Her Majesty the Queen v. Amir Shojaee
COURT FILE NO.: CR-20-40000035-00AP CR-20-40000034-00AP
DATE: 20210125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AMIR SHOJAEE
Counsel: Peter van den Burgh, for the Crown Mindy Caterina, for Amir Shojaee, Applicant
HEARD: January 13, 2021
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT APPLICATION FOR APPOINTMENT OF COUNSEL
[1] Amir Shojaee was convicted of assault causing bodily harm by Justice Shandler of the Ontario Court of Justice on March 7, 2019. Justice Shandler sentenced Mr. Shojaee on July 9, 2019 to 90 days to be served intermittently, followed by one year of probation.
[2] Mr. Shojaee was convicted of two counts of assault by Justice Kozloff of the Ontario Court of Justice on January 28, 2019 and was sentenced on July 25, 2019. Justice Kozloff suspended the passing of sentence and placed Mr. Shojaee on probation for two years.
[3] Mr. Shojaee has appealed both convictions and both sentences to this Court. He now seeks to have counsel appointed pursuant to s. 684(1) of the Criminal Code.
[4] The defence argument is that Mr. Shojaee was unrepresented at each trial. There was a lengthy delay between the laying of charges and trial in each case. Mr. Shojaee argues that both trial judges were required to inquire into the reasons for the delay in order to determine whether Mr. Shojaee’s rights under s. 11(b) of the Canadian Charter of Rights and Freedoms were violated. Neither trial judge did so. The appeals will be complicated. Mr. Shojaee is not a lawyer and he is indigent. He has been denied Legal Aid. He argues that he requires state-funded counsel.
[5] I disagree. This application fails the test set out for the appointment of counsel.
[6] Section 684(1) of the Criminal Code states:
684 (1) 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 to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.
[7] In deciding whether to appoint counsel, an appeal court must consider three questions:
First, does the applicant have the means to hire counsel privately?
Second, has the applicant advanced arguable grounds of appeal?
Third, does the applicant have the ability to effectively advance the appeal without the assistance of counsel?
[8] See R. v. Staples, 2016 ONCA 362, at para. 43; R. v. McCullough, 2017 ONCA 315, at para. 7.
[9] Mr. Shojaee bears the burden of proof on this application: see R. v. Abbey, 2013 ONCA 206, at para. 31.
[10] I turn first to Mr. Shojaee’s finances. Mr. Shojaee deposed in his affidavit that he receives $850/month from the Ontario Disability Support Program (ODSP). He lives with his mother in a Toronto Community Housing residence. His mother is also on ODSP. Of his $850/month, he pays $160 towards rent and $300 towards groceries. He spends the rest on things such as a bus pass, internet, clothing, medication, and pet food. He states that he has no savings, no assets, and no one who can assist him financially.
[11] Mr. Shojaee applied for Legal Aid to fund the appeals. A letter from Legal Aid counsel refused funding for policy reasons. According to the letter, Legal Aid does not fund appeals where either the sentence has been served or there is no custodial portion.
[12] I accept that Mr. Shojaee’s finances are precarious, but I am suspicious that he has no other resources. Mr. Shojaee failed to appear for his sentencing before Justice Shandler on April 19, 2019. I learned during the hearing that Mr. Shojaee had travelled to Iran. He was apparently indisposed and in hospital there. He did not mention his trip to Iran in his affidavit. I find that troubling when combined with other things that were left out of his affidavit. It is unclear to me how Mr. Shojaee managed to afford travel to Iran (and a hospital stay), yet is indigent and unable to pay for a lawyer. Given that lack of explanation, I find that he has not met his burden of showing that he does not have the means to hire counsel privately. That said, Mr. Shojaee’s finances are not the main reason for dismissing his application. The mean reason is the weakness of his grounds of appeal, which I turn to next.
[13] The defence argument is quite simple: the assault charges were laid on July 25, 2016. The trial commenced on November 8, 2016 – just over 27 months later. The assault causing bodily harm charge was laid on June 5, 2015. The trial commenced on March 6, 2018 – about 33 months later. Justice Shandler and Justice Kozloff each failed to inform Mr. Shojaee that his rights under s. 11(b) may have been violated because it took more than 18 months to get to trial.
[14] I do not accept this argument. There is no doubt that a trial judge’s overriding duty is to ensure that an accused person has a fair trial. The trial judge is required “within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect.” It is a matter of discretion for the trial judge to determine the manner and extent of the assistance: R. v. McGibbon (1988), 1988 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.), at para. 32. The standard is one of reasonableness: see R. v. Richards, 2017 ONCA 424, at para. 111.
[15] A trial judge is also under a duty to inquire into a potential infringement of a self-represented accused’s Charter rights: see R. v. Travers (2001), 2001 NSCA 71, 154 C.C.C. (3d) 426 (N.S.C.A.), at para. 34; R. v. Tran (2001), 2001 5555 (ON CA), 156 C.C.C. (3d) 1 (Ont. C.A.), at paras. 25-26. The duty is not unlimited. There must be more than a mere “scent or intimation” of a breach, as noted by Watt J.A. in Richards, at para. 113. Oland J.A. stated in Travers, at para. 40:
I do not suggest that the merest intimation of a possible Charter infringement will found a duty upon a trial judge to enter immediately upon an inquiry where none of the parties before him has raised this argument. However, and without attempting to fully delineate the point at which the duty arises, where there is strong evidence of a prima facie case of breach of a Charter right relevant to the proceeding, a judge has a responsibility to raise the issue, invite submissions and, if appropriate, to conduct an exclusionary hearing in order to protect the integrity of the judicial process.
[16] Is it arguable that it would have been reasonable for Justice Shandler and Justice Kozloff to make inquiries at the start of each trial? In my respectful view, the answer is no. According to the criminal information, Mr. Shojaee was represented by counsel on the assault causing bodily harm charge throughout. Trial dates in May 2016 and January 2017 were vacated. His first counsel was removed from the record. Mr. Shojaee failed to appear at least once for trial (as well as for sentencing on one occasion). His second trial counsel was removed from the record on the first day of trial – something, incidentally, Mr. Shojaee did not mention in his affidavit. Justice Shandler himself averted to delays in the first paragraphs of his decision. A review of the information would not lead a judge to immediately leap to the conclusion that there had been a Charter breach. In my respectful view, it was reasonable to assume that counsel would have considered the possibility of an application under s. 11(b) of the Charter.
[17] I come to the same conclusion with regard to the assault charges. According to the criminal information, Mr. Shojaee failed to appear on at least one occasion (although the bench warrant was later rescinded). He was represented for much of the time. His second counsel represented him until at least July 2018, some three months prior to trial. Certainly, his second counsel represented him when the March 2018 trial dates were set. I think it is reasonable to assume that Justice Kozloff would have had the criminal information before him and would have been aware of that background.
[18] Moreover, Mr. Shojaee’s affidavit is completely silent on the reasons for the delay. His affidavit does not mention that he was represented for much of the time in the Ontario Court of Justice on both charges. His affidavit does not include the criminal informations; they were provided by Crown counsel when it became apparent during the hearing that I did not have them. There is no hint in Mr. Shojaee’s affidavit of problems with setting dates, or disclosure from the Crown, or any other issue that might suggest that a s. 11(b) application might have had merit. Such evidence would be useful. It would be helpful to know whether earlier trial dates were not set because his counsel did not have availability, for example. The onus is on Mr. Shojaee to provide that information. He did not provide it – and if he was unable to provide it, he did not explain why.
[19] I accept that it is a low threshold, but I find that Mr. Shojaee has not shown that the proposed grounds of appeal are arguable. As Oland J.A. put it in Travers, there is only the merest intimation of a Charter breach.
[20] Finally, I turn to Mr. Shojaee’s ability to advance the argument without the assistance of counsel. Mr. Shojaee has described his disability in detail. I accept that he would have difficulty. There is no doubt that it would be a challenge to make the argument he proposes. It would also be a challenge to obtain the necessary transcripts and other evidence. Given his disability, I accept that he could not advance the argument as a self-represented appellant. That said, the point is largely moot – the argument would have little chance of success.
[21] The application is dismissed.
Released: January 25, 2021
COURT FILE NO.: CR-20-40000035-00AP CR-20-40000034-00AP
DATE: 20210125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AMIR SHOJAEE
REASONS FOR JUDGMENT APPLICATION FOR APPOINTMENT OF COUNSEL
R.F. Goldstein J.