Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen in Right of Ontario (Prosecutor and Respondent) (The Ontario Ministry of the Attorney General)
— AND —
Melissa McLellan (Defendant and Applicant)
Decision Regarding s. 11(b) and s. 7 Charter Applications
Before: Justice of the Peace L.M. Scully
Heard on: April 23, July 15 and July 16, 2014
Reasons for Judgment Released: January 28, 2015
Counsel:
- Ms. Hazel Jones — Crown counsel for the prosecution
- Mr. Robert K. Stephenson — Defence counsel for the defendant Melissa McLellan
JUSTICE OF THE PEACE L.M. SCULLY:
Introduction
1The defendant, Melissa McLellan, has been charged with nine counts of wilfully collecting and using personal health information without authority in contravention of the Personal Health Information Protection Act, 2004 (hereinafter referred to as PHIPPA), section 72(1)(a). The defendant brought Canadian Charter of Rights and Freedoms (hereinafter referred to as the Charter) applications pursuant to section 11(b) for unreasonable delay and pursuant to section 7 for abuse of process and selective prosecution.
2I will first give my decision in relation to the section 11(b) application. I must analyze the application in accordance with the factors and analysis as set out in the Supreme Court of Canada decision of R. v. Morin, [1992] S.C.J. No. 25 (S.C.C.) and the many subsequent cases which have used that same analysis.
Section 11(b) Analysis
Length of Delay
3First of all, I must look at the overall length of delay. In this case the Information was sworn on September 20, 2011 and I'm giving my decision on these Charter applications on today's date of January 28, 2015. That is an overall time period of three years, four months and eight days. As this time period is well over the 8 to 10 month acceptable delay guidelines as set out in Morin it does warrant a further inquiry.
Waiver of Time Periods
4Next I must look at waiver of any time periods by the defence. Waiver must be clear and unequivocal. The only waiver of time by the defence in this case was from January 20, 2014 to February 19, 2014… a period of four weeks. The defence and Crown agreed that this time was neutral as the parties were attempting to resolve the matter and the Charter applications were therefore adjourned. There were no other waivers of time periods in this case.
Reasons for the Delay
Inherent Time Requirements/Intake Period
5I must now analyze the reasons for the delay under five subheadings, the first being inherent time requirements of the case. Inherent time requirements of the case are considered neutral in the section 11(b) analysis. Inherent time requirements of the case have been categorized as items that are common to almost all cases or would be a necessary part of preparing a case for trial and consist of activities such as the retention of counsel, bail hearings, police and administration paperwork, disclosure, pre-trials, etc. Justice Sopinka in the Morin case at paragraph 42 says: "As the number and complexity of these activities increase, so does the amount of delay that is reasonable. Equally, the fewer the activities which are necessary and the simpler the form each activity takes, the shorter should be the delay."
6The defence categorizes a time period of 4.6 months as a normal intake period or inherent time requirements of the case. The defence characterizes the rest of the delay in this case as being delay caused by what they categorized as an ongoing pattern of late or incomplete disclosure and the change in tactics from using the Mogg report to getting a new report created by Detective Sgt. O'Connor.
7The Crown position is that 70.5 weeks (which is one year and just over 5 ½ months) is the appropriate time to categorize as inherent time requirements for this case.
8Based upon my analysis I have come to the conclusion that the appropriate time to categorize as inherent time requirements or intake period of this case is from the date the information was sworn which is September 20, 2011 to June 15, 2012 which is the date on which the 5 day trial for December 2012 was set. Therefore the time that I have characterized as inherent time requirements of this case is 8 months and 26 days. I base this decision on the fact that this was a fairly complex case in certain respects. There was voluminous disclosure, numerous witnesses were likely to be called at trial (approximately 14), three pre-trials (one of which was severely shortened as the Justice of the Peace was not originally available at the specified time) and five days of trial time was initially set for this case and there were numerous ongoing resolution discussions. This is therefore not your run-of-the-mill Provincial Offences Act matter which can be completed with a trial time of one or two hours and minimal intake requirements and no necessity for pre-trials.
9The decision of R. v. Tran, 2012 ONCA 18 , [2012] O.J. No. 83 (Ont. C.A.) at paragraph 34 makes it clear that pre-trials are an important and necessary part of preparation for trial and that the time required for pre-trials, and a reasonable period of time to schedule the pre-trials, should be treated as part of the inherent time requirements of a case.
Actions of the Crown
10Next I must analyze actions of the Crown. Delay which falls under this heading is not neutral but falls at the feet of the Crown.
11In the Morin decision at paragraph 46 Justice Sopinka says: "As with the conduct of the accused, this factor does not serve to assign blame. This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc."
12I consider that the time period from June 15, 2012 (which is the date the December 2012 trial dates were set) to October 25, 2013 (which is the date the defence sought an adjournment to file their motion materials in relation to their Charter applications) as falling under actions of the Crown. This time period is 16 months and 10 days. I characterize this entire time as being delay attributable to the Crown as a result of the fact that the extensive, late disclosure provided to the defence in November 2013 relating to Mr. Mogg's computer methodology set in motion a chain of events which led to delay during this time. On Nov. 9, 2012 extensive additional disclosure was provided to the defense by the Crown. Some of this disclosure was very important in that it related to more specific details about the methodology used by Mr. Mogg in preparing his audit report, information about the databases and programs used and an indication that Mr. Mogg had kept these databases. (Mr. Mogg was at the time, a hospital employee in the computer department who took various databases and put them into a computer program to analyze them in order to determine if Ms. McLellan, a nurse at the hospital, had breached privacy legislation. Mr. Mogg's analysis and report was the heart of the Crown's case and lead to charges being laid against Ms. McLellan).
13When the defence brought the motion to adjourn the December trial dates as a result of this extensive, important, late disclosure I agreed and granted the adjournment. In my decision at that time I indicated that while some of the disclosure was not that important or was simply another version of the same thing there was extensive, important disclosure that related to the computer methodology used by Mr. Mogg which was provided. This disclosure was very technical in nature and I could see why it would require a computer expert to sort through it.
14I am using the start date of June 15, 2012 (when the trial dates for December 2012 were set) as the starting of this time frame. This is because that time between June 15, 2012 and the trial dates in December which was December 3 to the 12th …essentially became lost time as a result of the late disclosure provided in November 2012. This disclosure being provided so late resulted in the defence requiring time to hire a computer expert to analyze the computer information provided and it resulted in the defence having to bring an application for third-party records from the hospital to obtain further disclosure that their computer expert felt was necessary to properly analyze Mr. Mogg's methodology.
15The Crown initially indicated that the material sought by the defence on the third-party records application was not relevant and also was not in their possession. However the investigating officer, Detective Sgt. O'Connor, subsequently sought and obtained a search warrant (on the day before the application for third-party records was to be argued in court) in order to obtain some of the information the defence was seeking in their application for third-party records. The reason the Crown gave for this somewhat bizarre turn of events is that they were trying to protect the privacy of the patients whose information would have been disclosed to the defence if the application for third-party records had proceeded and been granted. Given the extensive disclosure already provided of thousands of patient records; some of which had the names redacted but some of which did not; that reasoning seems to ring somewhat hollow. The defence was not seeking patient names so the information could have been provided in a redacted format and ultimately was provided in that fashion after my decision. Also the fact that a search warrant was sought and obtained would seem to be contrary to the Crowns' position that this material was not relevant. If this material was not relevant then the police should not have been able to obtain it via a search warrant. The police officer must have satisfied the issuing Justice of the Peace of the relevance of this material in order to get a search warrant. The investigating officer did obtain some of the material the defence was seeking via the search warrant however they asked for it in paper format only not in electronic format as the defence was requesting. The Crown's position that the material was not in their possession was also an interesting one. Although perhaps technically correct in that these were documents in the possession of the North Bay Regional Health Centre, in light of the previous extensive disclosure which was obtained from the hospital by the investigating officer both with and without search warrants it does seems to be a curious position for the Crown to take.
16During the application for third-party records, which was argued on June 11, 2013, the Crown indicated that they were no longer relying upon the Mogg report nor calling Mr. Mogg as a witness during the trial. The Crown said the investigating officer, Detective Sgt. O'Connor, would conduct her own independent search of the hospital documents or databases and prepare her own report which would be provided to the defence. The Crown said that the investigating officer would not be relying on any of Mr. Mogg's materials in order to prepare her report. I heard arguments and then adjourned the matter to July 5, 2013 to allow for further submissions if required as a result of the obtaining of Detective Sgt. O'Connor's report which had not yet been prepared. The application was also adjourned so I could make my decision on the issue of whether notice had to be provided to thousands of individuals whose privacy interests in the records requested in the application would have to be given and for my decision that day if possible on whether to order the hospital to produce certain records to the Court.
17While the Crown certainly has the prerogative to change their tactics for trial and to change which witnesses they will be calling this did create a situation where there was some further delay (at least part of the reason for some further delay) of the third-party records application and it created further ongoing disclosure.
18The Crown also attempted to argue that the materials sought by the defence on the third-party records application should not be provided because Mr. Mogg was no longer being called as a witness by the Crown. It is very clear from the case law that the question of whether Mr. Mogg would or wouldn't be called as a witness was not a relevant consideration for such a decision respecting third-party records. I ultimately ordered the hospital to disclose the computer databases prepared by Mr. Mogg that the defence was requesting however not for the extensive time period they requested but only for the time periods relating to the offences themselves, which was a 9 day period It also turned out that the investigating officer did have to rely on one of the databases created by Mr. Mogg in order to prepare her report.
19After reviewing the material I then ordered the hospital to release those records to the defendant by October 9, 2013 but I requested that patient names and other identifying information with the exception of "J number" (which is the hospital patient identifying number) be redacted.
20The Crown conceded during their submissions on this section 11(b) application that there were many hiccups along the way regarding the investigation and the disclosure provided in this case. The Crown said the situation was not ideal and this was the first prosecution of its' kind resulting in a steep learning curve by everyone involved. It also appears to me and was conceded by the Crown that because the initial investigation was done by what I would characterize as "lay" witnesses (that is hospital employees that do not normally investigate offences nor appear in court as witnesses) those employees did not realize the importance of certain information or the importance of providing all information that led to their conclusions to the police. Nor does it appear that the officer was aware of some of this information and was not knowledgeable on the computer methodology used and therefore did not think to ask for certain disclosure from Mr. Mogg. The Crown argues that the defence could have asked for this computer information however if the Crown and the investigating officer don't even know this information exists or the importance of it…how is the defense supposed to know? The Crown says that there was no malicious, abusive or improper motives on behalf of the police or the Crown in the decisions that it made in this case. However in my analysis of section 11(b); as indicated in the Morin decision and many other cases; I am not seeking to assign blame towards the Crown in a moral or judgmental sense and it is not necessary to impute improver motives to the Crown in order to find delay caused by the Crown. The Crown must take the case that they have…good, bad, difficult or otherwise, and if that case or situation or decisions made by the Crown, police or Crown witnesses leads to delay then that delay certainly should not be attributable to the defence nor should all of it in certain circumstances; such as I've outlined in this case; be attributed to inherent time requirements of the case.
21The Crown argues that this time period which I have attributed as being Crown delay is a combination of inherent time requirements of the case and defence delay. They rely in part on the decision of R. v. Schertzer, 2009 ONCA 742 , [2009] O.J. No. 4425 (Ont. C.A.) to support their position. I find that the Schertzer case is distinguishable on the facts. First of all the trial Judge's decision to stay the charges for delay was overturned in part because the trial Judge did not allocate certain large periods of time to any specific category of delay. Second the Ontario Court of Appeal attributed a much larger time period to inherent time requirements of the case than the trial Judge did due to numerous complex issues which are not present in this case such as conflicts issues, issues relating to vetting of disclosure due to confidential informants, undertakings related to disclosure, the requirement to obtain an "electronic courtroom", the withdrawal of one counsel, the number of defendants, difficulty in co-ordinating schedules of numerous counsel, certiorari applications to quash committal for trial decision, etc. I have already allocated quite a lengthy period of time to inherent time requirements of this case for the reasons indicated above.
22In the Schertzer decision the court also found that the trial Judge had made the mistake of equating the amount of disclosure with the importance of it. With all due respect I do not believe I have made such a mistake in this case. I have indicated why the late disclosure relating to Mr. Mogg's methodology was so important and the subsequent impact the late disclosure of it had on these proceedings. I certainly do not find that the Schertzer decision stands for the proposition that delay caused by late disclosure can never be attributed to the Crown. The impact, causes and importance of late disclosure will have to be analyzed on a case by case basis and the categorization of it will be largely fact driven.
23A decision which is factually relevant to this analysis is that of R. v. Carmichael-Graham, [2013] O.J. No. 2918. In this decision, Justice Buttazzoni says at paragraph 40:" There was clearly nothing inappropriate about the Crown interviewing their witnesses and disclosing the new information to the defence. Regrettably the timing of the interview and the subsequent late disclosure resulted in a delay of the trial. This delay is to be attributed to the Crown." Also at paragraph 42 he says: " I am not blaming the Crown for having conducted an interview of its witnesses late in the day. The fact remains that when the Crown chooses to do so it takes the risk of delaying the trial if new information is disclosed by the witness. I appreciate that the Crown has no control over changes that a witness might make to their previous statement. It does, however, have some control over the timing of the witness interview process. Optimally, these interviews should be conducted well enough in advance of the trial to allow the defence time to respond to any new disclosure." In this case the delay was caused by the timing of the Crown and police interviewing the witnesses to prepare for trial, the fact that the police and Crown were not fully understanding the methodology that Mr. Mogg used and the fact that Mr. Mogg did not disclosure certain information to them until later interviews (most likely inadvertently due to not understanding the importance of that information or the legal requirement to disclose it). In this particular case I find that all of these factors contributed to Crown delay which at a certain point went over and above the inherent time requirements of this case.
Actions of the Defence
24Actions of the defence which are voluntarily undertaken such as attacks on wiretaps, Charter applications, etc. cause delay which is attributable to the defendant. This category also does not seek to assign blame nor suggest that the defence should not undertake these applications, but seeks to put the delay in the correct category and at the feet of the correct party. Such actions of the defence do not contribute to delay which triggers s. 11(b). It is only institutional delay and Crown delay which triggers s. 11(b).
25The time taken for these Charter applications, which is attributable to the defence, is from October 25, 2013 (the date the defence sought an adjournment to file these Charter applications) to the date when I was originally supposed to render my decision on these Charter applications which was September 26, 2014. This is a total time period of 11 months less one day. I find that there are no other actions of the defence which should be attributed to this category.
26Normally an application for third-party records would be delay which would be attributable to the inherent time requirements of the case as per the decision of R. v. N.N.M., [2006] O.J. No. 1802 (or possibly in some cases attributable to the defence if it was unreasonably brought) however in this case I find that the whole time frame from when the 5 day trial was adjourned to when the defence sought an adjournment to file these Charter applications as delay attributable to the Crown for the reasons indicated above under the category "actions of the Crown."
27The cases of R. v. N.N.M. and R. v. Kovacs-Tator, [2004] O.J. No. 4756 (Ont. C.A.) make it clear that the defence cannot delay the setting of trial dates and any and all other steps in a proceeding in order to have every last piece of disclosure prior to the setting of such dates. However these cases also make clear that the nature of the outstanding disclosure and other factual issues will become important in the analysis. I have done that analysis in the category of "actions of the Crown."
28While I would agree with the Crown that the defence certainly did not attempt to speed this case along I cannot find that the actions of the defence would allow me to reduce the time allocated to actions of the Crown in light of what was happening at that relevant time.
Limits on Institutional Resources
29The next category that I must look at is limits on institutional resources. I find that there is no time in this case that I would allocate to this category of delay. I find that there was nothing excessive that occurred here with respect to reasonably accommodating the schedules of Crown counsel, defence counsel, the Court and myself. In the case of R. v. Godin 2009 SCC 26 , [2009] 2 S.C.R. 3 (S.C.C.), Justice Cromwell at paragraph 23 states; " Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. "
Other Reasons for Delay
30The only other reason I find for delay in this case is that I was unable to give my decision on the section 11(b) and section 7 Charter applications on September 26, 2014 as a result of my sudden illness and unexpected surgery. This resulted in the delay from September 26, 2014 to today's date when I am rendering this decision which is January 28, 2015. This entire time period however is not attributable solely to my availability as I had dates available as early as the end of November 2014 to give this decision. It is also due to reasonably accommodating the schedules of both defence counsel and Crown counsel (who I would note are both from out of town) and trying to align those schedules with my schedule and the court schedule. Again I find nothing unreasonable in this time frame and therefore I classify it as neutral and in any event I have no specific information as to what dates everyone was or was not available.
Summary of Delay Attribution
31Rather than subtracting all of the neutral time periods or defence attributable time periods from the overall delay I will take the easier mathematical approach in this case of looking at Crown delay and institutional delay only. The only delay in this case that falls under one of those categories is actions of the Crown and this is a period of 16 months and 10 days. Therefore I must analyze this time period with reference to the case law, prejudice and balancing of interests.
32The guidelines for constitutionally tolerable delay (Crown and/or institutional delay) in Provincial Offences matters is 8 to 10 months as indicated in the Ontario Court of Appeal decision in R. v. Omarzadah [2004] O.J. No. 2212 (Ont. C.A.), a decision of Justice Doherty. Justice Doherty determined that the Morin guidelines of 8 to 10 months do apply to Provincial Offense cases, although not strictly, it is still a guideline. The delay that I have attributed to the Crown of 16 months and 10 days is beyond the constitutionally tolerable guidelines of 8 to 10 months. That however does not end my inquiry as 10 months is a guideline only.
Prejudice
33I must now look at the issue of prejudice. I must consider prejudice to the defendant as a result of the delay. Prejudice cannot be considered separately from the length of delay. First I have to look at whether there is actual prejudice which can arise in three different ways. The first type of actual prejudice is prejudice to the liberty interests of the defendant that arise from pre-trial incarceration or restrictive bail conditions. This is a type of prejudice which rarely arises in Provincial Offences matters but does arise in many criminal cases. In this particular case the defendant is not and has never been incarcerated in relation to these offences nor is she on any form of bail so this type of prejudice would not apply to this case.
34The second type of actual prejudice that may result is prejudice to the accused's security interests as a result of ongoing stress or damage to reputation as a result of overlong exposure to criminal prosecution or in this case to a Provincial Offences prosecution. I have reviewed the affidavit of the defendant Melissa McLellan which was filed in relation to these Charter applications. While much of the prejudice that Ms. McLellan refers to would have resulted and did result simply from the fact of being charged and accused (i.e. loss of her job at the hospital; reporting of this matter to the College of Nurses and a subsequent hearing in front of that College; the publicity initially surrounding this case in the City of North Bay, etc.)… I do find however that the delay in this case has caused some actual prejudice to the defendant. Ms. McLellan has indicated ongoing stress which appears to me to go over and above the consequences of being charged and the possible consequences of a conviction but relates also to the delays in this case. Ms. McLellan has been hopeful to get this matter resolved and put behind her one way or another and try to put her career back in order however the delays have resulted in psychological stress from constantly thinking the matter will come to an end and then it does not. If Ms. McLellan were eventually convicted of any of these charges that could certainly have detrimental effects on her future nursing career and any decision made by the College of Nurses so delay if there were to be a conviction could in some senses operate in her favor however if there is an acquittal then the delay has not been operating in her favor. There is still the psychological stress of expecting something to be completed and having it hanging over your head and it not being completed.
35The third category of actual prejudice that I must consider is prejudice to the accused's ability to make full answer and defense; for example for the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defense. I have no evidence before me that there is such prejudice to the defendant's ability to make full answer and defence.
36Next I must consider inferred prejudice. Even in the absence of specific evidence of prejudice, prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn. In the case of R. v. Williamson 2014 ONCA 598, the court found that there was inferred prejudice where the combined Crown and institutional delay exceeded the Morin guidelines by 8 months. In this particular case I find that the length of the delay which is 16 months and 10 days and which is six months and 10 days over the top end of the Morin guidelines of 8 to 10 months is a lengthy enough delay to allow for inferred prejudice even in a Provincial Offences Act case. Therefore I find that actual prejudice and inferred prejudice are factors in this case and this does not assist in finding that the 16 months and 10 days of Crown delay are constitutionally tolerable.
Balancing of Interests
37Next I must balance the competing interests. This is the final stage of the analysis where I must balance the individual and state interests that section 11(b) of the Charter is designed to protect, against the factual background of these previously stated factors such as reasons for the delay, prejudice, etc.
38Justice Sopinka at paragraph 31 of the Morin decision states: "The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause the delay."
39The defendant has an interest in a timely trial and s. 11(b) gives the defendant a constitutional right to such and the community has an interest in seeing charges proceeding to trial and prosecuted on their merits. However their interests are not always so divergent as may initially appear. In the Morin decision Justice McLachlin (as she then was) noted in her concurring decision at paragraph 86: "When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice."
40The charges in this case are serious in that they involve alleged breaches of private medical records. Such records are among the most private and personal of information about a person. The public would be understandably concerned if a trusted medical professional looked at such medical records when not authorized to do so. However I cannot say that these charges would be any more serious than many criminal charges and it is certainly arguable that they are less serious than criminal offences involving violence or even provincial offences involving death or serious injury such as some Highway Traffic Act charges or some Occupational Health and Safety Act charges. Such more serious charges have been stayed for less delay than I have found in this case. For example in the case of R. v. MacMillan (1991), 3 O.R. (3d) 588 (Ont. C.A.) a criminal charge of Dangerous Driving Causing Death was stayed by the court for institutional delay of 8 and a half months. However the case law also makes clear that the determination of whether s. 11(b) has been violated is very fact specific. I am aware of cases that range from a low end of 6 months delay where a stay was granted (in a provincial offence case) to 56 months delay where a stay was not granted (in a criminal case).
41The Crown argues that these charges are very serious as allegedly the defendant has illegally viewed the sensitive medical records of thousands of hospital patients. I do not agree that I must consider allegations relating to "thousands" of patients as increasing the seriousness of this case. The charges before me relate only to a 9 day time period and involve approximately 45 different patients. Those are the only matters that I can consider in my decision. I cannot consider allegations which are not before this court.
42In this case I conclude that the reasons for the delay (as outlined in the category of "actions of the Crown" above); the amount of Crown delay (16 months and 10 days); the amount of delay over and above the Morin guidelines (6 months and 10 days over the top end of the guideline), and the actual and inferred prejudice result in a violation of s. 11(b). I conclude that the charges against the defendant are not so serious as to warrant extending the Morin guidelines to such an extent. Once I make a finding that section 11(b) has been violated the only remedy is a stay as per the decisions of R. v. Rahey, [1987] 1 S.C.R. 588 and R. v. Thomson, 2009 ONCA 771 (Ont. C.A.). Therefore a stay is entered with respect to the charges before this court pursuant to section 11(b) and section 24(1) of the Charter.
Section 7 Analysis (Abuse of Process)
43The defendant alleges a violation of section 7 of the Charter for abuse of process based on three grounds: 1. A pattern of late disclosure; 2. The Crown abandoned evidence that it initially relied upon to charge the defendant (the Mogg report) and 3. selective prosecution.
44Section 7 of the Charter provides as follows: " Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Imprisonment is not available as a penalty for a violation of the sections of PHIPPA that the defendant was charged under pursuant to section 72(2) of PHIPPA and therefore section 7 is not engaged as per the decision of R. v. 1260448 Ontario Inc. (c.o.b. William Cameron Trucking), [2003] O.J. No. 4306 (C.A.) at paragraph 16.
45In the decision of R. v. Polewsky, [2005] O.J. No. 4500 (Ont. C.A.) at paragraph 4 the court made it clear that the remote possibility of imprisonment for non-payment of a fine pursuant to the Provincial Offences Act, R.S.O. 1990, c. P-33 did not engage the liberty interest in section 7.
46Moreover the Ontario Court of Appeal in R. v. Miles of Music Ltd., [1989] O.J. No. 391(Ont. C.A.) at paragraph 21 stated that the right to earn a livelihood is not included in the concept of "security of the person" in section 7. Therefore the defendant losing her job as a result of being charged or possibly convicted does not engage s. 7.
47The defence refers me to the case of New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] S.C.J. No. 47 as a precedent for finding that s. 7 does apply in this case. This case did find that s. 7 was applicable however they were dealing with the state removal of a child from parental custody and the serious interference with the psychological integrity of the parent which that causes and I find that decision to be factually distinguishable from Ms. McLellan's case.
48Even though s. 7 of the Charter does not apply in this case I must still consider the concept of "abuse of process" from a common law perspective. In the case of R. v. Jewitt, [1985] 2 S.C.R. 128 at paragraph 25 the Supreme Court of Canada adopted the conclusion of the Ontario Court of Appeal in R. v. Young and stated: " there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process though oppressive or vexatious proceedings."
49The courts have further articulated the high standard for such a finding of abuse of process when they talk about the fact that it must amount to conduct which "shocks the conscience of the community " and a stay will be granted "only in the clearest of cases." (R. v. Power, [1994] 1 S.C.R. 601 at paragraphs 10 and 11).
50In this case while I found that certain decisions or actions of the Crown were unusual or perhaps mistakes and caused delay and that there were difficulties with the prosecution of this case for reasons I've outlined above in my decision regarding section 11(b), I find that there is no evidence that such actions of the Crown were undertaken with any bad faith, improper motive or with mal intent.
51Courts are not allowed to second guess the decisions of prosecutors without conspicuous evidence of bad faith, improper motives or decisions so obviously wrong that shock the conscience of the community. In this case there is speculation but no evidence. It is arguable that the Crown did not have to provide reasons for some of the controversial decisions it made in this case as they were decisions relating to core prosecutorial decisions which are within the discretion of the prosecutor however it did provide reasons and explanations. While I may have found those reasons or tactics curious ones and that they caused delay that does not equate with abuse of process and I find no reason not to accept the Crown at their word with respect to the reasoning behind the decisions they made.
52The defence provided me with the case of R. v. Keyowski (1988), 1 S.C.R. 657 which states that a proceeding can be oppressive without requiring an improper motive or misconduct. The court in that case made it clear that they were dealing with the narrow legal issue of whether requiring the accused to stand trial for a third time after the first two trials resulted in the juries being unable to reach verdicts was an abuse of process. This case is also very distinguishable on its facts from the case at bar and I do not find that the legal principles enunciated have broader application than the narrow issue that the court was expressly dealing with.
53I therefore find that there has been no abuse of process in this case as a result of a pattern of late disclosure nor as a result of the Crown changing their trial tactics and witnesses which is an exercise of prosecutorial discretion.
54With respect to the argument that s. 7 was violated due to the selective prosecution of Ms. McLellan I also find that this argument must fail. I agree with the Crown that a mere allegation that other persons could or should be charged is insufficient to establish prosecutorial conduct amounting to an abuse of process. In the case of R. v. National Wrecking Co. 2005 ONCJ 371, Justice Keast said at paragraph 201: In theory, selective prosecution might constitute a basis for an abuse of process and a stay of proceeding. However, the failure to charge others would have to be outrageous and shock the conscience of the community. Such prosecutorial conduct would have to amount tothe clearest of cases.`` There is no evidence of such outrageous conduct in this case.
55In the case of R. v. Johnston (1996) O.J. No. 2882, Justice Then says the following while addressing the allegation of selective prosecution: … there is no evidence that the prosecutor`s conduct or the conduct of the police, vis-à -vis the applicant, was prompted by bad faith or an improper motive as opposed to the cogency of the evidence with respect to the applicant. In this case there is also no evidence of bad faith or improper motive and it would appear from the information I do have before me that an investigation and charges were pursued against Ms. McLellan due to the volume of alleged breaches referred to during her interview at the hospital and allegedly found during the subsequent audit. There would seem therefore to have a been a good faith basis to pursue the investigation in relation to Ms. McLellan. Therefore I find that there has been no breach of section 7 of the Charter nor has there been a common law abuse of process.
Released: January 28, 2015
Signed: "Justice of the Peace L.M. Scully"