CITATION: Bussin v. St. Germain, 2009 ONCA 272
DATE: 20090330
DOCKET: C48471
COURT OF APPEAL FOR ONTARIO
Armstrong, Lang and Epstein JJ.A.
BETWEEN
Sandra Bussin
Respondent
and
Leroy St. Germain
Appellant
Alan D. Gold and Vanessa Arsenault, for the appellant
Anthony Paas, for the respondent
Heard: September 12, 2008
On appeal from the judgment of Justice W. Brian Trafford of the Superior Court of Justice dated February 6, 2008, with reasons reported at (2008), 44 M.P.L.R. (4th) 89.
Armstrong J.A.:
INTRODUCTION
[1] Sandra Bussin is a Toronto city councillor. Leroy St. Germain is an elector who swore a private information against Ms. Bussin alleging that she had committed several offences under the Municipal Elections Act, 1996, S.O. 1996, c. 32 (the “MEA”) during the 2006 municipal election.
[2] An application was brought in the Superior Court of Justice to quash the summons that had been issued to Ms. Bussin requiring her to appear at the Ontario Court of Justice to answer the charges.
[3] The application judge quashed the summons on the ground that Mr. St. Germain did not have the right to commence a prosecution for a breach of the MEA.
[4] Mr. St. Germain appeals from the judgment of the application judge.
THE FACTS
[5] Ms. Bussin was elected a councillor in the 2006 Toronto municipal election in the Beaches-East York, Ward 32. Mr. St. Germain, an elector in the municipal election, believed that Ms. Bussin had contravened the MEA relating to her election campaign expenses.
[6] The MEA provides a procedure through a compliance audit process for an elector who “believes on reasonable grounds that a candidate has contravened a provision of [the] Act relating to election campaign finances”: MEA, s. 81(1). Under s. 81(2) of the MEA, an elector may apply to the clerk of the municipality for a compliance audit of the candidate’s election campaign expenses. The application is heard by the municipal council or a committee established for this purpose by the council: MEA, ss. 81(3), (4). The council for the City of Toronto established such a committee in respect of the 2006 election.
[7] The application must be made within 90 days after a candidate has filed his or her financial statement and auditor’s report reflecting the candidate’s election campaign expenses: MEA, s. 81(2). In this case, Ms. Bussin filed her financial statement and auditor’s report on March 26, 2007.
[8] Under s. 81(3.3) of the MEA, a decision of the council or, as in this case, a decision of a committee, may be appealed to the Ontario Court of Justice.
[9] If a compliance audit is ordered pursuant to the decision of a committee or by order of the court, the report of the audit is sent to the municipal council: MEA, s. 81(7). After considering the report, the council “may commence a legal proceeding against the candidate for any apparent contravention of a provision of [the] Act relating to election campaign finances”: MEA, s. 81(10).
[10] It is common ground between the parties, and so found by the application judge, that Mr. St. Germain did not follow the procedure in the MEA.
[11] The appellant alleges in his factum that he obtained a package of information regarding Ms. Bussin’s campaign expenses from the city clerk’s office that was incomplete. He claims that it was only in late 2007 he learned that the clerk’s office had erred by providing him with an incomplete package that did not contain important information. Counsel for Ms. Bussin responded in his factum that while it was not disputed that the appellant came into possession of certain information in the fall of 2007 it was not agreed that it was only in the fall of 2007 that the appellant discovered that he had been provided with incomplete material by the city clerk.
[12] One of the problems faced by this court and the court below is that the record is incomplete. Neither the appellant nor Ms. Bussin filed any affidavit evidence.
[13] The appellant claims that he sought to apply for a compliance audit but was out of time. There is a letter in the appeal book from the city clerk dated December 18, 2007, which states:
As of December 18, 2007, the Compliance Audit Committee received five requests for compliance audits. None of the applications related to Councillor Bussin.
[14] In any event, the appellant attended before a justice of the peace on December 6, 2007, and, pursuant to s. 23 of the Provincial Offences Act, R.S.O. 1990, c. P. 33, swore a private information against Ms. Bussin. The information contained five counts alleging breaches of the MEA by Ms. Bussin.
[15] A summons was issued by a justice of the peace on December 13, 2007, requiring Ms. Bussin to appear before the Ontario Court of Justice on January 15, 2008, to answer the charges. Counsel for Ms. Bussin brought an application in the Superior Court on January 8, 2008, to quash the summons. On January 15, 2008, in the Ontario Court of Justice, the charges were adjourned to March 25, 2008, to set a date for trial.
[16] The application to quash the summons was heard by the application judge on February 4, 2008.
THE REASONS FOR JUDGMENT OF THE APPLICATION JUDGE
[17] The application judge’s decision can be summarized from the following paragraph of his reasons:
The provisions of the MEA relating to the CAC [Compliance Audit Committee] are mandatory for an elector who, like the respondent, believes an offence has been committed against the campaign financing provisions of the Act by an elected official. The MEA limits the rights of “electors” to commence such a prosecution at common law and under the Provincial Offences Act, R.S.O. 1990, c.P. 33, as amended (“POA”) to the filing of an application for a compliance audit which may lead to a prosecution by the CAC alleging a violation of the campaign financing provisions of the Act by a candidate or an elected official. The failure of the respondent to comply with the CAC provisions deprived the learned Justice of the Peace of jurisdiction to issue the impugned summons.
[18] In reaching his decision, the application judge relied on this court’s decision in Audziss v. Santa (2003), 2003 35121 (ON CA), 223 D.L.R. (4th) 257. In that case, Mr. Audziss, an elector in Thunder Bay, applied to the city council for a compliance audit concerning the election campaign expenses of Orville Santa, an elected councillor. The city council rejected the application. Mr. Audziss then brought an application in the Superior Court of Justice seeking relief (including a declaration that Santa’s election be declared null and void) under the MEA and the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50. Mr. Santa brought an application for a stay of the proceedings on the ground that the city clerk and the municipal council had exclusive authority to determine whether a candidate is in violation of the campaign expenditure provisions of the MEA. The stay was granted.
[19] Several weeks later, Mr. Audziss swore a private information before a justice of the peace alleging breaches of the MEA by Mr. Santa. The justice of the peace issued a summons to Mr. Santa under the Provincial Offences Act. Mr. Santa then brought an application to quash the summons, which was granted.
[20] The appeal from the order granting the stay of the proceedings in the Superior Court and the appeal from the order quashing the summons were heard together.
[21] In dismissing the appeal in respect of the quashing of the summons, Charron J.A., writing for the court, said at paras. 27, 28 and 29:
The general right of a private person to lay an information in respect of an offence created by a provincial statute is found in s. 23(1) of the POA reproduced earlier. The MEA is a provincial statute and it creates a number of offences. There is no express restriction or limitation in the MEA on an individual’s right to lay an information in respect of any offences contained in that statute. The question that arises is whether it is implicit that the Legislature intended to reserve that right to the council or local board of a municipality in respect of election campaign finances when it enacted s. 81(10). As set out above, that section authorizes the council or local board, following the conduct of a compliance audit, to “commence a legal proceeding against the candidate for any apparent contravention of a provision of this Act relating to election campaign finances”.
I certainly agree with the applications judge’s comment that the statute is far from clear on whether an elector, or only council, can lay an information in respect of an alleged contravention of the MEA with respect to election campaign finances. Nonetheless, when the provisions relating to election campaign finances are considered in their entirety, it is my view that the conclusion reached by the applications judge is the only one that can provide coherence to the legislative scheme. Having regard to: a candidate’s obligations under the MEA in relation to election campaign finances; the automatic sanctions that apply upon the clerk serving notice of default; the elector’s right to apply for a compliance audit to ensure compliance with these provisions; the council’s obligation to consider that application and its power to appoint an auditor; the council’s obligation to consider any report resulting from a compliance audit and its power to commence a legal proceeding against the candidate for any apparent contravention of a provision relating to election campaign finances; and finally an elector’s right to seek judicial review in respect of the council’s decision; it is my view that the Legislature did not intend that an elector could simply bypass the whole process and lay a private information. This interpretation is also one which, in my view, achieves a proper balance between an elector’s right to challenge an elected official in regard to his or her statutory obligations and the need to limit, and to ensure the legitimacy of, attacks on elected officials.
Hence, I would conclude that an elector’s general right to lay an information in respect of provincial offences has effectively been superseded by the legislative scheme contained in the MEA in relation to election campaign finances.
[22] The application judge concluded that although the above statements of Charron J.A. related to an elector who had unsuccessfully applied for a compliance audit, they applied equally to an elector in the position of Mr. St. Germain who had not made such an application.
THE APPEAL
[23] The appellant filed his notice of appeal on March 7, 2008.
[24] The appeal was scheduled to be argued in this court on September 12, 2008. Counsel for the appellant filed a factum on May 22, 2008 in which he advanced the following grounds of appeal:
(i) The application judge erred in determining that the appellant was left without remedy because the circum-stances in this case did not fit with the time limitations of the MEA.
(ii) The application judge erred in finding that the principles in Audziss were principles of general appli-cation relevant to this case.
(iii) The application judge erred in finding that the justice of the peace did not have jurisdiction to issue the summons.
[25] A week before the argument of this appeal, counsel for Ms. Bussin filed his factum in which he stated the following in paragraphs 8, 9 and 10:
On March 25, 2008, the Respondent appeared, through her agent, at 9:00 a.m., in Courtroom C, Old City Hall Courthouse, Toronto. This was the return date of the information and summons that had been sworn by the appellant on December 6, 2007 and issued by a Justice of the Peace on December 13, 2007, respectively.
On March 25, 2008, the Respondent was arraigned on all of the charges and entered a plea of not guilty. All charges against her were dismissed.
To the knowledge and belief of the Respondent, no appeal has been taken from the dismissal of the infor-mation.
[26] Counsel for the appellant was unaware that the charges against Ms. Bussin had been dismissed on March 25, 2008.
[27] Counsel for Ms. Bussin further submitted that this appeal should be quashed as moot. In support of his submission that the appeal should be quashed, he argued inter alia that hearing the appeal would diminish the adversarial process.
[28] At the conclusion of the oral argument, we reserved our decision. However, we requested that counsel provide us with a transcript of the March 25, 2008 proceedings in the Ontario Court of Justice.
[29] A review of the transcript of March 25, 2008, reveals that the attendance on that day was for the purpose of setting a date for trial. When the case was called before the justice of the peace, counsel for Ms. Bussin was present. However, neither Mr. St. Germain nor his counsel was present.
[30] When the provincial prosecutor called the Bussin case from the court list, Ms. Bussin’s counsel addressed the court as follows:
MR. PAAS: If I could speak to that, Your Worship. This is numbers 10 to 14 on page one. I represent Ms. Bussin, who is the defendant. It’s a private complaint. I don’t see anyone here. I would recognize the complainant. Obviously, my friend has called. If there is no one here and it is a private complaint, I’d move to have the Informations [sic] quashed for lack – for want of prosecution.
The justice of the peace then invited the provincial prosecutor, Mr. Knipe, to address the court. He responded as follows:
MR. KNIPE: Well, I’m going to appear, Your Worship, I guess as – to assist the Court as a friend of the Court. This is not a matter that really our office would have any jurisdiction over. It’s – as I understand it, counsel has advised the Court that it’s a private prosecution brought by a citizen. The citizen is not here.
Now, I understand that there was apparently some problem with process, presumably with the summons. And I also understand that there may be some further steps being taken, and all of this – I really don’t know, but this is what I understand. So, given – I’m not sure really what to – I have no comment one way or the other.
[31] A discussion followed as to what should be done. The justice of the peace suggested that since Mr. St. Germain was not present, the court should simply declare the prosecution as abandoned. Counsel for Ms. Bussin submitted the charges should be dismissed. The justice of the peace, at first, accepted the submission and then decided he wished to consider whether the charges should be abandoned or dismissed. After a short recess, the justice of the peace instructed the clerk of the court to arraign the defendant. Not guilty pleas by Ms. Bussin followed. The justice of the peace then concluded:
Given that the complainant, who is also acting as a prosecutor in this case, is not in attendance, therefore, the Court – and the complainant who is acting as prosecutor has chosen not to participate, so, all these charges against Sandra Bussin will be dismissed for lack of prosecution.
[32] At no time did Mr. Paas advise the court that there were proceedings in the Superior Court concerning this matter and that there was an appeal pending in the Court of Appeal. He did not advise counsel for the appellant that he intended to ask for the charges to be dismissed if Mr. St. Germain did not appear by agent or in person on March 25, 2008 and he did not try to contact him on March 25. Also, Mr. Paas did not advise counsel for the appellant, the appellant or this court that the charges had been dismissed on March 25, 2008, until he served his factum which was filed in this court on September 3, 2008 – one week before the argument of this appeal.
[33] While it would appear from the general comments made by Mr. Knipe, the provincial prosecutor, that he was aware there was “some problem … with the summons” and “that there may be some further steps being taken”, such information was obviously of little assistance to the court. The fact is Mr. Paas said nothing to the justice of the peace concerning the proceedings in the Superior Court and the Court of Appeal.
[34] In written submissions received from Mr. Paas subsequent to the oral argument, he explained his conduct on the basis that there was a duty on the respondent, “the prosecutor”, to attend court on March 25, 2008, and that there was no duty on Mr. Paas to communicate with the respondent or his counsel. According to Mr. Paas, any communication that assisted the appellant would conflict with his duty to his client to represent her in a resolute and partisan fashion. While Mr. Paas stated that he could not mislead the court, he advised that any duty to inform the justice of the peace of proceedings in the Court of Appeal was superseded by his duty to his client. He relied on Rule 4 of the Rules of Professional Conduct and the commentary that provides in part:
[A] lawyer’s duty is to protect the client as far as possible from being convicted … Accordingly,…a lawyer may properly rely on any evidence or defences including so-called technicalities not known to be false or fraudulent.
[35] In respect of his failure to advise the court and the appellant of the dismissal of the charges until the filing of his factum in the Court of Appeal, respondent’s counsel advised:
It is submitted that failing to disclose the dismissal of the charges was an appropriate strategic or tactical decision made by counsel for the Respondent and consistent with the adversarial nature of the proceedings.
Since a potential for the appeal of the decision of the Justice of the Peace existed, it was thought by counsel for the Respondent that a tactical advantage would be gained the longer the matter was not reviewed by the Appellant. In light of the quasi-criminal nature of the proceedings and the fact that the Appellant was represented by counsel, it is submitted that there was no duty to advise the Appellant prior to the filing of the Respondent’s factum and that it would have been contrary to counsel’s duty to the Respondent to defend her best interests.
As to the duty to the court, counsel for the Respondent reviewed previous decisions where mootness was an issue on appeal. It was determined that while the mootness question was sometimes dealt with as a separate, prior motion, the more normal course was to deal with a mootness challenge on the date set for the hearing of the appeal proper. Counsel for the respondent felt that in those circumstances no over-riding duty to the court existed to raise the issue prior to the filing of the Respondent’s factum.
[36] Not surprisingly, counsel for the appellant takes the opposite view of respondent counsel’s conduct and alleges that he breached his professional obligations as provided for in the Rules of Professional Conduct.
[37] It is not this court’s responsibility to determine whether there has been a breach of the Rules of Professional Conduct. Such allegations should be dealt with by the Law Society. The relevance of the conduct in question here is the effect it has on the question of whether the appeal is moot. I now turn to that question.
[38] It would appear that this case may now be moot as a result of the charges’ having been dismissed unless counsel for Mr. St. Germain has taken steps to restore the case to the list. Since we have not heard otherwise, I assume that he has not.
[39] If the appeal is moot, it is moot because of the action taken by counsel for Ms. Bussin. The court should not decline to hear this case in these circumstances. This is particularly so where counsel for the respondent adopted a deliberate strategy to render the appeal moot. In the unusual situation that presently exists I would therefore exercise our discretion to deal with this case.
[40] Turning to the merits, I would dismiss the appeal for two reasons.
[41] First, I do not believe that the record before the court is sufficiently complete to permit an assessment of whether Mr. St. Germain was in a position to have made an application for a compliance audit within the 90-day prescription period. We do not know what information he received from the city clerk’s office. We do not know the nature of the alleged incomplete information. We do not know any details concerning the appellant’s efforts to apply for a compliance audit.
[42] Second, I agree with the analysis of the application judge and his adoption of this court’s judgment in Audziss. I do not believe that the reasons for judgment of Charron J.A. can be, or should be, read as narrowly as counsel for the appellant submits. In my view, Mr. St. Germain was obligated, as was Mr. Audziss, to follow the procedure prescribed in the MEA for an elector to pursue a complaint in respect of a candidate’s election campaign expenses. Again, the record is not sufficient to assist in that regard. On the record before us, it was not open to the appellant to proceed by way of private information.
[43] In the result, as indicated above, I would dismiss the appeal.
RELEASED: March 30, 2009 (“RPA”)
“Robert P. Armstrong J.A.”
“I agree, Susan E. Lang J.A.”
“I agree G.J. Epstein J.A.”