Judiciary To The Bar: Make Contemporaneous Notes And Take Written Instructions

You get to your office bright and early with a long list of tasks to complete for the day. Before even taking a sip of your morning coffee, the phone rings. A client wants your advice on something pressing. You convey your suggestions to him over the phone. Just as you are getting off the phone with that client, your colleague walks in and has a question on an area of law you specialize in. You sit and chat with your colleague and the conversation meanders from topic to topic. Just as she leaves your office, your assistant reminds you that you have a firm practice group meeting starting in 5 minutes that your attendance is required. Before you know it, your morning is gone. Does this sound familiar?

R. v. Shofman, 2015 ONSC 6876, is a cautionary tale. In a very recent summary conviction appeal decision out of the Ontario Superior Court, Justice Kenneth Campbell in Shofman stressed the importance of a lawyer's "contemporaneous, reliable, objective records."1

The Facts

Michael Shofman was originally tried in the Ontario Court of Justice on charges of impaired driver and operating a motor vehicle with a blood-alcohol concentration greater than 80 mgs. of alcohol in 100 mls. of blood. Mr. Shofman did not testify at the trial and was convicted of the "over 80" offence. He was sentenced to a fine of $1,500.00 and a prohibition on driving for a period of one year.

Mr. Shofman appealed his conviction, arguing that he was denied the effective assistance of counsel at trial. In his appeal, Mr. Shofman claimed that he was not permitted by his defence lawyer to decide whether to testify at trial or not. He claimed that the question of testifying was never even put to him by his lawyer and had it been, he would have chosen to testify.

The evidence presented at trial was that the appellant was in a serious single motor vehicle accident in the early morning on a March day in 2010. The police had suspicions that Mr. Shofman was intoxicated, and two breathlizer tests taken confirmed that he was well over the legal limit. At the trial his counsel "effectively conceded that the appellant should be found guilty of the 'over 80' offence."2 Mr. Shofman never testified, and therefore was unable to tell his side of the story.

Mr. Shofman's explanation for how and why he came to blow over the legal limit is interesting, to say the least.3 He claims he began to drink after the accident, before the police arrived on-scene in order to calm his nerves and stay warm...