use Firearm During Flight charge.
As a result of these developments, the Sentence Hearing scheduled for January 31st, 2013, did not proceed. Instead, the matter was adjourned to February 25th, 2013, so the Defence could consider its options.
On February 25th the Defence notified the Crown and the Court that it would be bringing an Application to Strike the Pleas entered on October 15th, 2012. This Application was heard April 16th, 2013, and the decision was reserved to May 15th, 2013.
The Crown submitted that the new charges were laid based on P.C. Shaddick's notes, which the Crown only received on January 2nd, 2013. The Crown further submitted that it had been informed by the Durham Regional Police Service that this delayed disclosure was in fact the normal protocol in cases where an investigating officer is facing an S.I.U. investigation.
On April 30th, 2013, the matter was brought before me at the request of Counsel. At this time, the Crown advised that it had been misinformed by the Durham Regional Police Service regarding the availability of P.C. Shaddick's notes. The Crown conceded that based on information it had newly received, P.C. Shaddick's notes should have been disclosed to the Defence with the initial disclosure. As a result, the Crown requested that the two new informations be withdrawn and that the matter proceed to sentencing on the original count of Robbery to which J.W. had already pled guilty.
The Defence requested that the Court rule on the submissions it made regarding the section 7 Charter breach caused by the late disclosure of P.C. Shaddick's notes and the appropriate remedy for the breach. The Defence abandoned all other arguments in the Application to Strike the Plea.
Legal Analysis
i. Section 7 Breach
The first issue is whether J.W.'s right to life, liberty and security of the person, as guaranteed by section 7 of the Charter, was infringed by the delayed disclosure.
On the facts of this case, I conclude that there has been a breach of J.W.'s constitutional rights based on the Crown's concession that the disclosure of P.C. Shaddick's notes was wrongfully delayed until January 2013. I note that the disclosure occurred approximately 2 months after the guilty plea was entered, and approximately 2 weeks after the Section 34 Assessment was distributed.
ii. Remedy
The next issue is whether it is appropriate to award costs against the Crown pursuant to section 24(1) of the Charter as a remedy for the breach. I note that on the facts of this case, where the breach occurred after a guilty plea was entered and prior to sentencing, an order for costs appears to be the only potentially appropriate remedy. I also note that it is the only remedy sought by the Defence at this time.
In general, Criminal defendants are not entitled to costs. However, when the accused can show that there is a "marked and unacceptable departure from the reasonable standards expected of the prosecution", an order for costs will be made.
See: R. v. Tiffin (2008), 2008 ONCA 306, 90 O.R. (3d) 575, OCA.
In this case, the Crown mistakenly believed that the investigating officer's notes could not be disclosed until the completion of the S.I.U. investigation. Based on this erroneous belief, the notes were not disclosed until January 2013. The disclosure of these notes then triggered the decision to lay new charges almost 6 months after the incident, and 3 months after the guilty plea was entered in October 2012. This scenario was not expected by the Defence or the Court. It was not discussed at the judicial pre-trial, nor was it raised on the date that the plea was entered.
As a result of these developments, the Sentence Hearing scheduled for January 31st, 2013, did not proceed. This had the effect of depriving J.W. from immediately benefitting from the recommendations contained in the Section 34 Assessment. The delay in Sentencing is particularly egregious in this case because J.W. is a youth who suffers from significant and deeply-ingrained mental health issues and is therefore an extremely vulnerable accused person.
The Crown's decision to lay new charges and its ongoing insistence that J.W. plead guilty to one of the new charges required J.W., through his counsel, to prepare and file an Application to Strike the Plea and to argue this Application at a lengthy and vigorously contested hearing.
Only after the Application had been argued did the Crown learn that it was in error and that, in fact, the investigating officer's notes should have been disclosed with the initial disclosure, or soon after, despite the S.I.U. investigation. Although I commend the Crown for its candour on this issue at the April 30th appearance, this admission alone is insufficient to remedy the breach.
In my view, the Crown ought to have known from the outset that it was obligated to disclose P.C. Shaddick's notes at the beginning of the process. At the very least, the Crown ought to have ascertained its disclosure obligations prior to laying the new charges.
The failure to understand its disclosure obligations in this case and the decisions the Crown made based on its erroneous belief that it could not disclose the notes during the S.I.U. investigation unnecessarily delayed and complicated this case.
I find that the actions of the Crown in this regard do amount to a marked and unacceptable departure from the reasonable standards expected of the prosecution.
Costs reflecting the extra steps taken by the Defence to litigate the issues regarding the late disclosure of the notes and the new charges laid in January, 2013, will therefore be awarded against the Crown in the amount of $13,000.00 plus HST.
Released: May 14th, 2013
Signed: Justice M.T. Devlin