R. v. Shaparov, 2022 ONSC 644

COURT FILE NO.: CR-21-10000154-00MO

DATE: 20220128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ALEKSANDR SHAPAROV

A. Mortimer, for the Crown

M. Sciarra, for the Mr. Shaparov

HEARD: 9 November 2021

S.A.Q. AKHTAR J.

Introduction

1The applicant Crown moves to quash a subpoena issued for Jennifer Stanton, Assistant Crown Attorney, the prosecuting counsel in the accused’s trial for accessing and possessing child pornography.

2The accused, Aleksandr Shaparov, brought an application for an abuse of process seeking a stay of proceedings due to be heard on 15 November 2021. After receiving Ms. Stanton’s responding factum, the accused alleged she had made herself a material witness on the motion because she had “given evidence” in her factum.

3At the end of oral submissions, I granted the Crown’s application and quashed the subpoena. My reasons for doing so are set out below.

Background Facts

4The accused is charged with possession of child pornography and accessing child pornography contrary to ss. 163.1(4) and (4.1) of the Criminal Code, R.S.C. 1985, c. C-46. He is alleged to have purchased the illicit material from a “dark web” child pornography site located in South Korea, paying for the material using bitcoin.

5The accused was originally represented by counsel who was later appointed to the Ontario Court of Justice. On 28 June 2021 he retained his current counsel, Mr. Sciarra.

6The accused was originally to be tried in December 2019 but the trial was adjourned to late March 2020 after the defence filed a s. 8 Charter application challenging the evidence obtained through a search warrant. However, shortly afterwards, the courts shut down as the COVID-19 pandemic swept through Canada and the matter was held in abeyance pending a new date being set.

7On 22 June 2020, the parties attended a telephone conference to re-schedule the matter but were told that due to personal issues, the trial judge, Band J., was reluctant to appear at the courthouse in person. On agreement with the parties, Band J. made an order under s. 715.26 of the Criminal Code permitting him to preside remotely. As a result, the s. 8 motion proceeded in July 2020 on a hybrid basis with the parties attending in person.

8The s. 8 motion continued throughout 2020, concluding with submissions on 10 February 2021.

9Subsequently, Ms. Stanton filed an application pursuant to s. 714.2 of the Criminal Code requesting that four witnesses be permitted to testify remotely. On 23 February 2021, the defence notified the Crown that this application constituted a change of circumstances and a breach of an undertaking that all witnesses would testify in person. The defence indicated that the accused’s consent to Band J.’s s. 715.26 order was predicated on these witnesses testifying live in the courtroom.

10Consequently, the accused brought a mistrial application which was granted on consent by the Crown.

11On 24 March 2021, Felix J. was assigned as the new trial judge. However, a second mistrial occurred because the accused’s prior counsel was appointed to the Ontario Court of Justice. A third trial date was contemplated with Felix J. remaining as the trial judge.

12On 29 June 2021, new dates were set for a prospective s. 11(b) Charter motion and a mistrial motion.

13On 15 October 2021 the accused filed applications alleging breaches of his ss. 7 and 11(b) Charter rights, requesting a stay of proceedings as the remedy. The accused argued an abuse of process by the Crown and unreasonable delay in having his matter brought to trial. Ms. Stanton filed her response to the motions on 29 October 2021.

14Upon receipt of the Crown’s factum, Mr. Sciarra informed Ms. Stanton, by email, that the defence would be seeking to call her as a witness on the s. 7 application. On 2 November 2021, in an ex parte application, Mr. Sciarra obtained a subpoena from the judge presiding at the judicial pre-trial of the matter.

15The Crown seeks to quash the subpoena arguing that the relevant test for issuance has not been met.

LEGAL PRINCIPLES

16The authority to issue a subpoena derives from s. 698 of the Criminal Code which states:

698. (1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence.

17When a party applies to quash a subpoena, the onus is on the party who obtained it to demonstrate that the subject of the subpoena has relevant, material and admissible evidence to give in court: R. v. Lindsay, 2004 CanLII 30085 (ON SC), [2004] O.J. No. 3858 (S.C.), at para. 24.

18In R. v. Harris (1994), 1994 CanLII 2986 (ON CA), 93 C.C.C. (3d) 478 (Ont. C.A.), the court made clear that it is not sufficient to merely show the witness “may have” evidence material to the case. The obtaining party must demonstrate that the witness “would probably have evidence material to the issues raised”: at p. 480. The mere possibility that the witness might have material evidence is not enough: R. v. Colbourne (2001), 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 50.

19When prosecuting counsel is the subject of the subpoena, the party seeking the subpoena must go further. In addition to showing relevance, it must establish that counsel’s evidence is also necessary: R. v. Elliott (2003), 2003 CanLII 24447 (ON CA), 181 C.C.C. (3d) 118 (Ont. C.A.), at paras. 114-115. The court made clear, at para. 114, that opposing counsel in a case could only be forced to testify in “exceptional circumstances”. This “stringent test” applies to both Crown and defence counsel if they seek to call each other as a witness.

The Supporting Affidavit

20The affidavit filed in support of the subpoena was sworn on 1 November 2021 by Mr. Sciarra’s paralegal, Melissa Widdefield.

21The affidavit spoke to the receipt of the Crown materials responding to the accused’s ss. 7 and 11(b) argument.

22At para. 5 of the affidavit, Ms. Widdefield stated the grounds for seeking the subpoena:

Upon reviewing the materials filed by the Crown, it is apparent that Ms. Stanton has material evidence to provide on the section 7 Application.

a. In her Responding factum and Application Record, Ms. Stanton makes factual assertions that are not supported by the Court record.

b. Furthermore, Ms. Stanton relies on her own emails (some of which have not been filed in the Crown Response) to support some of the factual basis for her submissions.

c. Lastly, Ms. Stanton relies on “admissions and concessions” that do not form part of the court record.

Analysis

23It goes without saying that forcing Ms. Stanton to testify as a witness will effectively halt the prosecution of the accused’s trial until a new Crown counsel can be assigned. Even if the accused’s Charter application fails, Ms. Stanton will no longer be permitted to act as Crown counsel because of her status as a witness in the same proceeding.

24These considerations should have been at the forefront of the issuing justice’s mind when he received the application for a subpoena.

25The grounds set out in the subpoena fail to come close to passing the necessary threshold for the issuance of a subpoena.

26First, a review of the Crown’s response to the respondent’s ss. 7 and 11(b) application demonstrates the existence of documentary evidence relied upon by Ms. Stanton as support for her responding position. Contrary to the accused’s grounds in requesting the subpoena, these documents did not have to form part of the “court record” to be relied upon. Ms. Stanton could introduce these documents - which contained correspondence explaining many of the in-court discussions at the heart of the Charter motion – as part of her response. Their use did not make Ms. Stanton someone whose evidence was necessary and material. The documents themselves are that evidence.

27Secondly, there was no basis to issue the subpoena simply because Ms. Stanton sought to rely on her own emails to support the “factual basis for her submissions”. Parties are routinely encouraged to place positions and out of court discussions in writing so that a factual record can be created if a dispute arises at a later date. That correspondence becomes the evidence that prevents counsel becoming a witness. It is not without irony that Mr. Sciarra did the very same thing as part of the application record filed in support of his Charter motions.

28Thirdly, the accused appears to misunderstand the application material that the Crown is able to rely upon in its response to his Charter motion. The grounds articulated before the issuing justice referred to Ms. Stanton relying upon material not in the “court record”. As I have already explained, Ms. Stanton was not confined to relying upon in-court discussions, submissions or transcripts of proceedings. As noted, she could produce correspondence setting out and recording her discussions with defence counsel. I repeat my earlier observation. Doing so, does not require her to testify but leads to the opposite result: the existence of evidence which renders Ms. Stanton’s testimony unnecessary.

29Moreover, if the accused takes issue with the meaning or intent of the emails filed, he is free to call evidence to contradict them. For example, he may call his former defence counsel to provide an interpretation of any correspondence which he disputes. That, however, is the accused’s decision to make. It is worth repeating that it is the accused who bears the burden of establishing a breach of his rights.

30For these reasons, I find that the subpoena could not have issued on the grounds sought by the respondent. I would add that it is unfortunate that the issuing justice, in light of the heightened concerns raised by the subpoenaing of the trial Crown on the case did not make further inquiries before issuing the subpoena to ensure the necessary and material test was satisfied.

31Accordingly, the subpoena is quashed.